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Home My WebLink About2016-0473.Di Matteo.18-05-15 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#2016-0473, 2016-1897, 2016-2205, 2017-0263, 2017-0264 UNION# 2016-0504-0007; 2016-0504-0008; 2016-0504-0010; 2017-0504-0001; 2017-0504-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Di Matteo) Union - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Felicity D. Briggs Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Henry Huang Treasury Board Secretariat Legal Services Branch Counsel TELECONFERENCE May 14, 2018 - 2 - Decision [1] This Board has before it a number of grievances filed by Ms. Lilianna Di Matteo that include allegations of harassment and unjust dismissal. A matter has arisen subsequent to our first day of hearing that necessitates this order. [2] It is of some assistance if some history is set out. Prior to our first day of hearing, the Union requested - on behalf of the grievor - that she be allowed to attend the hearings into this matter by way of teleconference. Given that our first day was being utilized only for the purposes of opening statements and case management, the Employer agreed in a quickly scheduled teleconference – without prejudice – to allow the grievor to attend the April 24, 2018, hearing day via teleconference. However, the Employer made clear on our first day that it objected strenuously to the grievor’s failure to attend the hearing in person – particularly given the nature of the dispute. After hearing arguments in this regard I reserved my decision. [3] The only medical note that I have seen to date stated that the grievor was unable to attend our April 24, 2018 hearing day due to “medical reasons.” In attempting to determine how this matter should proceed I then notified the parties on April 25, 2018, that more medical information was required. [4] A further teleconference was held in this regard wherein this Board instructed the Union that further medical information was required in order to make a decision regarding the Employer’s motion to deny the grievor’s request to attend the hearing by way of teleconference. During that discussion I asked Union counsel, Mr. Hannigan, to contact the grievor’s physician and ask for further information. I made clear that although I do not need to know the grievor’s diagnosis, the phrase “medical reasons” is insufficient information in order for this Board to determine the Employer’s motion to deny the grievor’s request. We also discussed that given the Union is putting its evidence forward first and the grievor is to be the first witness, the requested medical information was needed without delay. I made clear that the hearing cannot continue until a decision is made regarding the grievor’s attendance at the hearing. [5] On May 8, 2018 Mr. Hannigan sent an email requesting another teleconference to discuss a problem with the requested information. [6] At the conference call held on May 14, 2018, Mr. Hannigan informed counsel for the Employer, Mr. Huang, and the Board that he had drafted questions for the grievor’s physician to answer. Mr. Hannigan told the Board and Mr. Huang that the grievor refused to consent to this information being provided by her physician at - 3 - the request of Union counsel. As I understand Mr. Hannigan, the grievor was of the view that the questions should be from the Employer, not Union counsel. [7] To be quite clear, it is this Board requesting further information – not the Employer. Failure to provide the information will oblige me to uphold the Employer’s motion that the grievor be ordered to attend in person because what little information I have seen to date is for April 24, 2018 only. Having said that, even if the medical note was not restricted to that single day, the information provided was insufficient. [8] It is worth noting that on the first day of hearing that the Employer stated that it is most concerned that the grievor attend the hearings in person due to the nature of this dispute. Amongst other things, the grievor has alleged harassment from various employer representatives. Mr. Huang suggested that because credibility will be a major issue in this matter, the Employer, those accused of harassment and this Board should be able to see the grievor at all times during the course of litigation. Mr. Huang also stated during one of our teleconferences that the Employer is at a loss to understand why the grievor cannot attend at the hearing given that the Union has stated that Ms. Di Matteo is fit to return to work. I understand that view and in order to determine whether to set aside the Board’s normal practice of having people attend in person at the hearing, I need further medical information. [9] I have reviewed Mr. Hannigan’s proposed questions and in my view they will not necessarily elicit the information that is necessary to make this decision. Accordingly, I order that the Union send the following to the grievor’s physician: Your earlier note specifically stated that Ms. DiMatteo could not attend a hearing at the Grievance Settlement Board in person “due to medical reasons” on April 24th 2018. Ms. DiMatteo was allowed to attend on that day via teleconference. The Employer has objected to continued non- attendance in person by Ms. DiMatteo. This Board needs to determine if there is sufficient reason to stray from its normal practice and allow Ms. DiMatteo to participate in the hearing but not attend in person. The Board has stated that in order to make such a determination further medical information is required. To be clear, “due to medical reasons” is insufficient information in this regard. For your information, the Board can accommodate Ms. DiMatteo in terms of frequent breaks, flexible starting times etc. Accordingly, please answer the following questions for the Board: 1. Are you of the view that the need to attend the proceedings via teleconference or video conference was necessary for April 24, 2018 only? 2. If the need for non-attendance at the Board was meant to continue beyond April 24, 2018, what are the medical restrictions that necessitate the need - 4 - for her non-attendance at the Board in the future. To be clear, a medical diagnosis is not being sought. However, the nature of the condition and the medical restrictions that bar her attendance in person are needed. 3. If the need for non-attendance was for time beyond April 24, 2018, how long do you expect these restrictions to be in place? [10] Of course it goes without saying that the grievor will have to give consent that her physician can provide this information. That is a decision for the grievor to make. However, in the event that I am not provided with the above information I will have no alternative but to uphold the Employer’s motion and the grievor will be obliged to attend at our next day of hearing. [11] As mentioned during our teleconference of today, I am concerned about the amount of time available before our next hearing day. If I have not been able to consider the above requested information and provide an answer to the parties (either verbally or in writing) our next day of hearing may have to be adjourned. Dated at Toronto, Ontario this 15th day of May 2018. “Felicity D. Briggs” Felicity D. Briggs, Arbitrator