GSB#2010-0031

UNION#2010-0542-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hussain)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry Ministry of Government Services Labour Practice Group Counsel

HEARING

September 11, 2012.

Decision

1This matter reconvened on September 11, 2012 at which time the Grievor, Mr. Faisal Hussain, failed to attend for proceedings. The grievance at issue was and is a complaint by Mr. Hussain alleging that he had been unjustly terminated. The Employer had closed its case on the merits on February 28, 2012. The next scheduled hearing day was June 25, 2012 at which time it was expected that the Union would proceed with its case by calling as its first witness Mr. Hussain. Regrettably, Mr. Hussain did not attend on that day. His absence and the consequences were documented in a written decision released by the Grievance Settlement Board on July 6, 2012. When the matter reconvened on July 16, 2012, again Mr. Hussain was not in attendance. His absence on that occasion and the consequences were set out in my decision of July 30, 2012 wherein paragraph 12 read as follows:

“The Order and Conditions

12I now confirm the cancellation and adjournment of the remaining July dates in this matter subject to the following:

1. The delay in proceedings occasioned here by the Grievor will be considered in the ultimate assessment of damages, if any, in the cause of this matter.

2. The Union/Grievor will produce medical information in substance satisfying my oral ruling of June 25^th as confirmed in this Board’s July 6, 2012 Award.

3. Amongst other things the medical evidence will address and support the Grievor’s inability to attend and participate in these proceedings from June 25 up to and including July 31, 2012.

4. The fresh medical information required, if not already made available, will be produced and provided to Employer counsel reasonably promptly following release of this award and at least two (2) weeks prior to September 11, 2012 which is now our next scheduled hearing day.

5. Consideration of the fresh evidence to be produced will be dealt with when these proceedings reconvene.

2As indicated at the onset of this decision, Mr. Hussain again failed to attend for proceedings on the next scheduled hearing date which was, as indicated earlier, September 11, 2012. At that time, Ms. Jane Letton, counsel for the Union, had no option but to again request an adjournment of proceedings. In an oral ruling made that day I declined the Union’s request for an adjournment for the reasons which will be outlined below. Before doing so I inquired of Ms. Letton what if any answer or efforts had been made to satisfy the conditions set out in the order of July 30^th.

3Ms. Letton provided the following information:

(a) On August 1^st an e-mail was sent to Mr. Hussain which included a copy of the July 30^th Award. The e-mail explained the decision, the additional medical evidence required and that it be provided to Ms. Letton’s office on or before August 27^th.

(b) At or about the same time a courier package containing the same information and a copy of the Award was forwarded to Mr. Hussain’s home.

(c) On August 7^th, 2012, when there had been no prompt response from Mr. Hussain, Ms. Letton addressed a letter to Mr. Hussain at his home address reiterating her explanation of the July 30^th decision together with a copy of the award itself. She instructed Mr. Hussain that additional medical evidence would be required in her office no later than 5 p.m. on August 27^th so that my Order could be fulfilled. She also requested Mr. Hussain’s consent for her to deal directly with his physician in order to satisfy those requirements.

(d) Although she had specifically requested a response from Mr. Hussain by August 10^th, Ms. Letton went on to explain that she would be totally unavailable from August 24^th to September 10^th. In her absence during that timeframe, Mr. Hussain was advised to contact her Associate, Mr. Devon Paul.

(e) As a precaution Ms. Letton engaged a process server to ensure Mr. Hussain received her August 7^th letter with the July 30^th decision attached. The process server’s report by way of Affidavit dated August 10^th, 2012 indicated that three attempts were made to serve Mr. Hussain at his residence without success and that additionally notes and telephone messages left for him went unanswered. In the peculiar circumstances experienced by the process server in attempting to serve Mr. Hussain, the Affidavit concluded as follows:

“I verily believe that Faisal Hussain is evading service of the aforementioned decision.”

(f) Notwithstanding the efforts made to ensure Mr. Hussain received her communications, there was no direct response from him to any of the correspondence. There was no communication whatsoever from Mr. Hussain himself to Ms. Letton up to and including the September 11^th hearing date.

(g) However, on September 8^th during the timeframe Ms. Letton had advised that she would be unavailable, Mrs. Hussain e-mailed Devon Paul the following message:

“Please be advised that my husband (Faisal Hussain) is still very sick and continues to seek medical assistance. He had various tests and further testing’s having also been scheduled for him. He is physically too sick and his disability has not been improved. He is not able to attend any hearings presently.

I am providing you with the following medical documents:

1. Dr. Mustafa Abdulhusein’s note dated September 5^th, 2012

2. Dr. N Chakravanti’s requisition dated August 20^th 2012

3. Colon Cancer check-dated August 21^st, 2012

4. Medical Centre-requisition dated June 27^th, 2012

5. List of prescriptions being talking.

6. Coxwell & Gerrard October 3^rd, 2012-Appointment with Dr. Dilkhush

Thank you,

Amna Faisal”

4None of the medical documents referred to come close to satisfying the requirements set out in the July 30^th Order. Of those documents only two bear any relevance to Mr. Hussain’s failure to attend proceedings.

(a) The first of those two is a prescription requisition form issued by a Dr. Mustafa Abdulhusein of Doctors-R-Us Inc. in Brampton, Ontario. The form identifies Faisal Hussain as a patient and indicates a prescription date of September 5, 2012 as follows:

“Excuse from work related meetings due to medical reasons from September 5-19, 2012”.

(b) The second document is dated June 27, 2012 and appears to be a referral request by Mr. Hussain’s physician, Dr. Yasmin Punjani, to a psychiatrist Dr. Dilkhush Panjwani. Included in the documents was also Dr. Panjwani’s business card indicating he is a staff psychiatrist at Trillium Health Centre and an appointment date of October 3^rd.

5Ms. Letton had no other instructions but those provided by Mrs. Hussain. In the circumstances, Ms. Letton acknowledged that the Order of July 30^th had not been satisfied as written but that the adjournment should, nonetheless, be granted since Mr. Hussain may be suffering from a yet unknown psychiatric issue. In any event, the case ought not to be dismissed in these circumstances.

6On behalf of the Employer, Mr. Parry noted that neither of the two prior Orders had been complied with, yet, the Union had appeared again requesting an adjournment. In Mr. Parry’s submission there had been no pretence of compliance by Mr. Hussain himself notwithstanding the efforts of Union counsel. With respect to the documents produced by Mrs. Hussain none of them begin to satisfy the information ordered on July 30^th. In the circumstances, Mr. Parry argued that there was no basis upon which to adjourn proceedings and there had been no change in status in spite of my earlier Orders. In the circumstances Mr. Parry took the position that:

1. The adjournment should not be granted today;

2. The Union should be required to proceed with its case;

3. That in the absence of evidence from the Union, the parties and in particular the Employer should be allowed to argue the case based upon the evidence adduced to date. Further, the Employer reserves the right to argue that the grievance should be dismissed based upon the Grievor’s failure to comply with the Orders previously issued and to attend scheduled proceedings as required. Mr. Hussain’s failure to co-operate or respond appropriately to the Board’s Orders indicate not only disrespect for the Board but also an abuse of the Board’s processes. Finally, Mr. Parry submitted that he will be arguing that the grievance be dismissed and Mr. Hussain’s termination upheld based upon the evidence adduced by the Employer.

Confirmation of the Oral Ruling

7In the circumstances before me on September 11^th. I was satisfied that Mr. Hussain had notice of my July 30^th order for the following reasons:

(a) Mrs. Hussain would not have known to email Devon Paul rather than Ms. Letton but for receipt by her and impliedly her husband of Ms. Letton’s communications.

(b) The affidavit that the Process Server believed Mr. Hussain was evading service suggested that the Grievor already suspected, due to correspondence from Ms. Letton previously received and ignored, what was to be served on him.

8With respect to the new medical evidence:

(a) The Prescription from the medical clinic fell far short of what I had previously ordered and was, in the circumstances, unreliable with respect to Mr. Hussain’s inability to attend.

(b) The referral request to the Psychiatrist provided no reliable information whatsoever regarding the state of Mr. Hussain’s mental status or health. It was, as described, simply a referral.

9It was clear that there had been no attempt by Mr. Hussain to co-operate with Union counsel and/or to comply with the Orders previously issued by this Board. The evidence introduced in no way satisfied the two earlier Orders nor was I satisfied that there were adequate medical reasons to again adjourn proceedings without that substantiating evidence. In the circumstances, I denied the adjournment request and directed Union counsel to proceed with her case.

10There were no other witnesses Ms. Letton intended to call aside from Mr. Hussain himself. Accordingly the Union had no evidence to introduce on September 11^th. The Union’s case was, therefore, noted as closed on September 11^th.

11There remain two additional days scheduled for these proceedings. The matter will reconvene on the next available day to commence hearing argument from both Parties as to the appropriate disposition of this case.