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HomeMy WebLinkAbout2007-1436.Karabegovic.08-06-26 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2007-1436 UNION# 2007-5107-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Karabegovic) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFOREVice-Chair Belinda Kirkwood FOR THE UNION Mary Anne Kuntz Senior Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Gordon Fitzgerald Counsel Liquor Control Board of Ontario HEARING June 17, 2008. 2 Decision The parties attended at a hearing on June 17, 2008 which was scheduled for the arbitration of issues arising from the grievor?s discharge on July 9, 2007. The grievor was not in attendance and the Union did not know when, or even if the grievor would be available to attend a hearing in the future. The Employer brought a motion to dismiss the grievance. The Union did not request an adjournment of the matter. Following submissions, including a presentation of facts, documents and legal authorities, I dismissed the grievance at the hearing, with written reasons to follow. This decision sets out the reasons for the dismissal of the grievance. The grievor was a casual employee. The Employer alleged that the grievor failed to report to her scheduled shift on June 27, 2007 and had failed to notify the store of her absence. The Employer alleged that she also failed to report to work on June 29, 2007 and June 30, 2007. On June 30, 2007, the Employer stated that the grievor?s mother had telephoned the Employer to advise the Employer that the grievor was out of the country as a result of a family illness. The Employer stopped scheduling the grievor shifts and terminated her employment. The Employer sent a letter to the grievor by courier and by registered mail on July 9, 2007, in which the Employer advised the grievor that she was discharged from her employment for repeatedly failing to notify the store of her intended absences and for repeatedly failing to report to her scheduled shift. As set out in the letter, the Employer relied upon an alleged culminating incident on June 27, 2007, and the grievor?s disciplinary record which was comprised of a written reprimand on September 6, 2006, a one day suspension on April 20, 2007, and a three day suspension on June 5, 2007, all of which were for failing to notify the Employer of her intended absences. The termination letter stated that the ?absences reveal a pattern of ?family emergencies? or ?family issues?, including your uncle?s illness, the death of your grandfather, taking your mother to the hospital for stitches, and, on one occasion while you were driving into work, your family 3 receiving notice that your uncle?s remains had ?finally been found? after he had been killed in an unspecified war. The LCBO has never received any supporting documentation in support of your family emergencies or family issues on all of these occasions you failed to call into the store before your shifts to advise that you would be absent.? The grievor filed a grievance contesting her termination, claiming that she had not abandoned her job, but had been away on a family emergency, and was being scheduled for shifts, which the Employer knew that she would not be able to attend. The grievor has not contacted the Union since her employment was terminated. On the other hand, the Union, through Ms. Mary-Anne Kuntz, the Union?s Senior Grievance Officer, has contacted the grievor. On April 18, 2008, Ms. Kuntz wrote to the Grievor and provided the th grievor with the Notice of Hearing. On May 16, 2008, Ms. Kuntz provided the grievor a copy of the letter she had sent to the Employer?s Counsel in response to the Employer?s request for particulars. When the grievor did not contact Ms. Kuntz, Ms. Kuntz contacted the grievor on June 9, 2008, and asked her to come to the Union?s office to discuss the case. Ms. Kuntz stated that the grievor never indicated to her that she had not received the Union?s letters. As the grievor agreed to meet Ms. Kuntz but advised her that ?it was not a good time? to discuss the matter as she was in the process of moving, Ms. Kuntz provided the grievor with telephone numbers where she could be reached at the grievor?s convenience, but the grievor did not respond. Ms. Kuntz called the Grievor and left a message on the grievor?s personal voice mail, and did not receive any response. Ms. Kuntz? last telephone message to the grievor was left on the grievor?s voice mail on the last Friday preceding this hearing. The issue is whether in these circumstances, the grievance ought to be dismissed or whether I should exercise my discretion to adjourn the hearing to another date. The grievor has had due notice of the hearing and her conduct has prevented this hearing from taking place. The Notice of Hearing was issued on April 7, 2008 and it was forwarded by the Union to the grievor in a timely manner. The Notice of Hearing sets out the place, date, time of the hearing, and the nature of the proceeding. 4 The Union acted promptly in contacting the Employer in response to its request for particulars, and acted reasonably in following up with the grievor to obtain such particulars. The Union has made itself accessible to the grievor in order that the Union would be in the position to present its case on behalf of the grievor. The Union provided the grievor with the appropriate telephone numbers to be accessible at her convenience, when the grievor told the Union that it was ?not a good time to meet?. The grievor has not provided the Union with any guidance as to why she cannot meet, or attend the hearing, or when, if ever, she would be in a position to allow the Union to meet with her to prepare its case, and when, if ever she would be in a position to attend a hearing. The grievor must take responsibility for her own actions for being un-cooperative with the Union and placing the Union in the position where it cannot represent her interests now, and is not able to assess when it would be able to represent the grievor?s interests. As the issue in this arbitration relates to the grievor?s discharge from employment, her co-operation is necessary in order to allow the Union to prepare her case and her participation in the hearing is critical. Arbitrator Craven reviewed the basis for an arbitrator to award an adjournment, and factors which may be considered in assessing whether to award an adjournment when a party has by its own conduct prevented a hearing from proceeding on a scheduled date in Toronto (City) v. th Canadian Union of Public Employees, Local 70 (Warner Grievance)(1988), 73 L.A.C. (4) 412 (Craven). At page 3, paragraph 11, Arbitrator Craven quoted his earlier decision of Re Iranian Community Association of Ontario and U.N.IT.E. Ontario District Council(unreported, August 30, 1996), in which he stated: Where a party, by its own conduct, has compromised its ability to proceed with the hearing on the scheduled date, it will not be entitled to an adjournment as a matter of right. In such a case, the arbitrator nevertheless has the discretion to award an adjournment, with or without conditions, upon full consideration of all the circumstances. This discretion arises out of the arbitrator?s authority to control the proceedings. The inconvenience and prejudice to the moving party of continuing with the hearing must be weighed not only against the inconvenience and prejudice of the other party in adjourning the hearing, but also against public policy of expedition in the resolution of industrial disputes at arbitration. Obviously, lengthy delay tends to make it more difficult to secure the attendance of witnesses. Memories become less reliable, and material and documentary evidence may go astray. Remedies may become less reliable, and material and 5 documentary evidence may go astray. Remedies may become less effective. For these and other reasons non-trivial delays are almost inevitably prejudicial. Still more importantly, excessive delay tends to undermine the parties? interest in resolving their disputes efficiently, economically and expeditiously. It also tends to reduce confidence in the fairness and efficacy of the grievance arbitration system. In my opinion these considerations weigh heavily against the exercise of the arbitrator?s discretion to grant a lengthy adjournment where the party seeking the adjournment is clearly responsible for the inability to proceed in a timely manner. It would require a truly compelling reasons to overcome the weight or these considerations and justify a delay of the length sought here. These principles are applicable in the case before me. Delays result in prejudice to both parties. Although the delay in the case before Arbitrator Craven was much greater than the delay to date in this case, nevertheless, with the passage of time, memories fade and it becomes more difficult on both sides to present their cases in a fair and accurate fashion. When there is a reasonable reason to delay a matter, it may, on balance, be better and fairer to adjourn the matter. However, in this case there is no indication from the grievor when she would be able to attend, if at all. The Union?s inability to proceed on the matter, as a result of the grievor?s conduct causes costs to both sides. The grievor has shown a complete disregard of the system which has been established to assist employees such as the Grievor to have disputes resolved. Her failure to attend prevented the Union?s case from proceeding, and at the same time prevented another grievance from being heard in its place. As in Ontario Public Service Employees Union (Durnin) and The Crown in Right of Ontario (Liquor Board of Ontario)(February 6, 2007))(GSB#2005-3281) (Dissanayake) andOntario Public Service Employees Union (Tafesse) and The Crown in Right of Ontario (Liquor Board of Ontario) (January 15, 2007)(GSB # 2005-1345) (Gray), this is an extreme circumstance where all the circumstances lead me not to exercise my discretion to adjourn the matter. Therefore this grievance is dismissed. th Dated at Toronto this 26 day of June, 2008 Belinda A. Kirkwood, Vice-Chair