An arbitrator has ruled that Iron Forming Inc. cannot recall a witness or consult with him during ongoing cross-examination in a case concerning the alleged harassment and wrongful termination of a former employee, J.T., by his foreman, A.S.
In an interim decision delivered on Sept. 17, 2024, Arbitrator Patrick Kelly denied the company’s request to speak to its witness, A.S., regarding newly produced Records of Employment (ROEs) before the next stage of the hearing. The union representing J.T. had requested the records during cross-examination, and the arbitrator concluded there was no valid reason to disrupt the normal flow of the cross-examination process.
The grievance, brought forward by the Labourers’ International Union of North America (LIUNA), Local 183, alleges that J.T. faced sexual harassment from his foreman, A.S., and that his layoff was orchestrated as retaliation. While A.S. denied the harassment allegations, it is undisputed that he did initiate the layoff, which was later reversed by upper management.
Background of the grievance
The case revolves around J.T., a member of a five-person steel crew employed by Iron Forming Inc. on a construction project in Toronto. According to the union, A.S. engaged in a pattern of harassment that culminated in J.T.’s layoff. Although management overturned the decision and reinstated J.T., he testified that he injured himself during his first shift back.
On September 13, 2023, J.T. received a text message from M.E., the acting site foreman and A.S.’s supervisor, informing him that management had instructed him to lay J.T. off once again.
As of the September 16, 2024, hearing, the union had completed presenting its evidence, and the company was in the process of presenting its defense. During his testimony, A.S. stated that the project was winding down at the time of J.T.’s layoff and that only three crew members, including himself and his brother, remained. He added that J.T. had worked at a slow pace and was no longer needed on the site.
In cross-examination, A.S. testified that the project had been completed by November 2023, and while he could not recall the exact timing of the crew’s reductions, he estimated that the other members were laid off within weeks of J.T.’s second termination.
Request for production of documents
During cross-examination, union counsel requested that the company produce the ROEs for all steel crew members issued in 2023. The records were intended to clarify the timeline of layoffs, which had become a point of contention during A.S.’s testimony.
The company complied with the request and produced the documents. However, it sought permission from the arbitrator to speak to A.S. about the ROEs before the next stage of the hearing, or alternatively, to recall him for further testimony on the matter.
Union’s objection and arbitrator’s ruling
The union opposed the company’s request, arguing that it could not have foreseen A.S.’s testimony regarding the reduction in crew size and that the ROEs were relevant business records that would clarify the timeline. Union counsel emphasized that the company would still have an opportunity to question A.S. about the ROEs during re-examination after the cross-examination was completed.
Arbitrator Kelly agreed with the union, citing section 48(12) of the Labour Relations Act, 1995, which gives an arbitrator the authority to require the production of relevant documents during a hearing. The arbitrator noted that it is not uncommon for documents to be requested mid-hearing in response to unexpected testimony.
“The ROEs are sought by the union because of the content of (the foreman’s) testimony. They have become arguably relevant, and to its credit the company made no objection to their production,” wrote Kelly. He rejected the company’s argument that it would be unfair not to allow them to recall the witness during cross-examination. “There is no need to disrupt the normal flow of the examination of the witness by reverting to examination-in-chief in the middle of cross-examination.”
Kelly also pointed out that the company would have the opportunity to question A.S. about the ROEs during re-examination, should it choose to do so.
Moving forward
This interim ruling is a procedural one, addressing document production and the sequence of witness testimony. The larger questions of whether J.T. was wrongfully terminated or harassed remain to be decided as the arbitration continues. The next hearing in the case is scheduled for October 17, 2024.
For more information, see Iron Forming Inc. v LIUNA, Local 183, 2024 CanLII 87530 (ON LA).
