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HomeMy WebLinkAbout2018-0035.Khan.19-10-31 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# 2018-0035; 2018-2642 UNION# 2018-0510-0001; 2018-0510-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Khan) Union - and - The Crown in Right of Ontario (Ministry of Government and Consumer Services) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel TELECONFERENCE October 11, 2019 -2- DECISION [1] These grievances were scheduled to be heard at the Grievance Settlement Board on July 12, 2019. At the time set for the hearing, the Union requested an adjournment on the grounds that the Grievor was not present, as the Grievor had advised counsel for the Union that he had a “family emergency”. The employer opposed the adjournment and, in the alternative, submitted that the Grievor ought to be required to prove the circumstances which prevented him from attending the hearing, failing which his grievance should be dismissed. The employer’s position arose out of the fact that a previous hearing day had also been adjourned on what it believed to be essentially false pretenses. [2] Given the absence of the Grievor on the day of the hearing I directed the parties to engage in a sort of written in person hearing regarding the Union’s adjournment request. I directed the parties to make submissions by email, at the conclusion of which I provided a brief oral decision, followed by a written bottom line decision. In accordance with my decision the Union filed information about the Grievor’s absences by email. However, the employer took the position that the information filed was inadequate and asked me to dismiss the grievances. Accordingly, a conference call was held for the parties to make submissions about the employer’s motion that the grievance ought to be dismissed. This decision determines that motion. [3] The starting point of this dispute is the first scheduled hearing day, November 7, 2018. Although the Employer agreed to the adjournment of that hearing day in circumstances which are described below, it did so without prejudice. Accordingly, in my view, the circumstances of that adjournment request are therefore relevant to the determination of the motion before me. In that instance, counsel for the Union wrote counsel for the employer in late October, 2018 and requested an adjournment of the November 7, 2018 hearing date as follows: I have now spoken with the Grievor, and I understand that he is currently on a sick leave. -3- Additionally, he has advised me that he has a Specialist medical appointment on November 7, 2018, so will be unable to attend the hearing. As such, the Union is seeking an adjournment to the November 7th hearing date. Is the Employer in agreement with adjourning? If so, I will write to the GSB to reschedule. [4] On October 30, 2018 the employer responded to the adjournment request: The Employer is in agreement with the adjournment provided that Amir provides a note from the specialist office confirming that he has a specialist appointment on November 7, 2018. If Amir is amenable to this request please have the note to the employer on or before Friday November 2, 2018. [5] On November 5, 2018 the Union responded: I have just spoken with the Grievor, and he advised that he has an appointment at Synergy Rehab and Physiotherapy Centre (Woodbridge) on Wednesday. He does not have an appointment card, etc. Could you please let me know whether – given that information – the Employer consents to the adjournment on Wednesday? [6] On the morning of the day of the hearing the Employer consented to the adjournment request on the following terms (after setting out some of the history of the file): The Employer requested a note from the specialist office confirming that Mr. Khan had a specialist appointment on November 7, 2018. This clinic provides paramedical services and it is not clear that Mr. Khan is unable to attend the GSB due to a specialist appointment. As such, this is not acceptable and/or sufficient to satisfy the Employer’s request for documentation. However, in good faith, the Employer will grant the adjournment on a without prejudice basis. The Employer is also putting OPSEU and Mr. Khan on notice that should he be unable to attend any future GSB proceedings, the Employer will require more than 30 days advance notice or if it is within 30 days that sufficient supporting documentation is provided to grant the adjournment or the Employer may file a motion to have the grievance dismissed. [7] Following the events in November, the hearing of the matter was re-scheduled for July 12, 2019. On July 10, 2019 the Union wrote to the Employer, requesting an adjournment of the hearing date, as the Grievor had a “family emergency”. The Employer requested additional supporting information surrounding the circumstances of this adjournment request, and that such information be provided by 4pm on July 11. The Union did not provide this information and accordingly the parties attended at the GSB. Counsel for the Employer, and four -4- other Employer representatives and human resources individuals, were in attendance along with counsel for both sides. [8] The Union orally requested an adjournment. Counsel for the Union advised that he received email communication from the Grievor that same morning, but that the email did not provide any more information about the family emergency including whether it was continuing. Counsel for the Union explained that the Grievor had been difficult to communicate with and so counsel did not know the nature of the family emergency. [9] At that time, I directed the written hearing on the Union’s adjournment request that is noted above. In its written submissions the Employer requested: • That the Grievor be directed to provide written explanation of the circumstances surrounding his inability to attend at the Board on July 12, 2019, by July 26, 2019; • That the Grievor be directed to provide by July 26, 2019, confirmation from the medical clinic he stated he had an appointment scheduled on November 7, 2018, confirmation that he attended such an appointment, the time of the appointment, as well as written explanation as to why the appointment prevented him from attending at the Board for this proceeding and/or why the appointment could not be rescheduled; • That if the Grievor fails to provide the above information by the above dates, or fails to provide satisfactory information explaining his inability to attend the above noted hearing dates, that the Grievances may be dismissed. [10] The Union agreed to the first request but sought additional time for the Grievor to respond. As for the second request, the Union agrees to provide evidence of the confirmation of the appointment but asserts that the remainder of the request was an expansion of the employer’s initial request for information made in November. As for the third request the Union stated: The union understands that the information provided will be considered in the decision on the motion, however we submit that this information should not be determinative and that the importance of the issue at hand and the lack of prejudice to the employer in this case, should be weighed appropriately. [11] In the circumstances I made the following decision on July 16, 2019: -5- Having carefully considered the written submissions made by the parties (and assuming the Grievor wishes to continue with this grievance), I hereby Order the Grievor to: • provide by July 26, 2019 a written explanation of the circumstances surrounding his inability to attend at the Board on July 12, 2019, including any supporting documents, if available; and • provide by July 26, 2019, confirmation from the medical clinic he attended on November 7, 2018, that he attended such an appointment, the time of the appointment, as well as a written explanation (by the Grievor/Union) as to why the appointment prevented him from attending at the Grievance Settlement Board for this proceeding on that date and/or why the appointment could not be rescheduled. [12] I also advised that If the Grievor failed to provide the above information by the above dates (subject to any extension request by the Union), or failed to provide satisfactory information explaining his inability to attend the above noted hearing dates, the Grievances may be dismissed. [13] In response to my order counsel for the Union provided the following by email to the Union: In response to the Order dated July 16th, 2019, the union provides the following information: Regarding the grievor’s absence on July 12, 2019, the grievor has informed the union that he could not attend because his mother, who has undergone knee surgery, required his care. She was also exhibiting high blood sugar. The grievor’s spouse was also feeling unwell. As a result of her illness he was tasked with both caring for her and additional childcare obligations. Regarding the grievor’s absence on November 7th, 2018, the grievor maintains that he attended a medical appointment at the Synergy Rehab and Physiotherapy Center. [14] The employer responded that the information provided by the Union was inadequate and a conference call was scheduled to hear this motion. ARGUMENTS [15] The employer argues that the grievances ought to be dismissed as the Grievor did not comply with the Order requiring him to provide information. It also appears that the Grievor knew in advance that his mother’s blood sugar was going to be high and his wife would be unwell since he asked for an adjournment -6- two days before those events occurred. Moreover, the Grievor was warned about the consequences of his failure to provide the required information. The employer relies on a series of GSB cases where Vice Chairs have dismissed grievances after two missed hearing dates where the Grievor has not provided adequate explanation. The employer notes that the grievances at issue here involve a written reprimand and an allegation of harassment. [16] The Union argues that the Grievor wishes to continue with his grievance and that there is no prejudice to the employer to let him do so. He has provided a valid explanation for both of the hearing days he was required to miss and it would be impossible to provide documentary evidence of his mother and spouses’ condition. The most recent adjournment request involve circumstances where the Grievor would be entitled to a leave day to take care of his family members and the arbitration hearing should be no different. DECISION [17] Even the cases relied on by the employer make it clear that dismissing a grievance for a Grievor’s failure to attend a hearing is something of a last resort. In one of those cases, Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Government & Consumer Services) (Byabagamba), [2016] CanLII 51068 (ON GSB) (GSB#2014-4536) Arbitrator Dissanayake stated: [17] I have considered the particular circumstances of this case and the submissions of counsel. I am of the view that it is not appropriate to dismiss the grievance at this stage. In Re OPSEU and Ministry of Transportation, (supra) at para 37 the Board wrote: In those cases where arbitrators are asked to uphold an Employer request for dismissal of grievances there is, not surprisingly, reluctance to do so when the matters include issues as significant as termination. However, it is accepted that labour relations disputes – including discharge grievances – cannot be held in abeyance for extended periods of time without good reasons. [18] In the case law, two factors are given weight in determining whether the extreme response of dismissal of a discharge grievance is appropriate. First, an indication of lack of interest on the part of the grievor, for example by ignoring attempts by union counsel to communicate or by ignoring a Board order. Second, -7- whether the grievor had been made aware that his grievance may be dismissed if he failed to attend scheduled hearings. Neither indicia is present in this case. [18] In my view the same gravity does not apply where, as in this case, the grievances do not concern a discharge. Even so, the conditions set out in the caselaw discussed by Arbitrator Dissanayake are largely met. The Grievor has shown a lack of interest by (at best) choosing to attend a physiotherapy appointment over a hearing without making any effort to reschedule the appointment. He has also made himself difficult for the Union to communicate with which has inhibited the Union’s ability to advance his interests and has not complied with a Board order. The second condition has also been met as the Board’s order stated that if he failed to obtain the information required by the Board his grievances could be dismissed. [19] Moreover, the information about the adjournment requests provided by the Grievor through the Union leave more questions unanswered than answered. First, for reasons that are not explained, the Grievor did not provide documentation from the rehabilitation clinic to prove that he actually attended an appointment there on the date of the first day of the hearing. As I noted, the Grievor initially claimed that the rehab appointment was a “specialist medical appointment” and that this claim could be perceived as deceptive. However, it is now uncertain that he attended an appointment at all since he failed to provide documentation to demonstrate that he had. Obtaining such documentation- had he actually attended- is not a difficult task. The fact that he did not do so suggests to me that either he does not wish to proceed with his grievance or that he was not truthful about the reason that he was “unavailable” on the first day of hearing. [20] Similarly, while the reasons for the Grievor’s absence on July 12, 2019 might, in other circumstances, constitute a legitimate reason for a hearing to be adjourned, it is notable that the Union asked for the adjournment for a “family emergency”. That request was made two days before the date of the hearing. It is difficult to see why an adjournment was necessary two days before the hearing for a -8- spouse “feeling unwell” or in the absence of evidence of what other arrangements were sought to be made for the Grievor’s mother. [21] In the circumstances, I conclude that despite the Union’s submissions, the Grievor has no particular interest in actually attending a hearing into his grievance. Had he any real interest he would have made efforts to move his physiotherapy appointment (assuming he had one) especially since the hearing had been scheduled for months. At a minimum, he would have obtained the documents necessary to prove that he had attended such an appointment since my decision made it clear his grievances could be dismissed if he failed to comply. Not only did he not do so by the time directed, he did not do so by the time of the telephone hearing. Similarly, had he interest in the hearing he would not have sought an adjournment two days before the second scheduled hearing day where it was not at all clear at that time that he would have to miss it. The Grievor has demonstrated a lack of concern for the inconvenience and expense to which he has put the Employer, his Union and the Board which would have likely been forgiven had he simply complied with the Board’s direction. [22] I do not want to schedule another hearing date without confidence that the Grievor will make an effort to appear and where he refuses to comply with my directions. Accordingly, I find it appropriate to dismiss the grievances and do so through this decision. Dated at Toronto, Ontario this 31st day of October, 2019. “Brian McLean” ______________________ Brian McLean, Arbitrator