GSB#2014-2387

UNION#2014-0285-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Patchett)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Rebecca Stulberg Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

April 1, 2016

Decision

1The grievor’s employment was terminated in March of 2014. Her grievance was scheduled to be heard on June 16, 2015. The grievor did not appear at the hearing. The parties agreed to adjourn the matter sine die while the union attempted to determine the reason for her absence. A second day of hearing was later scheduled for April 1, 2016 to address the employer’s motion to dismiss the grievance based on the grievor’s failure to attend on the first day of hearing. The grievor did not appear on the second day of hearing. Based upon these two incidents of non-attendance, the employer asks that her grievance be dismissed.

I

2Sheila Riddell was counsel for the union in the weeks immediately before the first day of hearing and in the months immediately after. Ms. Riddell was retained on May 4, 2015. On May 12, she sent a letter to the grievor at the address recorded on her grievance form. Ms. Riddell also made repeated attempts to contact the grievor by telephone before the June 16 hearing. The grievor did not reply to Ms. Riddell’s letter or phone calls.

3The grievor failed to attend the hearing held on June 16, 2015. After the matter had been adjourned on that date, Ms. Riddell again made repeated attempts to contact her without success.

4Rebecca Stulberg subsequently took over the file from Ms. Riddell. In October of 2015, the union advised Ms. Stulberg that the grievor wished to proceed with her grievance and had provided a new phone number. Ms. Stulberg called this number multiple times, on each occasion leaving a message for the grievor to call back. On October 20, the grievor finally responded and left a message for Ms. Stulberg, saying she would be available to talk the next day. Ms. Stulberg called the next day and left another voice message. She made six subsequent calls over the next two months, always leaving a voice-mail message.

5Ms. Stulberg finally spoke to grievor by telephone on January 5 and 7, 2016. The grievor confirmed her intention to pursue her grievance and confirmed her mailing address remained as indicated on the grievance form.

6During the telephone conversations in January, the grievor also offered an explanation for not having attended the hearing on June 16, 2015. She said for four weeks in late May and early June she had been away from home, caring for her grandfather who was suffering from congestive heart failure. Upon returning home a few days before June 16, she found a letter notifying her of the hearing date. Having already missed much time at her new job, she decided not to ask for time off to attend the hearing. According to the grievor, she left a voice-mail message to this effect for a union representative whose name she could not recall. The grievor did not make any attempt to contact Ms. Riddell directly.

7On January 28, 2016, Ms. Stulberg sent a letter to the grievor and enclosed the notice of hearing indicating the matter was scheduled to be heard on April 1. Ms. Stulberg and her assistant later left a total of six voice-mail messages for the grievor. Ms. Stulberg sent two more letters, requesting the grievor’s assistance to prepare for the hearing and warning her grievance might be dismissed if she failed to appear. There was no response to any of these telephone calls or letters.

8The hearing on April 1 was scheduled to commence at 10:00 a.m. At my request, Ms. Stulberg attempted to reach the grievor by telephone at 10:10 a.m. and left a voice message. The grievor had not responded to this message when the hearing ended two hours later.

II

9Employer counsel cited several cases. The most instructive for present purpose are those where a discharge grievance was dismissed based on the grievor’s failure to attend a hearing without providing any notice of non-attendance: (1) Liquor Control Board of Ontario and Ontario Public Service Employees Union (Tafese), [2007] O.G.S.B.A. No. 9 (Gray); (2) Liquor Control Board of Ontario and Ontario Public Service Employees Union (Durnin), [2007] O.G.S.B.A. No. 72 (Dissanayake); (3) Liquor Control Board of Ontario and Ontario Public Service Employees Union (Karabegovic), [2008] O.G.S.B.A. No. 118 (Kirkwood); (4) Pavaco Plastics Inc. and Union of Needletrades, Industrial and Textile Employees, [1999] O.L.A.A. No. 39 (Whitehead); and (5) Waterloo Furniture Components Ltd. and United Steelworkers of America, [2004] O.L.A.A. No. 562 (Marcotte).

10In Liquor Control Board of Ontario (Tafese), Vice-Chair Gray succinctly stated the rationale for dismissing a grievance based upon a grievor’s failure to attend:

Repeated scheduling consumes resources, resources that could be devoted to resolving other disputes. Delay causes prejudice.

11In two of the employer’s cases, the grievor did not attend the hearing because it conflicted with some aspect of other employment: the grievor in Pavaco Plastics was attending an interview for another job; the grievor in Waterloo Furniture was working elsewhere.

12Counsel for the union relies upon three decisions: (1) City of Hamilton and Amalgamated Transit Union (2008), 93 C.L.A.S. 105 (Chavin); (2) Sunnybrook Health Sciences Centre and Ontario Nurses’ Association (2010), 104 C.L.A.S. 54 (Stout); and (3) Ministry of Transportation and Ontario Public Service Employees Union (Randolph) (2015), 125 C.L.A.S. 55 (Briggs).

13The grievor City of Hamilton failed to attend a hearing about his discharge grievance. Noting there was “some documentation” suggesting his absence may have been due to medical reasons, Arbitrator Chauvin adjourned the matter sine die, ruling it would not be rescheduled unless the grievor provided a medical report stating he had been “unable to attend.”

14In Sunnybrook Health Sciences Centre, a few days before the hearing of the grievor’s discharge grievance, her union sought an adjournment for medical reasons, relying upon a recent doctor’s report. Noting this report indicated the grievor could not properly instruct counsel or participate in a hearing, Arbitrator Stout granted an adjournment.

15The grievor in Ministry of Transport initially filed three grievances relating to harassment, a suspension and a directive to undergo a psychiatric examination. The memorandum settling these grievances required the grievor to undergo a psychiatric examination. A psychiatrist concluded she could return to work only after long course of psychotherapy. Three years later, the employer discharged the grievor based on her failure to provide any evidence of receiving the recommended treatment. A few days before the hearing of her discharge grievance, the parties agreed to an adjournment and Vice-Chair Briggs directed the grievor to provide medical information on her status. When she failed to comply with this directive, the employer asked that her grievance be dismissed. The vice-chair wrote:

In those cases where arbitrators are asked to uphold an Employer request for dismissal of grievances there is, not surprisingly, a 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. (para. 37)

16Vice-Chair Briggs dismissed the grievance based on the grievor’s failure to comply with the directive to provide a medical report, noting she had been told there would be serious consequences if she failed to comply.

III

17How do the principles established by the case law apply to the facts at hand? The grievor was not precluded from attending the first hearing in June of 2015 for reasons beyond her control. Rather, she decided not to ask for time off from another job. Moreover, she made little effort to provide notice of her non-attendance. After the first hearing, the grievor repeatedly ignored letters and voice messages from union counsel. Not until January of 2016 did the grievor provide counsel with an explanation for not attending the first hearing. Thereafter, the grievor again ignored numerous letters and voice messages from union counsel. She was warned that her grievance might be dismissed if she did not appear at the second hearing. She then failed to attend on April 1, 2016, without providing any notice of her non-attendance. The grievor’s course of conduct has caused substantial delay in the hearing of her grievance and imposed significant costs on all concerned. In addition, her consistent and complete lack of attention to her grievance over the last nine months gives no reason to expect her to behave differently in the future. In these circumstances, I have no hesitation in dismissing her grievance.