GSB#2013-4267, 2014-3151, 2014-3152, 2014-3153, 2014-3154, 2014-3155

UNION#2014-0630-0001, 2014-0630-0003, 2014-0630-0004, 2014-0630-0005,

2014-0630-0006, 2014-0630-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gilchrist-Duval)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 16, 2015

Decision

1A hearing was convened on September 16, 2015, to deal with six individual grievances filed by Ms. Lori Gilchrist-Duval (grievor). For present purposes, it is sufficient to identify the grievances as follows:

(i) Grievance dated January 23, 2014 (File No: 2013-4267) alleging that:

"the employer is in violation of Article 2, Article 3, WDHP Policy and Procedures and any other articles, acts and policies that may apply".

(ii) Grievance dated June 24, 2015 (File No. 2014-3155) alleging that:

The employer is in violation of Article 2, Article 3, Article 9, Article 21, bullying and harassment, failing to provide a safe workplace under the OHSA, Harassment discrimination under the OHRC, and any other pertinent articles, policies and legislation that may apply. I continue to be treated differentially with a double standard by being over corrected, over managed and without dignity though I have informed management of complaints (being yelled at, people uttering threats, slanderous gossip, false accusations, denial of access) my complaints were ignored, mistreatment of myself was not addressed and allowed to continue, propagated by management.

(iii) Grievance dated June 24, 2014 (File no: 2014-3154) alleging that:

The employer is in violation of Article 2, Article,3, Article 9, Article 21, OHRC, OHSA, and denying union representation and any other articles policies and legislation that may apply. Specifically, on June 16, 2014 Darcy Watson behaved in an intimidating and aggressive manner, refused to inform me he was acting management, and intimidated and threatened me by yelling repeatedly, standing over me and close to me while doing so, walking after me when I tried to move away from the situation.

(iv) Grievance dated October 3, 2014 (File No. 2014-3153) alleging that:

The employer is in violation of Article 2, Article 3, Article 9, Article 44 as well as the OHRC, OHSA, and any other article, policy or legislation that may apply by denying sick leave and continuing to engage in harassment and discrimination causing me psychological and medical health damage.

(v) Grievance dated October 8, 2014 (File No. 2014-3152) alleging that:

The employer is in violation of Article 2, Article 3, Article 9, Article 21, OHRC and WDHP Policy and any other articles, policies and acts that may apply by making allegations against me based on a flawed investigation and treating me differentially and engaging in constructive dismissal and ongoing harassment and discrimination.

(vi) Grievance dated October 15, 2014 (File No. 2014-3151) alleging that:

The employer has violated Article 2, Article 3, Article 9, Article 44, Article 21 as well as the OHSA, OHRC WDHP policies, and any other articles, policies and legislation that may apply by engaging in a harassing and discriminatory manner, denying sick benefits, placing me in a harmful work situation and failing to protect me and unfair unjust termination.

2Grievances (i) to (iii) above were scheduled before the Board (differently constituted) for mediation/arbitration on August 14, 2014. The hearing was adjourned at the union’s request. On January 21, 2015, all of the six grievances were scheduled again before the Board (differently constituted) for mediation. However, the mediation date was also cancelled at the request of the union.

3When the matters came back on for arbitration before me on September 16, 2015, union counsel advised that she had spoken with the grievor on Friday September 11, 2015, and expected her to be in attendance, but she was not present. Counsel’s understanding was that the grievor was under treatment from a psychiatrist, and in no condition to participate in these proceedings at this time. She advised that she had been unable to meet with the grievor to gather particulars of the grievor’s allegations. She suggested that the grievor’s failure to attend and participate in these proceedings is likely due to her health issues.

4Employer counsel expressed her clients’ concern about the lengthy period that had elapsed, including two cancellations of dates scheduled. She urged the Board to ensure that these grievances are brought to a conclusion without further delay. I was provided a copy of a letter dated August 13, 2015 she had written requesting particulars with respect to each of the six grievances, and advised that no particulars had been provided to date. I was also advised that no medical evidence substantiating the grievor’s claim that mental health issues prevent her from participating in these proceedings had been provided. Counsel requested that the Board order the union to provide particulars and disclosure with respect to each of the grievances in a timely fashion. She agreed to adjourn the next scheduled date of September 23, 2015, but urged the Board to ensure that the hearing proceeds on October 16, 2015.

5Having considered the particular circumstances of this case and the respective positions advanced by the parties, the Board orally ruled on the process to be followed. This decision is a written and formal confirmation of that in the form of a Board order.

6As a general matter, the Board is very concerned about undue delay and wasteful cancellation of matters scheduled before it. However, the Board is also mindful that if the grievor’s failure to attend and participate in these proceeding is a result of a medical/health restriction, she needs to the accommodated. With the objective of balancing the interests of both parties, and the institutional interests of the Board itself, therefore, it is hereby ordered as follows:

a) This proceeding will continue on Friday October 16, 2015.

b) Subject to paragraph (e) below, in the event the grievor claims that she is unable to participate in these proceedings on October 16, 2015 or any subsequently scheduled hearing day due to health issues, medical evidence substantiating such claim must be provided to employer counsel at least 10 days in advance of the hearing date.

c) The medical evidence referred to in (b) above must be from the grievor’s treating psychiatrist. The grievor’s own assertions of disability and restrictions are insufficient to warrant the Board departing from its usual processes and practices. The medical evidence must consist of an objective opinion by the psychiatrist, explaining the restrictions/limitations, if any, that result in the grievor’s inability to attend and participate in these proceeding in its usual course. In addition, if the Board’s usual processes and practices may be adjusted in any way to enable the grievor’s attendance and participation, those adjustments should be set out by the psychiatrist.

d) The union is further ordered to provide at least 10 days in advance of the next scheduled hearing date, full particulars, and disclosure of any and all arguably relevant material with respect to each of the grievances. If the union asserts that this order cannot be complied with due to the grievor’s disability and the resulting inability to meet and participate with union counsel in assembling the required information, medical evidence in support of that assertion from the grievor’s treating psychiatrist must be provided to employer counsel at least 10 days in advance of the hearing date. Such medical evidence must also meet all of the conditions described in para (c) above.

e) Finally, in the event it is asserted that any of the orders herein could not be complied with for reasons beyond the control of the grievor/union, the onus would be on the union to substantiate that assertion by providing evidence, including evidence of all attempts made to be in compliance.

7Once medical evidence and particulars/disclosure are provided pursuant to these orders, the employer may, if it takes such position, argue that they are not satisfactory or do not meet the specific terms of the Board’s order. Any dispute in that regard will be dealt with by the Board at the outset, when it reconvenes on October 16, 2015.

8Failure to comply with the Board orders herein, in the absence of reasonable explanation, may result in the dismissal of the grievances summarily.

9The Board remains seized. The hearing will continue as scheduled and in accordance with the terms set out herein.