GSB# 2018-0035; 2018-2642

UNION# 2018-0510-0001; 2018-0510-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Khan)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 12, 2019

DECISION

1This grievance was scheduled to be heard at the Grievance Settlement Board on July 12, 2019. At the time set for the hearing, counsel for the Union asked for an adjournment on the grounds that the Grievor was not present, as the Grievor advised counsel that he had a “family emergency”. The Employer opposed the adjournment and, in the alternative, submitted that the Grievor ought to be required to prove the circumstances which prevented him from attending the hearing, failing which his grievance should be dismissed. The Employer noted that a previous hearing day had been adjourned on what it believed to be essentially false pretenses.

2Given the absence of the Grievor I directed the parties to engage in a sort of written in person hearing. In accordance with my direction, the parties made submissions by email, at the conclusion of which I provided a brief oral decision, followed by a written bottom line decision as follows:

Having carefully considered the written submissions made by the parties (and assuming the Grievor wishes to continue with this grievance), I hereby Order the Grievor to:

• provide by July 26, 2019 a written explanation of the circumstances surrounding his inability to attend at the Board on July 12, 2019, by July 26, 2019, including any supporting documents, if available; and

• provide by July 26, 2019, confirmation from the medical clinic he attended on November 7, 2018, that he attended such an appointment, the time of the appointment, as well as a written explanation (by the Grievor/Union) as to why the appointment prevented him from attending at the Grievance Settlement Board for this proceeding on that date and/or why the appointment could not be rescheduled.

If the Grievor fails to provide the above information by the above dates (subject to any extension request by the Union), or fails to provide satisfactory information explaining his inability to attend the above noted hearing dates, the Grievances may be dismissed. In deciding whether to dismiss the Grievances I will have regard to submissions made by the parties at that time, which may well include factors suggested by the Employer and the Union in their submissions today.

3Although the Employer agreed to the adjournment of the previous hearing day, it did so without prejudice particularly if the Grievor missed another hearing date. Accordingly, in my view, the circumstances of that adjournment request remain valid to the circumstances before me. In that instance, counsel for the Union wrote counsel for the Employer shortly prior to the hearing date (November 7, 2018) and requested an adjournment as follows:

October 26, 2018

I have now spoken with the Grievor, and I understand that he is currently on a sick leave. Additionally, he has advised me that he has a Specialist medical appointment on November 7, 2018, so will be unable to attend the hearing. As such, the Union is seeking an adjournment to the November 7th hearing date. Is the Employer in agreement with adjourning? If so, I will write to the GSB to reschedule.

Counsel for the Employer responded as follows:

October 30, 2018

The Employer is in agreement with the adjournment provided that Amir provides a note from the specialist office confirming that he has a specialist appointment on November 7, 2018. If Amir is amenable to this request please have the note to the Employer on or before Friday November 2, 2018.

On November 5, 2018 the Union responded:

I have just spoken with the Grievor, and he advised that he has an appointment at Synergy Rehab and Physiotherapy Centre (Woodbridge) on Wednesday. He does not have an appointment card, etc.

Could you please let me know whether – given that information – the Employer consents to the adjournment on Wednesday?

4On the morning of the day of the hearing the Employer consented to the adjournment request on the following terms:

The Employer requested a note from the specialist office confirming that Mr. Khan had a specialist appointment on November 7, 2018. This clinic provides paramedical services and it is not clear that Mr. Khan is unable to attend the GSB due to a specialist appointment. As such, this is not acceptable and/or sufficient to satisfy the Employer’s request for documentation.

However, in good faith, the Employer will grant the adjournment on a without prejudice basis. The Employer is also putting OPSEU and Mr. Khan on notice that should he be unable to attend any future GSB proceedings, the Employer will require more than 30 days advance notice or if it is within 30 days that sufficient supporting documentation is provided to grant the adjournment or the Employer may file a motion to have the grievance dismissed.

5Following the events in November, the hearing of the matter was re-scheduled for July 12, 2019. On July 10, 2019 the Union wrote to the Employer, requesting an adjournment of the hearing date, as the Grievor had a family emergency. The Employer requested additional supporting information surrounding the circumstances of this adjournment request, and that such information be provided by 4pm on July 11. The Union did not provide this information and accordingly the parties attended at the GSB and the Union requested an adjournment.

6On July 12, 2019, counsel for the Employer, and four other Employer representatives and human resources individuals, as well as counsel for the Union, were in attendance at the Grievance Settlement Board. Counsel for the Union advised that he received email communication from the Grievor that same morning, but that the email did not provide any more information about the family emergency, as requested by the Union. Counsel for the Union explained that the Grievor had been difficult to communicate with and so counsel did not know the nature of the family emergency.

7At that time, I granted the adjournment but directed the written hearing that is discussed above.

8In its written submissions the Employer requested:

• That the Grievor be directed to provide written explanation of the circumstances surrounding his inability to attend at the Board on July 12, 2019, by July 26, 2019;

• That the Grievor be directed to provide by July 26, 2019, confirmation from the medical clinic he stated he had an appointment scheduled on November 7, 2018, confirmation that he attended such an appointment, the time of the appointment, as well as written explanation as to why the appointment prevented him from attending at the Board for this proceeding and/or why the appointment could not be rescheduled;

• That if the Grievor fails to provide the above information by the above dates, or fails to provide satisfactory information explaining his inability to attend the above noted hearing dates, that the Grievances may be dismissed.

9The Union agreed to the first request but sought additional time for the Grievor to respond. As for the second request, the Union agrees to provide evidence of the confirmation of the appointment but asserts that the remainder of the request is an expansion of the Employer’s initial request for information made in November. As for the third request the Union states:

The union understands that the information provided will be considered in the decision on the motion, however we submit that this information should not be determinative and that the importance of the issue at hand and the lack of prejudice to the Employer in this case, should be weighed appropriately.

10In these circumstances I made the decision which is set out above. The underlying basis for my decision is that I am concerned whether the Grievor is actually prepared to participate in a hearing of his grievance. His initial request based on a “specialist medical appointment” when he (may have) had a physiotherapy appointment, appears potentially deceptive. It also raises issues about why the physiotherapy appointment could not have been re scheduled and/or whether the Grievor could have both attended the hearing/mediation and the physiotherapist appointment on the same day. Overall, in these circumstances, the Grievor’s decision to adjourn an arbitration hearing with potentially serious consequences for his employment raises issues about whether the Grievor wants to pursue his grievance at all.

11Had the Grievor attended the hearing on July 12, 2019 the circumstances surrounding the adjournment of the first hearing date would in all likelihood have been moot. However, he asked for an adjournment based on an unparticularized “family emergency” which, combined with his failure to provide further detail when requested to do so, again raises questions. I take the Union’s point about how the Employer had dealt with the Fall adjournment request. However, in deciding what to do with Friday’s adjournment, including whether to allow the grievance to proceed, I find it appropriate to consider all of the circumstances, including the full facts surrounding the November adjournment. I also find it appropriate to undertake this fact finding as quickly as possible given that two hearing days have now been lost. However, as I stated at the hearing, if there are legitimate reasons why the information cannot be provided within the time allowed I remain open to providing an appropriate extension of the deadlines.

12After the information has been received (or if no information is received) I will consult with the parties to determine next steps.