GSB# 1936/95, 0756/96, 0762/96, 2145/96, 2146/96, 2147/96, 2148/96, 2149/96, 2150/96

UNION# 95G287, 95G288, 95G289, 95G290, 95G291, 96D704, 96D703, 96H206,

96H205, 96H204, 96H203, 96H202, 96H199, 96H200

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Slusarchuk)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Kathleen Lawrence Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Lisa Nowak Coordinator, Employee Relations Ministry of Community, Family and Children’s Services

TELEPHONE CONFERENCE

February 7, 2003.

SUPPLEMENTARY DECISION

1My written decision dated February 3, 2003 confirmed an oral decision dismissing these grievances:

1By Order dated December 18, 2002, this Board (differently constituted) ordered as follows:

1. The grievor will be provided one final opportunity to appear before the Grievance Settlement Board in regard to these matters on January 30, 2003. Her failure to attend that hearing, barring exceptional circumstances, will be grounds to dismiss the matter.

2. The grievor is advised that she is represented in this proceeding by the Union, not a private solicitor. In the circumstances of this case, the grievor has no right to be represented by private counsel.

3. With the consent of all parties, the hearing on January 30, 2003, will proceed before Vice-Chair Owen Gray.

2The hearing in these matters was scheduled for hearing on Thursday, January 30, 2003 at 10:00 a.m. at the Board’s premises. Representatives of the employer and the union attended at that time and place. The grievor did not attend at 10:00 a.m., nor within 45 minutes thereafter. The union’s representative advised me that at the grievor’s request the union had been communicating with her through the offices of her M.P.P., that notice of the Board’s order of December 18, 2002 and of the time and place of the hearing provided for in that order had been given to the grievor by that means, and that the M.P.P.’s office had confirmed receipt thereof by the grievor. Thereafter, neither the employer nor the union had heard from the grievor.

3As it appeared that there were no exception circumstances, I dismissed these grievances orally, in accordance with the order of December 18, 2002. This written decision confirms that disposition.

2Following the hearing of January 30, 2003, the union’s representative learned that a fax from the grievor had arrived at the union’s Toronto offices at some time on January 29, 2003. The union’s representative felt obliged to bring the fax and its contents to my attention, in view of her representation to me at the hearing on January 30, 2003 that the grievor had not been heard from. She did so in a telephone conference in which the employer’s representative participated. The union’s representative explained that in the ordinary course of events a fax sent that way was most unlikely to have come to her attention prior to the scheduled hearing (as indeed it had not), and that she had specifically instructed the grievor to communicate with her by toll-free long-distance telephone, which the grievor had not done.

3Leaving aside the question whether I would have any jurisdiction to reconsider the decision dismissing these grievances, I think it is important to record that even if the grievor’s fax had been before me at the time, my conclusion at the hearing of January 30, 2003 would have been the same.

4The grievor’s fax dated January 29, 2003 (minus the grievor’s M.P.P.’s name and fax number) read as follows:

January 29, 2003

TO: KATHLEEN LAWRENCE FAX NUMBER: 1-416-443-9670

FROM: MARIA A. SLUSARCHUK Fort Frances, Ontario FAX NUMBER 1-807-[xxx-xxxx]

RE: GRIEVANCE SETTLEMENT BOARD JANUARY 30, 2003

I have been away and just received your messages. As I do not have a telephone of my own. [My M.P.P.’s] staff have forwarded the messages to me. I am fortunate that they provide this community service.

I have been away, as a family member has been involved in a severe motor vehicle accident. My brother was a passenger in a car that was involved in an automobile accident (in which the driver was killed.) He has since had heart surgery (twice), neck surgery and arm surgery. This accident occured [sic] out-of-province. Upon my return, my 80 year old father (visually and hearing impaired) and mother are both been ill, and since I am the primary care provider, my attention is focused on my parents today. Therefore, I will be unable to attend the scheduled meeting at the Grievance Settlement Board in Toronto, on Thursday, January 30, 2003, as I care for Elderly parents.

I am wanting, as the employer is wanting, to negotiate a “reasonable” settlement taking into account that I have been unemployed since December, 1995. The Ministry's hand1ing of my past employment has now created a situation, that has damaged my employment opportunities in a small rural community.

I would request that you fax me copies of each of the individual grievanc forms which have been filed with the union, which todate, has not been provided to me. The filing of these grievances occured many years aqo and at this time I do not have copies of the grievance forms.

Thanking you in advance for your assistance in this matter.

5At the hearing of January 30, the union’s representative advised me that she had asked the grievor to communicate with her by telephone but the grievor had refused to do so, that communication via the grievor’s M.P.P.’s office was at the grievor’s insistence, that the M.P.P.’s constituency assistant had told her that they were communicating with the grievor by telephone to an unlisted telephone number which the grievor had instructed them not to reveal to the union, that the Board’s order of December 18, 2002 had been sent to the grievor via the M.P.P.’s office, and that the M.P.P.’s office had confirmed that the union’s messages to the grievor about the January 30th hearing had been received by the grievor. The union’s representative has subsequently advised me that she sent the board’s order of December 18, 2002 to the grievor in care of the M.P.P.’s office on December 23, 2002, that when she contacted the constituency office by telephone on January 22, 2003 she was told the grievor had received the December 23, 2002 correspondence, that she faxed further correspondence to the grievor via the constituency office on January 23, 2003 and that on January 28, 2003 the constituency office had confirmed that the grievor had received the January 23, 2003 correspondence.

6The grievor was discharged from her employment with the Ministry in December 1996 for inability to meet the requirements of her position. Her grievance of that discharge was dismissed by this Board (differently constituted) in August 1998, following a 16 day hearing: Slusarchuk, 2567/96 (Abramsky).

7The grievances with which these proceedings were concerned are as follows:

Date

File #

Nature of Grievance

March 29, 1994

0756/96

Improper discipline/unfair performance appraisal of March 18, 1994

March 29, 1994

0762/96

Improper discipline with removal of signing authority

August 10, 1995

1936/95

5 grievances raising allegation of harassment by supervisor; poisoned work environment, unreasonable work expectations, etc.

September 19, 1995

2148/96

Inappropriate discipline - reprimand dated September 6, 1995

January 26, 1996

2150/96

Inappropriate discipline – letter of reprimand dated January 10, 1996 Inappropriate discipline – suspension for 3.3 days

April 29, 1996

2149/96

Grievance against the work plan

October 4, 1996

2147/96

Denial of travel claim on September 13, 1996 – Travelled with union steward to meeting in Kenora.

October 4, 1996

2146/96

Supervisor opened confidential mail. Apology requested & practice to cease.

October 7, 1996

2146/96

Paycheck unfairly withheld – resulted in NSF account charges on bank account.

Although these grievances all pre-date the grievor’s discharge, they were not consolidated or heard together with her discharge grievance. The discipline complained of in grievances filed after 1994 arose out of performance issues that were canvassed during the arbitration of the grievor’s discharge grievance. Had the hearing of those discipline grievances proceeded, there would have been a threshold question whether there was any factual issue left to adjudicate in light of the Board’s decision on the discharge grievance. In all of the grievances listed, there would have been a threshold question whether any of the remedies that were or could have been claimed, other than claims for money (pay lost during the three day suspension, the amount of the travel claim and the NSF charges and interest), remained pertinent following the termination of the grievor’s employment.

8The assertion in the grievor’s fax of January 29, 2003 that she had only just received the union’s messages seems at odds with what the very persons she had selected to receive and convey to her those messages had earlier told the union. In any event, it is apparent from the grievor’s fax that she knew of the hearing date and that her parents’ needs for care had not precluded her from travelling. Her fax did not assert that that or any other circumstance prevented her from travelling to the scheduled hearing.

9Even taking the contents and context of the grievor’s fax into account, on January 30, 2003 there were no such extraordinary circumstances as would have entitled the grievor to any further delay in the hearing of these grievances. Accordingly, had the fax been before me on January 30, 2003 I would nevertheless have dismissed these grievances.