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Home My WebLink About2016-2701.Cousins.18-01-16 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 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# 2016-2701 UNION# 2017-0377-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cousins) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE David R. Williamson Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING January 12, 2018 - 2 - DECISION ON A PRELIMINARY MATTER [1] The Grievor, Ms. Holly Cousins, worked as a Casual Employee and was terminated from employment on February 22, 2017. Her letter of termination makes reference to her having been away from work due to medical reasons for a period of two years and ten months, her inability to perform work as a Customer Service Representative, and her having not provided the Employer with updated medical information, functional abilities information, and a prognosis for return to work. The Union filed a grievance on behalf of the Grievor on March 2, 2017, seeking Ms. Cousins’ reinstatement as an LCBO employee and to be made whole. This termination grievance came before the Board on January 12, 2018. [2] This arbitration was scheduled to start at 10 a.m. on January 12, 2018. The Grievor was not present at the designated time and did not arrive within the following hour. [3] The Union requests that the hearing be adjourned and rescheduled to a later date to enable the attendance of the Grievor who it understands is having health issues. The Union informed the Board that the Grievor had made a telephone call on the evening of January 11th in which she made reference to having sought emergency medical treatment following a medical procedure earlier in the week, and stated that it was unlikely she would be present at the hearing the next day. The Union seeks that the adjournment of this first hearing day be granted without the provision of medical documentation or other conditions or, in the alternative, that the adjournment be granted subject to the Grievor providing a satisfactory medical or other reason as to why she was not able to attend the hearing on January 12th. [4] The Employer objects to an adjournment of the hearing and seeks that the grievance of Ms. Cousins be dismissed. The Employer submits that the Grievor knew there was a hearing on January 12th but did not provide notice in advance of her non- attendance, with the result that everyone else has shown up for the hearing and that this represents a waste of valuable resources. It is the submission of the Employer that first- - 3 - hearing-day adjournments occur ahead of time and on consent of the parties, that there is no automatic right to being able to have the first day adjourned, and that the Grievor has not presented any medical information to warrant an adjournment. [5] In the alternative, the Employer submits there ought to be an adjournment granted only on the conditional basis of the Grievor providing in a substantive manner and prompt time-frame the medical or other reasons that precluded her from attending the arbitration hearing on January 12, and that she explain why she was not able to provide timely notice to the parties of her non-attendance at the hearing. [6] The parties made reference to a number of arbitral authorities in support of their positions and submissions. The Union made reference to Re OPSEU (Sitek) v. Ministry of Community Safety and Correctional Services (2013), 116 C.L.A.S. 320 (Devins). The Employer made reference to Re OPSEU (Tafesse) v. LCBO (2007), O.G.S.B.A. No. 9, GSB# 2005-1342 (Gray); Re OPSEU (Durnin) v. LCBO (2007), O.G.S.B.A. No. 72, GSB # 2005-3281, 88 C.L.A.S. 213 (Dissanayake); Re OPSEU (Karabegovic) v. LCBO (2008), O.G.S.B.A. No. 118, GSB No. 2007-1436 (Kirkwood); Re OPSEU (Culp) v. LCBO (2017), O.G.S.B.A. No. 125, GSB No. 2013-1439 (R. Brown); Re OPSEU (Ellis) v. Ministry of Finance (2001), O.G.S.B.A. No. 74, GSB #1866/99, GSB #1867/99, GSB #1969/99, GSB #1997/99, GSB #0136/01 (Dissanayake); Re OPSEU (Savdie) v. Ministry of Government Services (2013), O.G.S.B.A. No. 122, 115 C.L.A.S. 331, GSB No. 2011-3785 (Harris); Re L-M Equipment (1981) Ltd. v. United Steelworkers of America Local 2952 (Walters Grievance) (2006), B.C.C.A.A.A. No. 107, 86 C.L.A.S. 234, (Coleman). [7] The issue to be determined is whether in the particular circumstances of this case I should exercise my discretion to adjourn the hearing to another day, or dismiss the grievance. [8] In coming to a decision on that matter it is important to keep in mind at the outset the nature of this grievance. It is a dismissal case that from the letter of termination would appear to involve medical issues, and possible human rights matters in the form of work - 4 - accommodation. The grievance involves the loss of Ms. Cousin’s employment, an important matter, and ought not to be dismissed merely on the basis that the Grievor did not appear at the first day of the hearing. [9] The instant case is different from the circumstances in a number of the arbitral authorities referenced by the parties where the Grievor did not show at the hearing and the grievance was dismissed. The present matter is not a case of a grievor who is disinterested or who cannot be located (as in the dismissal cases of Sitek, Tafesse, and Durnin), who has demonstrated a total disregard for the arbitral process (Karabegovic), or of a grievor who has deliberately elected not to appear at the hearing with Counsel (Culp), but a person who had contacted Union Counsel late the previous day to say she might not be able to make the hearing the next morning and had referenced having had both a medical procedure and emergency treatment earlier in that same week. [10] The present case also differs from the referenced cases of Re Ellis and Re Savdie. These were not termination of employment grievances. In both these cases the grievances were dismissed when the grievor failed to present himself on the second day of the hearing following an agreed adjournment of the first hearing day. In Re Ellis the grievance was dismissed after the grievor failed to present himself on the second scheduled hearing day after being put on notice that his non-appearance would likely result in dismissal of the grievance. In Re Savdie after the grievor failed to show a second time the arbitrator dismissed the grievance absent the Union being able to demonstrate, which it was not able to do, that there was a good reason for the grievor’s failure to attend that second hearing day. [11] The instant case differs also from the referenced case of Re Walters. That was an improper layoff grievance where the grievor had not been in contact with the union, and had failed to attend the arbitration hearing after not presenting himself at an earlier mediation. In that case the arbitrator was of the view that it would be inappropriate to dismiss the grievance out of hand when there was no information as to the circumstances of the Grievor’s failure to appear. As such, an adjournment of the hearing was granted subject to the grievor providing a valid reason for his absence such as a medical - 5 - emergency or a motor vehicle accident. Put another way, the grievance was dismissed unless the Grievor in that case was able to present a sound reason for his absence. [12] Having regard to all the foregoing and in particular that this is the first day of an employment termination case, and that the Grievor made contact with the Union in advance of the hearing to advise of her possible absence, it is found appropriate in all of the circumstances of this case to grant the hearing adjournment sought by the Union and to do so without imposing any conditions. It should be noted that any subsequent non- appearance by Ms. Cousins at a scheduled hearing date without sound reason for the absence may result in the dismissal of her grievance. [13] The hearing is to proceed on a date to be set by the Registrar following consultation with Counsel and the undersigned Arbitrator. Issued in Toronto this 16th day of January 2018. “David R. Williamson” _____________________________ David R. Williamson, Arbitrator