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HomeMy WebLinkAbout2019-1930.Claer.22-03-25 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2019-1930 UNION#2019-0230-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Claer) Union - and - The Crown in Right of Ontario (Ministry of Government and Consumer Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sean White Treasury Board Secretariat Counsel HEARING October 25, 2021 - 2 - Decision [1] The grievance before me dated May 31, 2019 was filed on behalf of Ms. K. Claer, challenging the termination of her employment. Ms. Claer had been employed by the Ministry as a Registration Services Representative at the Registry Office at Kitchener, Ontario. Although a number of hearing days have been held, the hearing on the merits of Ms. Claer’s grievance has not commenced. What I have before me now is a motion by the Employer to dismiss the grievance. The motion is based on Ms. Claer’s non-attendance at the hearing and her failure to respond to certain directions contained in a decision dated May 10, 2021. The Union strongly opposed the Employer’s motion. It took the position that, rather than dismiss the grievance, it would be more appropriate in the circumstances to adjourn the proceeding for six months to a year to provide Ms. Claer with a further opportunity to make contact with the Union and be in a position to participate in this proceeding. [2] Counsel referred to the circumstances that were relevant to the motion during the course of their submissions. The factual context for the motion can be described as follows. [3] Ms. Claer started working for the Ministry in May of 1989. She had been absent from the workplace since April 20, 2015, due to issues with her lower back. She had three back surgeries. Ms. Claer had been on LTIP until she was taken off this benefit by Manulife in early 2018. Starting in May of 2018, the Employer requested that Ms. Claer return to work and provided her with an Employee Health Information (“EHI”) form to be completed by her doctor by a certain time. The Employer did not receive the EHI form within the requested time frame. In the absence of any further communication from Ms. Claer, the Employer, in April of 2019, declared her employment abandoned and terminated her employment pursuant to section 42 of the Public Service of Ontario Act (“PSOA”). Soon after it took this action, the Employer did receive a completed EHI form prepared by Dr. David Hood. In essence, Dr. Hood indicated that Ms. Claer could return to work on a graduated basis with an accommodation. The Employer did not alter its view of the termination of Ms. Claer’s employment based on the late information provided by Dr. Hood. As noted previously, Ms. Claer filed her termination grievance at the end of May 2019. [4] The Union referred Ms. Claer’s grievance to the GSB for a hearing. The first scheduled hearing day was May 26, 2020. The parties agreed to adjourn that hearing date for reasons related to the pandemic. The hearing by videoconference was rescheduled for October 20, 2020. Ms. Claer did appear on - 3 - that day. The parties engaged in settlement discussions, without success. The parties agreed to schedule two more hearing days, namely March 25 and May 7, 2021. Ms. Claer was aware that these hearing dates had been scheduled. In order to obtain Ms. Claer’s medical file from her doctor, Union counsel sent her a consent form on October 23, 2020. The Union received the consent form from Ms. Claer on February 17, 2021. It had been signed on February 5, 2021. The Union subsequently received the medical file on February 25, 2021. [5] On March 19, 2021, just prior to the next hearing date, Union counsel phoned Ms. Claer. When there was no answer, he reminded her in a voice mail message about the March 25, 2021 hearing date and asked her to call him. Ms. Claer did not call, but instead sent Mr. Chi an email on March 24, 2021. But for the redacted section of the email that set out instructions for Mr. Chi, the email reads as follows: Good morning, I am without cellular service. I’m sitting in the parking lot of Tim Horton using their wifi. I simply do not have the money to pay for the internet and or pay for another month of cellular services. The pandemic has left me stranded. The last time I was able to do the zoom I was at my Son’s house, and I had a cell service to make calls. This is no longer an option for me. My Daughter in law works for a long term care facility and doesn’t feel comfortable with me using their house for the zoom meeting scheduled tomorrow. Physically I cannot sit for long periods of time. I’ve had another episode that makes it difficult to even walk. I am spending the majority of my time in bed. I can’t sit at Tim Horton’s while waiting for a return email. The wifi isn’t the best here. I have a girlfriend that comes by daily to see if I need anything. I will ask her to check my email again, when she arrives between 3:45-4:30. [6] Ms. Claer did not attend the hearing on March 25, 2021. Nonetheless, the Union participated in settlement discussions with the Employer based on the instructions Mr. Chi had received from Ms. Claer. The parties were successful in agreeing to draft Minutes of Settlement (“MOS”) which were subject to the agreement of Ms. Claer. It was understood by the end of that day that Mr. Chi would communicate with Ms. Claer for the purpose of concluding the MOS. - 4 - [7] As will become evident, the email received the day before the March 25, 2021 hearing was the last time Ms. Claer has communicated with the Union about matters involving these proceedings. Union counsel sent the draft MOS to Ms. Claer by email. His telephone call to her on April 8, 2021, revealed that her number was no longer in service. On April 14, 2021, he sent Ms. Claer the draft MOS by regular mail and on April 20, 2021, he sent it to her again by email. On April 28, 2021, he sent her by email the notice of hearing containing the Zoom link for the May 7, 2021 hearing date. The Union again on May 4 and May 6, 2021, sent Ms. Claer the notice of hearing for the May 7, 2021 hearing by email. [8] Ms. Claer did not appear at the hearing by videoconference on May 7, 2021. As is obvious from the preceding paragraph, Ms. Claer did not contact the Union to advise that she would not be attending and to provide any reasons for not attending. I declined the Employer’s request to dismiss Ms. Claer’s grievance at that time without giving her the opportunity to provide an explanation for her failure to appear at the hearing on March 25 and May 7, 2021. To this end, I issued a decision dated May 10, 2021 (“the May 10 decision”), containing certain directions. The final two paragraphs of the decision read as follows: [4] Therefore, I hereby direct Ms. Claer to provide a written explanation to the Board through Union counsel by no later than June 7, 2021, with respect to the reason or reasons for her non- appearance at the Board on March 25 and May 7, 2021, and with respect to the reason or reasons why adequate notice of her non-appearance was not provided to Union counsel or to the Board. Failure to respond to this direction by June 7, 2021, or the failure to provide adequate reasons for non-appearance at the Board on March 25 and May 7, 2021, or adequate reasons for not providing notice of her non-appearance may result in the dismissal of the grievance dated May 31, 2019. [5] The Employer has reserved the right to argue that the grievance should be dismissed in the event the Grievor does not respond by June 7, 2021, or in the event the Employer is of the view that her explanations are insufficient. Should the Employer wish to bring a motion to dismiss the grievance on either basis, it is directed to do so by contacting the Board by no later than June 21, 2021, to make arrangements to bring this matter back before the Board. [9] The Union sent the May 10 decision and the draft MOS twice to Ms. Claer by courier, regular mail and email. The Union did not get a response from Ms. Claer. Since Ms. Claer did not comply with the directions set out in the May 10 decision, the Employer withdrew its offer to settle, thereby terminating the draft MOS. The - 5 - Employer also requested that a hearing date be scheduled for the purpose of dealing with its motion to dismiss Ms. Claer’s grievance. The hearing date of October 25, 2021, was scheduled on agreement of the parties. In letters dated July 30 and September 20, 2021, the Union advised Ms. Claer of the new hearing date and in each instance enclosed the notice of proceeding and the May 10 decision. It sent these letters by courier, regular mail and email. The Union sent the notice of hearing containing the Zoom link to Ms. Claer by email dated October 4, 2021. It forwarded the notice of hearing to Ms. Claer three more times by email before October 25, 2021. A telephone call to Ms. Claer’s last known number on October 18, 2021, again disclosed that the number was not in service. There is no indication that the written communications from the Union to Ms. Claer were not received. Ms. Claer did not appear at the hearing by videoconference on October 25, 2021. [10] In requesting the dismissal of Ms. Claer’s grievance, Employer counsel argued that the legal principles that govern motions of this type clearly indicate that the circumstances of this case warrant the dismissal of the grievance. Counsel noted Ms. Claer’s failure to attend the hearing on March 25, May 7 and October 25, 2021, her failure to respond to the directions in the May 10 decision and the absence of any contact with the Union since the March 25, 2021 hearing date. He submitted that Ms. Claer has demonstrated a lack of respect for the Board and a lack of interest in this proceeding. He also submitted that Ms. Claer had been advised of the consequences for failing to respond to the directions in the May 10 decision. Counsel argued that any further delay in this proceeding would be prejudicial for the Employer. He submitted that there is no indication that a further delay would result in Ms. Claer’s attendance at a hearing. In support of the motion, Employer counsel relied to the following decisions: OPSEU (Tafesse) v. Ontario (LCBO), 2007 CanLII 6891 (ON GSB Gray); Humber River Regional Hospital v. OPSEU, 2011 CarswellOnt 13531 (Stephens); Ontario (LCBO) and OPSEU (Durnin), 2007 CarswellOnt 10743 (Dissanayake); Ontario (LCBO) and OPSEU (Patchett), 2016 CarswellOnt 5824 (R. Brown); Ontario (Ministry of Government & Consumer Services) and OPSEU (Byabagamba), 2016 CarswellOnt 11511 (Dissanayake); OPSEU (Karabegovic) v. Ontario (LCBO), [2008] O.G.S.B.A. No. 118 (Kirkwood); OPSEU (Cupskey) and Ontario (LCBO), 2020 CarswellOnt 3710 (Parmar); OPSEU (Slaght) and Ontario (LCBO), 2019 CarswellOnt 20009 (Dissanayake); and, OPSEU (Khan) and Ontario (Ministry of Government and Consumer Services), 2019 CarswellOnt 18110 (McLean). [11] Union counsel argued that the case law suggests that Ms. Claer’s grievance should not be dismissed unless there is a clear indication that she did not want to pursue her grievance. Counsel submitted that such an indication is not present - 6 - here, as evidenced by her attendance at the first hearing and her signing of the medical consent form. Counsel submitted that Ms. Claer did not simply ignore the hearing date of March 25, 2021. He supported this point by referring to her email dated March 24, 2021 and submitting that she was unable to attend because of financial and medical issues. While noting that Ms. Claer had not contacted the Union since the March 25, 2021 hearing, counsel submitted that her failure to contact the Union or to comply with the directions in the May 10 decision could possibly or likely be for reasons beyond her control. Counsel also suggested it is not clear that Ms. Claer was aware of an obligation to respond to the Board’s directions or whether any failure on her part to respond was intentional having regard to her medical and financial situation. Counsel submitted that the circumstances of this case and the relevant decisions indicate that this matter should be adjourned so that Ms. Claer can have one more chance at achieving justice. In addition to OPSEU (Byabagamba), supra, and OPSEU (Khan), supra, the Union relied on the following decisions: OPSEU (Bremner) v. Ministry of the Attorney General, 2021 CanLII 26645 (ON GSB Misra); OPSEU (Caron) v. Ministry of Community Safety and Correctional Services , 2004 CanLII 52295 (ON GSB Carrier); and, OPSEU (Cousins) v. LCBO, 2018 CanLII 55856 (ON GSB Williamson). [12] As reflected in the above decisions, arbitrators have expressed a reluctance to dismiss a termination grievance without hearing the merits unless there are compelling reasons for doing so. Whether compelling reasons are present to delay the determination of a labour relations dispute is of course dependent on the facts of each case. After reviewing the circumstances of this case in light of the relevant legal principles and after considering the submissions of counsel, I am satisfied that the Employer’s motion should be granted. [13] In OPSEU (Byabagamba), supra, the arbitrator referenced the following two factors that are given weight when deciding whether the dismissal of a termination grievance is appropriate: [18] …First, an indication of lack of interest on the part of the grievor, for example by ignoring attempts by union counsel to communicate or by ignoring a Board order. Second, whether the grievor had been made aware that his grievance may be dismissed if he failed to attend scheduled hearings… [14] The circumstances in OPSEU (Slaght), supra, are somewhat similar to the circumstances in the instant case. The grievor in that case failed to attend a hearing and did not notify the Union that she would not be attending. Denying the employer’s request to summarily dismiss the discharge grievance, the arbitrator - 7 - directed the grievor to provide an explanation for her non-attendance. The union sent the decision to the grievor, but did not receive a reply. In response to the employer’s motion to dismiss the discharge grievance, the union requested the matter be adjourned sine die until the grievor could be contacted and a reply obtained. The union submitted that it was unknown whether the grievor was well and able to respond to the union’s inquiries and the Board’s order. In allowing the employer’s motion and dismissing the grievance, the arbitrator made the following comments at the concluding paragraph: 8. The Board acted cautiously and generously when it adjourned the hearing once to give the grievor a chance to explain her non- attendance. She has completely ignored that, as well as all attempts by the union to contact her. As the arbitrator in Toronto (City) v. C.U.P.E., Local 79 [CarswellOnt 5518] …stated, “It would require a truly compelling reason to overcome the weight of these considerations and justify a delay of the length here”. In the circumstances here, it would not be reasonable or appropriate to adjourn the proceeding indefinitely on sheer speculation that her silence is due to some health reasons… [15] In defending against the motion, the Union suggests that there may be some uncertainty as to whether Ms. Claer became aware of the directions set out in the May 10 decision. It also suggests that it is possible or likely that her failure to make contact with the Union or to comply with the directions in the May 10 decision is because of reasons beyond her control. I agree with Employer counsel that the determination of this motion cannot be based on these propositions. [16] The Union has taken extraordinary steps to notify Ms. Claer about the scheduled hearing dates and about the directions in the May 10 decision. It cannot be assumed in addressing this motion that Ms. Claer did not receive the material sent to her by the Union simply because she did not respond. The reasonable approach in the circumstances is to assume that she did receive the material sent to her unless there is some indication to the contrary. And, as previously indicated, there is no indication that she did not receive the material sent to her by courier, regular mail and by email. [17] I am also satisfied that this motion cannot be addressed by assuming that Ms. Claer did not appear at the hearing on May 7, 2021, and did not respond as directed by the May 10, 2021 decision for reasons beyond her control. It does appear that at the time Ms. Claer sent her email dated March 24, 2021, to the Union that she was experiencing medical and financial issues. However, even in the face of those issues, she was able to communicate with the Union. It would be entirely speculative to find that Ms. Claer did not appear at the May 7, 2021 - 8 - hearing, or at the October 25, 2021 hearing for the matter, that she did not comply with the directions in the May 10, 2021 decision and that she did not contact the Union since the March 25, 2021 hearing because she was incapable of doing so for medical or other reasons. [18] Ms. Claer did not appear at the hearing on March 25, May 7 and on October 25, 2021. She had been provided with adequate notice of these hearing dates. Her failure to appear at the May 7, 2021 hearing did not result in the summary dismissal of her discharge grievance. She was provided with the opportunity to explain her non-appearance on March 25 and on May 7, 2021. Having been warned that a consequence of her failure to explain her non-appearances could be the dismissal of her grievance, Ms. Claer did not provide reasons for her non- appearances. Since the March 25, 2021 hearing, Ms. Claer has not responded to the numerous attempts by the Union to communicate with her. These circumstances do support the conclusion that Ms. Claer has lost interest in this proceeding. They are also the type of circumstances in which the Board has found it appropriate to dismiss a discharge grievance. [19] A long time has elapsed since Ms. Claer’s employment was terminated in April 2019. The delay in the proceeding is prejudicial to both parties, not just the Employer. There is no basis for concluding that further delay for an unknown length of time through an adjournment would result in the resumption of Ms. Claer’s participation in this proceeding. [20] For the foregoing reasons, the Employer’s motion is allowed. The grievance dated May 31, 20019, is hereby dismissed. Dated at Toronto, Ontario this 25th day of March 2022. “Ken Petryshen” ______________________ Ken Petryshen - Arbitrator