GSB#2009-1107

UNION#2009-0504-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mance)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

September 17, 2010.

Decision

1This matter was scheduled to continue on Monday, September 13, 2010. The grievor, who was to continue providing his evidence in chief, failed to attend.

2In a decision dated the same day, I noted the parties’ agreement to adjourn the hearing on that day.

3That adjournment, however, was peremptory upon the grievor's attendance at the next scheduled hearing date, Friday September 17, 2010. In addition, the employer had reserved its right to seek a justifiable explanation for the grievor's failure to attend on Monday as a condition of the matter proceeding on Friday.

4The hearing commenced at 11 AM on Friday, September 17, 2010. It commenced one hour after the normal time so as to afford trade union counsel the opportunity to confer with the grievor who arrived at the Board premises shortly before 10 AM. When the hearing convened, however, union counsel advised that the grievor was no longer in attendance and would not be available to continue his evidence.

5The union sought a further adjournment which the employer opposed.

6Union counsel advised that the grievor’s failure to attend on the previous day as well as his decision to depart on the Friday were a result of the frustration he has experienced with the instant process. Apart from that reference to grievor’s frustration, counsel advised that the grievor had not indicated the presence of any specific event or other reason for his non-attendance on the prior day or for his departure prior to the formal commencement of the hearing on the Friday.

7Union counsel advised that the grievor wished to have the matter rescheduled to another day and to have all of the managers (and former managers) and union officials who had any involvement in the matters giving rise to the grievance present on that day.

8Before dealing with the adjournment request, I will note that I might well have been amenable to an employer motion to dismiss the grievance simply on the basis of the grievor’s failures to attend. The adjournment previously granted was contingent on his attendance at the subsequent day of hearing. When the matter convened the grievor was, for the second time, nowhere to be seen.

9No reason, apart from the reference to the “grievor’s frustration with the process”, has been advanced to explain or justify his absence. No doubt the grievor is not unique in his frustration in relation to the instant process. That, however, is not a license to appear or not appear as one sees fit in the middle of one's evidence or to seek to require other persons’ attendance as a condition of continuing to attend.

10Counsel, on either side, are free to make the determination as to what witnesses are (or are not) required to testify in the proceedings. And summonses are available to enforce any such attendance. It is simply not for an individual grievor to determine who shall or shall not attend a hearing before the Board (and certainly not to do so as a condition of the hearing’s continuation). More importantly, this grievor has clearly and now repeatedly, demonstrated his disdain and lack of respect for this Board and its process, not to mention his utter lack of courtesy to all of the many people who have now been required, on two separate occasions, to assemble at this Board for the purposes of continuing the hearing only to have that continuation thwarted by the grievor’s failure to attend.

11As I say, in those circumstances, and echoing the comments in my prior award in this matter, I might well have favourably entertained any motion to dismiss the grievance on the basis of the grievor’s repeated failures to attend.

12The employer, however, was sufficiently generous to permit me to consider the merits of the adjournment request.

13The union based its adjournment request on two factors. First, it relayed the grievor’s “request” detailed earlier about adjourning and convening a larger group of individuals at a later date. But the union also submitted that it was seeking an adjournment because, in view of the grievor’s failure to attend, it was unable to proceed with the case.

14I have already outlined my view regarding the propriety of the grievor’s request. As to the second ground, there is no doubt that the grievor’s conduct has placed the union in an untenable position and compromised its ability to advance his case. The grievor had begun (but not completed) his examination-in-chief. Obviously, it has not been subject to cross-examination (and, thus, cannot yet be considered or relied upon by this Board). In the absence of an adjournment, the union advised that it had no further or other evidence to proffer and effectively, if somewhat grudgingly, acknowledged that, again in the absence of an adjournment to attempt to secure the grievor’s attendance for a third time, I would have little alternative but to grant any employer motion to dismiss the case.

15While the impact on the union is unfortunate, the grievor is clearly the author of his own misfortune. No grievor before this Board should expect its indulgence when s/he simply fails to attend without any reasonable justification. The employer consented to that indulgence once for this grievor (albeit subject to certain conditions). This Board will not countenance this conduct a second time.

16It was for these reasons that I advised the parties orally at the hearing that the adjournment request was denied. Following upon the denial and the union’s indication that it was unable to call any evidence, the employer moved to dismiss the grievance and I indicated to the parties that I would do so.

17The grievance is hereby dismissed.