GSB# 2023-02547

UNION# 2023-0377-0212

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Black)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Heather Ann McConnell

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

John O’Reilly Liquor Control Board of Ontario Senior Counsel

HEARING

January 22, 2025

Decision

1The matter before the Board is a termination grievance. The Grievor, Trent Black, a probationary employee, was terminated for violating the Employers Aeroplan Reward Miles Policy. It is alleged that while operating the cash register, the Grievor credited Aeroplan points to an Aeroplan collector card number that did not belong to purchasing customers.

2The grievance was scheduled for hearing on January 22, 2025. The hearing convened and the Grievor did not attend.

3When the Grievor did not attend, the Union requested an adjournment and asked that a future date be set. The Employer opposed the adjournment request and asked that the grievance be dismissed. The Employer argued that the Grievor knew about the hearing and chose not to attend. In support of its position, the Employer noted that the Grievor also failed to attend the step three grievance meeting, and the Employer took from that absence, and argued, that the Grievor was uninterested in pursuing his grievance.

4The Union disagreed that the Grievor was uninterested in pursuing his grievance and presented evidence of the number of times he confirmed to the Union that he wanted to pursue it. The Union argued that it was possible something outside of the Grievor’s control prevented him from attending the hearing. The Union was also concerned that the Grievor might not fully understand the possible consequences of his non-attendance as that issue was not discussed because of his participation in advancing the grievance. The Union requested that the Grievor be given an opportunity to provide an explanation for his absence, which it argued is generally how the Board addresses these issues.

5In a decision dated January 24, 2025, the Board provided the Grievor with an opportunity to provide an explanation for his failure to attend the scheduled hearing. The relevant portions of the direction given to the Grievor, in this respect, are as follows:

The Grievor is to contact his Union Grievance Officer forthwith to explain his reason(s) for not attending the hearing on January 22, 2025, and for not providing notice of his non-attendance.

The Union is to provide that explanation and any supporting documents to the Board and to Employer counsel by no later than February 7, 2025.

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

6The Grievor did not provide an explanation to the Union by the end of day on February 7, 2025. The Union confirmed that it contacted the Grievor by email following the hearing, on January 22, 2025, to notify the Grievor of the Board’s expected decision. On January 24, 2025, the Union emailed the Grievor a copy of the Board’s decision and included a summary, in the body of the email, of the direction given by the Board. The Grievance Officer then followed up on the emails by telephone on February 6, 2025, and left the Grievor a voicemail message. The Grievor did not respond to the emails, or the telephone message left by the Union.

7The Union wrote to the Board to request a further extension to provide reasons for the Grievor’s absence, given the serious nature of the grievance. The request was opposed by the Employer on the basis that there were no new facts that would justify a departure from the Board’s earlier decision.

8There was no dispute between the Parties that the Board has the discretion to dismiss grievances where a Grievor fails to attend a hearing and/or 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.

9The Board is satisfied that the Grievor received notice of the hearing, of the opportunity to provide an explanation for failing to attend the hearing, and of the consequences of not providing an explanation by the deadline. In the circumstances, the Board is left to assume that the Grievor does not wish to pursue his grievance.

10In addition to having been sent a copy of the Board’s January 24, 2025, decision, he was sent the Notice of Proceeding on or around April 12, 2024, containing 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.” This information was also reiterated by the Union in multiple email and telephone messages on the day of the hearing and following it.

11As is outlined in the earlier decision of the Board, the Union was in regular contact with the Grievor by email and telephone. While there was an initial wrinkle in the Union not having the Grievor’s correct telephone number, this was rectified by January 17, 2025, when the Grievance Officer had a preparatory call with the Grievor in advance of the hearing. In the circumstances, there is no reason to believe that the Grievor did not receive the Union’s email and telephone messages, including those regarding the Board’s directive.

12The last communication that the Union had with the Grievor was during the arbitration preparatory meeting between the Grievor and the Union on January 17, 2025. Although the Board is not privy to the details of that call, we know that a settlement offer was presented, and the merits of the case reviewed. It appears that something occurred that changed the Grievor’s mind about wanting to pursue the grievance during that meeting resulting in an end to communications and making it impossible for the Union to advance his grievance.

13For these reasons, the grievance is dismissed.