HomeMy WebLinkAboutMooka 19-10-25
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT
AND THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
MACKENZIE HEALTH
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEE’S UNION
(“the Union”)
RE: Tamil Mooka
2017-0374-0005, 2018-0374-0003
AWARD
Arbitrator: Barry Stephens
For the Union: Jane Letton, Ryder Wright Blair & Holmes
For the Employer: Robert Hickman, Counsel
Heard in Richmond Hill, Ontario on September 25, 2019
AWARD
[1] At the hearing on September 25, 2019 the grievor failed to produce all documents
that this Board had previously ordered him to produce in accordance with orders issued
to the parties on February 4 and February 11, 2019. In addition, the grievor insisted at
the hearing on September 25, 2019 that he would not proceed with the hearing unless he
was permitted to testify first.
[2] The union counsel sought direction from OPSEU on September 25 with respect to
the grievor’s request. I was advised by union counsel that the union was not agreeable
to proceeding on the basis of the grievor’s request. OPSEU took the position that the
normal order of proceeding should be followed, i.e. that the employer should proceed
first to present the evidence supporting just cause for discipline. After being advised of
the union’s position on the matter, the grievor maintained his refusal to participate in a
hearing that followed the normative legal procedure. In addition, as noted above, the
grievor had failed to produce all of the ordered documentation. Given both of these facts,
the hearing could not proceed on September 25.
[3] Despite the delay and cost associated with the grievor’s position and continued
failure to fully comply with the disclosure order, I declined to dismiss the grievance on
September 25, and gave the grievor an opportunity to reconsider. As a result, after the
September 25 hearing I issued the following interim order to the parties:
2
The case before me involves a written warning and termination imposed on the grievor.
At the hearing on September 25, 2019 the grievor raised a request that he be permitted to
present his evidence first, contrary to the standard order of proceeding in disciplinary cases,
and despite contrary advice from union counsel.
Union counsel sought instructions from her client and advised me that OPSEU’s position was
that the case should proceed in the normal fashion, i.e. with the employer having the burden
of proof and being required to proceed first to present evidence to support allegations of just
case for discipline against the grievor.
The grievor was advised of the union’s decision. He indicated that he was not prepared to
proceed with the hearing in accordance with the the unions direction, i.e, in accordance with
normal arbitral procedure in disciplinary cases. Even if I thought it appropriate for the union’s
case to proceed first, and I do not, it would not be proper to entertain such a request unless
it came from one of the parties to the dispute.
The hearing was adjourned and the grievor was given time to seek advice on the issue.
One of the roles of an arbitrator is to ensure proper procedure and efficient use of scheduled
hearing dates. For this reason, I am ordering that the union has fourteen days from today’s
date in order to confirm that the grievor will participate in the hearing in accordance with the
normal order of procedure. Unless I have written confirmation signed by the grievor by the
end of business hours on Wednesday, October 8, 2019 declaring that the grievor will appear
and participate in the hearing on the basis outlined above, I will deem the grievances before
me to have been abandoned.
I note that the September 25 order went on to direct the grievor again to produce all of
the relevant documents, making it the third time disclosure was ordered.
[4] I have been advised by union counsel that the union has not been able to secure
the grievor’s agreement to follow normative hearing procedure, nor has the union been
able to secure the grievor’s cooperation with respect to the production of all of the
relevant documents that were the subject of the three orders. The union requested the
grievor’s cooperation and he responded on October 7 as follows:
3
“I wish to proceed with the above grievances against my Employer Mackenzie Health and
I understand and agree that is a group grievance discipline and dismissal case, will proceed
to present my case first before the employer present their case.”
[5] Arbitrators have a legislated mandate to resolve disputes between unions and
employers under collective agreements. The grievor is not a party to the collective
agreement. The union and the employer are the only parties. The union, quite
reasonably, declined to agree with the grievor’s unusual and ill-advised procedural
request. There is no question in my mind that the union’s position is correct and
represents the grievor’s best interests. Obviously the grievor does not agree. It is
impossible to continue with a fair hearing in circumstances where the grievor declines to
cooperate with proper hearing procedure, and also fails to comply fully with orders of the
Board.
[6] Unfortunately, there has not been a positive response to the October 8 deadline
set out in the September 25 order. Given all of the above, the grievances are deemed to
have been abandoned and are dismissed. has not responded to the September 25, 2019
________________________
Barry Stephens, Arbitrator
25 October, 2019