HomeMy WebLinkAboutCaron 21-01-22IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and
pursuant to a collective agreement
BETWEEN:
ST. CLAIR COLLEGE
(the “Employer”)
-AND-
OPSEU LOCAL 137
(the “Union”)
Caron Grievance
Before: Gail Misra, Arbitrator
Appearing for the Employer:
David Foster, Counsel
Appearing for the Union:
Allison Vanek, Counsel
Conference Call held on January 22, 2021
Decision issued: January 22, 2021
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DECISION
I. I have been appointed pursuant to the collective agreement between the parties
to hear a grievance filed by the Union on behalf of its member, Mr. Caron.
2. This matter had been re-scheduled for arbitration on January 27, 2021 after an
earlier adjournment granted on conditions in a decisio n dated March 5, 2020.
On January 22, 2021 the Employer made a motion via teleconference to have the
matter dismissed on the basis that the Grievor has failed to provide information to
support his original adjournment request. The Employer provided me w ith all of
the evidence it has received regarding the Grievor’s medical situation that was the
basis for the March 2020 adjournment.
3. Para. 7 of the March 5, 2020 decision states:
7. For the purposes of the adjournment request, I accept the grievor’s assertion that
he is unable to drive to Windsor because he has apparently broken his ankle.
However, the grievor is required to provide medical proof of his injury at the next
day of hearing in this matter.
4. Based on the evidence before me, it is now clear that the Grievor had not
“broken” his ankle. While the Grievor has provided a photo of his two ankles to
show that his right ankle was swollen at some point before March 5, 2020, there is
no medical evidence to support that it was fractured or “broken”. Furthermore, to
the extent that the Grievor has provided photographs of parts of other documents
that purport to support his claim, they indicate the following:
- On a form dated and signed on February 13, 2020, that appears to be from a
health care practitioner at the Kingston Health Scie nces Centre (although
since the entire page has not been provided it is difficult to tell), in a section
photographed that is titled “Recommendations/Precautions” it simply
indicates “Right ankle ROM, strengthening, [unreadable word] and balance.
No restrictions.” (Emphasis added)
- Another photograph is of the top of a form that indicates that it is from the
Kingston Health Sciences Centre, and is a “Referral” for “Physiotherapy”. It
too shows a visit date of February 13, 2020. However, and although it i s
clear that the first box on that form is titled “Referring Diagnosis”, the
Grievor did not include that part of the form in the photograph, so there is
nothing before me to indicate what the referring diagnosis which had got the
Grievor to the Physiotherapy department had been.
5. The Union argued vigorously against the Employer’s motion to dismiss this
grievance. It noted that it has provided the Employer with all of the information
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that the Grievor has provided to it, and that the photos show that Mr. Caron had had
a medical problem with his ankle in February 2020 which precluded him from being
able to drive to Windsor to attend at the hearing in March 2020. It concedes that
none of the medical evidence the Grievor has submitted supports his assert ion that
he had broken his ankle. However, counsel for the Union argued that Mr. Caron had
likely used the term “broken” in a more commonplace sense, and that in any event,
he had indicated that he was unable to get to Windsor from Kingston, where he now
lives.
6. The Employer notes that the reason for the Grievor’s dismissal had been because
of his inability to provide medical support for his lengthy absence from work, and
that while the College, over an extended period of time, had tried to assist Mr. Caron
with a leave of absence in order for him to provide medical information, he
ultimately had never done so. As such, it sees the current situation as part of an on -
going pattern of behaviour by the Grievor, which did, and continues to , cause the
College severe prejudice.
7. Whatever may have been the reasons for the termination of Mr. Caron’s
employment, the issue before me at this juncture is whether the Grievor has
provided medical proof of his injury at or before the next day of hearing, which is
scheduled for January 27, 2021. He has not done so. Nothing in the photographs
provided indicates that Mr. Caron had a “broken” or fractured ankle on or around
March 5, 2020. Rather, to the extent that he may have had some injury, and been
referred for physiotherapy, what is clear from one of the photos tendered is that as
of February 13, 2020, he had no restrictions at all.
8. Thus, three and a half weeks before the March 9, 2020 hearing date, Mr. Caron
had been advised by a medical practitioner that he had no restrictions in respect of
his right ankle. There was therefore no basis for seeking and being granted an
adjournment. It seems apparent now that Mr. Caron misled the parties at the time,
and in any event, has not met the condition upon w hich the adjournment had been
granted.
9. Based on the evidence before me, I grant the Employer’s motion to dismiss the
grievance.
10. This grievance is hereby dismissed and the hearing scheduled for January 27,
2021 is cancelled.
Dated this 22nd day of January, 2021.
“Gail Misra”
Gail Misra, Arbitrator