Ontario Public Service Employees Union (Sudlow) v. The Crown in Right of Ontario (Ministry of Transportation), 2015 CanLII 90160

GSB#2013-4311, 2013-4345

UNION#2013-0542-0023, 2013-0542-0024

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sudlow)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Yuk-Sem Won Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL HEARING

November 27, 2015 December 2, 2015

Decision

1On April 30, 2013 and November 1, 2013, the grievor, Devon Sudlow, filed two grievances concerning two job competitions, which took place in early 2013. The Employer has now moved to dismiss those grievances.

Facts

2The two grievances were first brought to the Board on November 17, 2014, for a day of mediation. That was unsuccessful in regard to these grievances, and an arbitration hearing date was set for July 7, 2015. Late on July 6, 2015, the Grievor advised the Union that he was too stressed to attend the hearing, and it was too late in the day to request an adjournment or advise the Board. He was told that he could not unilaterally adjourn the hearing and should attend. While his Union representative attended, as did counsel for the Employer as well as other management representatives, the grievor did not attend. No medical evidence was presented to substantiate his inability to attend the hearing on July 7, 2015.

3After the July 7, 2015 hearing, on July 8, 2015, I issued an order which stated, in relevant part, as follows:

2. On January 15, 2015, the two remaining grievances were scheduled for hearing on July 7, 2015.

3. On July 6, 2015, the grievor advised his Union representative that he was too stressed to attend the scheduled hearing. He was advised that he could not unilaterally adjourn the hearing.

4. The grievor did not attend the hearing on July 7, 2015.

5. A new hearing date has been set for December 2, 2015.

6. The grievor is hereby advised that should he decide not to attend the hearing on December 2, the Employer has stated that it will move to dismiss his grievances, and that motion will be considered by the Board.

4Upon receipt of the Board’s July 8, 2015 order, the grievor’s union representative forwarded a copy to the grievor’s work and home email addresses, and asked for a delivery and read notification. She received a delivery notification from his work email, but not a read notification. Her emails to his home email account were returned undelivered. The phone number he provided to the Union did not work. She also sent him registered letters to his home address, which were returned undeliverable. The grievor made no attempt to contact his Union representative about his grievances.

5In a conference call on November 27, 2015, the Union requested that the December 2, 2015 hearing be adjourned sine die. The Employer opposed that request. In the conference call, after hearing the parties’ submissions, I denied the Union’s request and stated, as set out in the July 8, 2015 order, that I would consider the Employer’s motion to dismiss should the grievor not attend the hearing on December 2, 2015.

6The grievor’s Union representative learned, from the Employer, that the grievor had not attended at work from September 21, 2015 to November 30, 2015. The medical notes he provided to the Employer, which were presented at the hearing, were Rx notes, indicating that he was off “due to medical reasons” or “due to illness.” He returned to work on December 1, 2015, the day before the hearing. His manager reminded him of the hearing scheduled for December 2, 2015. His Union representative left a phone message and an email for him on December 1, but as of the time of the hearing on December 2, 2015, she had not heard from him. The grievor did not attend the hearing on December 2, 2015.

7At the hearing, the Employer moved to dismiss the grievances. The Union moved to adjourn the hearing for a one month period.

8After the December 2^nd^ hearing, the grievor sent an email to his union representative, Yuk-Sem Won, at 6:48 p.m. It states as follows:

Hi Yuk-Sem

Too bad you didn’t send the e-mail yesterday. After I talked to my Manager yesterday and she told me that the union is trying to reach me I asked the help desk to reset my password. Then I looked to see if I saw any recent e-mails from you but I didn’t see any. So I figure that the meeting must be later down in the month.

I didn’t come in the office till this afternoon. I was trying to catch the doctor.

I know we were given an extension already….But please can you appeal to the Arbitrator one more time. That is why I told Brenda not to do all the grievances on one day. Now it becomes all or nothing?

I Beg you Yuk Sem. Please appeal to the Arbitrator again.

Thank you.

Positions of the Parties

For the Employer

9The Employer asserts that the grievor’s failure to attend either the July 7 or the December 2, 2015 hearing dates shows a complete disregard for the Board’s processes, and placed the Union in an untenable situation. It submits that any further delay, through another adjournment, would cause prejudice to the Employer and its ability to defend its actions, which took place almost three years ago. It asserts that there is no indication that the grievor would be more cooperative and be willing to participate in the future. It submits that the grievor has wasted two hearing dates, without explanation or justification. It submits that the issues involved – two job competition grievances – while important, do not rise to the importance of a discharge or discrimination claim, yet even those types of claims have been dismissed. In support, the Employer cites to Re OPSEU and Liquor Control Board of Ontario (Karabegovic Grievance), GSB No. 2007-1436 (Kirkwood, Vice Chair); Re OPSEU (Ellis Grievance) and Ministry of Finance, GSB No. 1866/99 et al. (Dissanayake, Vice Chair); Re OPSEU and Ministry of Transportation, GSB No. 2009-0689 et al. (Briggs, Vice Chair). It submits that the December 2, 2015 email comes too late and does not provide any compelling explanation for his disregard of the Board’s process.

For the Union

10The Union opposes the motion to dismiss and requests a one-month adjournment. Although it accepts the facts, as set out by counsel for the Employer, it asserts that the grievor’s failure to attend the hearing on July 7 was due to “stress” and on December 2, 2015 due to “illness.” It points out that the grievor had just returned to work after a lengthy absence, and it was “likely” that his illness was the basis of his inability to attend the hearing on December 2. The medical notes that the grievor provided to the Employer to justify his absence from work, the Union submits, show that there is a medical reason for the grievor’s failure to attend the December 2 hearing and his lack of communication. The Union submits that, in that context, the Board should adjourn the hearing and not dismiss it, which is a drastic outcome. The Union notes that the grievor fully participated in the November 2014 mediation and was very eager to pursue his grievances. It submits that now that he has returned to work, it can be anticipated that he will participate in the grievance arbitration process.

11In support, the Union cites to the following cases: Re OPSEU (Gilchrist-Duval) and Ministry of Labour, 2015 CarswellOnt 14603, 124 C.L.A.S. 205 (Dissanayake, Vice Chair); Re Sunnybrook Health Sciences Centre and Ontario Nurses’ Association, 2010 CarswellOnt 11716, 104 C.L.A.S. 54 (Stout); Re The Corporation of the City of Hamilton and The Amalgamated Transit Union, Local 107 (Jovanovic), 2008 CarwellOnt 10456, 93 C.L.A.S. 105(Chauvin); Re OPSEU (Randolph) and Ministry of Transportation, 2015 CarswellOnt 17395 (Briggs, Vice Chair).

Reasons for Decision

12Arbitrators are generally reluctant to dismiss a grievance without hearing the merits. Nevertheless, the Board may consider a request to dismiss when a party has, by its own conduct, prevented a hearing from proceeding on a scheduled date. The basis of this authority was set out in a decision by Arbitrator Craven, cited in Re OPSEU (Karagovic) and LCBO, supra at par. 12:

Where a party, by its own, conduct, has comprised its ability to proceed with the hearing on a scheduled date, it will not be entitled to an adjournment as a matter of right. In such a case, the arbitrator nevertheless has the discretion to award an adjournment, with or without conditions, upon full consideration of all the circumstances. This discretion arises out of the arbitrator’s authority to control the proceedings. The inconvenience and prejudice to the moving party of continuing with the hearing must be weighed not only against the inconvenience and prejudice of the other party in adjourning the hearing, but also against public policy of expedition in the resolution of industrial disputes at arbitration. …

13Of all of the cases cited to me, the most on point, and persuasive, is Re OPSEU (Ellis) and Ministry of Finance, supra. In that case, two dates had been set for the arbitration, November 7, 2001 and November 26, 2001. The grievances alleged harassment and discrimination due to disability. The grievor failed to attend the first day of hearing, without notice to the Board or the Union. Attempts to contact the grievor were unsuccessful. The Board, however, “put the union explicitly on notice that the hearing will resume as scheduled on November 26, 2001, and that if the grievor fails to attend without notice and without providing very good reasons, the Board will probably dismiss the grievances.” The Union was also ordered to disclose certain medical information. When the hearing resumed on November 26, the grievor again did not attend. The grievor’s union representative advised that he had left a voice mail for the grievor after the last hearing date, about the Board’s warning that his grievances might be dismissed if he again absented himself on November 26 and about the Employer’s request for medical information. That was followed by a letter to the grievor, outlining the same information. The grievor, however, did not contact the Union until November 25, 2001, the day before the second hearing date. That evening, the grievor left a voice mail to the effect that he was unable to drive due to a prescription medication he was taking, and that he would not be attending the hearing the next day. Based on that information, the Union requested an adjournment. The Employer moved to dismiss the grievances.

14Vice Chair Dissanayake granted the Employer’s motion to dismiss. The Board, at p. 6, recited the grievor’s conduct in relation to the scheduled hearing dates, and stated:

The grievor thereby demonstrated a complete lack of concern for the inconvenience and expenses caused to the employer and the Union. He has also displayed a total lack of respect for the Grievance Settlement Board and its proceedings. Much time and resources have been wasted due to the grievor’s actions. I consider it to be an abuse of the Board’s process.

The Board gave the grievor one last chance to produce a medical certificate by 5:00 p.m. the next day which certified his inability to attend the hearing on November 26, but he failed to do so. This led the Board to conclude that it was “still faced with a situation where we have a grievor who has absented himself on two scheduled days of hearings without justification or adequate notice. The Board was satisfied that he was aware of the hearings and the possible consequences of his action, yet he “failed to meaningfully communicate with the Union or the Board.” He “failed to justify or validate his absence.” In Vice Chair Dissanayake’s view, “[t]o allow the grievor to carry on this pattern of conduct would be to allow him to continue to abuse the Board’s process. It cannot be allowed.”

15The instant case is remarkably similar. Here, the grievor called his Union representative late in the day before the first day of hearing to advise he was too stressed to attend the hearing. That call was made too late to cancel the hearing, and everyone but the grievor attended. That led to the order of July 8, 2015, in which the grievor was advised, in writing, that a new hearing date had been set for December 2, and that should he decide not to attend the hearing, the Employer would move to dismiss his grievances and that the Board would consider that motion. A copy of that order was delivered to his work email address, at a time he was still at work. There is no evidence or assertion that the grievor has made any contact or even attempt to contact the Union in regard to these grievances since July 7, 2015, until 6:48 p.m. on December 2. He did not advise the Union of his absence from work between September 21 and November 30, though he was able to provide three brief medical notes. He returned to work on December 1, 2015, and he was advised by his manager that the Union was trying to contact him. He did not contact the Union that day, or the GSB that he would not attend the December 2^nd^ hearing. The Union’s earlier attempts to reach him were unsuccessful because the grievor provided no contact information, except his work email. Consequently, once again, everyone attended the December 2 hearing, except the grievor. As found by Vice Chair Dissanayake, I consider this to be an abuse of the Board’s process.

16The Union asserts that there may be a medical reason for the Grievor’s failure to attend the hearing, both in July and December. The evidence of that, however, falls significantly short. There is no medical evidence concerning the July 7 hearing date – only his personal claim of being too stressed. Nor is there any medical evidence concerning his failure to attend on December 2. He was cleared to return to work after November 30. He attended at work on December 1 and December 2. In the cases cited by the Union in which adjournments were granted, significant medical issues and evidence were raised. Here, it is essentially speculation that his total lack of communication and failure to attend the two hearing dates are medically based. To support such a claim, there has to be some medical substantiation.

17I am not persuaded by the grievor’s December 2^nd^ email that he should be allowed a third opportunity to pursue his grievances. On the contrary, he makes no mention of his failure to contact the Union, or why he “figured that the meeting must be later down in the month” when he had received notice of the scheduled hearing date. He places the blame on the Union, saying it was “[t]oo bad you didn’t send the e-mail yesterday” and accepts no responsibility for his own actions which led to this situation. He ignores all of the prior efforts that the Union made to contact him about this hearing.

18I find, as in Re OPSEU (Karabegovic), supra at par. 11, “[t]he grievor must take responsibility for her own actions for being un-cooperative with the Union and placing the Union in the position where it cannot represent her interests now…” In light of the grievor’s failure to communicate any reason for his failure to attend, and the fact that he not attend when he has provided no reasonable excuse, I have no confidence that adjourning the hearing again would result in a change in his conduct.

19In Re OPSEU and Ministry of Transportation, supra, Vice Chair Briggs stated at par. 47: “Dismissing grievances that are as significant as termination matters without a hearing 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.” She also stated, at par. 36, that “Boards 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.” I agree. In this case, the issues involve a job competition, a matter of less significance than a termination, and the facts demonstrate an abuse the Board’s process. As Vice Chair Dissanayake found in his case, “it cannot be allowed.”

Conclusion

20For all of the foregoing reasons, the Employer’s motion to dismiss is granted.