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HomeMy WebLinkAbout2007-0011.Egesi.11-02-08 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2007-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi)Association - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFOREVice-Chair Janice Johnston FOR THE UNION James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Counsel HEARING February 7, 2011. - 2 - Decision [1] On January 26, 2011, I issued an interim decision in this matter. For ease of reference, I will set it out. It provides: This matter commenced before me on April 26, 2007. On that date, the parties and Ms. Karen Egesi, the complainant, signed a Memorandum of Settlement which resulted in the settlement of the two disputes which were before me at the time. One of the terms of the Memorandum was that it was to be kept confidential. I remained seized in the event that there were any difficulties with regard to the interpretation or implementation of the Settlement. On July 23, 2009, the complainant sent a number of emails which the Ministry contends were a breach of the confidentiality provisions of the Memorandum of Settlement and which constituted inappropriate conduct on the part of the complainant. As a result, an IT investigation was conducted which resulted in a report dated September 21, 2009. From September 29, 2009, to February 5, 2010, the complainant was absent from work on sick leave. When she returned to work, she was suspended for ten days by letter dated February 11, 2010.AMAPCEO filed a dispute on behalf of Ms. Egesi challenging this suspension dated February 12, 2010. The parties agree that I have jurisdiction to deal with tKHHPSOR\HU¶VDOOHJDtion that Ms. Egesi had breached the confidentiality provisions of the Memorandum of Settlement and the ten-day suspension. These issues were scheduled on an expedited basis for March 12, 2010. On March 9, 2010, I received a letter from the complainant indicating, among many other things, that she would not be attending the hearing as she objected to being represented by AMAPCEO. The complainant filed complaints before the 2QWDULR/DERXU5HODWLRQV%RDUG WKH³2/5%´ DOOHJLQJWKDWVKHKDGQRWEHHQ appropriately represented by the Association. A hearing date before me was scheduled for July 23, 2010. This was adjourned as the parties were waiting to see the results of the proceedings before the OLRB. The proceedings at the OLRB were dismissed on August 31, 2010, and a request for reconsideration was dismissed on November 24, 2010. The case before me was again scheduled for hearing on January 25, February 1 and February 7, 2011. The parties appeared before me on January 25. At that time, counsel for the Association indicated that they had been informed that the grievor did not wish to be represented by AMAPCEO. Counsel for the employer indicated that the complainant had informed them on Monday, January 17, 2010, that she would be commencing a three-month medical leave and would not be - 3 - attending the hearing. No medical documentation was provided in support of this requested leave. The employer has requested that the complainant provide medical documentation to justify her request. As the complainant did not appear at the hearing on January 25, counsel for the Association requested an adjournment. It was not disputed that the Complainant was aware of the proceedings and had known about them for some time. Although he sought an adjournment of the January 25 hearing, counsel for the Association indicated that he would not object should the employer request that this adjournment be peremptory upon the complainant¶VDWWHQGDQFHDWWKH hearing scheduled for February 7, 2011. Counsel indicated that the February 7 date was preferred over the February 1 date as it would provide more time for the Association to notify the ComplainantUHJDUGLQJWKHRXWFRPHRIWRGD\¶V proceedings. Should the complainant choose to do so, it would also give her time to obtain and provide medical justification for her failure to attend at the proceedings on January 25th. Counsel for the Ministry objected to the granting of an adjournment. He argued that the employer in this case had been very accommodating of the numerous adjournment requests which have been made. He suggested that the Complainant has no respect for the representation she has and is receiving from the Association. She has a complete lack of respect for the process in place for dispute resolution between the parties. She indicated that she was not going to show up and in fact she did not do so. Endless adjournments are costly and a waste of valuable resources. However, in the alternative, should I be inclined to grant the adjournment, employer counsel agreed that it should be peremptory upon thHFRPSODLQDQW¶V attendance at the February 7, 2011, hearing. He requested that the Complainant be directed to provide medical documentation or another acceptable reason to justify her failure to attend at the hearing on January 25. At the hearing on January 25, I ruled orally that in the circumstances I would grant an adjournment of the hearing on a peremptory basis and that the hearing would proceed on February 7, 2011, unless the parties agreed otherwise. Therefore to be clear, the complainant is hereby directed to appear at the hearing scheduled for February 7, 2011, or to provide sufficient justification to warrant the granting of an adjournment of the proceedings. Given how long this matter has gone on, should an adjournment be sought it will have to be based on compelling reasons. Should the complainant fail to appear or provide reasons this hearing will either proceed in her absence or be terminated. Therefore, the hearing scheduled for February 1, 2011, is hereby adjourned. This matter will proceed on February 7, 2011, unless the parties agree otherwise. - 4 - [2] Immediately after the hearing on January 25, 2011, Ms Mary Byberg, the dispute Resolution Officer for AMAPCEO, assigned to this case sent the following email to Ms. Egesi, the Complainant in this case. It reads: From: Mary Byberg [byberg@amapceo.on.ca] Sent: January 25, 2011 1:52 PM 7RNDUHQLHJHVL?KRWPDLOFRP Subject: FW: Egesi hearing Importance: High Dear Ms. Egesi, As you were aware, a hearing was scheduled for today (January 25, 2011) at the Grievance Settlement Board to deal with the Ministry's complaint that you had breached the terms of your Minutes of Settlement and AMAPCEO's grievance that there was no just cause for your ten day suspension. I attended at the GSB ZLWK0U0F'RQDOG$0$3&(2¶VODZ\HU When you did not attend, the Ministry wanted the Vice-Chair to proceed with the hearing or to dismiss your grievance. Mr. McDonald objected, because it was not clear to us whether you had intended toEHWKHUHDQGZHUHQ¶WEHFDXVH\RXZHUH ill, or whether you had never intended to be there at all. The Vice-Chair made a decision which will be sent to you when we receive it. In that decision, the Vice-Chair directed that the date of February 1st would be adjourned but that the date of February 7th would be made peremptory. That means that the hearing will proceed on that date even if you are not in attendance, unless you provide me with a medical note stating that you were unable to attend on January 25th (today) and on February 7th because you were ill. If you do attend on February 7th, you must have a note that explains that you were not able to attend today because you were ill. Would you please let me know as soon as possible as to whether you will be attending on February 7th and why you did not attend today. If you cannot attend on February 7th because of your illness, would you please provide me with a medical note stating that. I will then give the note to Mr. McDonald and he will give it to the Ministry lawyer and to the Vice-Chair. If you do not want to pursue this hearing before the Grievance Settlement Board, would you please advise me. In that case, AMAPCEO will withdraw your dispute. If I do not hear from you in response to this email (which I am also sending to you via regular mail), AMAPCEO will proceed to the hearing on February 7th and advise the Vice-Chair that it is withdrawing your dispute. As I have advised you earlier, AMAPCEO cannot pursue this dispute before the Vice-Chair if you are not willing to cooperate with AMAPCEO and our lawyer. - 5 - We have been advised (by the Ministry) that you advised the Ministry on January 17th that you were taking a 3 month sick leave. Apparently you did not provide a GRFWRU¶VQRWHRUDQ\PHGLFDOjustification for that absence. You should be aware that the collective agreement provides in Article 37.8 that you will not continue to receive sick pay after 7 days unless you send a medical certificate from your doctor to your manager certifying that you are unable to perform your work. I look forward to hearing from you. Mary F. Byberg Dispute Resolution Officer AMAPCEO The Association of Management Administrative and Professional Crown Employees of Ontario 1 Dundas Street West, Suite 2310 [3] The contents of the above noted email were also put into a letter format which was mailed to the Complainant. When counsel for AMAPCEO received my decision dated January 26, 2011, he forwarded it to the Complainant with the following email: From: James McDonald Sent: January 26, 2011 3:34 PM To: `karen.egesi@ontario.ca'; kareniegesi@hotmail.com' Cc: `Mary Byberg'; Sharon Wilson Subject: FW: Decision - GSB#2007-0011 AMAPCEO (Egesi) & Ministry of Finance Attachments: 2007-0011. Egesi.11-01-26 Decision.pdf; 2007-0011. Egesi. 11-01- 26 Cover Letter.pdf Importance: High )XUWKHUWR0V%\EHUJ¶V-DQXDU\WKOHWWHUand email, attached is the decision of the Vice-Chair from yesterday's hearing. The Vice-Chair has set out in this Award the terms of the adjournment that she told us orally yesterday. Those terms were set out in Ms ByEHUJ¶VFRUUHVSRQGHQFHZLWK\RX If you do not attend on February 7th, and have not provided Mary with a medical note prior to then that states clearly that there are medical reasons why you cannot attend, AMAPCEO will not contest the request by the Ministry to have your complaint dismissed. If you do attend, you must bring a medical note explaining why you were not in attendance yesterday. If you do attend on February 7th and refuse to cooperate with Ms Byberg and me so that we are therefore unable to present your case before the Vice-Chair, it is my opinion that AMAPCEO should not proceed with your complaint. The decision as to whether - 6 - to proceed or not will then be an AMAPCEO decision. If you want to proceed on February 7th please contact Ms Byberg so that we can schedule a time to meet with you prior to the hearing. We look forward to hearing from you. [4] The complainant did not respond to either of these e-mails. On February 3, 2011, Ms. Byberg and Mr. Rob Smalley, the Director of Dispute Resolution for the Association, telephoned the Complainant. She hung up the phone on them. [5] At no time did the Complainant indicate to the Association that she was intending to appear at the proceedings scheduled for February 7, 2011. Nor did she advise the Association that she would not be attending due to medical reasons. At no time did she indicate to the Association that she could not attend the scheduled hearing due to illness. [6] Therefore, although the Complainant was aware RIWRGD\¶VSURFHHGLQJV and had been provided with a copy of my January 26 decision directing her to attend or provide sufficient justification for an adjournment, she has again failed to appear or to provide an acceptable reason for her absence. [7] Counsel for the Ministry requested that in light of my decision dated January 26, 2011, and the failure of the Complainant to appear, that I dismiss the Complaint before me. He indicated that the employer would no longer be pursuing its allegation that the Complainant had breached the confidentiality provisions found in the Minutes of Settlement. [8],QOLJKWRIWKH&RPSODLQDQW¶VIDLOXre to appear, the union could not dispute WKHHPSOR\HU¶VUHTXHVWWRGLVPLVVWKH&RPSODLQW [9] I would like to commend both parties for their patience in this matter. It is clear that the Complainant has chosen not to participate in the process scheduled before me. She has failed to appear on several occasions. The Association has made every possible effort to encourage the Complainant to appear so that it can put forward a case on her behalf. The Complainant has been completely unco-operative and her failure to work with the Association has made it impossible for the Association to represent her in this matter before me. [10] Accordingly, the dispute before me is hereby dismissed. In the event that the parties have any difficulties with the implementation or interpretation of this award, I shall remain seized. th Dated at Toronto this 8 day of February 2011. Janice Johnston, Vice-Chair