HomeMy WebLinkAbout2013-4267.Gilchrist-Duval.15-09-22 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#2013-4267, 2014-3151, 2014-3152, 2014-3153, 2014-3154, 2014-3155
UNION#2014-0630-0001, 2014-0630-0003, 2014-0630-0004, 2014-0630-0005,
2014-0630-0006, 2014-0630-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gilchrist-Duval) Union
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The Crown in Right of Ontario
(Ministry of Labour) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Ferina Murji
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 16, 2015
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Decision
[1] A hearing was convened on September 16, 2015, to deal with six individual
grievances filed by Ms. Lori Gilchrist-Duval (grievor). For present purposes, it
is sufficient to identify the grievances as follows:
(i) Grievance dated January 23, 2014 (File No: 2013-4267) alleging that:
“the employer is in violation of Article 2, Article 3, WDHP Policy and
Procedures and any other articles, acts and policies that may apply”.
(ii) Grievance dated June 24, 2015 (File No. 2014-3155) alleging that:
The employer is in violation of Article 2, Article 3, Article 9, Article 21,
bullying and harassment, failing to provide a safe workplace under the
OHSA, Harassment discrimination under the OHRC, and any other
pertinent articles, policies and legislation that may apply. I continue to
be treated differentially with a double standard by being over corrected,
over managed and without dignity though I have informed management
of complaints (being yelled at, people uttering threats, slanderous
gossip, false accusations, denial of access) my complaints were
ignored, mistreatment of myself was not addressed and allowed to
continue, propagated by management.
(iii) Grievance dated June 24, 2014 (File no: 2014-3154) alleging that:
The employer is in violation of Article 2, Article,3, Article 9, Article 21,
OHRC, OHSA, and denying union representation and any other articles
policies and legislation that may apply. Specifically, on June 16, 2014
Darcy Watson behaved in an intimidating and aggressive manner,
refused to inform me he was acting management, and intimidated and
threatened me by yelling repeatedly, standing over me and close to me
while doing so, walking after me when I tried to move away from the
situation.
(iv) Grievance dated October 3, 2014 (File No. 2014-3153) alleging that:
The employer is in violation of Article 2, Article 3, Article 9, Article 44 as
well as the OHRC, OHSA, and any other article, policy or legislation that
may apply by denying sick leave and continuing to engage in
harassment and discrimination causing me psychological and medical
health damage.
(v) Grievance dated October 8, 2014 (File No. 2014-3152) alleging that:
The employer is in violation of Article 2, Article 3, Article 9, Article 21,
OHRC and WDHP Policy and any other articles, policies and acts that
may apply by making allegations against me based on a flawed
investigation and treating me differentially and engaging in constructive
dismissal and ongoing harassment and discrimination.
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(vi) Grievance dated October 15, 2014 (File No. 2014-3151) alleging that:
The employer has violated Article 2, Article 3, Article 9, Article 44,
Article 21 as well as the OHSA, OHRC WDHP policies, and any other
articles, policies and legislation that may apply by engaging in a
harassing and discriminatory manner, denying sick benefits, placing me
in a harmful work situation and failing to protect me and unfair unjust
termination.
[2] Grievances (i) to (iii) above were scheduled before the Board (differently
constituted) for mediation/arbitration on August 14, 2014. The hearing was
adjourned at the union’s request. On January 21, 2015, all of the six grievances
were scheduled again before the Board (differently constituted) for mediation.
However, the mediation date was also cancelled at the request of the union.
[3] When the matters came back on for arbitration before me on September 16,
2015, union counsel advised that she had spoken with the grievor on Friday
September 11, 2015, and expected her to be in attendance, but she was not
present. Counsel’s understanding was that the grievor was under treatment from
a psychiatrist, and in no condition to participate in these proceedings at this time.
She advised that she had been unable to meet with the grievor to gather
particulars of the grievor’s allegations. She suggested that the grievor’s failure to
attend and participate in these proceedings is likely due to her health issues.
[4] Employer counsel expressed her clients’ concern about the lengthy period that
had elapsed, including two cancellations of dates scheduled. She urged the
Board to ensure that these grievances are brought to a conclusion without further
delay. I was provided a copy of a letter dated August 13, 2015 she had written
requesting particulars with respect to each of the six grievances, and advised
that no particulars had been provided to date. I was also advised that no medical
evidence substantiating the grievor’s claim that mental health issues prevent her
from participating in these proceedings had been provided. Counsel requested
that the Board order the union to provide particulars and disclosure with respect
to each of the grievances in a timely fashion. She agreed to adjourn the next
scheduled date of September 23, 2015, but urged the Board to ensure that the
hearing proceeds on October 16, 2015.
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[5] Having considered the particular circumstances of this case and the respective
positions advanced by the parties, the Board orally ruled on the process to be
followed. This decision is a written and formal confirmation of that in the form of
a Board order.
[6] As a general matter, the Board is very concerned about undue delay and
wasteful cancellation of matters scheduled before it. However, the Board is also
mindful that if the grievor’s failure to attend and participate in these proceeding is
a result of a medical/health restriction, she needs to the accommodated. With
the objective of balancing the interests of both parties, and the institutional
interests of the Board itself, therefore, it is hereby ordered as follows:
a) This proceeding will continue on Friday October 16, 2015.
b) Subject to paragraph (e) below, in the event the grievor claims that she is
unable to participate in these proceedings on October 16, 2015 or any
subsequently scheduled hearing day due to health issues, medical
evidence substantiating such claim must be provided to employer counsel
at least 10 days in advance of the hearing date.
c) The medical evidence referred to in (b) above must be from the grievor’s
treating psychiatrist. The grievor’s own assertions of disability and
restrictions are insufficient to warrant the Board departing from its usual
processes and practices. The medical evidence must consist of an
objective opinion by the psychiatrist, explaining the restrictions/limitations,
if any, that result in the grievor’s inability to attend and participate in these
proceeding in its usual course. In addition, if the Board’s usual processes
and practices may be adjusted in any way to enable the grievor’s
attendance and participation, those adjustments should be set out by the
psychiatrist.
d) The union is further ordered to provide at least 10 days in advance of the
next scheduled hearing date, full particulars, and disclosure of any and all
arguably relevant material with respect to each of the grievances. If the
union asserts that this order cannot be complied with due to the grievor’s
disability and the resulting inability to meet and participate with union
counsel in assembling the required information, medical evidence in
support of that assertion from the grievor’s treating psychiatrist must be
provided to employer counsel at least 10 days in advance of the hearing
date. Such medical evidence must also meet all of the conditions
described in para (c) above.
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e) Finally, in the event it is asserted that any of the orders herein could not
be complied with for reasons beyond the control of the grievor/union, the
onus would be on the union to substantiate that assertion by providing
evidence, including evidence of all attempts made to be in compliance.
[7] Once medical evidence and particulars/disclosure are provided pursuant to these
orders, the employer may, if it takes such position, argue that they are not
satisfactory or do not meet the specific terms of the Board’s order. Any dispute
in that regard will be dealt with by the Board at the outset, when it reconvenes on
October 16, 2015.
[8] Failure to comply with the Board orders herein, in the absence of reasonable
explanation, may result in the dismissal of the grievances summarily.
[9] The Board remains seized. The hearing will continue as scheduled and in
accordance with the terms set out herein.
Dated at Toronto, Ontario this 22nd day of September 2015.
Nimal Dissanayake, Vice-Chair