GSB#2016-0473, 2016-1897, 2016-2205, 2017-0263, 2017-0264

UNION# 2016-0504-0007; 2016-0504-0008;

2016-0504-0010; 2017-0504-0001; 2017-0504-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Di Matteo)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Janice Johnston

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

May 21 and 24, 2019

Interim Decision

1This matter commenced in 2017 before Arbitrator Felicity Briggs. There have been many interim awards issued in this case. By decision dated June 4, 2018 Arbitrator Briggs dealt with a request being made by the union on behalf of the Grievor that she be allowed to participate in the arbitral proceedings via teleconference. This request was granted by Arbitrator Briggs. In doing so she stated as follows:

Decision

4On May 22, 2018, Mr. Hannigan provided to Mr. Huang and the Board an electronic copy of a note from the grievor’s family physician. The note stated, “The above needed to attend the proceedings via teleconferencing on 24/4/18 due to medical illness. This non-attendance is meant to continue beyond April 24/18 due to her anxieties and unable to speak in front of people. These restrictions are indefinite.”

5A conference call was then arranged to allow counsel to make any further comments regarding the grievor’s request to attend the hearing via tele-conference. The Employer’s view had not changed after reviewing the requested medical note. It was of the view that – given the nature of the issues in dispute in these proceedings – the grievor should be ordered to attend in person. The Union urged that the grievor be accommodated as set out by her physician.

6On May 30, 2018, the Board convened a teleconference and provided an oral ruling. As promised this is a short written decision setting out the ruling.

7After much consideration I am prepared to grant the grievor’s request to attend the hearing via teleconference. While I fully understand the Employer’s concerns regarding a full and fair hearing for all, the grievor has provided medical documentation establishing a sufficient medical need for accommodation by way of her attending the hearing via teleconference.

8During the teleconference with the parties, discussion took place to ensure – to the extent possible – that the grievor has all of the documents in her possession that will be touched upon in this matter so that the hearing can proceed without undue delays.

9Notwithstanding my finding at this time, it may happen that this decision will need to be revisited given the complicated issues in this matter.

2In an interim decision dated May 15, 2019 I determined that the time had come to revisit the decision to allow the Grievor to participate via teleconference as the current process was no longer feasible. In that decision I stated:

5The medical documentation provided is almost a year old. Assuming it is still relevant and accurate, the basis for the need to participate by teleconference appears to be “due to her anxieties and unable to speak in front of people”. Therefore to accommodate the Grievor she will be able to continue to participate via teleconference and will not be required to appear in person at the hearing. However, she is directed to attend at the union’s office located on Victoria Park Avenue and participate via teleconference in the company of her counsel. She has attended there before to meet with her counsel. The exact address is: 2550 Victoria Park Ave., Suite 400, Toronto, ON M2J 5A9. The telephone number is 1-844-845-5394. Arrangements have been made for her to sit privately with her counsel in Room #1.

6This matter is scheduled to continue on Thursday, May 23, 2019. The employer and I will be attending at the Grievance Settlement Board. The Grievor is directed to attend at the union’s office on May 23rd at 9:30 a.m. The hearing will commence at 10 a.m and counsel for the employer shall resume his cross-examination of the Grievor at that time.

3The grievor provided counsel for the union with a short handwritten note from her family Doctor which indicated that the Grievor was unable to comply with the direction set out above. Accordingly, counsel for the employer is unable to complete his cross-examination of the Grievor. This case is a legal proceeding in which some of the main issues before me are whether or not the employer had failed in any duty to accommodate the Grievor under the Human Rights Code, whether the employer harassed the Grievor and whether the Grievor had abandoned her position when she refused to return to work. In order to ensure a full and fair hearing on this issue employer counsel must be provided with the opportunity to cross-examine the Grievor.

4Therefore after consulting with the parties and hearing their submissions I have determined that it is appropriate to adjourn this matter for a period of six months or until the Grievor is fit to attend at the union’s offices and comply with the direction set out earlier in this award. In the event that the grievor cannot continue in the proceedings within the next six months, the parties will be afforded the opportunity to make submissions as to whether or not the grievances should be dismissed.

5The continuation dates in this matter scheduled for June 3, 2019 and September 11, 2019 are hereby adjourned.