GSB# 2021-0575

UNION# 2021-0503-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (D’Souza)

Union

• and -

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

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Matthew Appignanesi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jackson Donszelmann-Lund Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 28, 2023

Decision

1The Employer brings a motion requesting that the grievance be dismissed on the grounds that the Grievor failed, without notice to the parties or the Board, to attend a Board hearing in this matter on April 3, 2023, and then failed to comply with a Board order issued on that same date directing her to provide a sufficient written explanation to the parties and Board for her non-attendance.

2The Union takes the position that the Grievor did in fact provide sufficient reasons in response to the order, and that in the alternative if her reasons were not sufficient the appropriate response would be to direct her to provide further reasons in the form of medical documentation.

3This matter was referred to me under Article 22.16 of the Collective Agreement. I will accordingly provide succinct reasons for decision.

4The grievance is dated April 23, 2021. A Board hearing was originally set for January 19, 2022. On January 18, 2022, the Union requested an adjournment. The Employer consented to this request, but not on a without prejudice basis. The next hearing date was scheduled was April 3, 2023.

5The grievor failed to attend that hearing and failed to notify either of the parties or the Board of her intention not to attend. The Union was unable to contact her during the hearing.

6The hearing was adjourned. That same day I issued a consent order directing that the Grievor “provide a sufficient written explanation to the parties and the Board for her non-attendance of the April 3^rd, 2023 hearing date, no later than April 13^th, 2023.” The order noted that:

In the event that the Grievor provides a written explanation before April 13, 2023, the Employer reserves the right to provide submissions as to whether or those reasons for non-attendance are sufficient to justify the matter continuing through the grievance procedure, including whether or not the grievance should be dismissed on the basis that those reasons are insufficient.

7On April 6, 2023 Union counsel forwarded to the Board and to Employer counsel an email message sent to him by the Grievor that same day. The message was in response to the Board order of April 3, 2023. By way of explanation of the Grievor’s absence at the April 3 hearing, it stated the following:

As already communicated to you vide my email of 03‐Apr‐23 at 11:19 pm, "I have a full tear in the rotator tendon of my right shoulder with excrutiating [sic] pain and was resting the whole day."

The Grievor did not at that time or subsequently provide any medical documentation in support of her absence.

8The Employer promptly indicated that it did not consider this to be a sufficient written explanation, and that it would be seeking to have the grievance dismissed. The Employer’s motion to dismiss was heard by conference call on April 28, 2023.

9The Employer maintains that the Grievor’s reasons are not sufficient because they do not explain why her injury prevented her from logging in to the virtual hearing on April 3, 2023 or why she was incapable of communicating with the Union prior to or during the hearing. The Employer points out that her reasons are not supported by any medical documentation, and that the Grievor knew that an adjournment could be requested by the Union, as had happened earlier in these proceedings. The Employer submits that the Grievor’s pattern of conduct displays a complete disregard for the Board’s proceedings. The Employer refers me to the following authorities: Ontario Public Service Employees Union (Cupskey) and LCBO (2019) GSB#2013-2633 (Parmar); Ontario Public Service Employees Union (Ellis) and Ontario (Ministry of Finance) (2001) GSB#1866/99 (Dissanayake); Ontario Public Service Employees Union (Savdie) and Ontario (Ministry of Government Services) (2013) GSB#2011-3975 (Harris); Ontario Public Service Employees Union (Karabegovic) and Liquor Control Board of Ontario (2008) GSB#2007-1436 (Kirkwood).

10The Union asks me to decline the Employer’s motion, saying that the Grievor’s explanation of a full tear of her rotator cuff causing excruciating pain represented a legitimate medical issue on its face, and that if it was not satisfactory the appropriate response would be to issue another order requiring medical documentation. The Union referred me to the following decisions: Sunnybrook Health Sciences Centre v. Ontario Nurses’ Association, 210 CanLII 62291 (Stout); Hamilton (City) and ATU, Local 107 (Jovanovic) 2008 CarswellOnt 10456, 93 C.L.A.S. 105 (Chauvin); Ontario Public Service Employees Union (Cousins) v. The Crown in Right of Ontario (Liquor Control Board of Ontario) (2018) GSB# 2016-2701 (Williamson); Ontario Public Service Employees Union (Mochama) v. The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) GSB# 2020-0790, 2022 CanLII 106486 (ON GSB) (Carrier)

11I agree with the Employer that the Grievor has not provided a sufficient explanation for her failure to appear at the April 3, 2023 hearing. But I have nonetheless decided that the appropriate response in the circumstances of this case is to direct the Grievor to provide further information in support of her explanation.

12This is not a case in which the grievor has failed both to appear and to communicate at all with the Union, as was the situation in Karabegovic, supra, or in which the grievor has repeatedly failed to attend scheduled hearings without providing any relevant medical or other information to justify her absence, as was the case in Ellis, supra, and in Savdie, supra. Rather, this case is more analogous to Cupskey, supra, where the Grievor failed to appear, was ordered to provide reasons for his failure to appear including medical documentation in support of any medical reasons, and then provided a medical reason for absence not supported by adequate medical documentation. In that case, Arbitrator Parmar provided the Grievor with an opportunity to present additional medical documentation rather than dismissing the grievance. In Cupskey, Arbitrator Parmar was influenced by the fact that the Union representative advising the grievor may have given him uninformed guidance as to the type of medical information required to explain his absence. I have no reason to think that was the case here. On the other hand, the consent order of April 3, 2023 did not explicitly require medical documentation in support of the Grievor’s explanation. The Grievor appears to have believed that her explanation would be sufficient on its face. I agree with Arbitrator Parmar that where a reason for absence at a hearing involves medical issues such reason must generally be substantiated through proper and sufficient medical documentation in order to be valid: Cupskey, supra, at paragraph 33. I am troubled by the Grievor’s failure to anticipate that medical documentation would be required. But in the circumstances of the case, I am prepared to give the Grievor the benefit of the doubt with respect to her understanding or acceptance of this requirement. I am not prepared to conclude that her actions reflect a disregard for these proceedings sufficient to warrant that dismissing the grievance.

13The Union is to provide to the Employer and the Board, no later than 30 days from the date of this order, medical documentation verifying the medical reason given by the Grievor for her absence at the April 3, 2023 hearing and sufficiently describing any activity limitations preventing her from attending. The Grievor’s doctor is to be advised that she has a legal claim that is to be determined through a legal proceeding and that as such he may be required to present evidence in the course of the proceedings.

14I confirm that the Employer retains the right to bring a further motion for dismissal in the event that it believes that this order has not been fully complied with.