GSB#2011-3785

UNION#2011-0555-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Savdie)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Heather McIvor Ministry of Government Services Legal Services Branch Counsel

CONFERENCE CALL

June 14, 2013

Decision

1This Decision dismisses the grievance of Isaac Savdie, the grievor, for his failure to diligently assist the Union in its advancement. The grievor received a letter of reprimand, dated July 12, 2011, after a series of allegedly disrespectful interactions with his manager. The grievance claimed that he had been harassed and discriminated against.

2This matter came on for mediation on December 3, 2012. The grievor failed to appear and the matter was adjourned. He had not contacted the Union to advise that he would not attend. Accordingly, there was no explanation for his failure to attend that day. Nonetheless, the Employer agreed to reschedule the matter.

3This matter came on for hearing on May 23, 2013. The Union was again put in the position of requesting an adjournment because the grievor failed to attend. After hearing the submissions of the parties, I issued a decision, dated May 29, 2013, giving the Union until close of business on June 6, 2013 to provide “good reason” for the grievor’s failure to attend on May 23, 2013. For ease of reference, that decision is as follows:

1This matter first came on for mediation on December 3, 2012. At that time the grievor failed to attend and the matter was adjourned to May 23, 2013 for arbitration. Again, the grievor failed to appear.

2The Union asked that the matter again be adjourned. The Union made several attempts to contact the grievor on the day of the hearing, to no avail.

3The Employer resisted the adjournment request. It said that the allegations dated from 2008, and it would be prejudicial to further extend the delay in this matter. It said there were production requests outstanding and the lengthy delays in this matter were unfair to witnesses who would be called upon to recall events from some time ago. It said that the grievor has shown little interest in progressing these proceedings to completion, and it is a waste of the Board’s resources to continue them. It asked that the grievance be dismissed.

4In reply, the Union said that it was unfair to characterize the grievor as being disinterested. He had assisted the Union in the preparation of detailed particulars. His failure to attend the mediation was said to be an innocent misunderstanding as to the scheduled date. Further, the process has already been extended, so a brief, further delay would occasion no prejudice.

5In my view, there is an onus on the grievor to be attentive to the scheduling of his grievance. As I understand it, the grievance resulted from the issuance of a letter of reprimand for being disrespectful to the grievor’s managers. The grievance alleges that the grievor was harassed and discriminated against. Such allegations are serious and should be dealt with promptly. The grievor’s repeated failure to attend at the Board leads me to conclude that the matter should be dismissed unless the grievor can satisfy the Board that there is good reason for his failure to attend on May 23, 2012.

6Accordingly, this matter will be administratively dismissed unless the Union is able to present, prior to the close of business on June 6, 2013, that there was a good reason for the grievor’s failure to attend on May 23, 2013.

4By correspondence dated May 31, 2013, the Union provided the following explanation for the grievor’s failure to attend on May 23, 2013.

The Grievor has advised that he was unable to attend the hearing on May 23, 2013 due to medical reasons. He has asked that we continue to deal with the preliminary issues we were set to deal with on May 23, namely the Employer’s res judicata motion as well as the Union’s disclosure requests. I believe these issues can be dealt with via a teleconference hearing with the Vice Chair. Please advise if the Employer would be agreeable to scheduling same with the Board.

Should there be any questions or concerns, please feel free to contact me.

5A teleconference hearing convened on Friday, June 14, 2013 to deal with this matter. The Employer submitted that the Union’s explanation for the grievor’s default was inadequate. It said that “medical reasons” amounted to no reasons at all and certainly were not good reason, as required by my decision of May 29, 2013.

6The Employer relied upon the following authorities: OPSEU (Adair Smith) and Ministry of Transportation (GSB 1757/94) (Harris); OPSEU (Ellis) and Ministry of Finance, [2001] O.G.S.B.A. No. 74 (Dissanayake); Health Employers Assn. of British Columbia and Hospital Employee’s Union [1997] B.C.C.A.A.A. No. 195 (Ready); L-M Equipment (1981) Ltd. v. U.S.W.A. Local 2952 (Walter’s Grievance), [2006] B.C.C.A.A.A. No. 107 (Coleman).

7The Union submitted that dismissal of the grievance was too drastic. It said that the grievor’s medical excuse was reasonable. He is concerned about his medical privacy and that he should be given an opportunity to provide a medical note to explain the absence. It said that the grievor continued to be interested in pursuing his grievance as was evident by his presence at the teleconference hearing.

8In reply, the Employer submitted that the grievor had had ample opportunity since May 23 to provide a medical certificate and no further indulgence should be provided; the grievance should be dismissed.

9Having considered the submissions of the parties I directed that the Union was to provide a medical note by 5:00 pm on Monday, June 17, 2013 explaining the medical reason for the grievor’s failure to attend as well as an explanation as to why he had not contacted Union counsel to let him know why he would miss the day.

10On July 2, 2013 the Board enquired of the parties as to the status of this matter. The Union advised that it had not received the required medical note. The grievor also had advised the Union that his medical condition prevented him from contacting the Union on May 23 to advise of his absence.

11In all of the circumstances, the grievance is dismissed. The grievor has demonstrated a complete lack of concern for the inconvenience and expense to which he has put the Employer, his Union and the Board. I agree with Vice Chair Dissanayake’s observations in the Ellis Grievance, supra, at paragraph 5, “that the grievor has displayed a total lack of respect for the Grievance Settlement Board and its proceedings.” Considerable resources have been squandered on this matter.

12I am mindful that medical confidentiality is to be respected. However, when an individual invokes a medical condition as justification for failure to meet their obligations, more is required than a cursory statement.