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

November 6, 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.

3When it was clear that the Grievor would not attend the scheduled hearing, the Employer asked that the grievances be dismissed without a further hearing or an opportunity for the Grievor 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.

4The 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.

5Both the Union and the Employer argued that if the Board did not accept their respective primary positions, 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.

6In a decision dated October 21, 2024, the Board reviewed the steps taken by the Union to provide notice of the hearing to the Grievor, and to reach him during the hearing to request that he join the hearing that was in progress. Notwithstanding the very strong submissions put forth by the Employer requesting that the grievances be dismissed, the Grievor was given an opportunity to provide an explanation for his actions. The relevant portions of the direction are 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.

7The Grievor did not provide an explanation to the Union before November 1, 2024. The Union confirmed that the Grievor was provided, twice, with a copy of the Board’s decision including its direction and that he confirmed to the Union that he would respond by November 1, 2024. He did not respond to the Union by November 1, 2024. He did not explain why he did not respond or ask for an extension of time.

8A hearing was convened by videoconference on November 6, 2024, to address the Grievor’s failure to respond in accordance with the Board’s direction. In advance of the hearing, the Union contacted the Grievor again to request the information required to respond to the Board’s direction. The Board was advised that the Grievor responded that he was not appropriately notified of the hearing.

9For the reasons that follow, this explanation is not accepted by the Board.

10As was outlined and explained in the Board’s October 21, 2024, decision, there is no doubt that the Board has the discretion to dismiss grievances where a Grievor fails to attend a hearing. There is also no doubt that the Board has the discretion to dismiss grievances where procedural directives have not been followed. See Ontario Public Service Employees Union (Wojtkun) v Ontario (Solicitor General), 2020 CanLII 97347 (ON GSB) (Anderson), for a full review of the caselaw on these issues including references to Ontario Public Service Employees Union (Slaght) v Ontario (Liquor Control Board of Ontario), 2019 CanLII 126471 (ON GSB) (Dissanayake) and [Ontario Public Service Employees Union (Savdie) v. Ontario (Government Services), 2013 CanLII 31969 (ON GSB)](https://www.canlii.org/en/on/ongsb/doc/201