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HomeMy WebLinkAbout2018-1327.Ahmad.20-03-27 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# 2018-1327, 2018-1385 UNION#2018-5112-0093, 2018-5112-0099 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ahmad) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Sheri Price Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Kevin Dorgan Treasury Board Secretariat Legal Services Branch Counsel HEARING March 2, 2020 - 2 - Decision [1] This Interim Decision addresses the Employer’s request that the grievor be directed to participate in the scheduling of the hearing of this matter, failing which the Employer submits that the grievances should be dismissed. BACKGROUND [2] This case involves two grievances: one alleging that the Employer harassed and/or discriminated against the grievor; and a second alleging that the Employer terminated the grievor’s fixed-term contract in July 2018 without just cause, contrary to the collective agreement. [3] Another arbitrator of the Board was initially appointed to hear this case. A number of hearing dates were convened before that arbitrator and certain witnesses’ evidence was heard. [4] Unfortunately, in late 2019, a question arose as to whether the arbitrator would have to withdraw from the case, which would result in the hearing having to recommence before another arbitrator. [5] On October 30, 2019, the parties mutually agreed that a mediation be scheduled to explore whether the grievances could be resolved. Counsel for both the Employer and the Union attended at the Board for the mediation. However, the grievor did not attend as anticipated, and did not contact anyone in advance of or on the date of the mediation about her failure to attend. Due to the grievor’s non-attendance, the mediation could not proceed as scheduled. [6] In November 2019, the Board confirmed that the arbitrator who started hearing the case would not be able to continue and that the matter would need to be heard by another arbitrator. The parties appointed me to hear the grievances on November 25, 2019 and requested that multiple hearing dates be scheduled. [7] By November 28, 2019, the Employer and counsel for the Union had indicated that they were available on five dates that had been offered by the Board. The Union advised that it was canvassing the dates with the grievor. [8] On December 3, 12, and 19, 2020, the Board followed up with the Union with a view to scheduling the hearing, and was advised that, although the Board’s request had been conveyed to the grievor, no response had been received regarding her availability for the hearing. Accordingly, no hearing dates could be confirmed. [9] On December 20, 2019, the Employer wrote to the Board and the Union reserving its right to argue that it should not be held liable for any back wages that might - 3 - otherwise be owing to the grievor in respect of the period during which the hearing could not be scheduled because of her failure to confirm her availability. [10] The Board offered hearing dates in this matter again in January 2020. Again, the grievor did not respond and the matter remains unscheduled. [11] On March 2, 2020, I convened a conference call with the parties to address the fact that this matter remains unscheduled due to the grievor’s ongoing failure to respond to repeated requests by the Board for her availability. SUBMISSIONS OF THE PARTIES [12] During the conference call, the Employer stated that it cannot wait indefinitely for the grievor to respond to requests for her availability so that the hearing can be scheduled. The Employer submits that it may be prejudiced by the scheduling delay in this matter due to witnesses’ deteriorating memories and the Employer’s potential ongoing liability for back wages. Although the Employer has taken the position that it should not bear any liability for lost wages in respect of the period of delay caused by the grievor, the Employer points out that the Union has not agreed with that position to date. [13] Accordingly, the Employer requests that the Board direct the Union and the grievor to indicate their availability for the hearing in this matter, failing which the Employer submits that the grievances should be dismissed. [14] For its part, the Union submits that an important feature of this case is that the grievor has filed an Application against the Employer at the Human Rights Tribunal of Ontario (“HRTO”), which Application was deferred pending the completion of this matter before the Board. [15] The Union submits that there were four hearing dates in this matter before the previous arbitrator, all of which were attended by the grievor. The Union submits that the grievor was understandably disappointed to learn that her case would need to be reheard by a different arbitrator, particularly since this will result in her HRTO Application being delayed even further. [16] Based on its communications with her, the Union understands that the grievor is in the process of seeking advice from her legal representative in the HRTO matter, with a view to determining how she wishes to proceed with the grievances, given the outstanding HRTO application and the deferral of that Application. - 4 - [17] In the unique circumstances of this case, the Union submits that it would be heavy- handed to make any determinations about what should happen with the grievances at this point. The Union submits that the grievor should be given a reasonable period of time to obtain independent legal advice and to determine whether she wishes to proceed with her grievances before the Board or whether she wishes to pursue the HRTO Application. DECISION [18] Although I understand the grievor’s perspective, the need to recommence the hearing of this matter is unfortunately unavoidable due to circumstances beyond anyone’s control. [19] I do not disagree with the Union that the grievor is entitled to a reasonable period of time during which to obtain legal advice about how the need to rehear the grievances may affect the legal proceedings before the Board and the HRTO and her options in respect of those proceedings. [20] However, it is not clear to me why the time that has already passed has not been adequate for that purpose, as it has already been a number of months since the grievor was advised that the grievances would need to be reheard before another arbitrator. There is no information forthcoming about the grievor’s efforts to date or when the grievor is expected to obtain the legal advice she apparently seeks in order to decide how she wishes to proceed. [21] In my view, the grievor’s right to sufficient time to obtain advice needs to be balanced against the Employer’s right to have the matter in which it is alleged to be liable to the grievor for ongoing wage loss and damages determined as expeditiously as possible, in the circumstances. [22] Accordingly, within 30 days of the date of this decision, the grievor is hereby directed to advise the Union, which will in turn advise the Board, whether she intends to pursue her grievances before the Board. [23] If the grievor does intend to pursue her grievances before the Board, she is further directed to provide her availability for the hearing to the Union and to co-operate fully in the scheduling of this matter. The Board will email the parties a list of dates that are currently available for the hearing in this matter. - 5 - [24] In the event that the grievor does not advise as to her intentions with respect to the grievances and/or co-operate in the scheduling of the hearing as directed above, the Board will convene a further conference call to hear the parties’ submissions on the Employer’s request that the grievances should be dismissed. Dated at Toronto, Ontario this 27th day of March 2020. “Sheri Price” ________________________ Sheri Price, Arbitrator