GSB#2017-3749

UNION#2018-0108-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kalikoff)

Union

• and -

The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

March 26, 2019

Decision

1The Board is seized with the termination grievance dated March 12, 2018 filed by Benjamin Kalikoff. When the Board convened on July 27, 2018, process issues were dealt with and continuation dates were scheduled for March 8 and 29; April 3, 8 and 12; and May 15 of 2019. On March 8, 2019, the parties on their own dealt with process, primarily efficient ways of presenting video evidence to the Board. The next hearing date is scheduled for March 29, 2019. At the request of employer counsel, on March 18, 2019, the instant teleconference call was scheduled.

2During the teleconference call submissions were received on three issues:

1. The grievor’s failure to attend at the Board for the scheduled hearing on March 8, 2019 and his failure to provide any notice that he would not be attending.

2. The grievor’s request communicated to the employer on March 22, 2019, that the hearing venue be moved from Toronto to London, where he worked and lives, as an accommodation of his medical disability and family status.

3. The grievor’s failure to fully comply with the Board order dated August 1, 2018 for disclosure.

3On March 26, 2019, the morning of the teleconference hearing, union counsel communicated to the employer, the grievor’s explanations on the three issues. Counsel submitted case law and argued that the Board should not make any orders or directions with respect to any of the three issues. The employer took the position that the grievor’s assertions were either not satisfactory or not credible. Employer counsel also provided legal authorities in support of his request for orders.

4Due to the timing of the parties raising these disputes, in order to avoid the cancellation of multiple hearing dates scheduled, I advised counsel that I would be issuing my decision with the undertaking that reasons would be provided if requested by either party.

5Accordingly, the Board’s decision is as follows:

Issue 1

The Board declines to issue any orders relating to issues arising out of the grievor’s failure to attend at the Board on March 8, 2019.

Issue 2

The Board directs that the hearings scheduled for continuation be moved from Toronto to London. The Registrar is directed to re-schedule the hearings accordingly and to issue a revised notice of hearing as soon as possible.

Issue 3

The grievor has not fully complied with the disclosure order. The cellular telephone records for March 17, 2017 produced did not include the following information: e-mails sent and received; text messages sent and received; and internet history logs. The grievor is hereby ordered to comply with the Board order, by requesting in writing from the service provider these specific items, and disclose the same to employer counsel through union counsel. This request is to be made forthwith, and it should explicitly state that the information is requested pursuant to a Board order. The grievor is also directed to provide to employer counsel, copies of his request pursuant to this order, any response from the service provider, and any other evidence of efforts made to obtain this information.

6Employer counsel reserved the right to move for the dismissal of the grievance if the grievor fails to attend future hearings without justifiable explanation and/or fails to provide timely notice of non-attendance. The grievor should take note that if the Board upholds such a motion, his grievance stands to be summarily dismissed.

7The Board remains seized.