GSB# 2013-1439

UNION# 2013-0377-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Culp)

Union

• and -

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

Employer

BEFORE

Richard Brown

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

September 18, 2017

Decision

1The union referred to arbitration two grievances filed by David Culp. Mr. Culp was notified of the date when his grievances were scheduled to be heard. He elected not to attend the hearing despite having been told his non-attendance could result in the grievances being dismissed. The union sought an adjournment to allow the grievor to reconsider his decision not to attend. The employer asked that the grievances be dismissed.

I

2The first grievance, dated June 14, 2013, was prompted by the employer’s decision to investigate an allegation by another employee that she had been harassed by the grievor. The employer questioned the grievor about the alleged harassment, having first warned him discipline might result. No discipline was ever imposed. The grievance contends the employer discriminated against him by conducting an investigation.

3The second grievance, dated October 25, 2013, relates to an incident when the grievor was assigned to work on cash for more than thirty minutes in contravention of his accommodation plan.

4Union counsel spoke to the grievor by telephone on September 14 and 15, the two business days immediately preceding the hearing scheduled for Monday, September 18. She asked what he was seeking to achieve and provided her assessment of the chance of obtaining his desired outcome. After their second phone call, the grievor advised counsel’s assistant that he had lost confidence in her and would not be attending the hearing. The grievor also communicated his decision not to attend to the district manager, Mike Thornington, and his assistant. The grievor was warned on September 15, by both counsel and the grievance officer handling this matter, that a failure to attend could result in the grievances being dismissed.

5I recently reviewed the case law relating to a grievor’s failure to attend a hearing or otherwise cooperate in the arbitration process. In Liquor Control Board of Ontario and Ontario Public Service Employee’s Union (Patchett) [2016] O.G.S.B.A. No. 36, I wrote:

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 (Chauvin); (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 in 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.

6In the instant case, counsel cited some of the authorities reviewed by me in Pachett. I was also referred to Arbitrator Dissanayake’s decision in Great Atlantic and Pacific Co. of Canada and United Food and Commercial Workers Union, [2007] O.L.A.A. No. 343, another discharge case. The grievor in that case requested an adjournment mid-way through the hearing because he was dissatisfied with the representation provided by union counsel. The request for an adjournment was denied because it was not supported by the union. The grievor then withdrew from the process. Based on his withdrawal, the employer asked that the grievance be dismissed. The union wished to complete the hearing without the grievor’s participation. Arbitrator Dissanayake decided the bargaining agent was entitled to proceed in the grievor’s absence. In short, the grievor’s objection to being represented by union counsel did not derail the process.

III

7How do the principles established by the case law apply to facts at hand? Mr. Culp elected not to attend the hearing, after being warned his non-attendance could result in his grievances being dismissed, because he objected to being represented by union counsel. The only parties to the arbitration process are the employer and union. The grievor is not a party and is represented by the union. The union, not the grievor, is entitled to select and instruct counsel. These observations lead me to conclude the grievor did not have a compelling reason for absenting himself from the hearing. Accordingly, the union’s request for an adjournment is denied and the grievances are dismissed.