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HomeMy WebLinkAbout2013-2633.Cupskey.19-11-27 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# 2013-2633 UNION# 2013-0164-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cupskey) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Jasbir Parmar Arbitrator FOR THE UNION Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel TELECONFERENCE November 19, 2019 - 2 - Decision INTRODUCTION [1] This decision deals with two motions: one by the Employer who seeks to have the grievance dismissed on a preliminary basis, and the other by the Union who seeks to have the matter adjourned sine die. BACKGROUND [2] In August 2013, the Grievor grieved that he was denied a job as a full-time warehouse worker. The Grievor currently holds, and at the time of the job posting held, the position of a seasonal warehouse worker. The Grievor was denied the position due to his attendance record. The Grievor alleges that his attendance is impacted by a mental health disability and therefore it is discriminatory to deny him the position on that basis. [3] On August 23, 2018, a mediation was held by the Board. The Grievor attended the mediation, but unfortunately no resolution was achieved. It was determined the matter should be set down for hearing dates. Accordingly, by way of a Notice of Proceeding issued on November 16, 2018, the grievance was scheduled for arbitration on November 8, 19, and 20, 2019. [4] On November 3, 2019 the Grievor advised counsel for the Union that he may not be able to attend the scheduled hearing dates for health-related reasons. Counsel for the Union advised him that medical documentation would be required. On November 5, 2019, the Grievor advised counsel for the Union he would try to obtain a medical note. On November 6, the Grievor confirmed to counsel for the Union he was working on obtaining the medical note. - 3 - [5] On November 7, having not heard further from the Grievor, counsel for the Union advised both counsel for the Employer and the Board that the Grievor may not attend the scheduling hearing the next day and that the Grievor had been advised to provide medical documentation in that respect. [6] Since no further contact was made by the Grievor, both counsel and the Board travelled to London for the hearing. The Grievor did not attend. Shortly after the scheduled hearing time, the Employer advised that the Grievor had in fact attended at work for his shift rather than attending the hearing. Counsel for the Union then made some inquiries and learned that the Grievor would not be attending the hearing. Counsel for the Union also learned that Walter Hohman, the Union Steward, had sent someone within OPSEU (not counsel for the Union) an email that morning indicating the Grievor would not be attending the hearing. [7] I then issued an Order, indicating the matter was adjourned for the day on the following basis: a) The Grievor is to provide a written explanation with respect to his failure to attend today’s hearing, including why he did not provide notice in advance that he would not be attending. b) If this explanation involves any medical issue, the Grievor is provide medical documentation in support of his explanation. c) The above two items are to be provided to Employer counsel no later than noon on Wednesday, November 13, 2019. [Bold in original] [8] I also noted that the Board retained the right to make a make a motion to dismiss the matter upon receipt of the above information on the basis of the Grievor’s failure to attend. - 4 - [9] On the morning of November 13, 2019, I received an email directly from Mr. Hohman, which had been copied, amongst others, to counsel for the Union and an employer management representative. Notably, it was not copied to counsel for the Employer. I read only the first paragraph of the email at the time, because I then realized it was not a communication from counsel. The Board then forwarded this email to both counsel and directed that Mr. Hohman and others involved in this matter be advised that direct communications with the Board were inappropriate, and that all communications must come through counsel. [10] Later that morning, at 12:02 pm, counsel for the Union advised the Board via email of the following: In response to the order issued on November 8th, 2019, the union offers the following explanation: The grievor’s reason for not attending the hearing is medical in nature. As the employer is aware, the grievor suffers from a mood disorder. The grievor has asserted that his attendance at the hearing would exacerbate the symptoms of his condition and be detrimental to his health. The grievor alerted the union to the possibility he would not attend due to health reasons prior to the hearing. He was advised by the union to obtain medical documentation, from his doctor, to explain his inability to attend. The grievor was unable to see his doctor before November 8th, despite several attempts. On November 8th, the grievor determined that attending the hearing would be too detrimental and attended work as per his usual schedule. Since then, the grievor has made several more attempts to see his doctor, or any doctor in his office, to obtain a note. His doctor was unavailable and other practitioners asserted that the note should come from his own doctor. As the union understands, the grievor is currently at his doctor’s office in order to obtain a note. We ask that the union be allowed until the end of the day to submit supporting medical documents. [11] Then at 12:23 pm that day, counsel for the Union forwarded two documents to the Board. One was a medical requisition form for a lumbar spine MRI. The other was a brief medical note from Dr. Chawla dated November 13, 2019. It read as follows: - 5 - Mr. Cupskey has been a long time patient of mine. He has multiple medical problems and is not fit to attend the hearing before the Grievance Settlement Board for medical reasons. [12] Subsequently, the parties agreed to convene the hearing for November 19, 2019 by way of teleconference, and address each of the parties’ motions. BRIEF SUMMARY OF SUBMISSIONS a) Employer’s Submissions [13] It is the Employer’s submission that the Order required certain actions by the Grievor and that the Grievor failed to fulfill the requirements of the Order. Namely, the Employer notes that the Grievor is the one that was directed to provide a written explanation of both the reasons for his failure to attend the November 8 hearing and the reason he did not provide notice in advance. The Employer submits the Grievor never provided such explanation. [14] The Employer objects to accepting the explanation provided by Mr. Hohman, who has no standing in this matter. The Employer submits any written communication from him is not sufficient to discharge the Grievor’s obligation as set out in the Order. [15] The Employer also submitted that the email from counsel for the Union does not satisfy the requirement of the Order, since it was not the Grievor who provided the written explanation as required by the Order. Furthermore, the Employer noted that the explanation provided by counsel for the Union also should not be accepted because it was largely based on the explanation provided by Mr. Hohman, as the Grievor had not been fully and directly communicating with counsel for the Union but rather using Mr. Hohman as an intermediary (I observe that it was only in response to a number of very - 6 - direct and repeated questions from me that any information about the communications was provided by counsel for the Union). [16] The Employer submits that Mr. Hrycyna is OPSEU’s chosen counsel for this matter, and the Grievor has no right to choose a different representative for this proceeding. The Employer notes there is no evidence to suggest the Grievor is totally disabled and does not have the capacity to communicate or speak for himself. Furthermore, not complying with a Board Order is not an option simply because the Grievor prefers to deal with Mr. Hohman. [17] The Employer submits that even if the Board were to give consideration to the explanation provided by Mr. Hrycyna, or even by Mr. Hohman, the grievance should be dismissed on a preliminary basis for failing to attend the November 8 hearing with good reason. [18] The Employer submits the hearing has been scheduled for close to a year, and Mr. Hohman’s email indicates the Grievor knew from the mediation (which was over a year ago) that involvement in this proceeding purportedly impacted his mental health. He therefore had ample time to address this matter. Yet, there is no evidence he took any steps in this regard before the November 8 hearing date. The Board was not provided any medical evidence or request for accommodation in advance of the long-scheduled hearing. In fact, the Grievor, the Employer submits, did not even advise counsel for the Union that he was unable to obtain a medical note and would not be attending, which would have reflected a basic courtesy. [19] The Employer also submits that even at this stage, having been directed in the Order to provide medical to support his failure to attend the hearing, there is no medical evidence that there was a health-related reason which prevented the Grievor from - 7 - attending. In this respect, the Employer points out that the note from Dr. Chawla is broad in nature and does not explain what restrictions prevented the Grievor from attending the hearing while at the same time attending work. In fact, the Employer notes, one cannot tell from a reading of the note that Dr. Chawla was even aware that the Grievor was attending work at the time. Furthermore, while the assertion is that a mental health disability was the reason for the non-attendance, the MRI suggests the issue, if any, is a physical one. [20] The Employer, acknowledging that the nature of the grievance is relevant to a decision to dismiss on a preliminary basis, submits that a job posting denial is not as serious as that of a dismissal. The Grievor continues to be employed, and in fact has opportunity to apply for the next full-time posting that arises. [21] The Employer submits that delaying the hearing of this matter is prejudicial to the Employer, noting that already some witnesses have left or retired from the organization compromising their ability to defend the case. The Employer submits that the further passage of time would simply aggravate that. [22] Alternatively, should the Board determine that it is not appropriate to dismiss the grievance at this time, the Employer submits that the Board should reserve both on its motion to dismiss and the Union’s motion to adjourn, and seek further medical evidence. In that event, the Board submits it should be permitted to seek costs and/or limit its liability. [23] The Employer relied on the following authorities: OPSEU v. Ontario (LCBO) (Culp Grievance), [2017] O.G.S.B.A. No. 125; OPSEU v. Ontario (Ministry of Finance) (Ellis Grievance), [2001] O.G.S.B.A. No. 74; OPSEU v. Ontario (MGCS) (Byabagamba Grievance), [2016] O.G.S.B.A. No. 77; OPSEU v. Ontario (LCBO) (Karabegovic Grievance), [2008] O.G.S.B.A. No. 118; OPSEU v. Ontario (Ministry of - 8 - Transportation)(Grievor Grievance), [2015] O.G.S.B.A. No. 158; OPSEU v. Ontario (Ministry of Health and Long-Term Care (Di Matteo Grievance), [2018] O.G.S.B.A. No. 70; and Foyer St. Jacques Nursing Homes v. CUPE, Local 3303 (Dalrymple Grievance), [2012] O.L.A.A. No. 330. b) Union’s Submissions [24] The Union requests that the hearing of this grievance be adjourned until the Grievor provides medical evidence indicating that he is able to proceed. The Union advised that the Grievor indicated he is hopeful that he will be in such a position in the new year. [25] The Union submits that the Grievor has provided a medical note indicating he was unable to attend on November 8th. The Union submits that the nature of his mental health condition is that it is unstable and it is too high a burden to place on the Grievor to know so far in advance. With respect to Mr. Hohman’s involvement, the Union submits those are internal Union issues; the Board should only rely on the information provided by counsel for the Union. [26] The Union submits that the grievance should not be dismissed because the nature of the Grievor’s claim, that he has been discriminated against, is a serious one. The Union submits that the fact of the Grievor’s mental health condition is not in dispute. The Union submits that the events that have unfolded should not be seen as a lack of respect for the Board’s processes, but an indication he is grappling with his own condition. [27] With respect to prejudice, the Union submits that documents have presumably already been preserved at the time of the filing of the grievance and that there is not a significant factual dispute between the parties. The Union also notes that years have - 9 - already passed since the filing of the grievance; some more time to ensure a fair hearing is reasonable. [28] The Union acknowledges that there is some confusion related to the medical issues. Accordingly, it submits that the best course of action is to obtain further medical and it does not object to the Board making directions in that respect. [29] The Union relied on the following authorities: Sunnybrook Health Sciences Centre – and - ONA (Armes), 2010 CarswellOnt 11716 (Stout); Hamilton (City) – and – ATU, Local 107 (Jovanovic), 2008 CarswellOnt 10456 (Chauvin); and HEU – and – Fraser Health Authority, 2002 CarswellBC 4285 (Dorsey). c) Employer’s Reply [30] The Employer submits that while there is no dispute about the existence of a mental health condition, there is a dispute as to whether such condition prevented the Grievor from being able to attend the hearing. The Employer submits that in fact it would be discriminatory to just presume he cannot attend because of his disability, in the absence of actual evidence to that effect. Again, the Employer points to the fact the Grievor attended work and the lack of any medical evidence to explain the non- attendance at the hearing in light of that fact. [31] The Employer reiterated that if the matter is not dismissed at this stage, it should be permitted to limit its liability and seek costs. DECISION [32] Having considered the submissions of the parties, I have determined that it is not appropriate at this time to grant the Employer’s motion to dismiss the grievance on a preliminary basis. - 10 - [33] This is not because I did not find the Employer’s submissions persuasive. Board proceedings involve significant resources. For that reason, generally, where grievors do not attend a scheduled hearing without good reason, the Board will dismiss the grievance on a preliminary basis. Furthermore, where the reason involves medical issues, such reason must generally be substantiated through proper and sufficient medical documentation in order for it to be accepted as valid. In the present case, the medical documentation provided, in the context of the Grievor attending work instead of the hearing, is less than satisfactory in establishing an absence with good reason. [34] However, I am significantly influenced by the role of Mr. Hohman, who is not a party to this proceeding. It is evident from Mr. Hohman’s actions that he does not understand the appropriate methods of communication in this proceeding; the obligations of grievors in such proceedings; or even the quality of evidence that is relevant and useful to the Grievor’s position. I am concerned that given his role within the Union, Mr. Hohman’s involvement, however well-intentioned, may have unfortunately led the Grievor to rely on his uninformed guidance and therefore have an inaccurate understanding of his responsibilities as a grievor in the arbitration process. [35] Counsel for the Union advised that this internal Union matter has been addressed. Nonetheless, I emphasize that it is ill-advised for any grievor to not fully and directly communicate with their counsel in a timely fashion. In fact, the significant negative consequences of such an approach are illustrated in the numerous Board decisions where such conduct led to grievances being dismissed on a preliminary basis. That is the risk the Grievor faces should he choose to continue to follow such an approach. [36] I also am the view that it is not appropriate to grant an adjournment for some unknown period of time until the Grievor is able to attend, as the Union has requested. It - 11 - is not consistent with the principles of natural justice for the Employer to have this matter pending indefinitely. [37] In my view, the appropriate approach at this stage is to obtain additional medical documentation. While I am directing the Union to obtain this information, the Grievor is expected to authorize the disclosure of medical information by his doctor to the Union, and disclosure by the Union to the Board and the Employer. [38] The Grievor’s doctor is to be advised that the Grievor has filed a legal claim which is being determined through a legal proceeding. As such, he is required to provide instruction to counsel during the proceeding and potentially testify. The doctor should be requested to answer the following questions: a. Is the Grievor able at the present time to attend for the legal proceeding? b. If the answer to question (a) is no, what is the nature of the medical condition (not the diagnosis) which prevents him from doing so, and what are the specific restrictions flowing from that condition which bar his attendance? c. If the answer to question (a) is no, is it possible at the present time for the Grievor to attend for the legal proceeding if some form of accommodation is provided? If so, what are the specific restrictions flowing from his medical condition which require accommodation? d. If the answer to question (a) is no, is it anticipated the Grievor will be able to attend, with or without accommodation, at some point in the future? If so, what is that anticipated date? e. On November 8, 2019, the Grievor was scheduled to attend at the legal proceeding. He did not attend. Rather, he attended attend at work on that same date to perform his job duties as a warehouse worker. Are you aware of any medical explanation - 12 - specific to the Grievor’s health on that date that would render him unable to attend the legal proceeding but be fit to perform his job duties? [39] The doctor is to be expressly requested to answer each of the questions separately, and advised that the information he or she provides may become evidence in the legal proceeding. [40] The Union is directed to submit this inquiry to the doctor within three weeks of the date of this decision, and the doctor is to be requested to provide this information within thirty days of the Union’s request. Once the Union receives this information, the Union is directed to share this information with the Employer. [41] The parties are to provide the Board with an update of this matter by the end of February 2020, indicating whether this matter may be set down for hearing on its merits, or whether there are any other issues which must first be determined. [42] I confirm that the Employer retains the right to make a motion for dismissal on a preliminary basis later in this proceeding based on all the events to date, and the right to make a motion for costs or limited liability. Dated at Toronto, Ontario this 27th day of November 2019. “Jasbir Parmar” ________________________ Jasbir Parmar, Arbitrator