Loading...
HomeMy WebLinkAbout2021-1479.Watkins.22-05-31 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-1479 UNION# 2021-0164-0101 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Watkins) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION George Lin Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Mackenzie Anderson Liquor Control Board of Ontario Counsel HEARING DATE May 30, 2022 - 2 - Decision [1] This matter is a grievance filed by OPSEU on behalf of Kacee Watkins (the “grievor”) that was scheduled to be heard commencing at 10:00 a.m. on May 2, 2022. The grievor was aware of the time and date of the scheduled hearing. When the grievor failed to attend the hearing, the Board issued a decision containing the following orders and directions: Mr. Watkins is hereby ordered to provide to Union counsel the reasons for his absence on May 2, 2022 no later than May 16, 2022 failing which this matter will be deemed dismissed. In the event Mr. Watkins provides the Union with the reasons for his absence, such reasons are to be provided to counsel for the LCBO who will then determine, and advise the GSB, no later than May 16, 2022, whether the Employer is satisfied with the reasons provided and agrees to the relisting of this matter; challenges the sufficiency of the reasons and requires more information; or is not satisfied with the reasons and seeks to have the matter dismissed. In the event there is a dispute between the parties as to the sufficiency of the information provided or whether the reasons given ought to lead to the dismissal of this matter, the parties are to advise the GSB so arrangements can be made for a telephone conference. [2] On May 16, 2022, the Union advised the Employer as to the reasons for the grievor’s absence. The reason provided, as communicated orally to LCBO counsel is: “The grievor was busy looking for work, had not been paying attention to his email, and claimed not to have received any of Mr. Lin’s calls reminding him of the hearing.” That same day, the Employer advised the Board it wished to bring a motion that the matter be dismissed. A telephone conference was scheduled for May 30, 2022, to hear the Employer’s motion. The grievor was in attendance for the conference call. [3] The Employer does not accept that the grievor was busy and not paying attention to email and not receiving Mr. Lin’s calls. The Employer submits the grievor knew of the hearing date and deliberately failed to attend. The Employer relies on the two Notices of Proceedings sent out by the GSB which the Union would have forwarded to the grievor, emails sent by Mr. Lin on March 31, 2022 and May 2, 2022 reminding the grievor of the hearing, and numerous phone calls made by Mr. Lin to the grievor, at least one of which is of sufficient length to suggest Mr. Lin left a voicemail message. The Employer further relies on a record that shows Mr. Lin and the grievor had a - 3 - 14-minute conversation on May 11, 2022, in support of its position the grievor knew of the hearing and deliberately failed to attend. [4] The Employer relies on: OPSEU v. LCBO (Tafese Grievance), [2007] O.G.S.B.A. No. 9 (Gray);Toronto (City) v. Canadian Union of Public Employees, Local 79 (Warner Grievance), (1998), 73 L.A.C. (4th) 412 (Craven); OPSEU v. LCBO (Karabegovic Grievance), [2008] O.G.S.B.A. No. 118 (QL) (Kirkwood); Pavaco Plastics Inc. and Union of Needletrades, Industrial and Textile Employees, Local 2508 (Wong Grievance), [1999] O.L.A.A. No. 39 (Whitehead); Waterloo Furniture Components Ltd. v. United Steelworkers of America, Local 7155 (Santos Grievance), [2004] O.L.A.A. No. 562 (Marcotte). [5] The first decision relied upon by the Employer, Tafese, supra, involved a discharge grievance that was twice scheduled and adjourned at the request of the Union. The matter was then scheduled a third time. The grievor had only provided the Union with a cell phone number for contact purposes, however, when the Union called the number, there was an outgoing message saying voicemail was not set up. The Union had no means to contact the grievor to inform her of the hearing date. The grievor did not reach out and contact the Union to enquire about her grievance. In these circumstances, when the matter came on for hearing on the third scheduled date, the Union again requested an adjournment. The Employer requested the matter be dismissed. [6] The Employer relies on the following comments of Arbitrator Gray commencing mid-way through paragraph 11: Repeated rescheduling consumes resources, resources that could be devoted to resolving other disputes. Delay causes prejudice. Although he made them in somewhat different circumstances, I adopt the following observations of Arbitrator Craven in Re Toronto (City) and Canadian Union of Public Employees, Local 79 (1998), 1998 CanLII 30076 (ON LA), 73 L.A.C. (4th) 412 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 of the other party in adjourning the - 4 - 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 secure 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. The grievor compromised the union’s ability to proceed with her grievance on the scheduled date. She knew that the hearing would be rescheduled and that preparation for hearing would soon be needed. She provided union counsel no means to contact her other than her cell phone, then cancelled or abandoned her cell phone account or, at very least, rendered it unable to take messages. Having made it impossible for counsel to contact her telephonically, she made no effort to contact counsel herself. One might reasonably infer from this that she had abandoned interest in pursuing her grievance. … 14. …. The maxim that justice delayed is justice denied applies to respondents as well as complainants. I concluded that an adjournment should not be granted. [7] The Employer further relies on Karabegovic, supra, a case that also concerned a discharge grievance. The grievor did not attend on the first scheduled date and the Union advised it “did not know when, or even if the grievor would be available to attend a hearing in the future.” The Union did not seek an adjournment. There was no dispute in the case that the grievor was aware of the time and date of the hearing. There was evidence of the Union making numerous attempts to speak to the grievor to obtain particulars of the grievance without success. The grievor gave no explanation for her non-responsiveness or failure to attend the hearing. At paragraph 12 of the decision Arbitrator Kirkwood refers to the same quote from - 5 - City of Toronto, supra, relied upon by Arbitrator Gray in Tafese, supra. The following comments of Arbitrator Kirkwood, set out at paragraphs 14 – 16, are relied upon by the Employer: 14. 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.… 15. The Union’s inability to proceed on the matter, as a result of the grievor’s conduct causes costs to both sides. 16. 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) and Ontario 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. [8] The City of Toronto decision, quoted in both Tafesse, supra, and Karabegovic, supra, involved a grievor who was unable to attend the hearing due to imprisonment. The hearing was scheduled for June 2, 1997, and, when the grievor was not in attendance due to the fact he was at a bail hearing, the matter was adjourned. When the hearing reconvened on August 11, 1997, the grievor was not in attendance as he was in a detention centre. At a hearing held on February 11, 1998, the Employer put in its evidence in the absence of the grievor who remained in detention. The Union then advised that the grievor would not likely be released until February 1999. The Employer brought a motion to dismiss. [9] Arbitrator Craven determined that the grievor’s unavailability to attend was “from his own wrongful acts.” He was found to have compromised his ability to attend by his own conduct and, on that basis, a further adjournment was denied. [10] Pavaco Plasticss, supra involved a discharge grievance. The grievor did not attend on the first scheduled date and did not advise the Union that he would not be attending. The matter was adjourned on conditions very similar to those set out in the Board’s May 2, 2022 decision, set out above, in this matter. The Union subsequently advised the Employer that the grievor had not attended the hearing - 6 - as he had been at a job interview. The Employer sought to have the matter dismissed for the grievor’s failure to attend. Arbitrator Whitehead determined: By the grievor’s absence to attend a job interview in another city, in combination with the grievor’s failure to give adequate prior notice of his absence with reasons, I find that the grievor has abandoned his grievance and that there is not sufficient reason to return the matter for a new hearing. The grievance is, therefore, dismissed. [11] The case of Waterloo Furniture, supra, was also a discharge grievance. The grievor did not attend at the hearing notwithstanding he was aware of the date, time and location. The Union asked that the hearing proceed in the absence of the grievor. The Employer asked that the grievance be dismissed. Arbitrator Marcotte adjourned the grievance on conditions very similar to those set out in the Board’s May 2, 2022 decision in the instant matter. The grievor subsequently advised that he had accepted employment out of town and had forgotten about the arbitration. At paragraph 12, Arbitrator Marcotte set out his reasons for finding the case to be analogous to both Pavaco Plastics and Toronto (City): 12. In the instant case, as in the Pavaco Plastics case and Toronto (City) case, the reason for the grievor’s absence on June 24, 2004, is known, namely, that he forgot about the hearing. While having forgotten about his hearing explains or accounts for his not having provided prior notice of his absence, that explanation falls far short of justifying his absence by way of employment in another location. Nonetheless, the instant case is similar to the Pavaco Plastics case in that in both, the grievor did decide to engage in other activities despite having been duly notified of the hearing of his grievance. In that respect, the Toronto (City) case presents the similar circumstance whereby the grievor, by his own actions, became unavailable for the hearing of his grievance. 13. In applying the above arbitral approach to the matter at hand, I find that the grievor has not provided satisfactory or sufficient reason for his absence on the June 24, 2004 scheduled date of hearing of his grievance. The grievor had been duly notified of the hearing and to have simply forgotten about its occurrence is clearly indicative of a lack of interest, to say the least, in having his complaint dealt with on its merits, especially where the parties, and not the grievor, bear the onus of costs and time for having his grievance heard. 14. In the result, I find the grievor abandoned his complaint. In this circumstance, it is not appropriate for the parties to bear the costs and inconvenience of a hearing of the merits of the grievance. The grievance is dismissed. - 7 - [12] The Employer argues that the foregoing authorities support an exercise of the Board’s discretion in favour of dismissing the grievance based on the grievor’s non-attendance at the hearing. [13] The Union disputes the facts of this matter warrant a dismissal of the grievance. The Union states that the grievor and Mr. Lin did have contact in advance of the hearing date. There was communication back and forth between the two of them. The grievor was informed of the hearing date. It was only in the couple of weeks leading up to the arbitration that the Union had trouble contacting the grievor. The Union submits that what the Employer is attempting to seek from the Board is extreme and unprecedented. [14] In the Union’s submission, there are two factors to be considered when determining whether to dismiss a grievance due to the grievor’s non-attendance: (1) the indication of a lack of interest on the part of the grievor; and (2) whether the grievor was made aware that his grievance would be dismissed if he failed to attend. In support, the Union relies on: Ontario Public Service Employees Union (Byabagamba) and Ontario (Ministry of Government and Consumer Services), 2016 CanLII 51068 (ON GSB) (Dissanayake) (“Byabagamba #1”); Ontario Public Service Employees Union (Byabagamba) and Ontario (Ministry of Government and Consumer Services), 2016 CanLII 59599 (ON GSB) (Dissanayake) (Byabagamba #2); Ontario Public Service Employees Union (Cousins) and Ontario (Liquor Control Board of Ontario), 2018 CanLII 64394 (ON GSB) (Williamson); Ontario Public Sector Employees Union (Goring) and Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 59890 (ON GSB) ( Misra); Ontario Liquor Boards Employees’ Union and Ontario (Liquor Control Board of Ontario), 2004 CanLII 55409 (ON GSB) (Dissanayake); Ontario Public Sector Employees Union (Wojtkun) and Ontario (Ministry of the Solicitor General), 2020 CanLII 97347 (ON GSB) (Anderson); Ontario Public Sector Employees Union (Trecapelli) and Ontario (Ministry of the Solicitor General), 2020 CanLII 74360 (ON GSB) (Misra); Ontario Public Service Employees Union (Amodeo) and Ontario (Ministry of Labour) , 2008 CanLII 19766 (ON GSB) (Devins). [15] Byabagamba#1 and #2 concerned a discharge grievance. When the grievor missed two scheduled days of mediation, the Employer brought a motion to have the grievance dismissed. Byabagamba #1 states the grievor indicated he was sick on the first day missed and missed the second date due to a family matter. At paragraph 17, Arbitrator Dissanayake states as follows: [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: - 8 - 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, 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. [16] The Board directed the grievor to provide particulars setting out the reasons for his non-attendance at the Board on the two dates missed; the reasons why adequate notice was not provided that he would not be attending on each of those two dates; and any documentary evidence the grievor wished to rely upon in support of his stated reasons for not attending. [17] In Byabagamba #2, the Board considered the particulars filed by the grievor. The Board’s considerations are set out beginning at paragraph 15: [15] Having regard to the Board’s order, the grievor’s response, and the submissions of counsel, I am of the opinion that it is not appropriate to exercise my discretion to dismiss this termination grievance. The grievor’s information certainly would not meet the standards expected for particulars provided by legal counsel. However, he has adequately provided reasons for his failure to attend on July 6, 2015. On a plain reading, it indicates that he reacted to the medication differently each day, and that on that day he had an adverse reaction that prevented his attending the hearing. Had he given notice to the Board or counsel in advance of the possibility that he may not be able to attend the hearing, if he has an adverse reaction to the medication, that would not have helped anyone. He still would have not known what the effect of the medication in fact would be on the particular day, to be able to provide sufficient notice. [16] I am less satisfied with the explanation the grievor has provided for his non-attendance on July 4, 2016. He is not at all clear about the connection between the family ceremony and his inability to attend the hearing on July 4, 2016. He has not specified what he was required to do on that day in relation to the ceremony that prevented attendance. [17] Despite these short-comings, however, I am satisfied that the grievor has not shown disinterest in pursuing his grievance. He did not ignore the Board’s order. He has made the effort to explain his absences, and he has apologized for the inconvenience he caused. Also, at the time of his absences, he was not on notice that his failure to attend may have the - 9 - serious consequence of summary dismissal of his termination grievance. The Board decision dated July 15, 2016 could not constitute such notice because it post-dates his absences. [18] In response to the employer’s objection in Byabagamba that all the Board had to go on was the grievor’s assertions as to the reason for his absences, the Board stated, in the absence of reasons to question the grievor’s credibility, the grievor’s stated reasons for missing the hearing dates were accepted. The motion to dismiss was denied. [19] The Wojtkun decision, supra, dealt with a dispute between the Union and Employer as to what conditions should attach to the adjournment of a hearing caused by the grievor’s failure to attend. The Union relies on the decision for the following summary of some of the relevant cases: [14] Byabagamba was a discharge case. The grievor failed to attend a scheduled mediation date without prior notice or explanation and could not be reached by counsel for the union. The matter was rescheduled for a further mediation date one year later and again the grievor failed to attend without prior notice or explanation and could not be reached. The employer moved for the dismissal of the grievance. Contrary to the submission of the Union before me, Arbitrator Dissanayake did not state the two factors identified by the Union must be present prior to dismissal of a grievance due to non-attendance of the grievor. Rather, he stated those two factors “are given weight” in determining whether to dismiss (at para. 18 of the first Byabagamba decision): 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, 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. This, however, was not the end of the matter. Rather, Arbitrator Dissanayake ordered the grievor to provide written particulars of the reasons for his non- attendance on both dates and his reasons for failure to give notice that he would not be attending on those dates, along with any supporting documentation: see para. 20 of the first Byabagamba decision. Arbitrator Dissanayake’s order also specified that the parties might request an opportunity to make submissions on whether the grievance should be dismissed based on “any” information provided. The grievor provided particulars in response to this direction. The employer requested an opportunity to make submissions for the dismissal of the grievance and a conference call was held for this purpose. In the second Byabagamba decision, Arbitrator Dissanayake determined the particulars provided were sufficient and did not dismiss the grievance. - 10 - [15] Slaght was another discharge case. The grievor failed to attend the arbitration hearing on the scheduled day with no prior explanation or notice. The employer moved for dismissal of the grievance. Arbitrator Dissanayake adopted in essence the same procedure as he had in the first Byabagamba decision: the grievor was ordered to provide an explanation and supporting documentation by a specified date and the employer was given the right to renew its motion for dismissal following that date. The grievor failed to provide anything in response to the order. The employer renewed its motion for dismissal and a hearing was conducted by conference call. In the cited decision, Arbitrator Dissanayake granted the employer’s motion for dismissal. [16] In Savdie, Arbitrator Harris adopted a similar approach to Arbitrator Dissanayake. A grievor twice failed to appear for mediation. The union was directed to provide by a specified date “good reason” for the grievor’s failure to attend. Unlike Arbitrator Dissanayake’s orders, Arbitrator Harris’ order did not expressly provide for an opportunity for submissions on any materials filed. Further, Arbitrator Harris’ order addressed the question of what would happen if “good reason” was not presented by the specified date. In particular, Arbitrator Harris directed that the matter would be administratively dismissed. I note that the matter before Arbitrator Harris was a letter of reprimand and thus presumably was subject to Article 22.16.1 of the collective agreement between the parties which provides for the resolution of grievances “in an expeditious and informal manner”. Arbitrator Harris’ approach was entirely consistent with this direction. By contrast, the matter before Arbitrator Dissanayake in Byabagamaba was a discharge, and thus presumably subject to the “regular arbitration procedure” as set out in Article 22.16.6. [17] Karabegovic was a discharge case. The grievor failed to attend on the scheduled hearing date with no prior notice or explanation. Arbitrator Kirkwood granted the employer’s motion for dismissal of the grievance without providing the grievor an opportunity to provide an explanation. In my view, however, on the facts described the case can readily be seen as one where the first factor identified by Arbitrator Dissanayake in Byabagamaba as justifying dismissal of a grievance without further inquiry was made out: the grievor’s interactions with the union prior to the date of the hearing clearly demonstrated a lack of interest in proceeding with the grievance. [20] The Union submits there is no basis for finding the grievor in the instant matter is not interested in having his grievance proceed. The Union and the grievor were in communication up until a couple of weeks before the hearing date. When directed by the Board to do so, the grievor immediately provided his reasons for not attending on May 2, 2022. The grievor attended the hearing of the instant motion. This case is distinguishable from cases where the Union had no idea if the grievor intended to participate. Further, the grievor never understood that a failure to attend the hearing could result in the dismissal of his grievance. - 11 - [21] The Union submits that the cases relied upon by the Employer are not analogous as they involve multiple adjournments and multiple instances of non-attendance. In Tafesse, supra, Arbitrator Gray commented: “The employer has tolerated as much delay as it could be asked to endure in the circumstances.” This shows the extent to which the Board is willing to indulge before it is willing to dismiss a discharge grievance. [22] The Union disputes that delay is a relevant consideration, however, notes that the matter was scheduled for hearing only eight months after the grievance was filed. No significant delay has occurred in this matter. No prejudice has been caused. [23] The Union, relying on Amodeo, supra and Byabagamba #1, supra, argues there is a distinction between a mediation date and a hearing date. The Union states the parties had agreed to use the date in question to engage in mediation. The hearing would not have begun on May 2, 2022. Thus, while the Employer may take the position the grievor has lost the chance to engage in mediation, the Employer is not otherwise prejudiced by the loss of the day. [24] The Union argues the considerations to apply are whether the grievor is not interested in pursuing the grievance and whether the grievor had notice that his non-attendance could result in his grievance being dismissed. Neither factor is present, and the grievance should be permitted to proceed. The Union states it would be unduly harsh to the grievor, who is present at the hearing of the motion, to dismiss the grievance. [25] In reply, the Employer submits that the fact that the grievor was communicating with the Union, and then ceased doing so prior to the hearing date, supports a finding that he lacks interest in his grievance. The Employer submits the grievor ignored the Union’s calls and chose not to attend. The Employer states that the reasons given for not attending are very suspect and the grievor’s credibility is in issue. [26] The Employer argues the Union’s submission that there are two considerations is a mischaracterization of the cases. In Wojtkun, supra, Arbitrator Anderson, at paragraph 14, sets out a quote from Byabagamba, supra, where the two considerations are discussed and then, immediately thereafter, states “This, however, was not the end of the matter.” Arbitrator Anderson refers to the fact that Arbitrator Dissanayake ordered the grievor to provide his reasons for the failure to attend and give notice that he would not be attending. Submissions were invited from the parties as to whether the grievance should be dismissed based on “any” information provided. The Employer submits additional factors to be considered are the prejudice to the Employer and the Board and the protection of the integrity - 12 - of the arbitration process. In this regard, the Employer relies on the following quote from Byabagamba #1, supra: However, non-attendance of a grievor for scheduled proceedings before the Board has implications beyond the union and the employer. The Board has an institutional interest in ensuring that parties with notice attend its proceedings on the scheduled dates and times. Where a party fails to attend without good reason, the Board’s own resources would be wasted. The Board must strongly discourage any party from failing to attend scheduled proceedings unless there is very good reason for doing so. Moreover, the Board’s proceedings must be treated with respect and courtesy. Non-attendance without good reason is disrespectful to the lawyers and representatives from both parties who are in attendance, as well as to the Board itself. Therefore, the employer’s decision not to pursue the issue of the grievor’s non-attendance is not sufficient reason to ignore it. Decision [27] This matter involves a grievor who was in contact with the Union up until a couple of weeks prior to the hearing. The grievor communicated with the Union by phone and email and was made aware of the date of the hearing. When the hearing date arrived the grievor did not attend. When directed by the Board to provide a reason for his non-attendance he did so, and the grievor attended at the hearing held to hear the Employer’s motion that the grievance be dismissed. The grievor’s explanation for his non-attendance at the May 2, 2022 hearing is he got busy looking for work and forgot. As argued by the Employer, this explanation attracts some suspicion as the grievor appears to have simply stopped communicating with the Union in the weeks leading up to the hearing. There also appears to be an element of culpability as the grievor stopped checking his email and did not answer his phone in the weeks leading up to the hearing. The grievor’s explanation is not, however, implausible. I accept the grievor’s explanation on its face at this juncture. [28] The cases relied upon by the parties suggest there are a number of factors to be considered in deciding whether to dismiss a grievance due to a grievor’s failure to attend. As argued by the Union, two of those factors are whether there is a lack of interest on the part of the grievor and whether the grievor had notice that his failure to attend could result in the dismissal of the grievance. I do not, however, consider either of these two factors to be determinative. I concur with Arbitrator Anderson’s remarks in Wojtkun, supra. [29] The issue in dispute and its importance to the grievor is a consideration. - 13 - [30] As argued by the Employer, the cost to the parties and the integrity of the arbitration process are also relevant considerations. In Tafese, supra, Arbitrator Gray, considering a third adjournment request, took the fact that repeated scheduling requests consume resources that could be used elsewhere, into account. In Karabegovic, supra, where there was evidence of the Union making numerous unsuccessful attempts to contact the grievor, and the grievor giving no explanation for her failure to attend the hearing, the Board put considerable weight on the integrity of the process and dismissed the grievance. However, the integrity of the process or the cost to the parties is not always determinative. In Byabagamba #1 and #2 the Board, after weighing other factors such as the grievor’s interest in proceeding with the grievance, and lack of notice as to the consequences of his failure to attend, declined to dismiss a grievance after the grievor had missed two hearing dates. [31] Whether the grievor gives reasons for missing the hearing date is a further relevant consideration. In Slaght, cited at paragraph 15 of Wojtkun, supra, the grievor failed to appear at the hearing and was, as in this case, given the chance to provide an explanation. When he failed to do so the grievance was dismissed. Not showing up at the hearing and not responding to the Board’s direction that a reason be provided weighs heavily in favour of dismissing the grievance. [32] In Waterloo Furniture, Arbitrator Marcotte dismissed a grievance when the grievor missed the hearing because he had accepted employment out of town and forgot about the arbitration. Arbitrator Marcotte finds the case to be similar to Pavaco Plastics on the basis that, in both cases, the grievor decided to engage in other activities despite having been duly notified of the hearing. Arbitrator Marcotte also finds the facts to be analogous to those in Toronto (City) where the grievor was unable to attend the hearing because he was in jail. With respect, both Pavaco Plastics and Toronto (City) involved culpable or intentional acts on the part of the grievor that led to them missing the hearing. I do not consider forgetting about a hearing to fall within that category. Forgetting, while an indicator of the grievor’s level of interest in the proceeding, and thus relevant to another consideration, is not the same as deliberately taking steps that make it impossible for the grievor to attend. [33] A further consideration is whether, knowing they would not be able to attend, the grievor notified the Union so that the Union could inform the Board and the Employer and thereby save costs and inconvenience. In Pavaco Plastics, the fact that the grievor failed to attend the hearing to attend a job interview and failed to give adequate notice, was enough for the Board to exercise its discretion to dismiss the grievance. In Byabagamba #2, Arbitrator Dissanayake, at paragraph 15, took into account, the fact that the grievor may not have been in a position to - 14 - give advance notice that he would not be in attendance on the first hearing date missed. [34] As touched upon above, another factor that is considered is whether the grievor caused the circumstances that led to his inability to attend. In Toronto (City) the grievor, who could not attend because he was in jail, was found through his own wrongful acts, to have compromised his ability to attend. The grievance was dismissed. In Tafese, a grievor who gave the Union no means of contacting her, was found to have compromised the Union’s ability to contact her and, when a third adjournment was sought, the grievance was dismissed. Placing yourself in circumstances that will then foreclose your ability to attend a hearing is not an acceptable reason. [35] I turn then to the present matter. The matter is a discharge grievance, albeit of a probationary employee, but none the less a significant issue for the grievor. The grievor advises that he was busy looking for work and forgot about the hearing. While such could be an indicator that the grievor is not interested in the grievance, his subsequent conduct suggests otherwise. He provided reasons for why he did not attend, and he attended the hearing of the instant motion. I am satisfied the grievor has interest in the grievance at this time. The date missed was the first day of hearing. Thus, there has been only one adjournment. While even one missed date represents a loss to the parties in terms of time and money it is not so severe as to have the institutional interests outweigh the grievor’s interest in having his grievance heard. The reason for the failure to attend, while not compelling, is not that the grievor put himself in a position where he could not attend. Rather, the grievor forgot about the hearing. Finally, it cannot be said that the grievor deliberately failed to advise the Union that he would not be attending. [36] Taking all factors into consideration the Employer’s motion to dismiss the grievance is denied. This matter is referred to the Registrar to schedule two days of hearing. If the grievor fails to attend the hearing and fails to provide a good reason, supported by documentary evidence where available, the grievance will be dismissed. If the grievor knows he will not be able to attend in advance of the hearing date and he fails to advise the Union, the grievance will be dismissed. The grievor is hereby put on notice that forgetting about the hearing will not be accepted as a good reason for not attending in the future. Dated at Toronto, Ontario this 31st day of May 2022. “Diane L. Gee” _______________________ Diane L. Gee, Arbitrator