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HomeMy WebLinkAbout2016-1147.JM.17-11-22 Decision Crown 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#2016-1147 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (JM) Association - and – The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Jasbir Parmar Arbitrator FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING August 4, 2017 TELECONFERENCES October 13 and 19, 2017 - 2 - Decision I. INTRODUCTION & BACKGROUND [1] This decision addresses the Employer’s motion seeking dismissal of the grievance. [2] On March 15, 2016, the Employer terminated the Grievor’s employment, declaring the Grievor to have abandoned his position in accordance with section 42 of the Public Service of Ontario Act, 2006. On April 20, 2016, the Association filed a Formal Stage Dispute on behalf of the Grievor, challenging the termination. [3] The Association referred the dispute to the Board. The matter was set for mediation on November 25, 2016. On November 24, 2016, the Employer agreed to a request by the Association to adjourn the matter. This was done on the basis of advice from the Association’s counsel (who is not the same Association counsel involved in the current motion) that she had seen medical documentation demonstrating that the Grievor was seeing an addictions counsellor at CAMH. [4] The matter was then set for mediation for April 13, 2017. That date was subsequently adjourned for reasons unrelated to the Grievor. [5] The matter was again set for mediation, for August 4, 2017. On that date, the Grievor did not attend. [6] The Association sought an adjournment, but the Employer did not agree. I was not advised of the reason for the non-attendance. After some discussion between the parties, the parties ultimately agreed the matter would be adjourned subject to certain conditions. Accordingly, I issued a decision on August 4, 2017 (“the August decision”) as follows: - 3 - I therefore grant an adjournment to allow the Association to provide medical documentation by August 25, 2017 that the Complainant is or will be following a treatment plan recommended by an addiction specialist. The Complainant will also provide medical documentation confirming that he has entered the treatment plan on the first available date and that he has completed the treatment plan. The Complainant will provide an update on the status of his treatment plan by September 25, 2017, and final confirmation will be provided within two weeks of the completion of the treatment plan. The Association must also produce a written undertaking from the Complainant by September 25, 2017 that he intends to attend and participate in these proceedings. If the Association is unable to provide the above documentation by the stated deadline(s), a conference call will be convened at which time final submissions will be heard on whether this matter should be dismissed. II. POST-AUGUST DECISION EVENTS [7] On August 25, 2017, the Grievor provided three documents to the Employer. [8] One is a one-page document titled “Rainbow Services LGBT First Stage Treatment Group”. This appears to be a generic handout about a treatment group. It contains no specific reference to the Grievor. It describes the treatment group as an “open skills-based group, which is designed to prepare you for the next step of treatment”. It indicates there are two sessions a week, and individuals are able to attend one or both sessions. It indicates that to complete this “First Stage”, individuals “must attend 8 sessions regularly”. There are some handwritten notes at various parts of the document. They state “you plan to attend Thurs 6 pm Aug 17”; “‘Phase 2’ if needed could be the stimulant group”; and “*speak to your therapist”. [9] The other document is titled “CAMH Understanding Limits to Confidentiality”. There is nothing to indicate this document is from the same source as the Rainbow Services document or related in any way to that document. This too seems to be a generic handout, detailing CAMH’s policy with respect to confidentiality of health - 4 - records. It is undated. This document does have a sticker attached, which contains a bar code, the Grievor’s name and birthdate, and some other unexplained codes. [10] The third document is a signed undertaking, stating “This will confirm that I intend to attend and participate in these proceedings”, signed by the Grievor. [11] On October 2, 2017, at 4:56 pm, the Grievor sent the Association the following email: Subject: Re: Follow-up Hi Gary, thanks for contacting me about this matter. My treatment is going very well (all be it a slower process than I would prefer). I have completed three of the necessary eight sessions required before the staff decide which recovery group to place me and my fourth is set for this Thursday October 5th and it is our goal to have have the process completed in the next few weeks. Sadly, due to a persistent neck injury I was unable to make all the sessions but as I am feeling stronger I am confident I can make the rest of the meetings in t his timeline. I will keep you posted as to my progress and look forward to continuing to work toward my goal of complete recovery with the help of the Ministry and my team at CAMH. Let me know if there is anything further you would like to know. Keep in mind that I can not access any formal documentation about my time during this process and staff do not take calls about it. They have made it very clear to me that this process and the entire recovery journey are very personal and that the staff are not there to satisfy anyone but the client, However, in saying that they realize that ones job can job can be very influential in their lives and agree that after some time in that some form of progress report can be prepared should I agree to that. [12] The Board was contacted by the Employer in early October further to the August decision, and a conference call was set for October 13, 2017. The Grievor participated in this call. [13] The Employer sought to make submissions seeking a dismissal of the grievance, taking the position that the conditions of the adjournment had not been met. The Association expressed a concern that it had not been advised of all the aspects of the - 5 - conditions which the Employer asserted had not been met, and that it was not prepared to respond. The Association sought an adjournment of the call to enable it to prepare a response. [14] I granted the Association’s request, indicating the conference call would continue on October 19, 2017. However, I explained that the onus was on the Association to establish that it had complied with all of the conditions in my decision. I also indicated that if there had been any failure to comply, then the onus was on the Association to be able to explain that failure. I directed the Association to provide any documentation which it relied upon to establish compliance or to explain non-compliance to the Employer no later than October 17, 2017 to ensure the Employer would be able to address the documents in the conference call. The Grievor participated in the conference call and heard my directions as noted above. [15] The conference call was then reconvened at 9:00 am on October 19, 2017. The Grievor joined the call at 9:10 a.m. He advised that he had some information to provide, and there was a recess to allow the Grievor to communicate with the Union privately. [16] The Union then provided an email it had received from the Grievor that morning at 8:21 a.m. It read as follows: Hi Gary, this morning before 9am my CAMH sponser will be emailing you a letter about my participation in the group. Sadly I cantnibtain abdoctors note excusing my absences from the classed due to my back injury until later this morning as my I learned the orher day when I went in that my health card has expired andnitbwould cost $80 to see the doctor and another:$25 for a note to be prepared. I am currentlybon OW and this month due to a glitchbin transfering me toba new debitn card systembi only received 275 for this month...far less than normalbso i could not affird the 100 earlier this week but after speaking with my OW worker they werebablebto release another 140 into my account late yesterday so I have an appointment to see the docror right after the teconference and can have that note to you right afyer i meet wiyh him. [sic] - 6 - [17] The Union also produced the letter from the “CAMH sponser” referenced in the Grievor’s email. The letter was on a piece of paper with a logo of “camh Centre for Addiction and Mental Health”. The letter head contained no other information. The letter stated as follows: October 19th, 2017 To whom it may concern, this note is to confirm that [JM] is currently still a part of the phase one program and he has attended four sessions thus far with his fifth scheduled for tonight at 6 pm where he will be introduced to his therapist who will help him pick a path to recovery that best suits him over the next few meetings. [JM] advised me on October 1st that he has sustained a back injury and that is why he had misses a few classes. It is not a race for [JM] to complete these sessions everyone does them in their own time and sadly accidents do happen. There was no reprimand on our end due to the absences. We should all be rallying around [JM] at this time as he is doing well and seems positive about his future. I can't help but this the undue stress of threatening his job may well undo some of the good work already completed but in speaking to [JM] he is first and foremost concentrating on his recovery and hope everyone reading this will be too Thanks, [NB] CAMH sponsor You may contact me if you must at the email address below for further inquiry [NB]atcamh1234@gmail.com [18] After the conference call that day, the Association produced a note from Dr. Allan Tan, dated October 19, 2017, which stated: NOTE This is to state that [JM] was unable to attend classes at CAMH first two weeks of October 2017, due to slip and fall injury to lower back and coccyx. - 7 - III. WHETHER THE ADJOURNMENT CONDITIONS HAVE BEEN MET [19] I will first address the issue of whether the adjournment conditions have been met. This is because pursuant to the August decision, submissions relating to the dismissal of the grievance will only be received if the adjournment conditions have been met. [20] First, the Grievor was required to provide medical documentation by August 25, 2017 that the Grievor is or will be following a treatment plan recommended by an addiction specialist. The intent behind this condition is self-evident – it was clearly not sufficient for the Grievor to simply assert that he was receiving treatment. That is why the requirement was for medical documentation from an addiction specialist. [21] None of the documents the Grievor provided on August 25 are “medical documentation”. The documents the Grievor produced are generic documents. They do not indicate any consultation with an addiction specialist, any assessment by an addiction specialist, or any recommendation of a treatment plan by an addiction specialist. In fact, the Rainbow document is not even expressly specific to the Grievor (there is no way to tell who “you” is). I find the Grievor did not comply with this condition. [22] Second, the Grievor was required to provide medical documentation that he had entered the treatment plan on the first available date. It is important to note this documentation needed to address two distinct elements: enrollment in a treatment plan AND enrollment on the first available date. The timing of the enrollment was as critical as the fact of enrollment. [23] Even if I were to accept that the Rainbow group sessions are some sort of a treatment plan, which is not clear, the Grievor was required to provide “medical - 8 - documentation” that he had in fact entered the treatment plan. The Rainbow Services document (which as I stated above is not medical documentation) does not indicate that the Grievor has actually entered the treatment plan. [24] I pause to reference the Grievor’s suggestion in his October 2 email that he is unable to provide “formal documentation” about his treatment because “staff do not take calls about it” and the process is “very personal”. That suggestion is completely contradictory to the CAMH confidentiality document produced by the Grievor, which indicates that an individual’s information will be produced only where an individual provides consent. If the Rainbow program is part of CAMH, this document indicates that if the Grievor wanted to provide more information, there were no barriers to doing so. [25] I have considered the letter from NB. I have a number of concerns about that letter, not the least of which is that it doesn’t appear to be “medical documentation” in the sense it is from any medical expert. I have no idea what is a “CAMH sponsor”. [26] More importantly, however, even if I were to assume NB’s letter is talking about the Rainbow program, it does not confirm the Grievor entered the treatment plan on the first available date. The Rainbow document indicates sessions began on August 17. If the Grievor had commenced that program on August 17, he could have attended sixteen sessions before October 19 (assuming there were no sessions on the statutory holidays). If he attended only weekly sessions, he still could have attended nine sessions. Yet, NB indicates the Grievor attended only four sessions of the program up until October 19th. [27] There has been some suggestion that the Grievor was unable to attend all of the sessions due to medical issues. I find the evidence of the medical issues to be - 9 - completely suspect and do not give any weight to it. The Grievor’s October 2nd email suggested he was having neck issues. However, NB’s letter indicates the Grievor told him that he had a back injury. I also have concerns about Dr. Tan’s letter, which is the only evidence before me that is anything other than an assertion by the Grievor that he was medically unable to attend. Dr. Tan’s letter is a summary note and does not indicate that the information contained therein is based on any independent assessment or actual medical treatment of the Grievor. [28] Even if the Grievor had been unable to attend in October as suggested by Dr. Tan’s note, the Grievor acknowledged on October 2 that he had only attended three sessions so far. If he had enrolled in the Rainbow program on August 17, by October 2 he could have attended seven sessions if he attended weekly or twelve sessions if attended biweekly. [29] Thus, none of this information suggests the Grievor actually enrolled on August 17. [30] I reiterate the medical documentation was to confirm enrollment AND that it occurred on the earliest available date. I find the Grievor did not meet this second condition of the adjournment. [31] Third, the Grievor was to provide medical documentation that he has completed the treatment plan, within two weeks of the completion of the plan. He has not provided any such documentation, and in fact acknowledges he has not completed even the Rainbow group sessions, if it is accepted those are the treatment plan. However, there was no requirement in the August decision that he do so within a specific period of time, and so I do not find that he has failed to comply with this specific condition of the adjournment. - 10 - [32] Fourth, the Grievor was to provide with an update on the status of the treatment plan by September 25, 2017. The Grievor did not provide any “update” by this date. No explanation for the failure to provide this update has been provided. Therefore, I find he has not met this condition of the adjournment. [33] Fifth, the Grievor was to provide a written undertaking by September 25, 2017 that he intends to attend and participate in these proceedings. He did provide this written undertaking on August 25, 2017. [34] In summary, I find the Grievor has not provided all the documentation required by the adjournment conditions. Nor did he provide all of the documentation by the specified deadlines. Accordingly, I will consider the Employer’s motion to have this matter dismissed. IV. SUMMARY OF PARTIES’ POSITIONS ON DISMISSAL [35] The Employer submits it is appropriate to have this grievance dismissed because of a “pattern of behavior of the Grievor to fail to attend as required”. The Employer submits it has been eighteen months since the Grievor was terminated, with a number of hearing dates booked. The Employer submits it is entitled to have this matter resolved, which has not been possible because of the Grievor’s behavior. [36] The Employer relied on the following authorities: OPSEU (Savdie) – and – Ministry of Government Services (October 6, 2013) GSB#2011-3785 (Harris); OPSEU (Grievor) – and – Ministry of Transportation (October 21, 2015) GSB#2009-0689 (Briggs); OPSEU (Patchett) – and – Liquor Control Board of Ontario (April 15, 2016) GSB#2014-2387 (Brown); and OPSEU (Kavanaugh) – and – Ministry of Community and Social Services (November 5, 2010) GSB# 2007-2649 (Harris). - 11 - [37] The Association on the other hand argues against dismissal. It acknowledges the Grievor did not fully comply with the conditions specified in the August decision. However, it submits that there has been substantial compliance. The Association submits that the Grievor’s non-attendance should not be taken as a lack of interest on his part in this process, and notes that the grievance relates to a discharge which is a serious issue and should be heard. V. ANALYSIS [38] I begin by noting that the conditions on the adjournment of the August date were quite specific. They made reference to exactly what was required and put a deadline on the submission of that information. Both the documents and the dates those documents were to be provided are significant and material aspects of the conditions. [39] In those circumstances the notion of substantial compliance, by which I mean the fact the Grievor complied with some but not all of the conditions, would detract from the deal made. There was no agreement to adjourn the August 2017 mediation date unless the terms specified were met. [40] The issue then is whether the Employer’s motion to dismiss the grievance should succeed. [41] I observe that there was nothing in the August decision which indicates that non- compliance with the adjournment conditions would result in a dismissal of his grievance. Rather, the August decision indicated that if the conditions were not met then there would be “final submissions ..heard on whether this matter should be dismissed”. [42] The ‘matter’ is the grievance. The Board has summarily dismissed grievances where a grievor failed to adequately participate in the adjudication process. The - 12 - reasons behind this are addressed in the jurisprudence referenced by the Employer. To put it simply, if individuals seek to obtain the benefit of the arbitration process, they must follow the rules of the process. One of the key rules is that a matter once scheduled must proceed, absent valid reason. This is required to maintain the integrity of the process and ensure fairness for all parties, including those not directly involved in this case because repeated scheduling consumes valuable Board resources. [43] Having not complied with those conditions in the August decision, the Grievor risked the consequences that would flow in the absence of an agreement to adjourn by the Employer. The August decision made it clear those consequences would include the Employer making submissions the grievance should be dismissed. [44] I disagree with the Employer’s submission that the Grievor has demonstrated “a pattern” of not attending during this arbitration process. With respect to the first mediation dated, it would be unfair to allow the Employer, who voluntarily agreed to that adjournment, to now rely on the fact of that adjournment as evidence that the Grievor is not adequately participating in the arbitration process. [45] However, the Grievor did not attend on the August 4th mediation date. I have not been provided with any information or explanation for that non-attendance. Non- attendance is significant and not lightly tolerated by the Board. [46] The Board’s jurisprudence emphasizes the importance of ensuring a grievor has an opportunity to explain non-attendance and has a proper understanding of the consequences of not being able to provide an adequate response. I also note that the Board scrutinizes explanations rigorously. For example, in the Patchett decision referenced above, the Board did not find the Grievor’s explanation that she did not want to ask for time off from her new job to be a satisfactory explanation. - 13 - [47] Accordingly, in light of the Grievor’s non-attendance on August 4, 2017, I order the following: a. the union is to provide a copy of this decision to the Grievor, and file with the Board proof of service. Delivery through email is sufficient, if the Grievor has provided the Union with an email address as a contact method. b. this grievance is dismissed, unless the Grievor is able to demonstrate good and sufficient cause for his non-attendance. Any such explanation, along with any supporting documentation, must be filed with the Board no later than 4:00 pm Friday, December 15, 2017. c. I remain seized relating to any issues arising from implementation of this decision. Dated at Toronto, Ontario this 22nd day of November 2017. Jasbir Parmar, Arbitrator