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Home My WebLink About2010-0031.Hussain.12-07-06 DecisionCrown 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#2010-0031 UNION#2010-0542-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hussain) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Joseph D. Carrier Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Benjamin Parry Ministry of Government Services Labour Practice Group Counsel HEARING June 25, 2012. - 2 - Decision [1] The matter before me today is a Union motion to adjourn proceedings for medical reasons concerning the Grievor. [2] The substantive issue before me was and is the grievance of Mr. Faisal Hussain, alleging that he was unjustly terminated. The termination was documented in a letter of February 22, 2012 by Ms. Nancy Liston, the director of Client Services for the Family Responsibility Office of the Ministry of Community and Social Services of Ontario. [3] Proceedings before this Board on the merits began in December of 2010. Much has transpired since that time. Amongst other things, Mr. Hussain filed a concurrent complaint with the Human Rights Tribunal alleging violations of the Code in the nature of harassment and discrimination relevant to his employment and termination. In an Interim Award released by this Board on April 6, 2012, I confirmed that those allegations as they related to his employment and termination would have to be considered by this Board in its deliberations. Thereafter, the Employer proceeded to introduce and close its case in the context of that ruling. Furthermore, Employer Witnesses were examined and cross-examined with respect to those allegations. [4] The Employer closed its case at our last hearing day, February 28, 2012. On the next scheduled day, June 25, 2012, we understood the Union was prepared to proceed by calling as its first Witness, Mr. Hussain himself. However, instead, we were presented with a Union motion to adjourn not only the June 25th date but also the five remaining July dates. It was expected that those July dates would have sufficed to complete the case in its entirety. The original request to - 3 - adjourn had been made by Union Counsel, Ms. Jane Letton to Mr. Ben Parry, Employer Counsel on or about June 5, 2012. The basis for the request was set out in Ms. Letton’s e-mail message as follows: Mr. Hussain’s brother-in-law passed away on May 20th after a short bout of cancer and this has taken a tremendous toll on Mr. Hussain. Accordingly, the Union is requesting that all currently scheduled hearing dates be adjourned. [5] Mr. Parry declined that request since it lacked any supporting documents, medical or otherwise. Ms. Letton proceeded to seek appropriate medical support from Mr. Hussain for the adjournment. She received only an e-mail request from Mr. Hussain’s spouse attempting to explain how and why he would be unable to attend proceedings. Below are the excerpts from this email: Date: 6/20/2012 Doctor’s Note Re: Hussain Faisal This is to certify we have seen the above patient. He is sick and we have given him time off 6 weeks from June 19 to July 31, 2012 for medical reasons. Ms. Hussain’s note to Ms. Letton which she requested be presented here reads as follows: Jane Letton From: Faisal Hussain Sent: June 21, 12 12:21 P.M. To: Jane Letton Subject: Requesting you do seek an adjournment of hearing Attachment: Scan0254 pdf; Scan0255.pdf; Scan0256.pdf Hi Jane This is Faisal Hussain Wife Amna, I am writing to advise you that Faisal is very sick and to provide you with his medical note (attached) Due to my husband disability, we are requesting you do seek an adjournment of hearings until my husband recovers from illness. - 4 - Faisal is physically sick and suffering from several pains. He’s mostly in bed and his medications also makes him tired and sleep. He needs help getting up and walking. He’s not able to sit and stand for long periods and he is not able to drive. He is also been effected mentally and emotionally. My children’s recently lost their beloved uncle and watched him go through what their father is going through. Presently They are frightened and upset and the mood in our home is very very fragile. We are asking you to provide the doctor note and this email message to the Vice chair for his consideration. Please see the attached note from the doctor and requisitions for further examinations. Thank you Yours truly Amna Faisal [6] We also received copies of two requisitions for lumbar and back x-rays but no corresponding medical reports. [7] Ms. Letton urges that this matter be adjourned through to the end of July based upon the note from Ms. Hussain and the Doctor’s note. Mr. Hussain was apparently unable to attend today for those reasons, and, this matter ought not to proceed in his absence. This is a most important matter involving his livelihood and his medical disability ought not to be treated lightly. [8] Mr. Parry for the Employer took the position that the information provided, medical and otherwise, is totally inadequate for the purposes of an adjournment at this stage of proceedings. Ms. Hussain’s note albeit drawing sympathy is no more than her personal description and opinion of her spouse’s condition. It cannot be relied upon here for any legitimate purposes. As - 5 - to the Doctor’s note, it in no way addresses the issues this Board needs to consider in order to assess the Grievor’s ability to participate in these proceedings. Amongst other things, it lacks any description of the symptoms limitations or restrictions impeding his ability to attend. Also, there is insufficient information provided in order to determine whether or not whatever condition he is suffering is capable of being accommodated here. [9] Mr. Parry notes that his Client’s case is closed and his Witnesses have been subjected to cross examination on serious allegations of wrong-doing. There ought to be no delay in these labour relations proceedings at this time unless the need is clear and unequivocal. The Union bears the onus of demonstrating those needs. It has not done so to date. [10] In the circumstances, especially since Mr. Hussain has not attended today, he is content to reserve his Client’s right to seek dismissal of this matter pending production by the Union of fulsome and satisfactory medical evidence by way of explanation establishing Mr. Hussain’s inability to have participated at the June 25th hearing. [11] Further, if the adjournment request continues to extend to the July dates, that medical information should satisfactorily speak to that time frame as well. Decision [12] I confirm my advice to Counsel given orally on June 25th that I was not content to adjourn either the June 25th date or any others based upon the information produced to date. - 6 - [13] The note from Ms. Hussain was informative and sympathetic but not that of a professional, qualified to speak to a medical condition. [14] The Doctor’s note was not in any way satisfactory. As Mr. Parry argued, it did not speak to the limitations or restrictions we must assess in order to exercise our discretion in Mr. Hussain’s favour either through adjournment or accommodation. Further, although it identified a time frame, it gave no indication as to what triggered Mr. Hussain’s unidentified symptoms or when and how they might resolve themselves or be resolved. Indeed, there is no indication of any treatment whatsoever. [15] In the circumstances, the adjournment motion is denied pending production of compelling reasons and/or compelling medical evidence confirming the Grievor’s inability to have attended June 25th and, if still pursued, for the requested adjournment going forward. The Union is directed to produce this information, or supporting documentation on or before July 9, 2012. [16] Failure to do so, especially if the Grievor fails to attend at the next scheduled hearing date in July, will have dire consequences for the Grievor’s position before this Board. [17] As indicated earlier, the Union’s Motion to adjourn is, for the time being, denied. Dated at Toronto this 6th day of July 2012. Joseph D. Carrier, Vice-Chair