GSB# 2018-1240

UNION# 2018-0683-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Slaght)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Dan Hales Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

TELECONFERENCE

November 28, 2019

DECISION

1A termination grievance dated April 19, 2018 filed by Ms. Heather Slaght (“grievor”) came before the Board for arbitration in Sudbury, Ontario on September 10, 2019. The grievor failed to attend. She had not provided notice to the union, the employer or the Board that she would not be attending. The Board received submissions from the parties and issued a decision dated September 16, 2019. The Board denied the employer’s motion that the grievance be dismissed summarily. Instead, it ordered that the grievor provide an explanation for her non-attendance together with any supporting documentation, no later than 30 days from the date of the Board order. The employer was given the right to renew its motion for dismissal of the grievance if the grievor fails to provide an explanation in accordance with the order, or if the employer is of the view that the explanation provided does not justify the grievor’s failure to attend the hearing on September 10, 2019.

2The employer did renew its motion, and a hearing was convened by teleconference to hear the motion. The employer filed particulars and a number of documents, none of which was disputed by the union. The letter of termination dated April 9, 2018, issued to the grievor included the following:

Heather, you have received numerous warnings regarding your failure to attend your pre-scheduled shifts and the expectations have been communicated to you that you must call your store manager if you are not able to attend work. Specifically, disciplinary action for failing to attend work or notify your manager of your absence and other workplace violations have been issued to you as follows:

. July 17, 2015 – letter of reprimand;

. June 6, 2016 – letter of reprimand;

. October 23, 2017 – 1 day suspension;

. November 7, 2017 – 3 day suspension;

. January 2, 2018– 5 day suspension; and

. March 13, 2018 – 10 day suspension;

In addition, following your 10 day suspension, you called the store on Tuesday, April 3, 2018 to confirm your next shifts, however you did not attend nor call to advise of your absence on April 5, 2018 from 4:30 pm-9:30 pm and April 6, 2018 from 4:30-9:30 pm.

3The unchallenged particulars indicate that, given the grievor’s history of attendance issues, when this grievance was scheduled for hearing on September 10, 2019, employer counsel explicitly sought an assurance from the grievor’s union representative at the time, that the grievor would be attending the hearing. The union representative informed that he had spoken to the grievor, and that she had told him that she would be attending. Subsequently, on September 4, 2019, the grievor’s present union representative, Mr. Dan Hales, Grievance Officer, emailed employer counsel to the effect that the grievor had e-mailed him indicating her intention to proceed with the arbitration. However, the grievor did not attend the hearing and did not notify anyone about her non-attendance (See, the decision dated September 16, 2019 which sets out the circumstances). At the teleconference, Mr. Hales advised that following the issuance of the Board’s decision he had e-mailed the grievor and sent a letter as well, asking her to contact him to discuss her grievance, but had not received any response from her.

4Employer counsel submitted that in this case the Board had provided the grievor an opportunity to explain her non-attendance. Over the objection of the employer, she was given a second chance, but she had failed to take that opportunity. Counsel submitted that the grievance should be dismissed in the circumstances at this time. Reliance was placed on Re OPSEU (Durnin) & LCBO, 2005-3281 (Dissanayake); Re OPSEU (Karabegovic) & LCBO, 2007-1436 (Kirkwood); Re OPSEU (Elllis0 & Ministry of Finance, 1866/99 (Dissanayake) Re AMAPCEO (JM grievance) & MCSCS 2016-1147 (Parmar).

5Mr. Hales for the union, submitted that in the circumstances of this case, the Board should adjourn the hearing sine die until the grievor is contacted and a response from her is obtained. He submitted that it is unknown whether the grievor is well and able to respond to the inquiries by the union. He was still attempting to make contact with her. Even he is not aware why the grievor is not responding to his communications directed to the same e-mail and mailing addresses he had always used to communicate with her. He pointed out that in Re City of Hamilton (2008) 93 CLAS 105 (Chauvin) the arbitrator adjourned the hearing sine die when the grievor failed to attend, even though that grievance was only about a fifteen day suspension. This being a termination grievance, the Board was urged to follow the approach taken by arbitrator Chauvin.

6I have carefully considered the submissions of the parties. The authorities cited by the employer set out the policy considerations involved in the exercise of the arbitral discretion in these circumstances. In Durnin (supra) at pp.4-5, I wrote:

Union counsel did not dispute that the Board has the jurisdiction in its discretion to dismiss the grievance, if it deemed appropriate in the particular circumstances. Indeed very recently in Re Tafesse, 2005-1342 (Gray) the Board did exactly that in similar circumstances. In so doing Vice-Chair Gray adopted the following reasoning in Re Toronto (City) and Canadian Union of Public Employees, Local 79, (1998), , 73 L.A.C. (4th) 412 (Craven) at 416:

Where a party, by its own conduct, has compromised its ability to proceed with the hearing on the scheduled date, it will not be entitled to an adjournment as a matter of right. In such a case, the arbitrator nevertheless has the discretion to award an adjournment, with or without conditions, upon full consideration of all the circumstances. This discretion arises out of the arbitrator’s authority to control the proceedings. The inconvenience and prejudice to the moving party of continuing with the hearing must be weighed not only against the inconvenience and prejudice 2007 OGSB minicounsel 14 5 of the other party in adjourning the hearing, but also against the public policy of expedition in the resolution of industrial disputes at arbitration. Obviously, lengthy delay tends to make it more difficult to serve the attendance of witnesses. Memories become less reliable, and material and documentary evidence may go astray. Remedies may become less effective. For these and other reasons non-trivial delays are almost inevitably prejudicial. Still more importantly, excessive delay tends to undermine the parties’ interest in resolving their disputes efficiently, economically and expeditiously. It also tends to reduce confidence in the fairness and efficacy of the grievance arbitration system. In my opinion these considerations weigh heavily against the exercise of the arbitrator’s discretion to grant a lengthy adjournment where the party seeking the adjournment is clearly responsible for the inability to proceed in a timely manner. It would require a truly compelling reason to overcome the weight of these considerations and justify a delay of the length sought here.

As Vice-Chair Gray did, I agree that the maxim “Justice delayed is justice denied” in the present collective bargaining relationship applies not only to the employer, but also to the union and grievors. In the instant case, unlike in Re Tafesse, there can be no doubt that, at least as a result of the telephone conversation with union counsel, the grievor was aware of the hearing scheduled for February 1, 2007. He had expressly been warned that if he failed to attend he ran the risk that his grievance may be dismissed. Yet he failed to attend without even the courtesy of a telephone call to explain the non-attendance. Already there has been undue delay. The union, the employer, as well as the Board have been subjected to unnecessary and wasteful costs, both in terms of financial resources and time. There is no indication as to when, if at all, the grievor would be available to attend. This is an extreme case where the only appropriate exercise of my discretion is to uphold the employer’s motion to dismiss the grievance.

7I agree with employer counsel that the decision in Re City of Hamilton (supra) is easily distinguishable from the instant matter. In that case, unlike here, the union had put forward to the arbitrator an explanation for the grievor’s failure to attend. In addition, a detailed medical report from a physiatrist was put into evidence to support that explanation. The union requested that the hearing be adjourned sine die, until the grievor was medically fit to attend. In contrast, here the union is seeking an adjournment indefinitely, and is doing so in the absence of any explanation for the grievor’s non-attendance. The Board in this matter has once denied the employer’s request that the grievance be dismissed when the grievor was a “no show” with no notice, even though she had received appropriate notice of the hearing. The Board at that time adjourned the hearing precisely to allow the grievor an opportunity to explain her non-attendance. There is absolutely no indication that the grievor’s non-attendance, her failure to respond to the Board’s order or the communications from her union representative, was because she was unable to do so due to health reasons. On the other hand, the grievor’s history of discipline set out in the letter of termination indicates that she has repeatedly failed to attend scheduled shifts without notice. In the circumstances, if anything is to be reasonably implied from the evidence before me, it is would be that the grievor’s conduct in relation to this proceeding is a continuation of her behaviour evidenced by her history of discipline. In the circumstances it would be inappropriate and unreasonable to adjourn the proceeding sine-die. The grievor has not claimed that she was unable to attend due to illness. She has simply ignored the proceeding scheduled to deal with her grievance.

8The Board acted cautiously and generously when it adjourned the hearing once to give the grievor a chance to explain her non-attendance. She has completely ignored that, as well as all attempts by the union to contact her. As the arbitrator in Re City of Toronto, (supra) stated, “It would require a truly compelling reason to overcome the weight of these considerations and justify a delay of the length sought here”. In the circumstances here, it would not be reasonable or appropriate to adjourn the proceeding indefinitely on sheer speculation that her silence is due to some health reasons. Therefore the employer’s motion is granted and the grievance is dismissed.