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 and 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

CONFERENCE CALL

August 11, 2016

Decision

1Mr. Ivan Byabagamba, (“grievor”) was dismissed for cause from his position as Customer Service Representative effective January 26, 2015. He grieved his dismissal on January 30, 2015.

2The grievance was scheduled for mediation before the Board on July 6, 2015. However, the grievor failed to appear. The parties agreed to adjourn subject to certain agreed upon terms, and the grievance was scheduled for mediation again on July 4, 2016.

3When the Board convened on July 4, 2016, the grievor was again not in attendance. The Board received submissions on the employer’s request for summary dismissal of the grievance. In a decision dated July 15, 2016, the Board reviewed the relevant facts and denied the employer’s request for reasons set out therein, and at para. 20 ordered as follows:

Therefore the Board directs as follows:

1. No later than Wednesday July 27, 2016, 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 06, 2015 and on July 04, 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.

4On July 25, 2016, union counsel forwarded to employer counsel and the Board, the following communication from the grievor:

Let me first apologize for the inconvenience my absence may have caused all parties involved, on both occasions

Firstly, I'll start with last year failure to attend. As mentioned before, I was sick and unable to attend as I had been on new medication for a lifelong illness that I was/am struggling with and whose diagnosis I was struggling to come to terms with at the time. And this particular medication, although now somehow under control, was taking a toll on me ever since I started taking it as early as the previous year. The effects of this drug are/were random and you may wake up deathly ill one day and someday you're okay (at least at the time since it was new and my body was still struggling to cope with it)

So I was unable to advise or inform you beforehand because of this fact, as I couldn't anticipate over the weekend how I'd feel the day of the meeting. Also I wasn't able to go to a clinic to obtain a note from the doctor because if I was fit enough to go to a clinic, I would have been fit enough to attend this meeting. The nature of this illness CAN be disclosed if required. Secondly, this year's absence took me by surprise as well. My maternal grandmother passed away in summer 2013. And since she lived in East Africa, I wasn't able to attend her funerals due to the fact that my passport had been confiscated by police during the criminal case against me by my previous employer and I was unable to travel while still awaiting trial. Also I wasn't financially capable to afford such a trip, even if I was allowed to travel by the court under such dire circumstances. I come from a culture where the mourning of a loved one who has passed lasts 2-3 years and as such, there's a tradition of "lifting" the dark period of mourning and symbolically begin what we call a "purification" stage where the family goes through a process and rituals (sometimes involving church rituals sometimes just traditional rituals depending on the family history and such). This tradition isn't observed by everyone in the region as colonialism has pretty much replaced some of our traditions with Christian ones and as such I was informed of our family's purification week that same weekend and I had to make a quick decision before Monday July 4th as to how to handle the whole thing. Unfortunately I'm not sure how I would have spared the inconvenience this caused to all involved on time since I couldn't anticipate the launch of this family function way ahead of time in order to avoid this unfortunate situation we ALL find ourselves in today.

This whole debacle has been a nightmare to say the least, and the last three and a half years haven’t been my best years.

I hope I've given enough explanations as to what has transpired and again I apologize for the inconvenience this has caused.

5Pursuant to the Board order, employer counsel requested an opportunity to make submissions to the Board and a teleconference was scheduled for August 11, 2016.

6Employer counsel referred to para. 18 of the Board’s decision dated July 15, 2016 which noted that in the case law two factors would be given weight in exercising the Board’s discretion to dismiss a grievance in these circumstances. First, whether there is an indication of lack of interest on the part of the grievor, and second, whether the grievor had been made aware that his grievance may be dismissed if he failed to attend scheduled hearings. She also referred to para. 19 which sets out reasons why “The Board must strongly discourage any party from failing to attend scheduled proceedings unless there is very good reason for doing so”.

7Employer counsel submitted that the response by the grievor does not demonstrate that he is interested in pursuing his grievance. She submits that the Board decision would have made it clear to him that he had to provide good reasons for his absence on the two days and that if he failed to do so, his grievance may be dismissed. Yet, he has provided “watery” explanations with no specifics.

8Addressing the grievor’s failure to attend the hearing on July 6, 2015, counsel pointed out that the grievor does not explicitly say that he took the medication on that day, and if he did, what side-effects resulted. Even if it is implied that the side-effects of the medication prevented his attendance, he would have known in advance that his medication may have that effect and that he may not be able to attend the hearing if that happens. Yet he did not give notice to union counsel or anyone else of that possibility. Moreover, in the Board order, the Board stated that if he wished to rely on any documentary evidence substantiating his information, that should also be disclosed. He provided none.

9With regard to the grievor’s non-attendance on July 4, 2016, counsel submitted that the grievor has not specified whether he was required to attend the purification ceremony, where and when it was held, or what he was to do at the ceremony. Moreover, even if he became aware of the ceremony only over the week-end as he says, he has not explained why he waited until 9:55 a.m. on the morning of the hearing to inform union counsel about his inability to attend.

10Counsel submitted that given the lack of specificity, many factual questions still remain unanswered. The grievor has not provided “good reasons” required by the Board In the circumstances, counsel urged the Board to exercise its discretion and dismiss the grievance.

11Counsel for the union pointed out that the Board in its decision did not order the union or its counsel to provide particulars of the reasons for the grievor’s absences. The order was that the grievor provide his own explanation for the absences through counsel. The grievor has, in his own words explained the reasons for his absences as best as he could. Counsel reviewed the grievor’s explanations for both absences. On the first absence, he states that he was taking a particular medication the side-effects of which were random and not predictable. He says that he had no medical documentation, that if he was fit enough to go to a doctor, he would have been fit to attend the hearing. Therefore, though not presented with clarity he has stated that on the day of the hearing he was not fit to attend due to the side-effects of the medication, and that he could not have provided advance notice.

12With regard to the second non-attendance, union counsel pointed out that the grievor states that he was informed of the family cultural event only during the week-end, that he had to make a quick decision before the Monday hearing, and therefore could not provide advance notice.

13Counsel argued that recognizing that the grievor is not a lawyer, to the extent that the information is not as specific or fulsome as it could have been, that is not an indication of a lack of interest on his part. He pointed out that the grievor has apologized at the commencement of his explanation and again at the end. He had even offered to disclose the illness he is diagnosed with. That is not indicative of disinterest.

14Counsel submitted that the second factor the Board referred to in its decision, also favours the union’s position. It is clear that the grievor had not received notice from anyone prior to his two absences that non-attendance may result in the dismissal of his grievance.

15Having regard to the Board’s order, the grievor’s response, and the submissions of counsel, I am of the opinion that it is not appropriate to exercise my discretion to dismiss this termination grievance. The grievor’s information certainly would not meet the standards expected for particulars provided by legal counsel. However, he has adequately provided reasons for his failure to attend on July 6, 2015. On a plain reading, it indicates that he reacted to the medication differently each day, and that on that day he had an adverse reaction that prevented his attending the hearing. Had he given notice to the Board or counsel in advance of the possibility that he may not be able to attend the hearing, if he has an adverse reaction to the medication, that would not have helped anyone. He still would have not known what the effect of the medication in fact would be on the particular day, to be able to provide sufficient notice.

16I am less satisfied with the explanation the grievor has provided for his non-attendance on July 4, 2016. He is not at all clear about the connection between the family ceremony and his inability to attend the hearing on July 4, 2016. He has not specified what he was required to do on that day in relation to the ceremony that prevented attendance.

17Despite these short-comings, however, I am satisfied that the grievor has not shown disinterest in pursuing his grievance. He did not ignore the Board’s order. He has made the effort to explain his absences, and he has apologized for the inconvenience he caused. Also, at the time of his absences, he was not on notice that his failure to attend may have the serious consequence of summary dismissal of his termination grievance. The Board decision dated July 15, 2016 could not constitute such notice because it post-dates his absences.

18Employer counsel repeatedly pointed out that ‘all we have is his say so”. That is correct in that the facts he asserts are not proven. However, the Board did not impose a requirement that he prove his reasons by adducing evidence in the normal way. He was only required to provide his reasons in writing. Although not so required in this case, the Board may not simply accept an individuals’ word in every case. For example where there is reason to question that an individual’s credibility, the Board may not simply accept his/her word, particularly where a party makes submissions that the person is not credible. There was no issue raised about, the grievor’s credibility, and the Board had no reason to question credibility.

19Therefore, the employer’s motion for dismissal is denied. The parties may request the Registrar to reschedule this matter as they deem appropriate. As an additional precaution, the Board notes that by its decision dated July 15, 2016 and the instant decision, the grievor is now explicitly put on notice that if he does not attend any future scheduled hearing, he may be required to prove any explanations he provides. If the Board is not satisfied, at the employer’s request or on its own initiative, the Board may exercise its discretion to summarily dismiss his grievance.

20I remain seized with the grievance.