GSB#2014-4536

UNION#2015-0520-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Byabagamba)

Union

• and -

The Crown in Right of Ontario (Ministry of Government & Consumer Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 4, 2016

Decision

1The grievor, Mr. Ivan Byabagamba was employed as a Customer Service Representative at the College Park Service Ontario location in Toronto. For purposes of this decision it suffices to note that effective January 26, 2016 he was dismissed for cause, following an incident at the workplace on January 30, 2015. The same day, he filed a grievance and in due course it was referred to the Board

2The grievance came before the Board on July 6, 2015 for mediation. When the Board convened at 10:00 a.m., union counsel at the time, Ms. Sheila Riddell, advised that the grievor was not yet in attendance. Upon being questioned by myself, Ms. Riddell advised that the grievor was aware of the hearing, and that she expects him to attend. I recessed the hearing until 11:00 a.m. When the Board reconvened, Ms. Riddell advised that she had not yet received any message from the grievor, and that her attempts to contact him were also not successful. The parties engaged in discussions, and with my concurrence, agreed to adjourn for the day subject to two conditions. Union counsel was to obtain from the grievor and communicate to employer counsel by an agreed upon date, (1) The reason(s) for the grievor’s failure to attend at the Board and (2) the explanation for his failure to notify union counsel or the Board that he would not be attending.

3On July 7, 2015 Ms. Riddell wrote the following e-mail to employer counsel:

Thank you for agreeing to adjourn yesterday’s arbitration in the above noted matter, I have now heard from the grievor and he informs me he was sick yesterday. I have not yet had an explanation as to why he was not able to communicate that information to me earlier in the day.

While we are attempting to find an arbitration date with VC Dissanayake, I am still hopeful that we will be able to settle this matter in the next few weeks.

Employer counsel replied the same day as follows:

Thanks Sheila, I look forward to hearing why he was unable to communicate that information to you yesterday. If he sought medical attention, I do want that information from him.

Later the same day Ms. Riddell informed employer counsel that at 2:45 p.m. on July 6th, the day of the hearing, she had received an e-mail from the grievor that he “won’t be able to make it today”, that when she spoke to the grievor later, he was surprised that she had received his e-mail only at 2:45 p.m. because he had sent it at 11:30 a.m. on July 6th. She advised employer counsel that she had experienced similar delay in receipt of other e-mails, and that it was likely a result of a problem with her own phone.

4Subsequently there were some discussions between counsel. Employer counsel requested information substantiating the grievor’s illness on July 6th which prevented his attendance at the Board. She was advised that the grievor did not seek medical attention for his illness that day, but if requested, he was prepared to see a doctor and get “a medical” for his absence. Some settlement possibilities were also discussed, and a further date was fixed for mediation on July 4, 2016.

5In the meantime, Ms. Riddell left the law firm, and Mr. Ed Holmes took over carriage of this matter for the union. When the Board convened at 10:00 a.m. on July 4, 2016, the grievor was again not in attendance. Mr. Holmes advised the Board that the week before the hearing, he had two e-mail exchanges with the grievor. In one, the grievor had informed Mr. Holmes that the trial on criminal charges laid against him relating to the same incident which resulted in his dismissal by the employer had concluded with his acquittal. The other exchange was initiated by Mr. Holmes, asking the grievor what he was looking for through a settlement. The grievor advised Mr. Holmes that he needed more time to decide. Mr. Holmes was confident that the grievor was aware of the scheduled hearing on July 4, 2016. During these exchanges the grievor gave no indication that he would not be attending. In fact, he agreed to meet with Mr. Holmes at 9:15 a.m. prior to the scheduled 10:00 a.m. start. The Board advised the union that it would recess until 11:00 a.m.

6The Board did not in fact reconvene until 11:40 a.m. At that time Mr. Holmes advised that he found that at 9:55 a.m. he had received an e-mail from the grievor stating, “Good morning. Due to a family matter I can’t make it to the meeting. Please inform all parties involved”, and providing a new telephone number. Mr. Holmes advised the Board that he called that number at least four times. There was no answer. He left three separate messages to the effect that the Board had given him time till 11:00 a.m., and requesting that the grievor contact him as soon as possible. Mr. Holmes also sent two e-mails to the same effect. However, the grievor had not responded to any of his voice messages or e-mails.

7The Board then received submissions as to how to proceed in the circumstances. Employer counsel pointed out that this was the second time the grievor had not shown up to participate in proceedings scheduled before the Board to deal with his grievance. She acknowledged that arbitrators are reluctant to dismiss discharge grievances because of the grievor’s failure to participate. However, in appropriate circumstances they have done so. Reliance was placed on Re Durmin, 2005-3281 (Dissanayake); Re OPSEU and Ministry of Transportation, 2009-0689 (Briggs); and Re Patchett, 2014-2387 (Brown)

8Counsel argued that due to the grievor’s non-attendance, the mediation on July 6, 2015 could not proceed. His only explanation was that he was “sick”. He has to date not explained why he had not communicated in advance that he would not be attending. As a result, everyone else who attended the hearing was prejudiced. She pointed out that on July 4, 2016, employer counsel, along with three employer representatives including a director, were in attendance, but the mediation could not proceed again, due to the grievor’s absence. This matter had already been delayed. There would be further significant delay if the matter is to be scheduled once more. This would be prejudicial to the employer. Counsel referred to the statement in Re Durnin (supra, at p. 5), that “… the maxim “Justice delayed is justice denied”, in the present collective bargaining relationship applies not only to the employer, but also to the union and grievors”.

9Counsel submitted that the only information provided relating to the grievor’s failure to attend on July 4, 2016, is that it was due to a “family matter”. No detail was provided. There is no explanation why even that information was communicated to union counsel only five minutes before the scheduled start time. Counsel submitted that the grievor has demonstrated no interest in participating in the Board proceedings. Nor has he shown any respect or courtesy to the Board. In the circumstances, counsel submitted that this is an extreme case where the Board should exercise its discretion and dismiss the grievance.

10In the alternative, counsel submitted that the Board should allow the grievor a short period to provide particulars relating to his failure to attend. He should be directed to provide details about the “family matter”, which prevented him from attending on July 4, 2016 and from providing sufficient notice of his non-attendance. He should also be ordered to produce any documentation he may have to substantiate his particulars. Having regard to that information, the Board should decide whether or not to exercise its discretion to dismiss the grievance.

11Mr. Holmes, for the union, submitted that the circumstances here do not warrant the extreme response of outright dismissal of the grievance. He pointed out that not all of the delay to date in this matter was due to the grievor’s non-participation. A mediation of this grievance was also scheduled for February 2016, but had to be rescheduled due to the change of union counsel. Thus in some 17 months, the parties were able to reschedule three times. Moreover, there was never an assurance that this proceeding would have been concluded if the scheduled mediations had proceeded. If no settlement had been reached, the grievance would have been rescheduled for arbitration. Therefore the delay resulting from the grievor’s non-participation has not been as prejudicial as employer counsel asserts.

12Mr. Holmes also submitted that it would not be appropriate to revisit the grievor’s failure to attend on July 6, 2015. He pointed out that following that date, the parties had “moved on” to deal with the merits of the grievance. They had engaged in settlement discussions, and also agreed to a further mediation day before the Board. The employer did not pursue the issue of the grievor’s non-compliance with the conditions on which it had agreed to adjourn on July 6, 2015.

13Mr. Holmes submitted that all of the information before the Board indicates that the grievor had always shown interest in pursuing his grievance. There was no indication that he was abandoning it. Thus, a few days earlier he sought additional time to think about what remedies he should seek during mediation. He had even agreed to meet with counsel on the morning of the hearing to prepare for the scheduled mediation. He had given no indication that he would not be attending.

14Counsel submitted that it would be inappropriate to dismiss the grievance without allowing the grievor to explain. He distinguished the authorities relied on by the employer. In each of those cases, the grievor had received a clear warning, from union counsel or the Board itself, that failure to attend would result in the dismissal of his grievance. In Re Durnin (supra) union counsel had informed the Board that the grievor had ignored all attempts he made to communicate with him, and had shown no interest in pursuing the grievance.

15In contrast, in the present case, there has been constant communication between both union counsel and the grievor. The grievor had always indicated his intention to pursue his grievance. Moreover, there is no evidence that the grievor had been warned about the consequences of failure to attend. Counsel referred to para. 44 of the decision in Re OPSEU and Ministry of Transportation. (supra) to the effect:

In the many cases proffered by the parties it is apparent that arbitrators have consistently provided the grievor with a clear statement as to what information or actions are necessary and a warning as to the consequences of non-compliance.

16Counsel also opposed the employer’s alternate position. He suggested instead that the mediation should be re-scheduled, and the grievor directed to provide particulars relating to his non-attendance on July 4, 2016. Any information provided in compliance with that direction could be taken into account during negotiation of terms of settlement at mediation. If no settlement is reached and the grievance proceeds to arbitration, the Board may take into account the grievor’s non-attendance on July 4, 2016 and any particulars provided in that regard, in fashioning remedies to be granted to him.

17I have considered the particular circumstances of this case and the submissions of counsel. I am of the view that it is not appropriate to dismiss the grievance at this stage. In Re OPSEU and Ministry of Transportation, (supra) at para 37 the Board wrote:

In 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.

18In the case law, two factors are given weight in determining whether the extreme response of dismissal of a discharge grievance is appropriate. First, an indication of lack of interest on the part of the grievor, for example by ignoring attempts by union counsel to communicate or by ignoring a Board order. Second, whether the grievor had been made aware that his grievance may be dismissed if he failed to attend scheduled hearings. Neither indicia is present in this case.

19I have considered the alternate approaches proposed by the respective counsel. I do not agree with union counsel that the grievor’s non-attendance on July 6, 2015 should not be revisited. His argument is akin to one of waiver on the part of the employer, by subsequently engaging in settlement discussions and scheduling a further mediation before the Board. However, non-attendance of a grievor for scheduled proceedings before the Board has implications beyond the union and the employer. The Board has an institutional interest in ensuring that parties with notice attend its proceedings on the scheduled dates and times. Where a party fails to attend without good reason, the Board’s own resources would be wasted. The Board must strongly discourage any party from failing to attend scheduled proceedings unless there is very good reason for doing so. Moreover, the Board’s proceedings must be treated with respect and courtesy. Non-attendance without good reason is disrespectful to the lawyers and representatives from both parties who are in attendance, as well as to the Board itself. Therefore, the employer’s decision not to pursue the issue of the grievor’s non-attendance is not sufficient reason to ignore it.

20Therefore the Board directs as follows:

1. No later than Wednesday July 27, 1016, the grievor shall provide in writing to the Board and to employer counsel through union counsel, complete particulars setting out:

(a) The reason or reasons for his non-attendance at the Board on

July 6, 2015 and on July 4, 2016.

(b) The reason or reasons why adequate notice was not provided that he would not be attending on each of those two days.

(c) If the grievor wishes to rely on any documentary evidence substantiating the information provided in compliance with (a) and (b) above, that should also be disclosed to the Board and employer counsel no later than Wednesday July 27, 2016.

2. Either counsel may request no later than Wednesday August 4, 2016, an opportunity to make submissions on whether the Board should dismiss the grievance in light of any information provided pursuant to this direction. If such request is made, a hearing by teleconference shall be scheduled as early as possible.

If no request is received, the Board would issue a decision, based on all information before it, whether or not it would exercise its discretion to dismiss the grievance.