GSB# 2019-2636; 2019-2637; 2019-2638

UNION# 2020-0234-0006; 2020-0234-0007; 2020-0234-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wojtkun)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 9, 2020

Decision

1There are three grievances before me, all filed by the Grievor on December 29, 2019. The first alleges the Employer is in breach of its Respectful Workplace Policy, Workplace Discrimination and Harassment Policy and has violated the Grievor’s privacy rights. The second alleges the Grievor was given notice that her fixed term contract of employment would not be renewed in reprisal for the exercise of her rights under the Occupational Health and Safety Act. The third alleges the Employer has breached various provisions of the collective agreement and the Professional Standards of the College of Nurses of Ontario.

2These grievances were scheduled to be heard on November 9, 2020 by means of videoconference. The Grievor failed to appear at the scheduled start time of 10:00 AM. The matter was put over until 10:30 AM while counsel for the Union tried to contact the Grievor. At 10:30 AM counsel advised that the Grievor had failed to respond to voice mail and email messages. The Union then sought to adjourn the hearing. The Union and the Employer disagreed on the conditions which should attach to such an adjournment. The matter was put over until 11:00 AM to permit both parties to prepare submissions. Submissions were heard until 11:35 AM at which time the hearing adjourned. Just prior to the adjournment, counsel for the Union confirmed that he still had no response from the Grievor.

3The background to the November 9, 2020 adjournment request is as follows.

4On July 20, 2020, the Grievance Settlement Board (the “Board”) issued a Notice of Proceeding indicating that this matter would be heard on November 9, 2020 in the Board’s boardrooms.

5On October 13, 2020, counsel was retained to represent the Union on this matter. On October 15, 2020 he sent a letter to the Grievor requesting that she provide him with a chronology of events so that he could respond to a request for particulars from the Employer.

6On October 16, 2020 the Board issued a revised Notice of Proceeding indicating that the matter would be heard on November 9, 2020, by means of videoconference.

7On October 17, 2020, counsel for the Union provided a copy of the October 16, 2020 Notice of Proceeding to the Grievor.

8On October 22, 2020, the Grievor advised counsel for the Union that she felt challenged by videoconferencing technology and wanted an in person hearing. Ultimately, counsel for the Union was instructed by the Union to seek an adjournment of the November 9, 2020 hearing.

9On November 5, 2020, the Union brought a motion seeking to have the hearing adjourned on the basis that the Grievor did not feel comfortable with videoconference technology and preferred to have the matter postponed until an oral hearing could be held. The Employer opposed the motion on the basis that the reasons offered for the adjournment were insufficient and further that the proposed adjournment was of uncertain duration and could well be lengthy. I gave an oral ruling dismissing the Union’s motion and directing the matter to proceed by way of videoconference as scheduled on November 9, 2020. My reasons for doing so were in essence those advanced by the Employer.

10Counsel for the Union informed the Grievor of my decision by email on November 5, 2020. He also reiterated his request that she provide a chronology of events. Counsel for the Union followed up with the Grievor by email on November 8, 2020. He received an email response from the Grievor on the evening of November 8, 2020. Counsel has not disclosed the contents of that email other than that he understood it to mean that she would be attending on November 9, 2020.

11Counsel for the Union received no other communication from the Grievor prior to the scheduled commencement of the hearing on November 9, 2020. Counsel’s efforts to contact the Grievor on November 9, 2020 following the commencement of the hearing are set out above.

12Counsel for the Union acknowledges the Board has discretion to dismiss a grievance when a grievor fails to attend a hearing, but argues that prior to considering whether to do so this Board’s caselaw establishes two factors must be present. First, the grievor must have demonstrated lack of interest in the matter proceeding, such as by way of ignoring counsel. Second, the grievor must have been given explicit notice that failure to attend the hearing may result in the dismissal of her grievance. In this instance, counsel argues the Grievor’s request that the hearing proceed on an in person basis indicates that she has not lost interest in the matter. Counsel places greater weight, however, on the second factor. The Grievor has not been given explicit notice that failure to attend the hearing might result in the dismissal of her grievance. Counsel argues, therefore, that the appropriate manner to proceed is to schedule the matter for a future date with explicit notice to the Grievor that failure to attend on that date may result in the dismissal of her grievance. Counsel relies on two decisions of Arbitrator Dissanayake involving the same grievor: Ontario Public Service Employees Union (Byabagamba) v Ontario (Government & Consumer Services), 2016 CanLII 51068 (ON GSB) and Ontario Public Service Employees Union (Byabagamba) v Ontario (Government & Consumer Services), 2016 CanLII 59599 (ON GSB).

13Counsel for the Employer argues the adjournment should be granted on the condition the Grievor provide a reasonable explanation in writing for her failure to attend within a defined period of time. If the Grievor fails to provide an explanation within the specified time, the grievances should be administratively dismissed. If the Grievor does provide an explanation within the specified time, the Employer should be afforded an opportunity to make submissions as to the reasonableness of the explanation. Counsel disputes there is any prior requirement that a grievor be given explicit notice that failure to attend may result in dismissal of their grievance. In any event, the November 5, 2020, decision which dismissed the Grievor’s request for an adjournment must be taken as making it clear to the Grievor that her attendance was required. Counsel made reference to the following decisions of this Board: Ontario Public Service Employees Union (Savdie) v Ontario (Government Services), 2013 CanLII 31969 (ON GSB) (Harris); Ontario Public Service Employees Union (Karabegovic) v Ontario (Liquor Control Board of Ontario), GSB File No. 2007-1436, June 26, 2008 (Kirkwood); and Ontario Public Service Employees Union (Slaght) v Ontario (Liquor Control Board of Ontario), 2019 CanLII 126471 (ON GSB) (Dissanayake).

Analysis and Decision

14Byabagamba was a discharge case. The grievor failed to attend a scheduled mediation date without prior notice or explanation and could not be reached by counsel for the union. The matter was rescheduled for a further mediation date one year later and again the grievor failed to attend without prior notice or explanation and could not be reached. The employer moved for the dismissal of the grievance. Contrary to the submission of the Union before me, Arbitrator Dissanayake did not state the two factors identified by the Union must be present prior to dismissal of a grievance due to non attendance of the grievor. Rather, he stated those two factors “are given weight” in determining whether to dismiss (at para. 18 of the first Byabagamba decision):

In the case law, two factors are given weight in determining whether the extreme response of dismissal of a discharge grievance is appropriate. First, an indication of lack of interest on the part of the grievor, for example by ignoring attempts by union counsel to communicate or by ignoring a Board order. Second, whether the grievor had been made aware that his grievance may be dismissed if he failed to attend scheduled hearings. Neither indicia is present in this case.

This, however, was not the end of the matter. Rather, Arbitrator Dissanayake ordered the grievor to provide written particulars of the reasons for his non-attendance on both dates and his reasons for failure to give notice that he would not be attending on those dates, along with any supporting documentation: see para. 20 of the first Byabagamba decision. Arbitrator Dissanayake’s order also specified that the parties might request an opportunity to make submissions on whether the grievance should be dismissed based on “any” information provided. The grievor provided particulars in response to this direction. The employer requested an opportunity to make submissions for the dismissal of the grievance and a conference call was held for this purpose. In the second Byabagamba decision, Arbitrator Dissanayake determined the particulars provided were sufficient and did not dismiss the grievance.

15Slaght was another discharge case. The grievor failed to attend the arbitration hearing on the scheduled day with no prior explanation or notice. The employer moved for dismissal of the grievance. Arbitrator Dissanayake adopted in essence the same procedure as he had in the first Byabagamba decision: the grievor was ordered to provide an explanation and supporting documentation by a specified date and the employer was given the right to renew its motion for dismissal following that date. The grievor failed to provide anything in response to the order. The employer renewed its motion for dismissal and a hearing was conducted by conference call. In the cited decision, Arbitrator Dissanayake granted the employer’s motion for dismissal.

16In Savdie, Arbitrator Harris adopted a similar approach to Arbitrator Dissanayake. A grievor twice failed to appear for mediation. The union was directed to provide by a specified date “good reason” for the grievor’s failure to attend. Unlike Arbitrator Dissanayake’s orders, Arbitrator Harris’ order did not expressly provide for an opportunity for submissions on any materials filed. Further, Arbitrator Harris’ order addressed the question of what would happen if “good reason” was not presented by the specified date. In particular, Arbitrator Harris directed that the matter would be administratively dismissed. I note that the matter before Arbitrator Harris was a letter of reprimand and thus presumably was subject to Article 22.16.1 of the collective agreement between the parties which provides for the resolution of grievances “in an expeditious and informal manner”. Arbitrator Harris’ approach was entirely consistent with this direction. By contrast, the matter before Arbitrator Dissanayake in Byabagamaba was a discharge, and thus presumably subject to the “regular arbitration procedure” as set out in Article 22.16.6.

17Karabegovic was a discharge case. The grievor failed to attend on the scheduled hearing date with no prior notice or explanation. Arbitrator Kirkwood granted the employer’s motion for dismissal of the grievance without providing the grievor an opportunity to provide an explanation. In my view, however, on the facts described the case can readily be seen as one where the first factor identified by Arbitrator Dissanayake in Byabagamaba as justifying dismissal of a grievance without further inquiry was made out: the grievor’s interactions with the union prior to the date of the hearing clearly demonstrated a lack of interest in proceeding with the grievance.

18In this case, as noted, the Union and the Employer were in agreement the November 9, 2020 hearing should be adjourned, but differed on the conditions which should attach to that adjournment. Accordingly, I need not consider at this time whether there was sufficient basis as of November 9, 2020 to dismiss the Grievor’s grievances.

19The November 5, 2020 denial of the Grievor’s adjournment request constituted clear notice to the Grievor that she was expected to attend at the hearing scheduled for November 9, 2020. I note as well the Board’s Notice of Proceeding in relation to that hearing, a copy of which was provided to the Grievor by counsel for the Union, states:

Note: If you do not attend at the hearing the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings.

20In these circumstances, I do not agree with counsel for the Union that the appropriate manner of proceeding is simply to schedule the matter for a future date with explicit notice to the Grievor that her failure to attend may result in the dismissal of her grievances. Rather, in my view it is appropriate to require the Grievor to provide an explanation, following which the Employer may renew its motion for dismissal should it wish.

21Accordingly, I make the following order:

(a) No later than December 7, 2020, the Grievor, through union counsel, shall file complete particulars in writing, along with any documentary evidence in support, with respect to:

(i) The reason or reasons for her non-attendance at the Board on November 9, 2020; and

(ii) The reason or reasons why adequate notice could not have been provided that she would not be attending on that day.

(b) If the Grievor provides particulars as directed by paragraph (a), then the Employer may request an opportunity to make submissions on whether the Board should dismiss the grievances. If such request is made, a hearing by teleconference shall be scheduled as early as possible. The Grievor’s grievances may be dismissed following consideration of any such submissions. If no such request is made by December 14, 2020, the grievances will be set down for hearing at a future date. Should the Grievor fail to attend on that date, her grievances may be dismissed without further notice to her.

(c) If the Grievor fails to provide particulars as directed by paragraph (a), her grievances will be dismissed without further notice to her.