HomeMy WebLinkAbout2020-0790.Mochama.2022-10-18 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# 2020-0790
UNION# 2019-0520-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Mochama) Union
- and -
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing) Employer
BEFORE Joseph D. Carrier Arbitrator
FOR THE UNION Matthew Appignanesi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Erika Montisano
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 6, 2022
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Decision
1. In this ongoing matter involving the grievance of Ms. Agnes Mochama, Mr.
Matthew Appignanesi on behalf of the Union seeks a “variance of your Order of
August 31 to permit the Grievor time to recover and supply the Union with her
supplementary particulars, and an adjournment of our hearing on October 6”.
2. In my Decision of August 31, 2022 (released September 1, 2022) I had ordered
that comprehensive particulars “be provided by the Union to Employer Counsel on
or before September 16, 2022”. Those comprehensive particulars were to
supplement the Union’s rudimentary details concerning the issue or issues which
were provided on September 1, 2022.
3. Mr. Appignanesi reported that he had reached out to the Grievor to schedule time
to discuss those supplementary particulars at which time “the Grievor informed me
on September 14th that she is unwell and would not be able to meet with me to
discuss said particulars by today (September 16, 2022). In further
correspondence, the Grievor has also informed me that she does not anticipate
being well enough to participate on October 6”.
4. In fact, as at October 6, the most recent hearing date, the Union had been unable
to fulfill its obligations of providing comprehensive particulars by the September
16th deadline nor had they been provided up to the October 6th hearing day.
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5. As anticipated, neither did the Grievor attend at proceedings as scheduled,
although she was well aware of the scheduled hearing date and was familiar with
joining virtual proceedings as she had done so in the past.
6. Ms. Erika Montisano, Employer Counsel reported that the Grievor had surprisingly
attended at work in person on October 6, the scheduled hearing date.
7. In the circumstances, while the Union sought an extension of the date for providing
particulars and an adjournment of today’s proceedings based upon the Grievor’s
reported inability to attend, Ms. Montisano sought an Order that the Union and
Grievor be restricted from providing any further particulars and be limited to those
that had been provided up to today’s date. Ms. Montisano also requests that no
extension be granted with respect to the prior Order.
8. The Union had no medical documentation from the Grievor to support the request
either for an adjournment and/or an extension of the date for the provision of
particulars in this matter.
The Discussion and Order
9. There has been a history of many delays in the litigation of this matter several of
which have been due to the Grievor’s failure to assist her Union in the preparation
needed for proceedings. In addition to prior delays, on October 6 we had this final
most recent delay relating to the Grievor’s reported inability for medical reasons to
attend at these virtual proceedings while at the same time attending at her
workplace in person. Without appropriate medical documentation it is difficult at
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this stage to understand what medical restrictions might account for such a
situation.
10. In the circumstances here, I have decided to deny the motion for extension sought
by the Union as well as any limitation on the nature or extent of the particulars
previously ordered as requested by the Employer. Rather, the Order of August 31,
2022 still stands subject to explanation by the Grievor together with substantiated
medical reasons for her inability to assist the Union in complying with that earlier
Order as well as for her inability to attend proceedings on October 6.
11. It may well be that the Grievor has legitimate medical reasons impeding her ability
to assist and instruct Counsel in order to satisfy the requirements of the earlier
Order. Moreover, there may be legitimate medical reasons for her inability to
attend the proceedings on October 6, while at the same time having the physical
wherewithal to attend at her workplace.
12. It is particularly distressing that the Grievor’s inability to cooperate with the Union
in these proceedings has technically put the Union in violation of my Order of
August 31. In the circumstances the following directions and orders put the onus
squarely on the Grievor herself:
13. She will produce to her Union representative(s) a medical certificate and opinion
from a physician in whose care she has been and who is qualified to give such an
opinion confirming:
a. That she has had and continued to have up to October 6, 2022 a medical
condition which impeded her ability so significantly as to disable her from
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assisting her Union Representative in the preparation of particulars of her
complaint throughout the period from August 31, 2022 up to and including
September 16, 2022 and thereafter up to and including October 6, 2022.
b. That her medical restrictions as at October 6, 2022 were such that she was
unable to attend virtual proceedings before this board;
c. That although she was unable to attend virtual proceedings on October 6,
2022, her medical conditions were such that they did not impede her ability
to attend at work that same day;
d. That the Grievor is under medical care and is following a recommended
and/or prescribed regimen to assist in alleviating the relevant condition(s);
e. Finally, that the physician anticipates in his/her professional opinion that the
Grievor should be able to cooperate with her Union representatives in
fulfilling her responsibilities in pursuing these proceedings within the
foreseeable future which he/she estimates to be at or before a date then
specified by that physician.
14. The Grievor shall forthwith after receipt of a copy of this Order contact her
physician’s office, arrange an appointment with him/her as soon as reasonably
practicable.
15. The Grievor will provide her physician with a copy of this Order so that he/she will
be aware of the nature of the report requested here.
16. The Grievor shall provide her Union representative(s) with the physician’s Report
within 30 calendar days of the issuance of this Order.
17. The Report shall be provided to Employer Counsel within 15 calendar days
thereafter.
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18. Failure to comply with this Order as provided in detail above may result in the
dismissal of the subject grievance upon motion of the Employer.
19. Nothing here precludes either Party from taking a position they may consider
appropriate with respect to the sufficiency or adequacy of the explanation provided
by the Grievor and/or the physician’s Report as required in this Order.
20. This Order is made without prejudice to the Employer’s rights to raise any other
issues, preliminary or otherwise as may be considered appropriate in respect to
this matter.
Dated at Toronto, Ontario this 18th day of October 2022.
“Joseph D. Carrier”
Joseph D. Carrier, Arbitrator