GSB#2007-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi)

Association

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

HEARING

January 25, 2011.

Decision

1This matter commenced before me on April 26, 2007. On that date the parties and Ms Karen Egesi, the complainant, signed a Memorandum of Settlement which resulted in the settlement of the two disputes which were before me at the time. One of the terms of the Memorandum was that it was to be kept confidential. I remained seized in the event that there were any difficulties with regard to the interpretation or implementation of the Settlement.

2On July 23, 2009 the complainant sent a number of e-mails which the Ministry contends were a breach of the confidentiality provisions of the Memorandum of Settlement and which constituted inappropriate conduct on the part of the complainant. As a result an IT investigation was conducted which resulted in a report dated September 21, 2009.

3From September 29, 2009 to February 5, 2010 the complainant was absent from work on sick leave. When she returned to work she was suspended for ten days by letter dated February 11, 2010. AMAPCEO filed a dispute on behalf of Ms Egesi challenging this suspension dated February 12, 2010.

4The parties agree that I have jurisdiction to deal with the employer’s allegation that Ms Egesi had breached the confidentiality provisions of the Memorandum of Settlement and the ten day suspension. These issues were scheduled on an expedited basis for March 12, 2010. On March 9, 2010 I received a letter from the complainant indicating, amongst many other things, that she would not be attending the hearing as she objected to being represented by AMAPCEO. The complainant filed complaints before the Ontario Labour Relations Board (the “OLRB”) alleging that she had not been appropriately represented by the Association.

5A hearing date before me was scheduled for July 23, 2010. This was adjourned as the parties were waiting to see the results of the proceedings before the OLRB.

6The proceedings at the OLRB were dismissed on August 31, 2010 and a request for reconsideration was dismissed on November 24, 2010.

7The case before me was again scheduled for hearing on January 25, February 1 and February 7, 2011. The parties appeared before me on January 25^th. At that time counsel for the Association indicated that they had been informed that the grievor did not wish to be represented by AMAPCEO. Counsel for the employer indicated that the complainant had informed them on Monday, January 17, 2010, that she would be commencing a three month medical leave and would not be attending the hearing. No medical documentation was provided in support of this requested leave. The employer has requested that the complainant provide medical documentation to justify her request.

8As the complainant did not appear at the hearing on January 25^th counsel for the Association requested an adjournment. It was not disputed that the Complainant was aware of the proceedings and had known about them for some time. Although he sought an adjournment of the January 25^th hearing, counsel for the Association indicated that he would not object should the employer request that this adjournment be peremptory upon the complainant’s attendance at the hearing scheduled for February 7, 2011. Counsel indicated that the February 7^th date was preferred over the February 1^st date as it would provide more time for the Association to notify the Complainant regarding the outcome of today’s proceedings. Should the complainant chose to do so, it would also give her time to obtain and provide medical justification for her failure to attend at the proceedings on January 25th.

9Counsel for the Ministry objected to the granting of an adjournment. He argued that the employer in this case had been very accommodating of the numerous adjournment requests which have been made. He suggested that the Complainant has no respect for the representation she has and is receiving from the Association. She has a complete lack of respect for the process in place for dispute resolution between the parties. She indicated that she was not going to show up and in fact she did not do so. Endless adjournments are costly and a waste of valuable resources.

10However, in the alternative, should I be inclined to grant the adjournment, employer counsel agreed that it should be peremptory upon the complainant’s attendance at the February 7, 2011 hearing. He requested that the Complainant be directed to provide medical documentation or another acceptable reason to justify her failure to attend at the hearing on January 25^th.

11At the hearing on January 25^th, I ruled orally that in the circumstances I would grant an adjournment of the hearing on a peremptory basis and that the hearing would proceed on February 7, 2011 unless the parties agreed otherwise.

12Therefore to be clear, the complainant is hereby directed to appear at the hearing scheduled for February 7, 2011 or to provide sufficient justification to warrant the granting of an adjournment of the proceedings. Given how long this matter has gone on, should an adjournment be sought it will have to be based on compelling reasons. Should the complainant fail to appear or provide reasons this hearing will either proceed in her absence or be terminated.

13Therefore the hearing scheduled for February 1, 2011 is hereby adjourned. This matter will proceed on February 7, 2011 unless the parties agree otherwise.