GSB#2009-0689, 2010-0143, 2010-0144, 2013-3242

UNION#2009-0536-0001, 2009-0536-0002, 2009-0536-0003, 2013-0536-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 29, 2015

Decision

1At the request of the parties the name of the grievor has been altered due to the nature of highly personal information contained in this decision.

2The grievor, “Ms. Randolph”, has worked as an Intermediate Designer and a Transportation Design Technician with the Ministry of Transportation and filed three grievances in the spring of 2009. The first alleged that she was subject to “vexatious treatment” by her co-workers without the Employer taking any measures to “protect” her. The second grievance alleged that she was suspended without just cause. The third grievance alleged a violation of Article 44.9 of the Collective Agreement by virtue of the Employer’s request that she undergo a psychiatric Independent Medical Evaluation.

3Later, in April of 2013 Ms. Randolph filed a grievance that she had been discharged without just cause and had been subject to unfair, arbitrary and discriminatory treatment.

4This Board was asked by the Union to adjourn these proceedings sine die and by the Employer to dismiss the grievances summarily. This decision deals only with those motions.

5Some history of this matter is necessary. In July of 2009 the parties attended a mediation day at the Board in an effort to resolve the matters in dispute. At that time a Memorandum of Agreement was signed that stated the parties agree to the following:

• The Employer will reinstate the grievor’s vacation credits used since June 23, 2009 and place the grievor on a continued leave of absence with pay effective June 23, 2009.

• The Employer will set up an Independent Psychiatric Examination (IPE) for the grievor to attend with either Dr. B. or Dr. F., both of Toronto. The Employer will pay the associated costs of the IPE and a subsequent written report from the Doctor. The Employer will notify the grievor of the appointment details and requirements.

• The grievor agrees not to attend the workplace unless authorized by the Employer.

• The grievor agrees to sign the attached consent form for the IPE dated July 14, 2009.

• The Employer agrees to share the report with the grievor and Don Martin, Grievance Officer, for further discussion.

• The parties agree to hold the grievor’s 2 grievances dated June 25, 2009 in abeyance pending the outcome of the discussion noted in 5.

• The parties agree Vice Chair Felicity Briggs will remain seized of this matter with regard to implementation of this agreement. If either party is aware of any non-compliance with this agreement, Ms. Briggs will be contacted within 48 hours.

6In accordance with the Memorandum of Agreement the grievor went for an IPE and a report was issued on October 21, 2009. I will not set out that report in full. However, it would be useful to provide some comments found therein. Dr. B. stated, in part:

• She (the grievor) described feeling upset at work when she heard comments such as “Ukrainian prostitute” “prostitute in a bar”. She believes that all her employers in Canada are somehow connected and determined to stain her reputation.

• She describes feeling harassed and that her previous employer continued to spread rumours about her “prostitution and selling children” at her place of training.

• In her next job in Whitby, she believed that rumours were spread again about her “striptease work in Mexico and begging on Bloor.” At around the same time she felt in stores some students were making pornographic gestures and acquaintances stopped coming to her home.

• Ms. Randolph strongly believes that “the system is corrupt and somebody is focused on staining my reputation”. She believes that people, who want her harmed, work for different organizations, are interconnected and communicate negative information about her.

• Ms. Randolph denies any past history of emotional or mental stress.

• She appeared intelligent, her speech and thought processes were coherent with fixation on being slighted by co-workers.

• She stated that her return to work cannot be successful without an apology, and also thinks that co-workers have to stop sabotaging her at work. She would also like to participate in social life at work.

• Despite video recording, private investigators, hired by Ms. Randolph, there has been no corroborating evidence of rumours willfully spread about her by her co-workers and employers.

• Diagnostic opinion – Adjustment Disorder with Dysthymic mood & Paranoid Personality Disorder.

• Prognosis – Unless treatment is offered and accepted there is a lifelong problem working and living with others, resulting in occupational and relationship problems. There is also increased vulnerability to anxiety, panic, anger depression and delusional thinking.

7Dr. B. stated, in conclusion, “she can return to work after engagement in psychotherapy on a weekly or bi-weekly basis for a minimum of 6 months and preferably continue therapy for 2 years.”

8On July 3, 2012, the Employer wrote the following letter to the grievor:

On July 14, 2009, pursuant to certain grievances you filed, you signed an interim Memorandum of Agreement with OPSEU and the Employer which included your consent to participate in a medical assessment.

In August of 2009 you attended a medical assessment with Dr. B. who then completed a medical report which contained opinions and recommendations for managing your condition. On December 14, 2009, you were advised that the Employer was placing you on sick leave in response to the recommendations included in the report produced by Dr. B. Since that time, ministry management has encouraged you to seek the recommended treatment as described by Dr. B. you were advised that upon receiving medical clearance for you to return to work, we would work with you to develop a return-to-work/accommodation plan.

Your short-term sickness credits were exhausted on June 15, 2010. The Long Term Income Protection (LTIP) papers were mailed to you, but I understand that you decided not to apply for those benefits. Your current status is “Leave without Pay”.

To date, the Ministry has not received updated health information from a treating physician to support that you have taken the necessary steps to enable a return to the workplace. The Ministry has received no indication that you have complied with the recommendations set out by Dr. B.

If there is no information to demonstrate that you have followed through with the recommended treatment or intend to pursue the recommended treatment, which is a pre-condition for any return to work, I may have no choice but to recommend the termination of your employment pursuant to Section 34(b) of the Public Service of Ontario Act, 2006. Prior to making this decision, I want to give you the opportunity to provide me with any information that you would like me to consider by Friday July 20, 2012. If you require additional time, please let me know prior to July 20th.

9On October 17, 2012, the Employer again wrote to the grievor indicating that, as it had not received any additional information or indication that she would comply with the recommended treatment which was essential for any return to work, it considered her employment contract to be frustrated and that there was just cause for dismissal.

10As stated above, the grievor filed a grievance alleging discharge without just cause on April 23, 2013.

11At the March 5, 2014 Joint File Review Meeting the parties agreed to ask the Board to set another hearing date for these matters. A hearing date of February 19, 2015 was scheduled.

12A conference call was scheduled for February 13, 2015. During that call, wherein the parties agreed to adjourn the upcoming hearing date, the Board directed the Union to contact that grievor to make clear that she was to provide medical information as to her status. Such information was sought in an effort to assess whether to grant the Union’s request to adjourn the matter sine die. The information was to be received by April 2, 2015. During this first conference call the Union was also directed to ensure it made it known to the grievor that there might be consequences in the event that she did not comply with the Board’s order in this regard.

13In an April 23, 2015, conference call, the Union made known that it did not have the medical information in accordance with the Board’s order nor did it have any information that the grievor was well enough to participate in hearing. During this later teleconference the Union again asked that the grievances be adjourned sine die pending the production of the medical information. The Employer strongly resisted that request and asked that the grievances be dismissed summarily. A hearing day was scheduled to provide both parties an opportunity to proffer arguments in this regard.

14After a dispute as to the scope of the motions to be heard, it was made clear that the Employer reserves its right to make various preliminary arguments such as timeliness and delay in the event it is unsuccessful in its present motion.

15The Employer informed the Board that when the grievor was sent the letter in July of 2012 while she was still on a leave without pay, she was given an opportunity to update the Employer and provide information as to when she would be able to return to the workplace. According to the Employer, the grievor’s response at that time was to attempt to sue the Crown. She brought an application before the Superior Court of Justice which was ultimately dismissed due to lack of jurisdiction. The Employer asserted that Ms. Randolph then indicated she would issue a statement of claim. That motion was also dismissed. She attempted to have her action heard at the Court of Appeal but was unsuccessful. None of these factual assertions were denied by the Union.

16The Employer stated that this information is important because it reveals that Ms. Randolph was making every effort to seek a resolution through the courts but was clearly not interested in any recourse from this Board.

17The Employer submitted that it has a right to finality of proceedings. Some of the facts that led to the filing of the first three grievances occurred in 2008, almost seven years ago.

18Ms. Baichoo, for the Employer, suggested that this Board has already “offered the grievor a life-line” when it gave her the opportunity to provide updated medical information. She was given ample time to comply with that order yet she continued to remain silent culminating in the current hearing date where she failed to attend. The Union has not provided any rationale as to why she is absent.

19The Employer contended that despite the clear direction given by this Board, the Union has no medical information to support its request for an adjournment sine die. The Union might suggest that the grievor does not comprehend the seriousness of her own illness. However, there is no medical documentation to substantiate that view. Indeed, the parties remain ignorant as to what treatment, if any, she received after the IPE recommendations given in 2009.

20It is apparent, according to the Employer, that the grievor simply is not invested in the grievances at issue. Providing an adjournment sine die will not change that and will not make the situation any better.

21The Employer relied upon Re St. Jacques Nursing Home & CUPE, Local 3303 (2012), 2012 CanLII 41233 (ON LA), 221 L.A.C. (4th) 28 (Baxter); Re Toronto District School Board & CUPE, Local 4400 (2013), 116 C.L.A.S. 319 (Steinberg); Re Toronto District School Board & CUPE Local 4400 (2014), 119 C.L.A.S. 174 (Steinberg); Re The Crown in Right of Ontario (Ministry of Government Services) & OPSEU (Savdie) (May 29, 2013), GSB#2011-3785 (Harris); Re The Crown in Right of Ontario (Ministry of Government Services & OPSEU (Savdie) (August 6, 2013), GSB #2011-3785 (Harris); Re The Crown in Right of Ontario (Ministry of Community and Social Services) & OPSEU (Hussain) (July 6, 2012), GSB#2010-0031 (Carrier); Re The Crown in Right of Ontario (Ministry of Community and Social Services & OPSEU (Hussain) (July 30, 2012), GSB#2010-0031 (Carrier); Re The Crown in Right of Ontario (Ministry of Community and Social Services & OPSEU (Hussain) (September 26, 2012), GSB#2010-0031 (Carrier); Re The Crown in Right of Ontario (Ministry of Community and Social Services (Hussain) (April 19, 2013), GSB#2010-0031 (Carrier); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services & Daniel Muldoon (September 29, 2011), PSGB#P-2008-2913 (Leighton); Re The Crown in Right of Ontario (Ministry of Finance) & AMAPCEO (Egesi) (January 26, 2011), GSB#2007-0011 (Johnston); Re The Crown in Right of Ontario (Ministry of Finance) & AMAPCEO (Egesi) (February 8, 2011), GSB#2007-0011 (Johnston); and Re The Crown in Right of Ontario & OPSEU (Sitek) (November 15, 2013), GSB#2012-0579 (Devins).

22The Employer asserted that much of the case law reveals that absent or reluctant grievors are given an opportunity to participate in their own hearing by way of a one-time adjournment and warning. In the present case, this Board already gave the grievor that chance in its verbal order to the Union during earlier conference calls. Indeed, the grievor has been given two opportunities by virtue of the Board’s decision that this motion had to be made at a formal hearing, There was further time and ample opportunity provided to the grievor and yet there has been no medical provided to substantiate a request for an adjournment sine die. This Board has the jurisdiction to dismiss the grievances and should do so.

23It was suggested that this Board take judicial notice that the grievor has seemed to pick and choose where she wanted to participate in litigation. She went through the court system without success but has abdicated her responsibility to assist the Union to represent her in the matters before this Board. Indeed, she has not even informed the Union as to her ability to participate in these proceedings.

24Not surprisingly, the Union took a much different view of the matter. Ms. Gilchrist, for the Union, agreed that there was an order issued and it was not obeyed. However, it was suggested, this entire matter must be put into context. A review of the IPE reveals that the grievor has a paranoid personality disorder. It is perhaps for this reason that she is reluctant to provide the Employer, the Union and even this Board with further medical information. Her inability to understand her illness is integral to any case on the merits or any of the Employer’s other preliminary objections.

25The Union argued that the fact that the grievor was able to file papers in the court system does not mean – in and of itself – that she is capable of appreciating the issues that are at stake in this proceeding.

26The Union noted that the Employer made clear the grievor is unable to attend at the workplace and yet, at the same time, it asserts she is able to participate in these proceedings. It is not open for the Employer to suggest that she is not ill. Neither can it contend that the very illness it relied upon in terminating her employment is insufficient for this Board to grant an adjournment sine die. In the facts of this case, it is impossible to determine that she is simply refusing to cooperate. Surely the grievor’s well-documented medical issues vitiate any mala fides. Her failure to produce further medical information is part of her illness.

27The Union submitted that most of the grievances are related to paper work and decisions regarding paperwork. That information will still exist a year from now. There is no extreme prejudice for this Employer if the Board were to grant the Union’s request for an adjournment pending a certificate from a competent medical practitioner in the field of mental health saying that she is capable of participating in a hearing.

28Ms. Gilchrist reminded the Board that one of the grievances at issue is regarding termination. There are significant rights and issues under the Human Rights Code. This Board should be reluctant to truncate those rights unless the Board is convinced that her failure to produce the medical information is unrelated to her illness.

29The Union contended that the Employer was incorrect when it stated that there is no medical information before this Board. The IPE – which was demanded by the Employer – is clear and highly relevant to the matter at hand and should be given great weight.

30The Union conceded that it was not suggesting that there would never be a time when the Employer can successfully argue that this matter should be dismissed. However, it should not be dismissed simply for the reason that further medical was not provided.

31The Union relied upon Re Corporation of the City of Hamilton & ATU Local 107 (April 21, 2008), 93 C.L.A.S. 105 (Chauvin); and Re Inco Limited & USWA Local 6500 (November 12, 2003), 75 C.L.A.S. 163 (Luborsky).

32By way of reply the Employer submitted that the Union really is asking that we all wait forever. If – as suggested by the Union – we should adjourn until the time that we have a comprehensive report from a specialist that she is able to participate, forever is a real possibility given how the grievor responded to the Board’s earlier order. There simply is no reasonable expectation that she will do anything different in the future.

33The Employer took significant issue with the Union’s contention that these grievances are mainly paper work. It is to be recalled that the grievor was suspended for various issues in the workplace. The grievor’s manager is about to retire and it is possible that the Employer will have no witness to put in its case. Additionally, memories will fade.

34Ms. Baichoo said that this matter is more than the grievor’s ability to appreciate the matters at hand. The Union provided nothing about how the grievor did or did not respond to the Board’s order. That information should have been provided and the Union cannot suggest that such a conversation with the grievor was privileged as it would not have entailed legal advice or the receiving of instruction.

35The Employer suggested that – contrary to the Union’s suggestion – the balance ought not to tip in favour of the grievor merely because the matters at hand include a discharge and possible human rights issues. Indeed, it is to be recalled that she has given no indication of being interested in the proceedings in any way.

DECISION

36Boards of Arbitration, in determining whether to grant an adjournment sine die or grant an Employer request to dismiss grievances without hearing the merits, are driven by the facts before them.

37In those cases where arbitrators are asked to uphold an Employer request for dismissal of grievances there is, not surprisingly, reluctance to do so when the matters include issues as significant as termination. However, it is accepted that labour relations disputes – including discharge grievances - cannot be held in abeyance for extended periods of time without good reasons.

38In this case, I am seized with four grievances, three of which are almost seven years old. The grievor was discharged in October of 2012 and her grievance, alleging unjust dismissal, was filed in April of 2013. There can be no doubt that much time has passed without litigation moving forward in this forum.

39During the conference call wherein the Union first requested this matter be adjourned sine die, I ordered that medical information be provided which might substantiate the Union’s view that the grievor was not able to proceed with litigation at this time. I directed the Union to make clear to the grievor that her failure to provide such information may have significant consequences. There was no suggestion that the Union had difficulty communicating with the grievor. Indeed, I have absolutely no doubt that Ms. Gilchrist complied in every way with my order to the best of her ability.

40A review of the jurisprudence provided reveals that there must be demonstrable and sufficient reasons for granting of requests for an adjournment sine die. In Re Toronto District School Board (supra), Arbitrator Steinberg refers to a decision of Arbitrator Stout in Re Sunnybrook Health Sciences Centre and ONA, 2010 CanLII 62291, wherein the factors to take into account in determining whether to grant an adjournment are listed. Those factors were said to be:

• The nature of the proceeding

• The timing of the request

• The reason for the request

• The length of the requested adjournment

• The prejudicial effect of granting or not granting the request.

41I have taken those factors into account in assessing the Union and Employer requests.

42After consideration, I am of the view that the Union has asked for an adjournment of unknown length for reasons, which remain unsubstantiated. It was urged by the Union that the grievor suffers from a mental illness that completely explains her refusal to participate – in any way – with these proceedings. While I understand that submission, I cannot agree. As can be seen by the facts set out above, it is true that a psychiatrist provided a diagnosis and made treatment recommendations regarding the grievor’s mental health. However, that assessment is now almost six years old. I have no idea what improvements or deteriorations there might have been in the intervening years. Indeed, I have no idea if treatment was sought and/or received. Therefore, I have no timely evidence that would allow me to grant the Union’s request.

43Further, I understand from the uncontested facts as set out by the Employer in its submissions, the grievor was quite capable of instigating and participating in litigation in the courts. I am at a loss as to how she could either act on her own behalf or provide legal instruction in those instances but not participate in the matters before this Board.

44In the many cases proffered by the parties it is apparent that arbitrators have consistently provided the grievor with a clear statement as to what was information or actions are necessary and a warning as to the consequences of non-compliance. The Employer urged upon this Board that it had already provided such a “life-line” to the grievor. I must agree.

45In the line of GSB cases, the grievors were usually given from two weeks to three months to provide the necessary information. In the case at hand, there was no suggestion that insufficient time was allowed to obtain the requested information. Neither did the Union suggest that there has been inadequate time for the grievor to engage in serious contemplation or to consider her options.

46Moreover, given all of what has occurred to date, I am of the view that there is no reasonable expectation that granting a further adjournment would bring the grievor to the hearing room at a later date.

47Dismissing grievances that are as significant as termination matters without hearing the merits is – and should be – a very rare exercise of jurisdiction. However, in this case, I am led to the inevitable conclusion that I must do so.

48The Employer’s request is granted and the four grievances of Ms. Randolph are dismissed.