GSB# 2020-0790
UNION# 2019-0520-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Mochama)
Union
- and -
The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)
Employer
BEFORE
Joseph D. Carrier
Arbitrator
FOR THE UNION
Matthew Appignanesi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Erika Montisano
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
October 6, 2022
Decision
In this ongoing matter involving the grievance of Ms. Agnes Mochama, Mr. Matthew Appignanesi on behalf of the Union seeks a “variance of your Order of August 31 to permit the Grievor time to recover and supply the Union with her supplementary particulars, and an adjournment of our hearing on October 6”.
In my Decision of August 31, 2022 (released September 1, 2022) I had ordered that comprehensive particulars “be provided by the Union to Employer Counsel on or before September 16, 2022”. Those comprehensive particulars were to supplement the Union’s rudimentary details concerning the issue or issues which were provided on September 1, 2022.
Mr. Appignanesi reported that he had reached out to the Grievor to schedule time to discuss those supplementary particulars at which time “the Grievor informed me on September 14th that she is unwell and would not be able to meet with me to discuss said particulars by today (September 16, 2022). In further correspondence, the Grievor has also informed me that she does not anticipate being well enough to participate on October 6”.
In fact, as at October 6, the most recent hearing date, the Union had been unable to fulfill its obligations of providing comprehensive particulars by the September 16th deadline nor had they been provided up to the October 6th hearing day.
As anticipated, neither did the Grievor attend at proceedings as scheduled, although she was well aware of the scheduled hearing date and was familiar with joining virtual proceedings as she had done so in the past.
Ms. Erika Montisano, Employer Counsel reported that the Grievor had surprisingly attended at work in person on October 6, the scheduled hearing date.
In the circumstances, while the Union sought an extension of the date for providing particulars and an adjournment of today’s proceedings based upon the Grievor’s reported inability to attend, Ms. Montisano sought an Order that the Union and Grievor be restricted from providing any further particulars and be limited to those that had been provided up to today’s date. Ms. Montisano also requests that no extension be granted with respect to the prior Order.
The Union had no medical documentation from the Grievor to support the request either for an adjournment and/or an extension of the date for the provision of particulars in this matter.
The Discussion and Order
There has been a history of many delays in the litigation of this matter several of which have been due to the Grievor’s failure to assist her Union in the preparation needed for proceedings. In addition to prior delays, on October 6 we had this final most recent delay relating to the Grievor’s reported inability for medical reasons to attend at these virtual proceedings while at the same time attending at her workplace in person. Without appropriate medical documentation it is difficult at this stage to understand what medical restrictions might account for such a situation.
In the circumstances here, I have decided to deny the motion for extension sought by the Union as well as any limitation on the nature or extent of the particulars previously ordered as requested by the Employer. Rather, the Order of August 31, 2022 still stands subject to explanation by the Grievor together with substantiated medical reasons for her inability to assist the Union in complying with that earlier Order as well as for her inability to attend proceedings on October 6.
It may well be that the Grievor has legitimate medical reasons impeding her ability to assist and instruct Counsel in order to satisfy the requirements of the earlier Order. Moreover, there may be legitimate medical reasons for her inability to attend the proceedings on October 6, while at the same time having the physical wherewithal to attend at her workplace.
It is particularly distressing that the Grievor’s inability to cooperate with the Union in these proceedings has technically put the Union in violation of my Order of August 31. In the circumstances the following directions and orders put the onus squarely on the Grievor herself:
She will produce to her Union representative(s) a medical certificate and opinion from a physician in whose care she has been and who is qualified to give such an opinion confirming:
a. That she has had and continued to have up to October 6, 2022 a medical condition which impeded her ability so significantly as to disable her from assisting her Union Representative in the preparation of particulars of her complaint throughout the period from August 31, 2022 up to and including September 16, 2022 and thereafter up to and including October 6, 2022.
b. That her medical restrictions as at October 6, 2022 were such that she was unable to attend virtual proceedings before this board;
c. That although she was unable to attend virtual proceedings on October 6, 2022, her medical conditions were such that they did not impede her ability to attend at work that same day;
d. That the Grievor is under medical care and is following a recommended and/or prescribed regimen to assist in alleviating the relevant condition(s);
e. Finally, that the physician anticipates in his/her professional opinion that the Grievor should be able to cooperate with her Union representatives in fulfilling her responsibilities in pursuing these proceedings within the foreseeable future which he/she estimates to be at or before a date then specified by that physician.
The Grievor shall forthwith after receipt of a copy of this Order contact her physician’s office, arrange an appointment with him/her as soon as reasonably practicable.
The Grievor will provide her physician with a copy of this Order so that he/she will be aware of the nature of the report requested here.
The Grievor shall provide her Union representative(s) with the physician’s Report within 30 calendar days of the issuance of this Order.
The Report shall be provided to Employer Counsel within 15 calendar days thereafter.
Failure to comply with this Order as provided in detail above may result in the dismissal of the subject grievance upon motion of the Employer.
Nothing here precludes either Party from taking a position they may consider appropriate with respect to the sufficiency or adequacy of the explanation provided by the Grievor and/or the physician’s Report as required in this Order.
This Order is made without prejudice to the Employer’s rights to raise any other issues, preliminary or otherwise as may be considered appropriate in respect to this matter.
Dated at Toronto, Ontario this 18th day of October 2022.