GSB# 2023-02397

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

Association

• and -

The Crown in Right of Ontario (McDonald)

Employer

BEFORE

Sarah Atkinson

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock and Amy Chen Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Senior Counsel

HEARING

December 10, 2024

Decision

Introduction

1This decision addresses the Employer’s motion to adjourn the remaining scheduled dates for the ongoing grievance arbitration hearing, namely February 28, March 5 and April 11, 2025, because its next and likely final witness, Allison Ue, is on parental leave. The Association opposes this request.

2The grievance relates to the denial of the Grievor’s request for an alternative work arrangement (“AWA”). The Collective Agreement provides, in part, that AWAs may be entered into by mutual agreement between an employee and their manager. Among the alternative work arrangements contemplated is “telecommuting/ telework,” which includes remote work. On June 23, 2023, the Grievor requested to work remotely five days per week. His request was denied on September 25, 2023 by Ms. Ue, his manager at the time. Because his request was denied, he is not presently working on an AWA.

3The hearing proceeded on October 8 and December 4, 2024. The Employer initially indicated its intention to request an adjournment on October 8, 2024. The Association presented its case first. The Employer proceeded with its first witness, Jennifer Baker, the Grievor’s current manager. Upon completion of her evidence on December 4, 2024, the Employer confirmed its request for an adjournment. Submissions on the motion to adjourn were heard on December 10, 2024.

4The Employer’s motion for an adjournment is denied for the reasons that follow.

Analysis

5There was no dispute between the parties as to the test to apply in whether to grant an adjournment. It is well established on the authorities that that test requires me to consider the following relevant factors:

• the nature of the grievance,
• the timing of the request,
• the reason for the request,
• the length of the requested adjournment, and
• the prejudicial effect of granting or not granting the request.

(See OPSEU (Cupskey) and Ontario (Liquor Control Board of Ontario) (2020), 314 L.A.C. (4th) 58 (Parmar) at para. 10, and OPSEU v. Ontario (Ministry of Government and Consumer Services), (Devins, May 17, 2018, unreported) at para. 10.)

I will address each of these factors below.

6This grievance relates to the Employer’s denial in September 2023 of the Grievor’s AWA request to work from home. The Association argued that the hearing dates had been scheduled for some time by the time of the Employer’s adjournment request. In my view, however, the request was raised within an appropriate time when the Employer became aware that the absence of the original manager would be an issue.

7By way of reason for the request, the Employer submitted that Ms. Ue was on statutorily protected parental leave that she was entitled to and would not return to work prior to the currently scheduled continuation dates. The Employer argued that it had no control over where she was and could not direct her to attend the hearing. The Association submitted that the Employer had provided only the minimal information that the employee was on leave, and this fact alone was not a sufficient basis to adjourn. In my view, the mere fact of being a witness does not, in and of itself, amount to the Employer asking that employee to return to work during her parental leave. A party to a legal proceeding has the option to call a witness they deem relevant to a proceeding. In the event the witness is not willing to attend voluntarily, the Employer may choose to summons them.

8While the Employer acknowledged that the adjournment could be for a year or longer, it submitted that there was no prejudice in waiting to hear the witness’s evidence about a decision the witness made in September 2023 and the matter could wait until she returned from her leave, allowing her the intervening time to enjoy her young family. The Association pointed to the length and indefinite nature of the proposed adjournment and disputed that there was no prejudice to the Grievor. It submitted that but for the alleged breach, the Grievor would have already enjoyed the benefit of the AWA and working from home for some time.

9While I find the Employer may have a valid reason to make the request, I do not find the information provided is sufficient in the circumstances to meet the Employer’s onus given that the length of the adjournment is unknown and may exceed a year. Further, I agree there is a prejudicial effect on the Grievor that he would be required to continue working during that time without an AWA to which he may be entitled.

10The Employer referred to the Board’s recent decision in AMAPCEO (Salewski) v. Ontario (Ministry of Environment, Conservation and Parks) (Gee, Oct 24, 2024, unreported) to highlight that recent Board decisions relating to AWAs have ordered the Employer to reconsider the AWA request. In the Employer’s view, the present case is unique in that the manager who would likely reconsider the request and the operational viability of the request is no longer Ms. Ue, but rather Ms. Baker. The Association argued that the significance of it being a different manager in place now from the one who made the initial decision to deny could not be determined in advance of the Board’s hearing all the evidence and arguments, or of determining the eventual remedy should the grievance be upheld. Similarly, the Association contended that it was not known whether the present manager would still be the manager once a decision was issued, and potential remedy imposed. In my view, the issue of which manager would determine the AWA reconsideration, should that be my eventual decision, is a prospective one and therefore not relevant to my present assessment regarding the adjournment.

11As for the Employer’s suggestion that the need to produce a will-say for the witness is a reason that the hearing should be adjourned, I’m not persuaded that that is the case. However, the Association has agreed in the circumstances that a will-say is not required and that it will agree to adjust the proceedings as needed to make it as convenient as possible for the witness to give her testimony.

12Having regard to the relevant factors set out above to consider in granting an adjournment, the Employer’s motion for an adjournment is denied.

13There were two other issues that were argued by the parties which were not relevant to considering the adjournment request. First, the Employer argued that it needed the adjournment because the Association had indicated it would argue an adverse inference against the Employer if it failed to call Ms. Ue’s evidence. The Association argued that the fact of putting the Employer on notice of its position should the Employer not call that witness, should not be held against the Association in its objection to the adjournment. The parties are welcome to make such arguments they deem relevant with respect to the grievance at a later date.

14Second, the Association argued that if I decide in the Association’s favour, it followed that I should issue an order for the witness to appear. The Employer disagreed, arguing that in the event the adjournment was denied, it was still the Employer’s decision whether to call the witness. I agree with the Employer on this point and leave it to the Employer to determine whether they wish to call this witness.

15The hearing remains scheduled for February 28, March 5 and April 11, 2025.