GSB#2005-3281

UNION#OLB007/06

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Durnin)

Union

• and -

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Nelson Roland

Barrister and Solicitor

FOR THE EMPLOYER

Gordon Fitzgerald

Counsel

Liquor Control Board of Ontario

HEARING

February 1, 2007

Decision

A discharge grievance dated January 12, 2006 came before the Board for arbitration on February 1, 2007. When the hearing commenced at the scheduled time of 10:00 a.m. at the Best Western Hotel in London, Ontario, counsel for the union informed that the grievor had not shown up. The Board recessed briefly, instructing counsel to search the lobby area and the restaurant in the event the grievor had arrived late. Upon returning, counsel advised that he did not expect that the grievor would show up. Counsel advised that he had had considerable difficulty contacting the grievor to prepare for arbitration. He requested that the hearing be adjourned to allow the union to continue its efforts to contact the grievor in order to prepare for arbitration. In the alternative, counsel suggested that the Board fix a further hearing date and issue an order that the grievor attend on that date, on condition that in the event of non-attendance the grievance will be dismissed. Employer counsel opposed the union’s requests and submitted that in the particular circumstances of this case the grievance ought to be dismissed forthwith.

Following submissions, including a presentation of facts, documents and legal authorities, I orally dismissed the grievance. This decision sets out the reasons for that oral ruling.

During counsels’ presentations the following facts emerged. The grievor was terminated by letter dated January 3, 2006. The letter alleges in substance that the grievor had failed to communicate with the employer to explain his absence since he went off work on April 15, 2005, and further that the grievor had not responded to several letters and telephone messages from the employer. In the alternative, the letter stated that the grievor was deemed to have abandoned his employment. On January 12, 2006 the grievor filed the instant grievance claiming discharge without just cause.

The grievance was in due course referred to arbitration and scheduled for hearing on November 15, 2006. Mr. Nelson Roland (“union counsel”) was retained on October 20, 2006 by the union. By letter dated October 24, 2006 sent to the grievor by courier as well as by regular mail, union counsel informed the grievor of the hearing scheduled for November 15, 2006. He also attached a copy of the formal Notice of Hearing from the Board setting out the date, time and place of hearing. On October 25, 26 and 31, 2006, Union Counsel’s assistant left voice-mail messages for the grievor requesting that he contact counsel to arrange for a preparation meeting. Since there was no contact from the grievor, union counsel wrote a further letter dated October 31, 2006, again informing of the upcoming hearing and requesting that the grievor contact his office.

Since he had not been able to establish any contact with the grievor, union counsel requested the employer’s consent to adjourn the hearing scheduled for November 15, 2006. Employer counsel consented to the adjournment on two conditions, first that the employer would not be liable for any damages for the period of delay caused by the adjournment, and that an early date be fixed for rescheduling of the hearing. Union counsel wrote a letter dated November 2, 2006, sent to the grievor by express post and regular mail, reviewing the earlier unsuccessful attempts to contact him, without success, and advising that as a result the hearing scheduled for November 15, 2006 had been adjourned. Still in the absence of any contact from the grievor, the parties mutually agreed to reschedule the hearing for February 1, 2007 and informed the Registrar of the GSB.

On November 16, 2006 union counsel wrote to the grievor requesting that he contact counsel in order to prepare for the arbitration now rescheduled for February 1, 2007. A copy of the new Notice of Proceeding setting out the date, time and place of hearing was also attached to the letter, sent this time by express and regular mail. Union counsel’s assistant continued to leave voice-mail messages for the grievor. A further letter dated January 4, 2007 was sent to the grievor by express and regular mail.

The grievor finally contacted union counsel’s office on January 16, 2007. Union counsel returned that call and spoke with the grievor later that day. When advised of the hearing scheduled for February 1, 2007, the grievor gave no assurance that he would attend. During this call Mr. Roland warned the grievor that if he failed to attend, the Board may dismiss his grievance. Since that telephone conversation there had been no further contact between the union and the grievor.

Union counsel did not dispute that the Board had the jurisdiction in its discretion to dismiss the grievance, if it deemed appropriate in the particular circumstances. Indeed very recently in Re Tafesse, 2005-1342 (Gray) the Board did exactly that in similar circumstances. In so doing Vice-Chair Gray adopted the following reasoning in Re Toronto (City) and Canadian Union of Public Employees, Local 79, (1998), 1998 CanLII 30076 (ON LA), 73 L.A.C. (4th) 412 (Craven) at 416:

Where a party, by its own conduct, has compromised its ability to proceed with the hearing on the scheduled date, it will not be entitled to an adjournment as a matter of right. In such a case, the arbitrator nevertheless has the discretion to award an adjournment, with or without conditions, upon full consideration of all the circumstances. This discretion arises out of the arbitrator’s authority to control the proceedings. The inconvenience and prejudice to the moving party of continuing with the hearing must be weighed not only against the inconvenience and prejudice of the other party in adjourning the hearing, but also against the public policy of expedition in the resolution of industrial disputes at arbitration.

Obviously, lengthy delay tends to make it more difficult to serve the attendance of witnesses. Memories become less reliable, and material and documentary evidence may go astray. Remedies may become less effective. For these and other reasons non-trivial delays are almost inevitably prejudicial. Still more importantly, excessive delay tends to undermine the parties’ interest in resolving their disputes efficiently, economically and expeditiously. It also tends to reduce confidence in the fairness and efficacy of the grievance arbitration system. In my opinion these considerations weigh heavily against the exercise of the arbitrator’s discretion to grant a lengthy adjournment where the party seeking the adjournment is clearly responsible for the inability to proceed in a timely manner. It would require a truly compelling a reason to overcome the weight of these considerations and justify a delay of the length sought here.

As Vice-Chair Gray did, I agree that the maxim “Justice delayed is justice denied” in the present collective bargaining relationship applies not only to the employer, but also to the union and grievors. In the instant case, unlike in Re Tafesse, there can be no doubt that, at least as a result of the telephone conversation with union counsel, the grievor was aware of the hearing scheduled for February 1, 2007. He had expressly been warned that if he failed to attend he ran the risk that his grievance may be dismissed. Yet he failed to attend without even the courtesy of a telephone call to explain the non-attendance. Already there has been undue delay. The union, the employer, as well as the Board have been subjected to unnecessary and wasteful costs, both in terms of financial resources and time. There is no indication as to when, if at all, the grievor would be available to attend. This is an extreme case where the only appropriate exercise of my discretion is to uphold the employer’s motion to dismiss the grievance.

It is for the foregoing reasons that I orally dismissed the grievance. That oral ruling is hereby confirmed.

Dated at Toronto, this 6th day of February, 2007.