HomeMy WebLinkAboutP-2013-3116.Alemu.18-10-03 Decision
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Commission des
griefs de la fonction
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Toronto (Ontario) M5G 1Z8
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PSGB# P-2013-3116; P-2013-3576; P-2014-0652
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Alemu Complainant
- and -
The Crown in Right of Ontario
(Ministry of Children, Community and Social Services) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE
COMPLAINANT
Zelalem Alemu
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
REPRESENTATIONS September 12, 21 and October 2, 2018
- 2 -
INTERIM DECISION
[1] The complainant filed three successive complaints, dated December 4, 2013,
January 27, 2014, and May 21, 2014. Each complaint takes issue with the Employer’s
decision to discipline the complainant for alleged ongoing insubordinate behaviour. The
discipline imposed was a letter of discipline, a 1-day suspension, and a 3-day
suspension. The complaints were initially scheduled before this Vice-Chair for hearing
on October 7, 2015. Mediation held on October 29, 2014 was unsuccessful in resolving
the complaints. The October 7, 2015 hearing date was adjourned and three subsequent
hearing dates have also been adjourned at the complainant’s request due to his
asserted inability to attend and participate for medical reasons.
[2] The complaints are now scheduled for hearing on October 30, 2018. The
complainant seeks an adjournment of that date, asserting an inability to attend and/or
participate in the hearing for medical reasons. The Employer opposes this request to
adjourn the matter and also asserts that Board Files #P2013-3576 and #P-2014-0652
(the second and third complaints respectively) ought to be dismissed at this stage as
untimely. The Employer has filed written representations setting out its understanding of
the facts and its submissions in respect of, 1) the adjournment request, 2) its assertion
that the Board lacks the jurisdiction to entertain the two latter complaints on the basis
that their filing was untimely, and 3) its position as to the appropriateness of the
complaint in Board File #P2013-3116 proceeding as it asserts that that complaint is now
moot.
[3] The Board attempted to convene a conference call with the parties in order to
consider the complainant’s request to adjourn the October 30, 2018 hearing date.
However the complainant took the position that he was unable to participate for medical
reasons.
[4] No medical evidence has been provided to support or substantiate the
complainant’s asserted inability to attend a hearing or to otherwise participate in a
process to move his complaints forward. The Employer advises that the complainant
has been off work and in receipt of long-term disability benefits since about April 2014. It
has no information as to the complainant’s current medical status and/or whether the
complainant is likely to return to work.
The request to adjourn the October 30, 2018 hearing
[5] The complainant’s request to adjourn the scheduled October 30, 2018 hearing
date is opposed. Four prior hearing dates have already been adjourned and these
complaints are now over four years old. The complainant asserts an inability to attend
the hearing or any ability to participate in a conference call. Should the complainant face
restrictions or limitations with respect to his ability to attend and/or participate, the Board
may be able to accommodate those needs in order to support the complainant’s
attendance and/or participation. However, the Board is unwilling to accept the
complainant’s assertion as to his inability to attend and/or participate in a hearing
process in the absence of sufficient and reliable supporting medical evidence.
- 3 -
[6] A complainant has a responsibility with respect to the conduct of their complaint
as continued lengthy delay is prejudicial to the responding party. The onus to pursue a
complaint rests with a complainant and, at some point, a responding party is entitled to
a hearing or to have closure of the allegations made against them. In the absence of an
agreement to adjourn, the complainant must establish that he is entitled to the
adjournment sought.
The Board therefore directs as follows:
[7] The complainant is hereby directed to provide to the Board sufficient and
reliable medical evidence in support of his assertion that he is unable to attend and
participate in a hearing by no later than Friday, October 26, 2018. Such evidence is to
be provided by a treating health care professional with knowledge of the complainant’s
condition and any opinion is to specifically address the issue of whether or not the
complainant is medically able to participate in a hearing process whether that process
be conducted in person, by way of conference call, or in writing. Should the complainant
have restrictions and/or limitations on his ability to attend and/or so participate, the
nature of those restrictions and/or limitations are to be specifically identified.
[8] The hearing date of October 30, 2018 remains scheduled, pending receipt of
medical evidence to be filed by the complainant. Upon receipt of such sufficient and
reliable medical evidence, the Board will assess the evidence and determine
appropriate next steps.
[9] Should the complainant fail to provide such sufficient and reliable medical
evidence by no later than Friday, October 26, 2018, in support of his asserted inability to
attend and/or participate in a hearing process, the hearing will proceed on October 30,
2018 on the understanding and basis that the complainant is medically able to attend
and participate and that no further adjournment of the proceedings is warranted. At that
time the Board will first address the preliminary issues raised by the Employer with
respect to the Board’s jurisdiction to entertain the complaints filed as Board Files
#P2013-3576 and #P2014-0652.
[10] Should the complainant fail to provide such sufficient and reliable medical
evidence by the date ordered and should the complainant then fail to attend the hearing
scheduled for October 30, 2018, the Board will proceed in his absence to deal with the
three complaints.
Dated at Toronto, Ontario this 3rd day of October, 2018.
“Marilyn A. Nairn”
_______________________
Marilyn A. Nairn, Vice-Chair