GSB#2012-0579

UNION#2012-0248-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sitek)

Union

• and -

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

Employer

BEFORE

Reva Devins

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

HEARING

November 12, 2013

Decision

1This arbitration was scheduled to start at 10 a.m. on November 12, 2013. The Grievor was not there at the designated time, did not arrive within the next 90 minutes or advise the Board or the Union that he could not attend.

2The Union seeks an adjournment sine die or, in the alternative, requests that this matter proceed in the absence of the Grievor. In the further alternative, the Union seeks an adjournment of 3-4 weeks to permit the Grievor one final opportunity to indicate his willingness to engage with the grievance procedure.

3The Employer objects to an adjournment sine die but is prepared to consent to a very brief adjournment on strict conditions. The Employer submits that the Grievor should be required to produce medical documentation supporting his absence on November 12th and his inability to advise the parties that he would not be attending. The Employer also asks for a commitment from the Grievor that he will participate in the proceedings going forward. If the Grievor fails to comply with either of these conditions, the Employer maintains that the grievance should be dismissed.

Background

4The Employer alleges that the Grievor was absent from his position from October 23, 2011 until February 7, 2012. The Employer directed the Grievor to attend on numerous occasions to discuss his employment, however, the Grievor did not attend or provide medical documentation to support his ongoing absence. The Employer wrote to the Grievor on February 7, 2012 and notified him that he was deemed to have abandoned his position in the Ontario Public Service and his employment was accordingly terminated in accordance with s. 42 of the Public Service of Ontario Act.

5The Union filed a grievance on behalf of the Grievor on April 5, 2012; the Grievor did not attend the Stage 2 meeting and the matter was referred to arbitration before this Board. The Grievor agreed to mediation and attended at the Board on August 15, 2012. An arbitration date was set for February 4, 2013, at which time the Union advised that it had lost contact with the Grievor. On consent, the Union was permitted one month to locate the Grievor. The Union made contact with the Grievor shortly after March 5, 2013 and further dates were set, the first of which was November 12, 2013.

6The Union acknowledged that the last direct contact it has had with the Grievor was in early March 2013. He has since moved and is no longer living at a permanent address, he has deactivated his e-mail account and he did not return the Union’s phone calls when it left messages for him on his cell phone. The Union has been in contact with the Grievor’s sister and she advised that she sees him from time to time. The Union further stated that it has reason to believe that the Grievor has serious issues with substance abuse that account for his absence from work and for his continuing failure to engage with the arbitration process.

Submissions

7The Union submits that the Grievor has a disability and his ongoing struggle with substance abuse requires an accommodation in the form of an adjournment sine die. It recognised that it has very limited medical documentation to support this assertion, nonetheless, it has a well founded belief that the Grievor has a disability and that it is preventing him from participating in these proceedings.

8In the Union’s submission, the Employer bears the onus in this case to establish just cause for the Grievor’s dismissal and the Grievor’s failure to attend does not relieve them of that onus. If the Board does not grant an adjournment, it maintains that the case should proceed, even in the absence of the Grievor.

9In the final alternative, if the Board determines that it would not be appropriate to grant an adjournment sine die and is reluctant to proceed without the Grievor, the Union seeks one last opportunity to permit the Grievor to indicate that he is willing to engage with the process. Given that he does not currently live at a fixed address, 3 or 4 weeks is a reasonable length of time to ensure that every effort can be made to notify him of the possible outcome of continued absence.

10The Employer strenuously objected to an adjournment sine die. In it’s submission, the Grievor has demonstrated very limited interest in pursuing this matter and has had ample opportunity to participate. The Employer noted that its’ liability continues to accrue and this matter has already required a significant expenditure of resources. No supporting medical documentation has been provided to support the suggestion that the Grievor has a medical disability that requires accommodation. Nor is there any reason to believe that if an adjournment is granted that the Grievor is likely to attend in the future.

11In these circumstances, the Employer suggests that the Grievor has demonstrated a total disregard for the inconvenience and expense to the Employer, the Union and the Board when he failed to attend these proceedings. He has already been given a second chance to attend and has not. The Employer therefore asks that the grievance be dismissed.

12In reply, the Union submitted that the issue of the Employer’s ongoing liability could be addressed at the remedial stage, if required, or be limited as a term of the adjournment. The Union further argued that 5 days was an unreasonable period of time in which to try to contact the Grievor. He is currently not residing at a fixed address and is only picking up his mail sporadically from his sister. If a brief adjournment is granted to permit one final effort to engage the Grievor, then it should be for a period of time that affords the Union a realistic amount of time to contact him.

13The parties referred me to a number of authorities. The Union relied on Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; OPSEU v. Ontario (Min. of Community Safety and Correctional Services), [2013] O.G.S.B.A. No. 135 (Harris); OPSEU v. Ontario (Min. of Community Safety and Correctional Services), [2006] O.G.S.B.A. No. 247 (Stephens); Fraser Health Authority v. Hospital Employees’ Union (2003), 2003 CanLII 89514 (BC LA), 118 L.A.C. (4th) 186 (Dorsey); Howatt v. College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 29563 (ON SCDC), 167 O.A.C. 340. The Employer referred me to OPSEU (Savdie) v. Ministry of Government Services (2013), GSB no. 2011-3785 (Harris); OPSEU (Smith) v. Ministry of Transportation (1999), GSB no. 1757/94,0792/95 (Harris); OPSEU (Ellis) v. Ministry of Finance (2001), GSB no. 1866/99, 1867/99, 1996/99, 0136/01 (Dissanayake).

Decision

14Having considered the submissions of the parties, I am not prepared to grant an adjournment sine die. There is no evidence before me to support that request and, absent evidence to establish that there is some reasonable likelihood that the Grievor will be able to participate at some later date, there is very little to be gained by an indefinite adjournment of these proceedings. The Employer is entitled to some finality.

15Nonetheless, the Grievor has lost his employment with the OPS and every effort should be made to permit him to challenge the Employer’s actions. I will therefore grant an adjournment of 3 weeks to allow the Union to provide medical documentation of a disability that has prevented the Grievor from attending these proceedings and setting out any accommodation that will permit him to participate in the future. The Union must also produce a written undertaking from the Grievor that he intends to attend and participate in these proceedings going forward, subject to any accommodation requirements.

16If the Union is unable to provide either the required medical documentation or a written commitment that the Grievor will attend these proceedings by December 6, 2013, a conference call will be convened at which time final submissions will be heard on whether this matter should be dismissed. It is my understanding from arguments to date that the Union does not challenge the Employer’s position that the Grievor was indeed absent from the workplace on the dates alleged or that the Employer had not authorised that absence. In light of those concessions, the Union will be asked to address the basis on which it will challenge the alleged abandonment without the Grievor or further medical documentation.