P-2008-2913
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Daniel Muldoon
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Deborah J.D. Leighton
Vice-Chair
FOR THE GRIEVOR
Daniel Muldoon
FOR THE EMPLOYER
Susan Munn Ministry of Government Services Counsel
HEARING
September 23, 2009.
Decision
1Mr. Daniel Muldoon, an OM16 at Ontario Correctional Institute, has a number of grievances before the board, which were scheduled for hearing on September 23, and 24, 2009. The dates were confirmed on June 15, 2009 shortly before Mr. Muldoon went on sick leave on June 29, 2009. On September 10, 2009 the grievor, who is unrepresented, notified the board by email that he would have to reschedule the hearing dates. He was advised by the board that he needed the consent of the employer for an adjournment. The employer advised the grievor that it required an appropriate medical note before it would agree to the adjournment. Without an adequate medical note the employer opposed the adjournment.
2There was some communication between the parties prior to the hearing dates. However the matter of the adjournment was not resolved. Since Mr. Muldoon said he was unwell, he was given the option of appearing at the hearing by telephone conference call, which he agreed to do. Thus the hearing proceeded on September 23, so that I could consider the adjournment request. Early in the hearing I explained to the grievor that without consent to the adjournment by the employer, it was up to the board to decide whether it was warranted. In such cases the board must consider the interests of both parties, and is bound by the principles of natural justice.
3Ms. Susan Munn argued, in summary, for the employer that the medical note was not adequate. The only note that had been provided was a “sick note” to the institution, because the grievor was off on sick leave. Counsel submitted that she had attempted to contact the grievor by telephone to explain that the note was not adequate, with no success. Emails were also exchanged between the parties and copied to the board.
4Given the medical note was inadequate, counsel argued that the board should deny the request for adjournment and dismiss the grievances. To support her argument to dismiss the grievances counsel relied on case law of the board dismissing grievances where the grievor failed to appear at a scheduled hearing. In the alternative, counsel submitted that I should only grant the adjournment on the condition that the grievor provide a medical opinion that he was not able to attend the hearings. This opinion should also address any need for accommodation, at the hearing if any is required.
5Mr. Muldoon initially argued that the sick note that he provided, should be considered adequate. To paraphrase the note, it stated that due to his condition he was not able to attend work. He argued that if he could not attend work, then it was obvious that he could not attend at a hearing. Further, in the grievor’s view it was adequate because the employer was well aware of his situation. He believed that he was entitled to an adjournment.
6However after hearing Ms. Munn’s submission, he asked for an opportunity to provide the board with a medical note that might be adequate. He said that he had not appreciated the kind of evidence that was required to prove that he needed the adjournment. He also stated that he was not prepared to respond to the legal argument that the board should dismiss his grievances. He wanted the opportunity to retain counsel.
7Having considered the submissions of the parties and particularly because the grievor was unrepresented and did not understand what was necessary to justify an adjournment, I made the following oral ruling. I decided it would be premature to dismiss the grievances at this time. Thus I suspended the decision on the employer’s motion to dismiss the grievances because the medical was inadequate and I granted the grievor’s request to provide a medical opinion to the board that would address the reason he could not proceed with the hearing on September 23, and 24, 2009.
8In response to the grievor’s question about who would see the medical opinion, I advised that it would become part of the record before the board. I noted that the medical should not reveal any private medical information, but that it should explain with some specificity why the grievor was unable to appear and participate in the hearings scheduled for September 23, and 24, 2009. The grievor has until October 28, 2009 at 5pm to file this medical opinion with the board.
9Since the grievor stated that he was not able to respond to the employer’s motion to dismiss his grievance and wished to retain a lawyer, I ordered the grievor to confirm in writing to the board that he has retained a lawyer no later than October 28, 2009 at 5pm. That confirmation should include the counsel’s name and contact information. Confirmation directly from the grievor’s counsel will satisfy this part of the order. If the grievor decides ultimately not to retain counsel, he must confirm this with the board no later than 5pm on October 28, 2009.
10Should the grievor or his counsel wish to make a written submission to the board on the adequacy of any new medical opinion and/or with regard to the motion before the board to dismiss the grievances, they have until October 28, 2009 at 5pm to submit.
11If the grievor or his counsel makes a written submission to the board on or before the deadline noted above, the counsel for the employer will have 21 days from the receipt of that submission to reply in writing should she elect to do so.
12I will make a decision on the employer’s motion to dismiss Mr. Muldoon’s grievances based on the documents and submissions, if any, filed by the deadlines noted above. I reserve the right to ask for further oral argument on the employer’s motion to dismiss the grievances, if I am not satisfied that I can make the decision on the record before me.
Dated at Toronto this 28th day of September 2009.