GSB# 2002-2536, 2002-2537
UNION# 2002-0582-0073, 2002-0582-0070
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Moreau)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Nelson Roland Barrister and Solicitor
FOR THE EMPLOYER
Len Hatzis Counsel Ministry of Government Services
HEARING
November 20, 2006.
Decision
At the last hearing date, March 8, 2006, after much pre-hearing process, the grievor began to provide evidence in this matter. The grievor has medical problems, which will be addressed below. During his examination in chief, he was asked at least three times – by union counsel Nelson Roland, by his wife who was present, and by me – whether he felt well enough to continue with his testimony. Each time he stated he was capable of continuing and wanted to finish his evidence. The grievor was given every consideration with respect to his medical condition throughout the day, and that it was his own choice to continue.
During the evening of March 8, I received an unsigned fax purporting to be from the local union president, Robert Samsone, advising that Mr. Moreau was “taken to the hospital” and would not be available to continue the hearing on March 9, 2006 as previously scheduled.
The hearing was subsequently re-scheduled to continue on November 20, 2006.
On my arrival at the hearing on November 20, 2006, I was provided with a copy of a letter from the grievor addressed to Mr. Roland, indicating that he was still not capable of continuing with his testimony due to his health, but that it would also be detrimental to his health not to continue the hearing. In the letter, he requested that Michael McKinnon be called as a witness. However, union counsel advised me that the union did not intend to call Mr. McKinnon. Therefore, the only issue before the Board was whether or not to continue with Mr. Moreau’s evidence.
Clearly it would not have been appropriate to continue with Mr. Moreau’s evidence, given his medical condition. The most recent medical note, from the grievor’s family physician Dr. G.M. Gaffney, states the following:
“To whom it may concern:
This man suffers from significant mental illness. Stress leads to dangerous blood pressure levels. Any attempt to accommodate him is greatly appreciated.
Dr. Greg Gaffney”
No accommodations are specified by Dr. Gaffney. The grievor has, as stated above, sent a letter to union counsel indicating that he cannot continue his testimony but wants the hearing to continue. Given the grievor’s apparent inability to monitor and assess his own health, as demonstrated at the March 8 hearing, it is not clear to me that he is well enough to continue with the hearing, even if there were other witnesses the union intended to call. As a result, it is my view that the hearing should be adjourned until the union can provide the Board with medical documentation satisfactory to the Board that the grievor is medically capable of proceeding.
Therefore, I am ordering that the hearing be rescheduled to a mutually agreeable date. The union is required to provide the Board with medical documentation satisfactory to the Board, at most 45 days, but not less than 10 days in advance of the hearing date, that the grievor is capable of proceeding with the hearing.
Dated at Toronto this 28th day of November 2006.