HomeMy WebLinkAbout2005-1342.Tafesse.07-01-15 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2005-1342
UNION# OLB326/05
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Tafesse) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION Elizabeth Nurse
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE EMPLOYER Gordon Fitzgerald
Counsel
Liquor Control Board of Ontario
HEARING January 12, 2007.
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Decision
[1] When this discharge grievance came on for hearing on January 12, 2007, the
union asked that the hearing be adjourned. The employer asked that the proceeding be
dismissed. Both requests stemmed from the failure of the grievor to attend. The union
did not take the alternate position that the hearing could or should proceed if an
adjournment was not granted. Accordingly, dismissal was the only alternative to
adjournment, and the request for adjournment had to be assessed in that light.
[2] The grievor’s employment was terminated by letter dated June 10, 2005. The
letter stated that she was being terminated for her absence from work from and after
November 2004, failure to provide information to substantiate her ongoing absence,
failure to cooperate with the employer in assessing her medical condition and ability to
return to work, and failure to respond to correspondence from the employer. She
grieved that the discharge was without just cause.
[3] The hearing of her grievance was scheduled to be heard on October 21, 2005.
Shortly before that date the union sought the employer’s agreement to adjourn the
hearing, as the grievor was out of the country and would not be returning by the
hearing date. The employer consented on terms, agreed to by the union, that it bear no
liability for the period between October 21, 2005 and the date on which the hearing
commenced. The union agreed to those terms, and the hearing was rescheduled to be
heard on March 3, 2006.
[4] In mid February 2006 the union sought the employer’s consent to a further
adjournment of the hearing then scheduled for March 3rd. The employer consented on
two conditions. One was that it continue to bear no liability for the period between
October 21, 2005 and the date on which the hearing eventually commenced. The other
was that by September 1, 2006, the union was to either withdraw the grievance or ask
the Board to reschedule the hearing. The union agreed to those conditions. In his letter
confirming that agreement, employer counsel also confirmed that “in the event the
matter is rescheduled and the grievor is unable to attend the hearing on the next
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scheduled date, the LCBO reserves the right to take any position respecting her non-
attendance, including the position that the grievance ought to be dismissed.”
[5] By letter dated August 31, 2006, union counsel asked that this matter be
rescheduled for hearing. The Board canvassed available dates with counsel, and in late
September 2006 there was agreement on a hearing date of January 12, 2007. The
Board’s notice of hearing confirming that date was sent to counsel in early October
2006.
[6] In the course of her submissions on the adjourn/dismiss question, union counsel
provided some information about her dealings with the grievor, to explain the concern
she and the union had that the grievor might be unaware of the hearing.
[7] Union counsel stated that the second adjournment had been sought in February
2006 following a telephone conversation she had had with the grievor. The grievor had
said she was not able to participate in a hearing at that time due to “personal
problems,” the nature of which she had been unwilling to reveal to union counsel. The
grievor had told union counsel she hoped to have those problems resolved by some time
in June. That was why union counsel had sought to delay a decision about whether to
proceed until the end of August 2006.
[8] Union counsel said that she and the grievor had spoken again near the end of
August 2006. In that telephone conversation the grievor said she wanted to proceed
with her grievance. At that point union counsel’s only means of contacting the grievor
was by calling the grievor’s cellular telephone number. The grievor had earlier told her
that she had no fixed address. Counsel pressed the grievor for a mailing address or
some other contact information, but the grievor resisted. Union counsel told her the
hearing would be rescheduled relatively soon, and they would have to speak again
before the hearing date to prepare for the hearing.
[9] In early October, after the hearing date was settled, union counsel called the
grievor’s cell phone number and left a message on her voice mail asking that she call
concerning the scheduled hearing. When union counsel had not heard from the grievor
by early December, she again called the grievor’s cell phone number. This time she got
an outgoing message that voice mail was not set up on that line. She tried again a week
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or so later, with the same result. She concluded, reasonably, that the grievor had
abandoned or cancelled her cell phone account. She spoke to the union representative
with whom the grievor had been dealing before union counsel was retained. He had not
heard from the grievor. The union had a postal address for the grievor of unknown
reliability or origin. Union counsel sent a letter by ExpressPost to the grievor at that
address, informing her of the date, time and place of the hearing and asking for an
immediate response. Counsel had not heard from the grievor. She was not at the
hearing.
[10] Although she and the union thought the grievor might not be aware of the
hearing, union counsel said the union did not feel it had been obliged to do more than it
and union counsel had done to maintain contact with the grievor, whose failure to
maintain contact with them was, in its view, the cause of the current difficulty. If
granted an adjournment, she said, they would do no more than send another letter to
the same address and wait to see if the grievor called to find out what was happening
with her grievance.
[11] The union knew, and the grievor was no doubt told in August 2006, that once
this further hearing date was set the employer would likely resist any further
adjournment. While the union would consent to a further extension of the limit on
liability that had been agreed upon in connection with the first two adjournments, that
would not eliminate cost or prejudice to the employer. Repeated rescheduling consumes
resources, resources that could be devoted to resolving other disputes. Delay causes
prejudice. Although he made them in somewhat different circumstances, I adopt the
following observations of Arbitrator Craven in Re Toronto (City) and Canadian Union of
Public Employees, Local 79 (1998), 73 L.A.C. (4th) 412 at 416:
Where a party, by its own conduct, has compromised its ability to proceed with the
hearing on the scheduled date, it will not be entitled to an adjournment as a matter
of right. In such a case, the arbitrator nevertheless has the discretion to award an
adjournment, with or without conditions, upon full consideration of all the
circumstances. This discretion arises out of the arbitrator's authority to control the
proceedings. The inconvenience and prejudice to the moving party of continuing with
the hearing must be weighed not only against the inconvenience and prejudice of the
other party in adjourning the hearing, but also against the public policy of expedition
in the resolution of industrial disputes at arbitration.
Obviously, lengthy delay tends to make it more difficult to secure the attendance of
witnesses. Memories become less reliable, and material and documentary evidence
may go astray. Remedies may become less effective. For these and other reasons non-
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trivial delays are almost inevitably prejudicial. Still more importantly, excessive
delay tends to undermine the parties' interest in resolving their disputes efficiently,
economically and expeditiously. It also tends to reduce confidence in the fairness and
efficacy of the grievance arbitration system. In my opinion these considerations
weigh heavily against the exercise of the arbitrator's discretion to grant a lengthy
adjournment where the party seeking the adjournment is clearly responsible for the
inability to proceed in a timely manner. It would require a truly compelling reason to
overcome the weight of these considerations and justify a delay of the length sought
here.
[12] The grievor compromised the union’s ability to proceed with her grievance on the
scheduled date. She knew that the hearing would be rescheduled and that preparation
for hearing would soon be needed. She provided union counsel no means to contact her
other than her cell phone, then cancelled or abandoned her cell phone account or, at
very least, rendered it unable to take messages. Having made it impossible for counsel
to contact her telephonically, she made no effort to contact counsel herself. One might
reasonably infer from this that she had abandoned interest in pursuing her grievance.
[13] If the union had expressed concern that the grievor’s absence might have been
the result of some inadvertence for which it was responsible, and had undertaken to
devote significant resources during a few weeks’ adjournment to ensuring that there
could be no doubt of the grievor’s awareness of the next hearing date, then to avoid
future difficulties for both parties I might have been persuaded to adjourn the matter
one more time on suitable terms as to payment of costs and extension of the limit on
liability for the intervening period. No such concern was expressed, however, and no
such undertaking was offered. These observations are not meant to be critical. It is not
for me to say what the union’s relationship with the grievor required of it or her in their
dealings with one another. In these proceedings the union and the grievor are in the
same interest, and that interest must be weighed against the employer’s.
[14] The employer has tolerated as much delay as it could be asked to endure in the
circumstances. The maxim that justice delayed is justice denied applies to respondents
as well as complainants. I concluded that an adjournment should not be granted. There
being no suggested alternative to dismissal in that event, I advised counsel orally that a
decision would issue dismissing the grievance.
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[15] For the foregoing reasons, this grievance is dismissed.
Dated at Toronto this 15th
day of January, 2007
Owen V. Gray, Vice-Chair