HomeMy WebLinkAboutP-2014-4875.Ihasz.15-10-30.DecisionPublic Service
Grievance Board
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Commission des
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Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
PSGB#P-2014-4875
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT OF ONTARIO
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ron Ihasz Complainant
- and -
The Crown in Right of Ontario
(Ministry of Finance) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE
COMPLAINANT
Ron Ihasz
FOR THE EMPLOYER Ferina Murji
Treasury Board Secretariat
Legal Services Branch
Counsel
SUBMISSIONS October 22, October 26,
October 28, 2015
- 1 -
Decision
[1] The Board issued an interim decision dated April 17, 2015 with respect to this
matter. A hearing date was scheduled for September 18, 2015. The complainant was
advised in that interim decision that any asserted inability to attend and consequent
request to adjourn that day due to reasons of disability must be supported by
appropriate and sufficient medical documentation. On September 10, 2015, the
complainant e-mailed a scanned copy of a medical note dated September 9, 2015,
asking to be advised of “the next step”.
[2] By decision dated September 17, 2015 the Board found that the medical note
provided was insufficient to support any claim that the complainant was unable to attend
the hearing on September 18, 2015. However, and notwithstanding that finding, the
Board adjourned the scheduled hearing date of September 18, 2015. In an effort to
ensure that the complainant understood his obligations in the context of pursuing his
complaint the decision of September 17, 2015 reviewed the process and the nature of
the medical evidence required in order to support any request for accommodation
based on disability. That decision concluded:
[11] This matter will therefore proceed as follows. I hereby direct that:
1. The complainant provide the Board with a more fulsome medical
report that addresses the concerns raised in this decision and the direction
provided in the decision dated April 17, 2015. Any further medical report
must include an indication from that medical practitioner that they have
been provided with and have read this Board decision and the Board’s
decision dated April 17, 2015. Absent such report the Board will not be in a
position to properly consider any request for accommodation.
2. The complainant provide to the Board, in writing, a full statement
of the asserted facts on which he intends to rely in pursuit of his complaint.
This is to include the detail as to the “who, what, where, and when” of any
issue he seeks to raise. In addition, he is to provide a clear statement as to
the remedy that he is seeking, that is, what is he asking the Board to order
should it uphold his complaint. The complainant should understand that the
Board expects, as a result, to be in a position to be able to ascertain the
extent of any factual dispute between the parties.
[12] The complainant will have until 5:00pm on Friday, November 20, 2015 to
comply with both directions outlined above.
[3] By e-mail dated October 22, 2015 the complainant asks that the Board
“vary/change their decision of Sept. 17, 2015”. The basis for this request is not entirely
clear but appears to relate to an assertion that the treating specialist has seen the prior
decisions and has concluded that her note of September 9, 2015 is sufficient, and
further, that confidentiality issues preclude the provision of further medical evidence.
The complainant then again describes why, in his view, he cannot attend a hearing and
asks that the Board make a “file review decision based on the evidence already
submitted on at least the issue of my correct WIN status”.
- 2 -
[4] There is subsequent reference in the e-mail to two medical notes as being
attached. However, only one was provided. That is a note dated June 22, 2015 from a
different medical practitioner than the specialist who subsequently provided the note
dated September 9, 2015. There is nothing in the June, 2015 medical note that would
change or alleviate the Board’s concerns regarding the insufficiency of the medical
evidence being tendered in support of any inability to attend and/or participate in these
proceedings in the normal course.
[5] Whether or not the specialist has seen the prior decisions, it is the complainant’s
responsibility to ensure that sufficient and appropriate medical evidence be provided in
support of any request for accommodation. I note that no issue of confidentiality
precludes the provision of such medical documentation provided the complainant
provides the appropriate consent. Absent such consent, the complainant places himself
in the position of being unable to provide the necessary evidence from which this Board
may make a determination as to any request for accommodation of the hearing process.
[6] Even assuming (without finding) that the Board has any ability to reconsider an
earlier decision, there is no basis for doing so here. The complainant merely repeats his
own assertion of an inability to attend a hearing and appears to be ignoring the Board’s
earlier explanation as to what is required in order for it to be able to properly address
any request to accommodate the hearing process based on disability.
[7] I note too that, although the complainant reiterated various remedial requests in
his latest e-mail, there is little in the way of particulars, that is, the factual basis on which
he asserts he is entitled to any of these remedial requests. Nor does the complainant
indicate why asserted actions of the employer are allegedly improper - as opposed to
merely asserting that the employer took certain actions, for example, surplussing his
employment in 2012; placing him on “discretionary leave without pay” rather than “sick
leave without pay”; or requiring him to provide more fulsome medical evidence in
support of his leave of absence from work.
[8] The employer asks that this complaint be dismissed in its entirety at this stage. I
defer consideration of that request. The complainant remains subject to both directions
set out at paragraphs 11 and 12 of the decision of September 17, 2015 and cited above.
The complainant has until November 20, 2015 to comply.
Dated at Toronto, Ontario this 30th day of October 2015.
Marilyn A. Nairn, Vice-Chair