GSB#1866/99, 1867/99, 1996/99, 1997/99, 0136/01, 0137/01

Union #00B072, 00B073, 00B092, 00B093, 01B110

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Ellis)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Finance)

Employer

BEFORE Nimal V. Dissanayake Vice-Chairperson

FOR THE UNION Don Martin

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER Sean Kearney

Senior Counsel

Legal Services Branch

Management Board Secretariat

HEARING November 7 and 26, 2001

DECISION

This decision deals with six grievances filed by Mr. Michael Ellis (the grievor), all of which came on for hearing before me on November 7, 2001, with a second date scheduled for November 26, 2001. The grievances are as follows:

(1) Date: September 24, 1999

Statement of Grievance

Violation Article 3.1 Collective Agreement, Article 5(.1), 5(2) and 10(1)(E) of the Human Rights Code, Harassment and Discrimination due to disability and gender. Unwilling to accommodate disability in the workplace as has been done for other employees.

(2) Date: September 24, 1999

Statement of Grievance

Violation of 1996 Arbitration Settlement between grievor and the Crown in Right of Ontario represented by Management Board.

(3) Date: November 12, 1999

Statement of Grievance

Violation Article 3 of the Collective Agreement as well as article 5(1) of the Human Rights Code.

Continued discrimination by management due to handicap.

A day off work for training was refused due to the fact I had been off work due to my disability.

(4) Date: January 10, 2000

Statement of Grievance

Violation Article 3 of the Collective Agreement as well as the Ontario Human Rights Code with regard to workplace discrimination due to disability.

Training was not provided as per 1996 arbitration agreement and 1999 mediation settlement.

I have been denied promotions due to the above mentioned management action.

(5) Date; April 9, 2001

Statement of grievance

Violation article 3(1)

Continued discrimination and harassment by management due to my disability. Unwilling to provide accommodation in my present classification.

(6) Date: April 9, 2001

Statement of grievance

Violation of article 3(1) Discrimination and harassment due to my disability.

Pay withheld for IME and FAE appointments which management directed me to attend January 2001.

When the hearing was convened at 10:00 a.m. on November 7, 2001 Mr. Sean Kearney was present as counsel for the employer, accompanied by two managers and two human resources persons. Mr. Don Martin, OPSEU representative, was present as counsel for the union. Mr. Martin advised that the grievor had not arrived yet and requested that the Board wait for the grievor’s arrival before commencing. I agreed to wait until 10:40 a.m.

When the hearing was reconvened at 10:40 a.m. Mr. Martin advised that the grievor had still not appeared. Nor had he contacted the union or the G.S.B. Mr. Martin’s attempts to contact the grievor by telephone were also not successful. After further discussion, and with the employer’s agreement, I adjourned the hearing for the day. However, I put the union explicitly on notice that the hearing will resume as scheduled on November 26, 2001, and that if the grievor fails to attend without notice and without providing very good reasons, the Board will probably dismiss the grievances. The employer raised an issue relating to disclosure of medical information by the grievor. I directed employer counsel to make his request for disclosure in writing to the union and directed that the union comply. At approximately 11:30 a.m. the hearing was recessed, after two additional dates, February 4 and 15 of 2002 were fixed.

When the Board convened at 10:00 a.m. on November 26, 2001 employer counsel was present, again accompanied by two managers and two human resources persons. Mr. Martin was present for the union, but not the grievor. Mr. Martin advised the Board that following the hearing on November 7, 2001 he had communicated to the grievor, through a voice-mail message, the Board’s warning that his grievances may be dismissed if he again absented himself on November 26, 2001 and about the employer’s request for medical information, and the Board’s order in that regard. The following day Mr. Martin confirmed the same information to the grievor by letter. According to Mr. Martin, he had no contact from the grievor after November 7, 2002, until November 25, 2001. On that day, the day before the scheduled hearing, at 7:15 p.m. the grievor had left a brief voice-mail message for Mr. Martin to the effect that he is unable to drive due to the effect of a prescription drug he was taking, and that he would not be attending the hearing the next day. Based on that information, Mr. Martin requested that the hearing be adjourned again to the next scheduled date, February 4, 2001. The employer submitted that if the grievor had provided medical evidence of his inability to attend, the employer would not have objected to an adjournment. However, the grievor not only failed to do that but had failed even to notify in advance of his intention not to attend. In the circumstances, the employer moved that the grievances be dismissed. I proceeded to hear submissions from the parties, as to whether or not the employer’s motion ought to be granted.

I have concluded that the motion should be allowed. On the first scheduled day, November 7, 2001, the grievor simply did not attend and did not notify anyone. An OPSEU representative, a crown lawyer, four employer representatives and the GSB Vice-Chair attended the hearing as scheduled, and the day was wasted for each of them. At that point, the grievor was explicitly put on notice, through his union representative, of the probable consequences of a further non-appearance. Yet, the grievor did little more than the first time. He did inform this time of his intention not to attend, but did so only on November 26, 2001, night before the hearing, when it was too late to cancel the hearing. The result was that a number of people again attended a hearing which never materialized due to the grievor’s absence. The grievor thereby demonstrated a complete lack of concern for the inconvenience and expenses caused to the employer and the union. He has also displayed a total lack of respect for the Grievance Settlement Board and its proceedings. Much time and resources have been wasted due to the grievor’s actions. I consider it to be an abuse of the Board’s process.

Even in these circumstances, the Board was very generous with the grievor. I informed the union that I intended to dismiss the grievances as requested by the employer. However, I advised Mr. Martin that if the Board is provided with a satisfactory medical certificate by 5:00 p.m. the next day (November 27, 2001) which certified the grievor’s inability to attend the hearing on November 26, 2001, the Board would be prepared to reconsider. The following day, the Board received two medical documents. The first was a letter to the employer from a Dr. R.D. Armstrong dated May 8, 2001. The second was a report from a doctor at the Dept. of Radiology and Diagnostic Imaging, Joseph Brant Memorial Hospital in Burlington, Ontario with regard to an examination conducted on April 28, 1998. It had been printed on October 17, 2001. Neither document has any relevance to the grievor’s ability to attend GSB hearings on November 7 or November 26, 2001.

Therefore, the Board is still faced with a situation where, we have a grievor who has absented himself on two scheduled days of hearings without justification or adequate notice. The Board is satisfied that he was well aware of the scheduled hearings, and after the first day he was put on notice of the probable consequences of his action. Yet he failed to meaningfully communicate with the union or the Board. He has failed to justify or validate his absences. To allow the grievor to carry on this pattern of conduct would be to allow him to continue to abuse the Board’s process. It cannot be allowed.

For those reasons, the six grievances are dismissed as an abuse of process and for lack of prosecution.

Dated at Toronto, this 29th day of November, 2001.