HomeMy WebLinkAboutP-2023-01398.Norton.24-02-09 Decision
Public Service
Grievance Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission des
griefs de la fonction
publique
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
PSGB# P-2023-01398
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Norton Complainant
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Thomas Kuttner, KC Vice Chair
FOR THE
COMPLAINANT
Mark Norton
FOR THE EMPLOYER Andrew Lynes
Treasury Board Secretariat
Legal Services Branch
Counsel
WRITTEN SUBMISSIONS February 6 & 8, 2024
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Decision
[1] This is a complaint filed on August 18, 2023 pursuant to subsection 4(1) O.Reg.
378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006 S.O. 2006
c. 35, Sch A (“the Act”). In it, the Complainant alleges that the Employer
disciplined him without just cause by suspending him for a three (3) day period for
abuse of sick leave. By way of relief, the Complainant seeks full redress including
twelve (12) hours of sick time, cancellation of his three (3) day suspension and
removal of the disciplinary action from his personnel file.
[2] A hearing in this matter was scheduled to be held by videoconference on February
1, 2024. However, the Complainant did not enter an appearance, despite having
acknowledged receipt from the Board of the Notice of Proceeding by way of
Mediation-Arbitration on November 6, 2023.
[3] The Board issued a short decision dated February 2, 2024, (unreported), in which
it directed the Complainant to advise it of the reasons for not appearing at the
hearing nor advising the Board that he would not appear. The Employer was
directed to file submissions in light of the Complainant’s reasons on whether, in the
circumstances, the Complaint should be dismissed without a hearing on the
merits.
[4] On February 6, 2024, the Complainant sent an e-mail to the Board in which he
advised of the reasons for his failure to appear at the hearing, in the following
terms:
I was absent from the February 1, 2024 meeting as I clearly forgot
and accepted an overtime shift (0800-1600) as 1 of our Staff
Sergeants was off. I apologize for the inconvenience; it was not my
intention to miss the meeting. Please accept my apology and I look
forward to the next meeting.
[5] The Employer filed submissions with the Board on February 8, 2024, submitting
that:
… the matter be dismissed for the Complainant’s failure to attend
both the Case Management Conference Call (CMCC) dated October
18, 2023 and the Hearing on February 1, 2024.” …
Twice the Complainant confirmed he was available and was provided
ample notice of the proceeding, and twice he failed to appear. The
Employer submits that on this basis the Complaint should be
dismissed. The Complainant has demonstrated a lack of
attentiveness and respect for the Board’s processes as well as the
Board’s and Employer’s time and resources.
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[6] In support of its submissions, the Employer referenced two decisions: that of
Arbitrator Marcotte in Waterloo Furniture Components Ltd and USWA Local 7155
(Santos) Re, 2004 CarswellOnt 10446; [2004] OLAA No 562; and that of the
Ontario Labour Relations Board in P&P Sodh Inc. (Quiznos Sub) v Kavanagh,
2012 CanLII 26525 (ON LRB).
[7] In Waterloo Furniture Components supra, a dismissed Grievor, had accepted
employment out of town and forgot about the arbitration hearing. Arbitrator
Marcotte dismissed the grievance, noting that “… to have simply forgotten about
[the hearing’s] occurrence is clearly indicative of a lack of interest, to say the least,
in having his complaint dealt with on the merits…”
[8] In P&P Sodh Inc. supra, a request for reconsideration, the Applicant had received
notice of a hearing on the merits indicating it was to be held on March 22nd, but
she inadvertently diarized it for March 23rd. In dismissing the request for
reconsideration, the Board noted that “The Board has repeatedly found a party’s
inadvertent and unintentional failure to attend a hearing is not a compelling reason
to reschedule it”.
[9] In the instant case, the failure of the Complainant to attend the CMCC on October
18, 2023 was not fatal to the Complaint, as it was a procedural matter, and the
Board could and did schedule the matter to be held on the merits. However, the
subsequent failure of the Complainant to attend the hearing on the merits on
February 1, 2024 because he had simply forgotten and accepted an overtime shift,
is indicative first, of a lack of interest in having the Complaint adjudicated on its
merits; and second of a lack of respect for the Board’s processes and its limited
resources.
[10] This Complaint is dismissed.
Dated at Toronto, Ontario this 9th day of February 2024.
“Thomas Kuttner, KC”
Thomas Kuttner, KC, Vice-Chair