HomeMy WebLinkAbout2018-1240.Slaght.19-12-03 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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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# 2018-1240
UNION# 2018-0683-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Slaght) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Dan Hales
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Adrienne Couto
Liquor Control Board of Ontario
Counsel
TELECONFERENCE November 28, 2019
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DECISION
[1] A termination grievance dated April 19, 2018 filed by Ms. Heather Slaght
(“grievor”) came before the Board for arbitration in Sudbury, Ontario on
September 10, 2019. The grievor failed to attend. She had not provided notice
to the union, the employer or the Board that she would not be attending. The
Board received submissions from the parties and issued a decision dated
September 16, 2019. The Board denied the employer’s motion that the
grievance be dismissed summarily. Instead, it ordered that the grievor provide
an explanation for her non-attendance together with any supporting
documentation, no later than 30 days from the date of the Board order. The
employer was given the right to renew its motion for dismissal of the grievance
if the grievor fails to provide an explanation in accordance with the order, or if
the employer is of the view that the explanation provided does not justify the
grievor’s failure to attend the hearing on September 10, 2019.
[2] The employer did renew its motion, and a hearing was convened by
teleconference to hear the motion. The employer filed particulars and a number
of documents, none of which was disputed by the union. The letter of
termination dated April 9, 2018, issued to the grievor included the following:
Heather, you have received numerous warnings regarding your failure to
attend your pre-scheduled shifts and the expectations have been
communicated to you that you must call your store manager if you are
not able to attend work. Specifically, disciplinary action for failing to
attend work or notify your manager of your absence and other workplace
violations have been issued to you as follows:
. July 17, 2015 – letter of reprimand;
. June 6, 2016 – letter of reprimand;
. October 23, 2017 – 1 day suspension;
. November 7, 2017 – 3 day suspension;
. January 2, 2018– 5 day suspension; and
. March 13, 2018 – 10 day suspension;
In addition, following your 10 day suspension, you called the store on
Tuesday, April 3, 2018 to confirm your next shifts, however you did not
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attend nor call to advise of your absence on April 5, 2018 from 4:30 pm-
9:30 pm and April 6, 2018 from 4:30-9:30 pm.
[3] The unchallenged particulars indicate that, given the grievor’s history of
attendance issues, when this grievance was scheduled for hearing on September
10, 2019, employer counsel explicitly sought an assurance from the grievor’s union
representative at the time, that the grievor would be attending the hearing. The
union representative informed that he had spoken to the grievor, and that she had
told him that she would be attending. Subsequently, on September 4, 2019, the
grievor’s present union representative, Mr. Dan Hales, Grievance Officer, emailed
employer counsel to the effect that the grievor had e-mailed him indicating her
intention to proceed with the arbitration. However, the grievor did not attend the
hearing and did not notify anyone about her non-attendance (See, the decision
dated September 16, 2019 which sets out the circumstances). At the
teleconference, Mr. Hales advised that following the issuance of the Board’s
decision he had e-mailed the grievor and sent a letter as well, asking her to contact
him to discuss her grievance, but had not received any response from her.
[4] Employer counsel submitted that in this case the Board had provided the grievor
an opportunity to explain her non-attendance. Over the objection of the employer,
she was given a second chance, but she had failed to take that opportunity.
Counsel submitted that the grievance should be dismissed in the circumstances at
this time. Reliance was placed on Re OPSEU (Durnin) & LCBO, 2005-3281
(Dissanayake); Re OPSEU (Karabegovic) & LCBO, 2007-1436 (Kirkwood); Re
OPSEU (Elllis0 & Ministry of Finance, 1866/99 (Dissanayake) Re AMAPCEO (JM
grievance) & MCSCS 2016-1147 (Parmar).
[5] Mr. Hales for the union, submitted that in the circumstances of this case, the Board
should adjourn the hearing sine die until the grievor is contacted and a response
from her is obtained. He submitted that it is unknown whether the grievor is well
and able to respond to the inquiries by the union. He was still attempting to make
contact with her. Even he is not aware why the grievor is not responding to his
communications directed to the same e-mail and mailing addresses he had always
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used to communicate with her. He pointed out that in Re City of Hamilton (2008)
93 CLAS 105 (Chauvin) the arbitrator adjourned the hearing sine die when the
grievor failed to attend, even though that grievance was only about a fifteen day
suspension. This being a termination grievance, the Board was urged to follow the
approach taken by arbitrator Chauvin.
[6] I have carefully considered the submissions of the parties. The authorities cited
by the employer set out the policy considerations involved in the exercise of the
arbitral discretion in these circumstances. In Durnin (supra) at pp.4-5, I wrote:
Union counsel did not dispute that the Board has the jurisdiction in its
discretion to dismiss the grievance, if it deemed appropriate in the particular
circumstances. Indeed very recently in Re Tafesse, 2005-1342 (Gray) the
Board did exactly that in similar circumstances. In so doing Vice-Chair Gray
adopted the following reasoning in Re Toronto (City) and Canadian Union
of Public Employees, Local 79, (1998), 73 L.A.C. (4th) 412 (Craven) at 416:
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 2007 CanLII 5888 (ON GSB) 5 of the
other party in adjourning the hearing, but also against the public
policy of expedition in the resolution of industrial disputes at
arbitration. Obviously, lengthy delay tends to make it more difficult to
serve the attendance of witnesses. Memories become less reliable,
and material and 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 reason to
overcome the weight of these considerations and justify a delay of
the length sought here.
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As Vice-Chair Gray did, I agree that the maxim “Justice delayed is justice
denied” in the present collective bargaining relationship applies not only to
the employer, but also to the union and grievors. In the instant case, unlike
in Re Tafesse, there can be no doubt that, at least as a result of the
telephone conversation with union counsel, the grievor was aware of the
hearing scheduled for February 1, 2007. He had expressly been warned
that if he failed to attend he ran the risk that his grievance may be dismissed.
Yet he failed to attend without even the courtesy of a telephone call to
explain the non-attendance. Already there has been undue delay. The
union, the employer, as well as the Board have been subjected to
unnecessary and wasteful costs, both in terms of financial resources and
time. There is no indication as to when, if at all, the grievor would be
available to attend. This is an extreme case where the only appropriate
exercise of my discretion is to uphold the employer’s motion to dismiss the
grievance.
[7] I agree with employer counsel that the decision in Re City of Hamilton (supra) is
easily distinguishable from the instant matter. In that case, unlike here, the union
had put forward to the arbitrator an explanation for the grievor’s failure to attend.
In addition, a detailed medical report from a physiatrist was put into evidence to
support that explanation. The union requested that the hearing be adjourned sine
die, until the grievor was medically fit to attend. In contrast, here the union is
seeking an adjournment indefinitely, and is doing so in the absence of any
explanation for the grievor’s non-attendance. The Board in this matter has once
denied the employer’s request that the grievance be dismissed when the grievor
was a “no show” with no notice, even though she had received appropriate notice
of the hearing. The Board at that time adjourned the hearing precisely to allow
the grievor an opportunity to explain her non-attendance. There is absolutely no
indication that the grievor’s non-attendance, her failure to respond to the Board’s
order or the communications from her union representative, was because she was
unable to do so due to health reasons. On the other hand, the grievor’s history of
discipline set out in the letter of termination indicates that she has repeatedly failed
to attend scheduled shifts without notice. In the circumstances, if anything is to
be reasonably implied from the evidence before me, it is would be that the
grievor’s conduct in relation to this proceeding is a continuation of her behaviour
evidenced by her history of discipline. In the circumstances it would be
inappropriate and unreasonable to adjourn the proceeding sine-die. The grievor
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has not claimed that she was unable to attend due to illness. She has simply
ignored the proceeding scheduled to deal with her grievance.
[8] The Board acted cautiously and generously when it adjourned the hearing once
to give the grievor a chance to explain her non-attendance. She has completely
ignored that, as well as all attempts by the union to contact her. As the arbitrator
in Re City of Toronto, (supra) stated, “It would require a truly compelling reason
to overcome the weight of these considerations and justify a delay of the length
sought here”. In the circumstances here, it would not be reasonable or
appropriate to adjourn the proceeding indefinitely on sheer speculation that her
silence is due to some health reasons. Therefore the employer’s motion is
granted and the grievance is dismissed.
Dated at Toronto, Ontario this 3rd day of December, 2019.
“Nimal Dissanayake”
______________________
Nimal Dissanayake, Arbitrator