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HomeMy WebLinkAbout2018-1327.Ahmad.20-10-19 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 Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING September 11, 2020 - 2 - Decision [1] This Decision deals with the Employer’s request that the grievances be dismissed due to the grievor’s refusal to participate in the rehearing of her grievances before the Board. [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 several witnesses’ evidence was heard. It is not in dispute that the grievor was in attendance and fully participated in the hearing on those dates. [4] Unfortunately, in November 2019, the arbitrator who had started hearing the case became unable to continue. It became clear 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. [5] On several occasions in late 2019 and early 2020, the Board offered numerous dates to the parties for the rehearing of the grievances. Although the Employer and counsel for the Union indicated that they were available on several dates offered, no dates were scheduled because the grievor did not respond to requests about her availability. [6] On March 2, 2020, I convened a conference call with the parties to address the fact that the matter remained unscheduled due to the grievor’s failure to respond to repeated requests by the Board for her availability. [7] During the March 2, 2020 conference call, the Employer requested that the Board direct the Union and the grievor to indicate their availability for the rehearing of this matter, failing which the Employer submitted that the grievances should be dismissed. The Employer submitted that it could not wait indefinitely for the hearing to be scheduled and that the ongoing delay in scheduling the hearing could prejudice the Employer due to witnesses’ deteriorating memories and the Employer’s potential ongoing liability for back wages. [8] The Union emphasized that the grievor had attended all of the hearing dates before the previous arbitrator and was understandably disappointed to learn that her case would need to be reheard. This was particularly so, because the grievor had filed an Application against the Employer at the Human Rights Tribunal of Ontario (“HRTO”), which Application had been deferred pending the completion of the - 3 - matter before the Board. The rehearing of the grievances would result in her HRTO Application being delayed even further. [9] In the particular circumstances of this case, the Union submitted that the grievor should be given a reasonable period of time to obtain advice from her legal representative in the HRTO matter and to determine whether she wished to proceed with her grievances before the Board or to pursue her HRTO Application. [10] By decision dated March 27, 2020, I granted the Union’s request: 2020 CanLII 32579 (ON GSB). Specifically, within 30 days of the date of the decision, I directed the grievor to advise the Union whether she intended to pursue her grievances before the Board and, if so, to co-operate in the scheduling of the matter for rehearing. In the event that the grievor did not advise of her intentions with respect to the grievances and/or co-operate in the scheduling of the hearing before the Board, I directed that a further conference call would be convened to address the Employer’s request that the grievances be dismissed. [11] On April 24, 2020, the Union informed the Board that it had been in contact with the grievor regarding the Orders in my March 27, 2020 Decision, and that the grievor had advised the Union that she was “moving forward with the HRTO”. [12] On May 19, 2020, after a further conference call with the parties, I issued a brief decision directing, among other things, that the Union advise whether it was withdrawing the grievances in the circumstances, failing which we would reconvene to address the Employer’s outstanding request to have the grievances dismissed: 2020 CanLII 39015 (ON GSB). [13] The grievances were not withdrawn, and I convened a conference call on September 11, 2020 to address the Employer’s request. [14] At the outset of the September 11, 2020 conference call, the Union confirmed that the grievances had not been withdrawn and reiterated that the grievor had decided to “move forward” with her HRTO Application and had not indicated any willingness to participate in the rehearing of the matter before the Board. [15] While acknowledging the grievor’s frustration that her grievances needed to be reheard, the Employer submits that the grievances either need to be set down for rehearing or dismissed. The Employer submits that it would be unfair to allow the current situation to persist any longer for the reasons previously articulated, as well as the potential difficulty locating witnesses with the passage of time. - 4 - [16] The Employer submits that the grievor has clearly indicated that she wishes to pursue her HRTO Application and is not willing to engage in the hearing process before the Board. Accordingly, the Employer renews its request that the grievances be dismissed on the basis of the grievor’s refusal to participate in the rehearing in this matter. [17] It is well-established that a labour arbitrator has jurisdiction to dismiss a grievance where the grieving party is refusing to participate in the hearing process. In Budget Car Rentals Toronto Ltd. v. U.F.C.W., Local 175, (2000) 87 L.A.C. (4th) 154, one of the cases relied upon by the Employer, Arbitrator Davie stated, at para. 13: Arbitral jurisprudence indicates that as part and parcel of the authority to enforce, an arbitrator has jurisdiction to dismiss a grievance where there has been noncompliance with an order. Thus, a grievance may be dismissed or held to be inarbitrable under the "abuse of process" rubric, where a party fails to produce documents or matters ordered to be produced by an arbitrator … or where a grievor refuses to participate in the grievance/arbitration process, or refuses to otherwise accept the authority of the arbitrator or arbitration process … [Emphasis added. Case citations omitted.] [18] In the case at hand, the grievor has not responded to the offers of dates to start rehearing this matter at the Board, or otherwise participated in the rescheduling of the hearing. The Board has simply been advised the grievor is “moving forward” with her HRTO application, and there is no indication that the grievor will participate in the hearing of her grievances before the Board now or at any point in the foreseeable future. Despite being given ample opportunity to participate in the rehearing of her grievances, the grievor has clearly chosen not to do so. [19] I agree that the Employer has the right to have the proceeding against it determined as expeditiously as possible, in the circumstances. Fairness dictates that some finality be brought to this matter. At this point, it is very clear that the rehearing of the grievances cannot proceed due to the grievor’s lack of co-operation. Allowing this matter to continue in the face of the grievor’s ongoing refusal to participate in the hearing process would result in an abuse of process. Accordingly, I find it appropriate to exercise my jurisdiction to dismiss the grievances. [20] The grievances are hereby dismissed. Dated at Toronto, Ontario this 19th day of October, 2020. “Sheri Price” ________________________ Sheri Price, Arbitrator