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HomeMy WebLinkAbout2016-0473.Di Matteo.19-05-15 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 Janice Johnston Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Henry Huang Treasury Board Secretariat Legal Services Branch Counsel HEARING May 8, 2019 - 2 - Interim Decision [1] This matter commenced in 2017. There have been several other interim awards in this case. This matter commenced before Arbitrator Felicity Briggs. By decision dated May 15, 2018 Arbitrator Briggs wrote as follows: 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 - 3 - 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 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. [2] Arbitrator Briggs wrote a second decision dated June 4, 2018 which again dealt with the request by the grievor to participate via teleconference. The relevant portions read as follows: Decision ... [3] In an effort to determine this matter, this Board requested further medical information. On May 15, 2018, a decision was issued ordering the Union and the grievor to provide further medical information in this regard. [4] On May 22, 2018, Mr. Hannigan provided to Mr. Huang and the Board an electronic copy of a note from the grievor’s family physician. The note stated, “The above needed to attend the proceedings via teleconferencing on 24/4/18 due to medical illness. This non-attendance is meant to continue beyond April 24/18 due to her anxieties and unable to speak in front of people. These restrictions are indefinite.” [5] A conference call was then arranged to allow counsel to make any further comments regarding the grievor’s request to attend the hearing via tele- conference. The Employer’s view had not changed after reviewing the requested medical note. It was of the view that – given the nature of the issues in dispute in - 4 - these proceedings – the grievor should be ordered to attend in person. The Union urged that the grievor be accommodated as set out by her physician. [6] On May 30, 2018, the Board convened a teleconference and provided an oral ruling. As promised this is a short written decision setting out the ruling. [7] After much consideration I am prepared to grant the grievor’s request to attend the hearing via teleconference. While I fully understand the Employer’s concerns regarding a full and fair hearing for all, the grievor has provided medical documentation establishing a sufficient medical need for accommodation by way of her attending the hearing via teleconference. [8] During the teleconference with the parties, discussion took place to ensure – to the extent possible – that the grievor has all of the documents in her possession that will be touched upon in this matter so that the hearing can proceed without undue delays. [9] Notwithstanding my finding at this time, it may happen that this decision will need to be revisited given the complicated issues in this matter. ... [3] Arbitrator Briggs passed away suddenly and I assumed carriage of this matter. We have had two hearing days in this matter in which the grievor has participated via teleconference. On the last day of hearing, May 8, 2019 the grievor was being cross-examined. She was very argumentative, abrupt and rude. She constantly questioned the need to answer what she was being asked and often initially refused to answer. Despite being repeatedly told to answer the questions being asked she was very difficult. She frequently challenged counsel for the employer in a very loud voice. On a couple of occasions she launched into a tirade and refused to listen to what was being said to her. It is apparent to me that she either does not understand that she is participating in a legal proceeding or does not care. In any event her behaviour is completely inappropriate and unacceptable. [4] In her June 4th decision Arbitrator Briggs noted that the decision to allow the grievor to participate via teleconference may need to be revisited. That time has arrived as clearly the current process is not feasible. - 5 - [5] The medical documentation provided is almost a year old. Assuming it is still relevant and accurate, the basis for the need to participate by teleconference appears to be “due to her anxieties and unable to speak in front of people”. Therefore to accommodate the grievor she will be able to continue to participate via teleconference and will not be required to appear in person at the hearing. However, she is directed to attend at the union’s office located on Victoria Park Avenue and participate via teleconference in the company of her counsel. She has attended there before to meet with her counsel. The exact address is: 2550 Victoria Park Ave., Suite 400, Toronto, ON M2J 5A9. The telephone number is 1-844-845-5394. Arrangements have been made for her to sit privately with her counsel in Room #1. [6] This matter is scheduled to continue on Thursday, May 23, 2019. The employer and I will be attending at the Grievance Settlement Board. The grievor is directed to attend at the union’s office on May 23rd at 9:30 a.m. The hearing will commence at 10 a.m and counsel for the employer shall resume his cross- examination of the grievor at that time. Dated at Toronto, Ontario this 15th day of May, 2019. “Janice Johnston” Janice Johnston, Arbitrator