GSB# 2023-03235; 2023-03278; 3023-03279; 2023-03280

UNION# 2023-0615-0001; 2023-0615-0002; 2023-0615-0003; 2023-0615-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sproule)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Heather Ann McConnell

Arbitrator

FOR THE UNION

Joseanne Job Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 16, 2024

Decision

1There are four grievances referred to me under Article 22.16 of the Collective Agreement. The grievances collectively allege a denial of union representation, an unreasonably lengthy paid suspension pending an investigation, failure to provide access to the OPS intranet and payroll system during the paid suspension, bullying, harassment, discrimination, a toxic workplace, and unjust/excessive discipline in respect of an unpaid disciplinary suspension. The first grievance is dated October 31, 2023, and the remaining three are dated November 20, 2023.

2The grievances were scheduled for hearing on October 16, 2024. The hearing convened and the Grievor, Sean Sproule, did not attend.

3Further to the Board’s inquiry, the Union advised that it sent the Grievor the Notice of Proceedings on or around May 10, 2024, when it was issued. The Notice of Proceeding contains the following note: “If you do not attend at the hearing the Board may proceed in your absence and you will not be entitled to any future notice in the proceedings.”

4The Union Grievance Officer also met with the Grievor by zoom and telephone on or about October 4, 2024. She confirmed that prior to reviewing the merits of the grievances and preparing for the hearing, she reminded the Grievor of the hearing date and time and reviewed the mediation/arbitration process. She did not draw the Grievor’s attention to the potential consequences of non-attendance at the hearing because he was seemingly interested in pursuing his grievances and she expected him to attend.

5The Grievance Officer sent the Grievor a reminder email the day before the hearing confirming again the date, time, and zoom details for the hearing.

6At the Board’s request, during the hearing, the Union attempted to contact the Grievor. Voicemail messages were left at the two telephone numbers the Union had on file. Emails were also sent to the two email addresses the Union previously used when communicating with the Grievor.

7The Union then contacted the local representatives who confirmed that the Grievor was at work, they were asked to contact him there, and to convey the information provided in the voice and email messages. According to the Union this information was conveyed to the Grievor.

8Lastly, the Board requested that the Grievor’s manager advise him of the hearing and ask him to contact the Union. The manager was not in attendance at the hearing but confirmed, through council, that they communicated with the Grievor regarding the hearing, and the Grievor confirmed he would not be attending.

9Ultimately the Grievor contacted the Union by email and said that he received notice of the hearing that morning and could not attend. No further explanation was provided.

10When it was clear that the Grievor would not attend the scheduled hearing, the Employer asked that the grievances be dismissed without a future hearing or an opportunity for the Griever to provide an explanation. It was the Employer’s position that the Grievor knew about the hearing, the consequences of not attending the hearing, and chose, without reason, not to attend. The Employer argued that the Board should infer from his action that the Grievor was uninterested in pursuing his grievances.

11The Union requested that the Board set another hearing date and advise the Grievor explicitly that failure to attend in future, without a valid explanation, could result in a dismissal of the grievances. The Union argued that the Grievor might not fully understand the possible consequences of his non-attendance as that issue was not previously discussed by the Union because he was cooperating in advancing the grievances.

12Both the Union and the Employer argued that if the Board did not accept their primary position, the Grievor should be provided with an opportunity to submit a valid explanation for his non-attendance and failure to provide notice of that non-attendance, prior to the Board accepting the other Party’s primary argument.

13In their submissions the Parties relied on and referred to the following cases: Ontario Public Service Employees Union (Wojtkun) v Ontario (Solicitor General), 2020 CanLII 97347 (ON GSB); Ontario Public Service Employees Union (D’Souza) v Ontario (Solicitor General), 2023 CanLII 37588 (ON GSB); Ontario Public Service Employees Union (Maharaj) v Ontario (Liquor Control Board of Ontario), 2021 CanLII 58428 (ON GSB); and Ontario Public Service Employees Union (Karabegovic) v. Ontario (Liquor Control Board of Ontario), GSB File No. 2007-1436. The case law is reviewed and analyzed by Arbitrator Anderson in Wojtkun and I agree with and adopt his approach to addressing this issue of non-attendance.

14There is no doubt that the Board has the discretion to dismiss grievances where a Grievor fails to attend a hearing and the Board’s case law establishes that two factors are to be considered in that assessment: first the Grievor must have demonstrated a lack of interest in the matter proceeding and second the Grievor must have been given explicit notice that failure to attend the hearing may result in the dismissal of those grievances.

15In this case the Grievor was sent the Notice of Proceeding in or around May of 2024, when the hearing was scheduled. That notice specifically addressed the potential consequences for non-attendance. The Union also conveyed this information to the Grievor in their communications on the day of the hearing.

16It is not clear whether the Grievor continues to have an interest in addressing his grievances. He met with the Union in advance of the hearing to prepare his case and the Union expected him to attend based on those interactions. However, he did not attend, did not provide notice of his intention not to attend, and did not take the multiple opportunities afforded to him to join the hearing or to speak with his Union about his attendance after the hearing commenced.

17It appears, in the circumstances, that the Grievor knowingly changed his mind about participating in the arbitration process. The Grievor’s conduct, in this respect, is concerning - it caused excess costs to the parties and wasted valuable hearing time which could have been used to address other matters. That said, without affording the Grievor an opportunity to explain himself, the Board cannot be sure about why he failed to participate.

18In the circumstances, it is prudent to give the Grievor a last opportunity to provide a valid explanation for his non-attendance at the hearing, for not notifying the Union in advance of his non-attendance, and not communicating with the Union during the hearing.

19This opportunity is being provided to the Grievor notwithstanding the very strong submission put forward by the Employer that the grievances should be dismissed outright. The Employer observed that the Grievor’s disregard for the process, failure to cooperate with the Union, and refusal to respond to the Union’s communications during the hearing were akin to the conduct of the Grievor in Karabogivic. That conduct was sufficient in that case for the arbitrator to dismiss the grievances without providing an opportunity for the Grievor to explain herself. The difference here, is that up to the date of the hearing, the Grievor had been co-operative and there remains a question about whether he would be co-operative in the future. In Karabogivic there was no communication with the Grievor after the grievance was filed.

20Having regard to the above, I hereby direct as follows:

The Grievor is to contact his Union Grievance Officer forthwith to explain his reason(s) for not attending the hearing on October 16, 2024, for not providing notice of his non-attendance, and not communicating with the Union on the day of the hearing.

The Union is to provide that explanation and any supporting documents to the Board and to Employer counsel by no later than November 1, 2024.

Should the Grievor not respond as directed above, within the time allowed, his grievances will be dismissed.

Should the Union provide the Grievor’s explanation, the Employer will have until November 14, 2024, to advise the Board as to whether it accepts the Grievor’s explanation and agrees to re-schedule the hearing of these grievances.

Should the Employer take the position that the Grievor’s explanation is insufficient and maintain its position that the grievances should be dismissed without a hearing on the merits, a case conference will be held to determine next steps.

21I remain seized.