GSB# 2000-0092
UNION# 2000-0455-0001 [00D240]
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Timmerman)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Daniel A. Harris
Vice-Chair
FOR THE UNION
Nelson Roland Barrister and Solicitor
FOR THE EMPLOYER
Kelly Burke Senior Counsel Management Board Secretariat
HEARING
October 1, 2004.
Decision
The grievor was a seasonal employee in charge of gate receipts at Sharbot Lake Provincial Park in the summer of 1998. Over the course of that summer she stole $16, 445.25 from the gate receipts. She was discharged from her employment by letter dated February 4, 2000, was charged criminally and pleaded guilty to the charge on January 13, 2003. This Board found on May 25, 2004 that there was just cause for discipline. The union submitted that discharge was excessive, but asked for an adjournment of that day’s hearing due to the grievor’s state of mental health. The adjournment was granted on the following terms:
In view of the submissions made by the parties, I order that the matter be adjourned, not to be put down for hearing before August 31, 2004. Prior to that date the union shall provide to the employer clarification of the grievor’s capacity “to interact in this grievance arbitration,” including a date by which she is expected to be able to do so. The union shall also provide full particulars to the employer of the facts it says ought to lead to mitigation of the penalty and the relief it will seek.
This matter was brought back on for hearing because the union failed to comply with the Board’s Order.
Counsel for the union conceded that he had been unable to comply with the Board’s Order. He had sought medical reports, with limited success, and been unable to obtain useful information from the grievor.
The employer contended that since the Board’s Order of May 25, 2004 it had made every effort to inquire of the union the status of its efforts, as required by the Order, to no avail. The correspondence between the parties was filed as part of the record. In view of the fact that the central facts occurred in 1998 and that four months have past since the Order was given, the employer submitted that the grievance ought to be dismissed for failure to comply with the Order. I agree.
On May 25, 2004, the time given to the union to provide the necessary information was extended to August 31, 2004 despite the able submissions of Ms. Burke at that time that the union had already been the beneficiary of significant forbearance on the part of the employer. In the period since the Order was given, the union has received a medical report from the grievor’s family physician dated June 25, 2004. That report includes the following:
I feel she is medically unfit for gainful employment at the present time.
The report defers to the treating psychiatrist on the issue of the grievor’s fitness or otherwise “to participate and give instructions at the [hearing]” before this Board. The treating psychiatrist has seen fit to ignore the union’s requests to provide a report regarding the grievor’s ability to participate in a hearing before this Board. In any event, the only medical evidence before me indicates that the grievor is incapable of returning to work.
The thefts that resulted in the grievor’s discharge from her employment were serious and continuing breaches of the employee-employer relationship found by the courts to be criminal in nature. No explanations or facts have been put forward to support mitigation of the penalty and there is no reasonable prospect that they will be forthcoming soon, if ever.
In all of the circumstances the grievance is dismissed.
Dated at Toronto this 18th day of October, 2004.