GSB# 2022-11289

UNION# 2022-0551-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ranganathan)

Union

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE UNION

Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

June 17, 2024

Decision

1This matter has been ongoing and reconvened for further mediation on June 17, 2024. Those mediation efforts proved unsuccessful. The parties then dealt with certain case management issues. This decision is a summary of the issues considered and directions made and provides brief reasons with respect to an oral ruling made to adjourn the scheduled hearing date of June 21, 2024.

2This grievance challenges the Employer’s decision to terminate the Grievor’s employment. The Employer alleges that the Grievor filed benefit claims through Manulife for services that were not rendered as claimed and for services for which the claimed amount was greater than the amount charged by the service provider. The allegations are denied, and the Union has put the Employer to the strict proof thereof.

Scope of Evidence

3The Employer has put the Union on notice that, should there be a finding of cause but a further finding that termination was too harsh a penalty in the circumstances, it intends to argue in the alternative that the Grievor cannot and should not be reinstated to employment but rather receive damages in lieu of reinstatement. This prompted some direction to the parties as to the scope of the evidence in the first instance and/or whether certain issues should be bifurcated.

4There are always two issues in any grievance involving discipline. The first is whether there was cause to discipline, and second, if there is a finding of some cause to discipline, what is the appropriate penalty in all of the circumstances?

5There appear to be four possible broad outcomes of a hearing on the merits of this case and considering the Employer’s position regarding potential damages in lieu of reinstatement; 1) reinstatement with compensation, 2) reinstatement without compensation, 3) no reinstatement and no compensation, or 4) no reinstatement but damages in lieu of reinstatement. It makes sense to hear all the evidence relevant to any and all of those potential outcomes at the same time. Given that much of that evidence is also relevant to the merits, all of that evidence should be heard together. Any calculation of damages or compensation awarded can be bifurcated at this stage and remitted to the parties for consideration if and as the need arises.

6In the result, the hearing will proceed to hear the evidence of the parties with respect to whether the Employer had cause to discipline the Grievor, and will further include any evidence relevant to the nature of any appropriate penalty, should there be a finding of cause. Issues and evidence of mitigation as it relates to compensation and/or evidence as to the quantum of any damages in lieu of reinstatement will be bifurcated and will await the findings on the merits of the grievance and any finding with respect to that broader outcome. However, any evidence received from the outset will be admitted for all purposes.

Production

7The Employer made a request for production of various materials from the Grievor. The Union objected to that production on the basis that the Employer bears the onus to establish its case. The Employer maintained its request. In the result, a hearing date of Wednesday, August 7, 2024 at 10:00am has been scheduled, at which time I will hear any evidence and the parties’ representations with respect to the Employer’s request for production from the Union. The Zoom link utilized for the hearing on June 17, 2024 remains viable to access the hearing on that day.

Adjournment of the scheduled date of June 21, 2024

8On June 17, 2024 and following some informal consideration of the case management issues, the Union raised a request to adjourn the scheduled hearing date of June 21, 2024. The Employer opposed the request and the parties convened to make their representations. The Union sought the adjournment on the Grievor’s behalf on the basis that on or about April 30, 2024 the Grievor commenced new employment and is currently on probation. The Grievor had been absent from work on June 14 and 17, 2024 to attend these proceedings (a Friday and a Monday) and the Union advised that the Grievor had been notified by her new employer of its concern regarding her pending absence on June 21 (also a Friday) and that additional absences may well form part of any assessment as to whether to grant the Grievor permanent employment. The Grievor is a single mother of two school age children and requires employment to support her family. The Union argued that given that the next scheduled date was now August 7, 2024, the delay was not so significant as to render the request objectionable, providing the Employer with sufficient time to advise witnesses of any changes and make any necessary arrangements, resulting in little if any prejudice to the Employer but potentially a great deal of prejudice to the Grievor.

9The Employer noted that these dates were scheduled in 2023. It noted that it had previously agreed to a request by the Grievor for an adjournment of a scheduled date based on medical reasons. The Employer had issued summonses and had arranged for witnesses to attend on various dates while concurrently engaging in good faith in the mediation of the grievance. While sympathetic of the Grievor’s new employment circumstances, the Employer argued that the Grievor could and should have advised her new employer of this prior legal commitment from the outset, and it was not incumbent on the Employer to bear the consequences of any lack of transparency on the part of the Grievor vis-à-vis her new employer. The Employer put the Union and the Grievor on notice that any future request to adjourn and/or any failure to attend without proper justification would result in the Employer seeking to have the grievance dismissed at that stage. This legal proceeding was brought at the behest of the Grievor and requires the full attention of the Grievor, argued the Employer. The Employer argued in the alternative that, should an adjournment be granted, there be a corresponding order that the period between June 21 to October 4, 2024 not count towards any compensation should compensation be ordered. The Employer noted that the next scheduled date for hearing is October 4, whereas the August 7, 2024 date is to deal only with a procedural issue.

10In reply, the Union took exception to the Employer’s assertion of a lack of transparency on the Grievor’s part. It noted that earlier dates had been adjourned on consent for medical reasons and there was no basis from which to second-guess or penalize the Grievor with respect to this request based on earlier adjournments. The Union asserted that there was no basis to exempt any period from consideration for compensation.

11Following receipt of the parties’ representations, I ruled orally that I would grant the adjournment and that reasons for that determination would follow.

12The Grievor attended these proceedings on the scheduled date of May 30, 2024 at which time mediation efforts were undertaken. The Grievor had not attended the scheduled date of May 27, 2024 due to illness and the Employer consented to that adjournment. The Grievor did not attend on June 4, 2024. Further to a decision issued that day, Union counsel subsequently advised that the Grievor had not attended because she was upset with the Employer regarding the mediation efforts and her anxiety resulted in her requiring medication and to refrain from attending. The Grievor was advised in the June 4, 2024 decision that should she seek to rely on medical reasons to explain any further absences (beyond June 4), a medical certificate from an attending health practitioner would be required to substantiate that inability to attend and any resulting adjournment request.

13The Grievor attended the scheduled date of June 14, 2024 and mediation continued. However, during the afternoon the Grievor advised, without prior notice, that she had a medical appointment at 3:30pm. She left the mediation for a period of time with the result that mediation efforts towards the end of that day were delayed and put over to June 17, 2024.

14Turning then to the request to adjourn the scheduled date of June 21, 2024. I understand the Employer’s concern about the Grievor’s commitment to this process. However, the request was granted in light of the circumstances of the Grievor’s new employment. She had only just been specifically warned as to the potential consequences of her absence from that work. It may not be surprising that an employee may not be fully forthcoming to a new employer regarding a commitment that concerns a termination from one’s previous employment. While perhaps not an excuse, it explains the late request. The Grievor has a family to support and being employed while these proceedings are ongoing is in everyone’s interest. At the same time, the Grievor must understand that she needs to attend and participate in the proceedings in order to challenge the Employer’s decision, and at some point, may be required to take vacation or unpaid leave days from her new employment in order to do so.

15Any request to deny compensation for the period of the adjournment is deferred and can be raised in the context of any calculation of compensation should compensation be ordered. That request overlaps with issues of mitigation – if the Grievor is working during the period while the hearing is ongoing she is fulfilling her duty to mitigate her damages.

16The hearing will re-convene on August 7, 2024 at 10:00am by videoconference to deal with the Employer’s request for production. The parties agreed that a further 3 dates be scheduled for hearing. The Registrar’s office will be contacting the parties accordingly.