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Home My WebLink About2016-2701.Cousins.18-06-22 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# 2016-2701 UNION# 2017-0377-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cousins) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE David R. Williamson Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING June 13, 2018, by Telephone Conference Call -2- DECISION [1] At the outset of this hearing held by telephone conference call on June 13, 2018, the Employer made a motion to dismiss the grievance of Ms. Holly Cousins, a motion opposed by the Union. [2] By way of background, Ms. Cousins had worked as a Casual Employee and was terminated from employment on February 22, 2017. Her letter of termination makes reference to her having been away from work due to medical reasons for a period of two years and ten months, her inability to perform work as a Customer Service Representative, and her having not provided the Employer with updated medical information, functional abilities information, and a prognosis for return to work. The Union filed a grievance on behalf of the Grievor on March 2, 2017, seeking Ms. Cousins’ reinstatement as an LCBO employee and to be made whole. This termination grievance came before the Board on January 12, 2018, at which time Ms. Cousins did not appear. Nor did she appear at the subsequently scheduled hearing held April 6, 2018. Her non- appearance was for reasons purportedly medical. [3] In a hearing held by teleconference call on May 14, 2018, Union Counsel informed the Board he had been notified by Ms. Cousins that medical information from a physician advising that she was under doctor’s care and not able to make the April 6th hearing for medical reasons had been sent to him but that he had not yet received that documentation. Ms. Cousins had been ordered by this Board on April 6, 2018, to provide such medical information by April 27, 2018. In a decision dated May 15, 2018, the Board issued a similar Order in which the deadline was extended to June 5, 2018. [4] At the Hearing held on June 13, 2018, Union Counsel advised that nothing had changed since the last hearing day, with the foregoing-ordered medical documentation still not received by him as of June 5, 2018, or since, despite his best efforts to communicate further with the Grievor by way of e-mails, telephone calls, and a formal letter. -3- [5] The Employer asks that Ms. Cousins’ grievance be dismissed, and submits that there is no basis for any further adjournment. It notes that the Grievor has failed to attend two hearings, that there is no evidence she either has a medical condition or that there is a medical issue that precludes her attendance, and that she has failed to offer any information or assurance that she could be present for a hearing at any time in the future. The Employer points out further that it is entitled to have the grievance heard in a timely manner, with a delay having the potential to undermine its ability to make its case due to witness availability, witnesses’ memories fading with the passage of time, and the potential loss of documents. [6] In support of its submission the Employer made reference to the following arbitral authorities: Re Canadian Union of Public Employees, Local 440 v. Toronto District School Board (Renaud Grievance), [2013] O.L.A.A. No 434 (Steinberg); Re Canadian Union of Public Employees, Local 440 v. Toronto District School Board (Renaud Grievance), [2014] O.L.A.A. No. 260 (Steinberg); Re Ontario Public Service Employees Union (Cousins) v. The Crown in Right of Ontario (Liquor Control Board of Ontario) [2018] G.S.B. Decision dated January 16, 2018, (Williamson); Re Kraft Canada and Bakery Confectionary & Tobacco Grain Millers International Union Local 426, (2012), 112 C.L.A.S. 57 (Surdykowski); Re Ontario Public Service Employees Union (Randolph) v. The Crown in Right of Ontario (Ministry of Transportation) (2015), 264 L.A.C. (4th) 422 (Briggs); Re Ontario Public Services Employees’ Union (Savdie) v. The Crown in Right of Ontario (Ministry of Government Services) [2013], O.G.S.B.A. No. 122 (Harris); and to Re Ontario Public Service Employees Union (Ellis) v. The Crown in Right of Ontario (Ministry of Finance) [2001], O.G.S.B.A. No. 74 (Dissanayake). [7] In response to the Employer’s motion to have the grievance dismissed, the Union puts forward three alternative positions. First, that the hearing be adjourned sine die until such time that the Grievor advises that she is able to participate. The second position is that the Board grant a further extension to the deadline for Ms. Cousins to provide the requested medical documentation. The third position is that the Board set the matter down for a Hearing, and in which regard Union counsel informed the Board and Employer -4- counsel that he had received new instructions from the Union to now proceed with the grievance even in the absence of the Grievor. [8] In support of its submission the Union made reference to the following arbitral authorities: Re The Corporation of the City of Hamilton and The Amalgamated Transit Union, Local 107 (Jovanovic) (2008), 93 C.L.A.S. 105 (Chauvin); Re Ontario Public Service Employees Union (Heathcote) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) [2013] O.G.S.B.A. No. 135 (Harris); Re Ontario Public Service Employees Union (Sitek) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2013), 116 C.L.A.S. 320 (Devins); and Re Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Supreme Court of Canada. [9] In response to the Union’s third alternate position that the hearing proceed in the absence of the Grievor, it is the submission of the Employer that to do so demonstrates that one can ignore the Board’s Order to provide medical documentation and still proceed to have one’s grievance heard, that all the previous efforts to deal with the grievance represent a waste of resources, and that at no time did the Union previously indicate its willingness to proceed in the Grievor’s absence. The Employer submits that should the hearing proceed in the absence of the Grievor, that the delay from the adjournments be taken into account with respect to remedy should any Employer liability ultimately be established. [10] Whether to grant an extension of the time limit is clearly a discretionary matter. This discretion is to be exercised taking into account all relevant factors with the ultimate objective of ensuring a fair hearing to both parties and balancing the prejudice to the parties. With such an objective in mind I have considered it appropriate up to this point to grant the requested time extensions. However, going forward, a decision of that kind would be more problematic given the recent conduct of the Grievor and her lack of communication, her non-compliance with two Orders of the Board, and the absence of evidence that a medical condition has precluded her from attending the hearings. Additionally, there is the very real potential for prejudice to the Employer from a further -5- delay. As such, the request made by Union counsel to defer the commencement of a hearing in this matter for a third time in the manner proposed must be denied. [11] However, the grievance does address an important matter, namely the employment termination of Ms. Cousins, and ought to be heard in a prompt manner if at all possible. While I am not prepared to grant a further hearing adjournment, nor am I disposed to dismiss the grievance as moved by the Employer when there is a means at hand as proposed by the Union that will enable the grievance to be heard without undue delay. The declared willingness of the Union to proceed with the hearing in the absence of the Grievor will enable the grievance to go ahead and be heard on its merits. [12] The instant grievance in this matter was filed by the Union on behalf of the Grievor and, as with all grievances, the Union has carriage of the grievance. The parties to the collective agreement are the Union and the Employer, and the Union has now indicated, as it is entitled to do, that it wishes to proceed with the grievance without the need for having the Grievor present. There is no suggestion that the matter needs to be delayed further. The Hearing will proceed in this way. [13] As this is a termination of employment matter the Employer has the burden of proof and will proceed first with its case. The Employer specifically maintains and preserves the right to request that the delay resulting from the earlier adjournments be taken into account with respect to remedy should any liability ultimately be established. [14] The matter is to be set down forthwith for a hearing on a date to be arranged. Dated at Toronto, Ontario this 22nd day of June, 2018. “David R. Williamson” ______________________ David R. Williamson, Arbitrator