GSB#2022-5463

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Tomka)

Association

• and -

The Crown in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE ASSOCIATION

Christine Davies Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 13, 2023

Decision

1This Decision addresses the Employer’s motion to dismiss the dispute filed by AMAPCEO in light of the Complainant’s failure to attend the hearing scheduled on October 5, 2022, as well as her failure to provide an explanation for her non-attendance following an order by the Board.

2A hearing was scheduled on June 13, 2023. The parties made submissions on the issue of dismissal. The Complainant did not attend this hearing date.

Facts

3The Complainant was notified of the October 5, 2022 hearing date by AMAPCEO by way of emails sent on September 16, 2022, and September 20, 2022, She was also notified by mail on September 27, 2022. Nevertheless, she did not attend the October 5, 2022 hearing before the Board.

4The Board issued an Order on October 6, 2022, requiring she provide an explanation for her non-attendance. The Order noted that in the event the Complainant did not comply with the Order or if she failed to attend any subsequent hearing dates, the parties would be invited to provide submissions on whether or not the dispute should be dismissed.

5On October 7, 2022 the Complainant emailed her AMAPCEO representatives. Though she did not explicitly respond to the Order, she stated: "There should never have been a meeting on October 5, 2022 as everyone was told in September there was a conflict of interest.” The Complainant provided no particulars of the conflict of interest but referenced an email sent to AMAPCEO on September 16, 2022, in which she alleged that her representatives, both from AMAPCEO and the law firm representing AMAPCEO, were in a position of conflict of interest.

6AMAPCEO contacted the Complainant again on October 12, 2022 by email and by courier to inform her of the required next steps and their willingness to assist her with her dispute. Similar communications sent on October 25 and 27, 2022. AMAPCEO communicated with the Employer on November 14, 2022 to advise them of their attempts and the lack of response from the Complainant.

7AMAPCEO provided notice to the Complainant of the June 13, 2023 hearing date on April 25, 2023 by email and again received no response. The Complainant did not attend the hearing on June 13, 2023.

Submissions of the parties

8The Employer submitted that the Complainant's dispute should be dismissed due to her non-attendance on October 5, 2023 for three reasons. The Employer first submits that the Complainant's dissatisfaction with her Union's representation is not an acceptable reason for non-attendance. The parties to the arbitration process are the Employer and the Union, and as such the choice of representation falls to the Union and not the Complainant. Further, the Employer submits that Complainant's responses to AMAPCEO suggest that she is unlikely to accept the Board’s processes or her assigned representation.

9Second, the Employer submits that the Complainant was declared to have abandoned her position in August of 2020, and that the additional delay caused by her non-attendance on October 5, 2022 causes prejudice to the Employer’s ability to marshal its evidence.

10Finally, the Employer submits that the issues raised in this dispute, termination of employment, harassment and discrimination, are important issues that ought not to be dismissed lightly. They submit that the case law also places an elevated obligation on the Complainant to participate in the process.

11The Employer submits the following cases in support of its position: OPSEU (Culp) and Liquor Control Board of Ontario, GSB No 2013-1439 (Brown); UFCW, Local 175 and Metro Ontario Inc. (Gorst), Re, 2022 CarswellOnt 1848 (Anderson), CUPE, Local 5050 and Cape Breton-Victoria (2022) 339 LAC 4th 251 (Richardson); OPSEU (Maharaj) and Liquor Control Board of Ontario, GSB No 2019-2859, July 9, 2021 (Nairn); OPSEU (Slaght) and Liquor Control Board of Ontario, GSB No 2018-1240, December 3, 2019 (Dissanayake); OPSEU (Patchett) and Liquor Control Board of Ontario, GSB No 2014-2387, April 15, 2016 (Brown); OPSEU (Cupskey) and Liquor Control Board of Ontario, GSB No 2013-2633, March 9, 2020 (Parmar).

12AMAPCEO submits that the Complainant’s behaviour suggests that there could be underlying issues affecting her ability to attend work and to attend the arbitration hearing. The Union submits that she may be facing barriers that are not well understood and that AMAPCEO wishes to continue to represent the Complainant. On that basis they oppose the Employer’s motion and request that the matter be adjourned sine die so that the matter could be litigated in the event the Complainant becomes able to participate.

Decision

13In light of the Complainant’s failure to attend the hearing on October 5, 2022, her failure to comply with the October 6, 2022 Order requiring that she provide an explanation for her non-attendance, and her failure to attend the hearing on June 13, 2023, the dispute is dismissed. The Complainant has not provided any explanation for her non-compliance other than a bald allegation that her representatives are in a position of conflict of interest.

14As was noted by the Board in OPSEU (Culp) and Liquor Control Board of Ontario, GSB No 2013-1439 (Brown), supra, the Union is the party to the arbitration and not the Complainant. As such, the Complainant’s disagreement with the choice of representative does not constitute a reasonable explanation for her failure to attend.

15I acknowledge the Union’s concern for the Complainant’s well-being, but in the absence of any evidence, medical or otherwise, that would adequately explain her inability to comply with the Order, I decline to further extend the proceedings.

16The dispute is dismissed.