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HomeMy WebLinkAbout1999-1866.Ellis.01-11-29 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB#1866/99, 1867/99, 1996/99, 1997/99, 0136/01, 0137/01 Union #00B072, 00B073, 00B092, 00B093, 01 B11 0 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ellis) Grievor - and - The Crown In Right of Ontario (Ministry of Finance) Employer BEFORE Nlmal V Dlssanayake Vice-Chairperson FOR THE UNION Don Martin Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Sean Kearney Senior Counsel Legal Services Branch Management Board Secretariat HEARING November 7 and 26, 2001 DECISION This decision deals with six grievances filed by Mr Michael Ellis (the grievor) , all of which came on for hearing before me on November 7, 2001, with a second date scheduled for November 26, 2001 The grlevances are as follows (1 ) Date September 24, 1999 Statement of Grievance Violation Article 3 1 Collective Agreement, Article 5( 1) , 5 (2) and 10 (1) (E) of the Human Rights Code, Harassment and Discrimination due to disability and gender Unwilling to accommodate disability in the workplace as has been done for other employees (2 ) Date September 24, 1999 - Statement of Grievance Violation of 1996 Arbitration Settlement between grievor and the Crown in Right of Ontario represented by Management Board (3) Date November 12, 1999 Statement of Grievance Violation Article 3 of the Collective Agreement as well as article 5 (1) of the Human Rights Code Continued discrimination by management due to handicap A day off work for training was refused due to the fact I had been off work due to my disability 3 (4 ) Date January 10, 2000 statement of Grievance Violation Article 3 of the Collective Agreement as well as the Ontario Human Rights Code with regard to workplace discrimination due to disability Training was not provided as per 1996 arbitration agreement and 1999 mediation settlement I have been denied promotions due to the above mentioned management action (5) Date, April 9, 2001 statement of grievance Violation article 3 (1) Continued discrimination and harassment by management due to my disability Unwilling to provide accommodation in my present classification ( 6) Date April 9, 2001 - statement of grievance Violation of article 3 (1) Discrimination and harassment due to my disability Pay withheld for IME and FAE appointments which management directed me to attend January 2001 When the hearing was convened at 10 00 a m on November 7, 2001 Mr Sean Kearney was present as counsel for the employer, accompanied by two managers and two human resources persons Mr 4 Don Martin, OPSEU representative, was present as counsel for the unlon Mr Martin advised that the grievor had not arrived yet and requested that the Board wait for the grievor's arrival before commenclng I agreed to wait until 10 40 a m When the hearing was reconvened at 10 40 a m Mr Martin advised that the grievor had still not appeared Nor had he contacted the union or the G S B Mr Martin's attempts to contact the grievor by telephone were also not successful After further discussion, and with the employer's agreement, I adjourned the hearing for the day However, I put the union explicitly on notice that the hearing will resume as scheduled on November 26, 2001, and that if the grlevor fails to attend without notice and without providing very good reasons, the Board will probably dismiss the grlevances The employer raised an lssue relating to disclosure of medical information by the grlevor I directed employer counsel to make his request for disclosure in writing to the union and directed that the union comply At approximately 11 30 a m the hearing was recessed, after two additional dates, February 4 and 15 of 2002 were fixed When the Board convened at 10 00 a m on November 26, 2001 employer counsel was present, again accompanied by two managers and two human resources persons Mr Martin was present for the 5 unlon, but not the grlevor Mr Martin advised the Board that following the hearing on November 7, 2001 he had communicated to the grlevor, through a voice-mail message, the Board's warning that his grievances may be dismissed if he again absented himself on November 26, 2001 and about the employer's request for medical information, and the Board's order in that regard The following day Mr Martin confirmed the same information to the grievor by letter According to Mr Martin, he had no contact from the grievor after November 7, 2002, until November 25, 2001 On that day, the day before the scheduled hearing, at 7 15 P m the grievor had left a brief voice-mail message for Mr Martin to the effect that he is unable to drive due to the effect of a prescription drug he was taking, and that he would not be attending the hearing the next day Based on that information, Mr Martin requested that the hearing be adjourned again to the next scheduled date, February 4, 2001 The employer submitted that if the grievor had provided medical evidence of his inability to attend, the employer would not have objected to an adjournment However, the grievor not only failed to do that but had failed even to notify in advance of his intention not to attend In the circumstances, the employer moved that the grievances be dismissed I proceeded to hear submissions from the parties, as to whether or not the employer's motion ought to be granted 6 I have concluded that the motion should be allowed On the first scheduled day, November 7, 2001, the grlevor simply did not attend and did not notify anyone An OPSEU representative, a crown lawyer, four employer representatives and the GSB Vice- Chair attended the hearing as scheduled, and the day was wasted for each of them At that point, the grlevor was explicitly put on notice, through his union representative, of the probable consequences of a further non-appearance Yet, the grievor did little more than the first time He did inform this time of his intention not to attend, but did so only on November 26, 2001, night before the hearing, when it was too late to cancel the hearing The result was that a number of people again attended a hearing which never materialized due to the grievor's absence The grievor thereby demonstrated a complete lack of concern for the . . and expenses caused to the employer and the lnconvenlence unlon He has also displayed a total lack of respect for the Grievance Settlement Board and its proceedings Much time and resources have been wasted due to the grievor's actions I consider it to be an abuse of the Board's process Even in these circumstances, the Board was very generous with the grlevor I informed the union that I intended to dismiss the grlevances as requested by the employer However, I 7 advised Mr Martin that if the Board is provided with a satisfactory medical certificate by 5 00 P m the next day (November 27, 2001 ) which certified the grievor's inability to attend the hearing on November 26, 2001, the Board would be prepared to reconsider The following day, the Board received two medical documents The first was a letter to the employer from a Dr R D Armstrong dated May 8, 2001 The second was a report from a doctor at the Dept of Radiology and Diagnostic Imaging, Joseph Brant Memorial Hospital in Burlington, Ontario with regard to an examination conducted on April 28, 1998 It had been printed on October 17, 2001 Neither document has any relevance to the grievor's ability to attend GSB hearings on November 7 or November 26, 2001 Therefore, the Board is still faced with a situation where, we have a grievor who has absented himself on two scheduled days of hearings without justification or adequate notice The Board lS satisfied that he was well aware of the scheduled hearings, and after the first day he was put on notice of the probable consequences of his action Yet he failed to meaningfully communicate with the union or the Board He has failed to justify or validate his absences To allow the grievor to carry on this pattern of conduct would be to allow him to continue to abuse the Board's process It cannot be allowed 8 For those reasons, the SlX grlevances are dismissed as an abuse of process and for lack of prosecution Dated at Toronto, this 29th day of November, 2001 Nimal V Dissanayake, Vice-Chairperson