P-2008-2913

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Daniel Muldoon

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE COMPLAINANT

Daniel Muldoon Ed Cuncins

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

March 30, 2011.

Decision

Introduction

1Daniel Muldoon is an OM16 at Ontario Correctional Institute. This decision addresses the employer’s motion to dismiss Mr. Muldoon’s 2008 Complaint, for failure to attend a hearing scheduled to proceed by conference call on November 12, 2010. Mr. Muldoon opposes the motion because he was ill and not able to attend.

2The material facts are not in dispute. The conference call was scheduled by agreement of the parties for 12 noon on November 12, 2010, pursuant to an order of this Board, for setting dates to hear Mr. Muldoon’s Complaint on the merits. A hearing notice was emailed to Mr. Muldoon on November 5, 2010. The complainant emailed the Board at 11:47 AM on November 12, 2010 to cancel the hearing on the alleged grounds that he had the flu and could not participate. The employer opposed the adjournment and advised the Board and the complainant that it would bring a motion to dismiss the grievances for failure to attend a hearing pursuant to Rule 13 of the Board’s Rules of Procedure. The conference call did not proceed and I directed the Registrar to schedule a date to address the employer’s motion to dismiss the complaint. This motion was heard on March 30, 2011. I will refer to further facts, as necessary, to explain the reasons for my decision.

3The procedural history in this case is important. Mediation was held on May 29, 2009, but was unsuccessful in resolving the Complaint. The parties agreed on June 15, 2009 to arbitration dates on September 23 and 24, 2009. Shortly before the hearing, the complainant asked for an adjournment of those hearing days for medical reasons. The employer opposed the adjournment. The hearing proceeded on September 23, with the grievor participating by conference call. The employer argued that I should dismiss the complaint because Mr. Muldoon had not attended at the hearing and there was no medical evidence to support his request for an adjournment, other than a “sick note” provided to the institution. For a number of reasons I decided to hold the employer’s motion in abeyance, to allow the complainant an opportunity to provide adequate medical evidence to support his request for an adjournment of the arbitration dates. I delivered that decision orally on September 23, 2009, and issued a written order on September 28, 2009. This order gave the complainant the option to file evidence and submissions to the Board by a specified date. It also gave the employer an option to file submissions in response.

4On August 13, 2010, after considering the submissions of the parties, I dismissed the employer’s motion to dismiss Mr. Muldoon’s 2008 complaint and stated as follows:

I have the discretion to grant adjournments if to do so would be fair in all the circumstances and bearing in mind the principles of natural justice. I am persuaded that Mr. Muldoon initially believed that he had a right to an adjournment for medical reasons and that he meant no disrespect to the Board in his initial submissions on September 23. He was advised that without the employer’s agreement to the adjournment he had to provide adequate medical evidence to the Board for why he could not attend and represent himself. He subsequently provided evidence that his medical condition prevented his attending the September hearing days. Since Mr. Muldoon provided the medical evidence to support an adjournment, the employer’s motion to dismiss the complaint for failure to attend at the hearing must fail. The complainant satisfied all material requirements of the Board’s order of September 28, 2009.

I also stated that further dates should not be set until Mr. Muldoon was well enough to proceed:

…the hearing on the merits of Mr. Muldoon’s Complaint should proceed when he advises the Board that he is fit to go forward. Any further hearing dates in this matter shall be set by conference call with the parties and the Board.

The complainant notified the Board that he was ready to proceed and after some delays, November 12, 2010 at noon was set. As noted above the complainant did not attend at the November 12, 2010 hearing. There were also difficulties setting dates for the motion to dismiss on March 30, 2011.

5The Board confirmed the March 30, 2011 for the employer’s motion to dismiss Mr. Muldoon’s complaint on February 8, 2011. Documentary evidence filed for the purposes of this motion, show the employer counsel’s efforts prior to March 30, 2011 to communicate with the Mr. Muldoon on the substance of her motion to dismiss. On March 1, 2011, she emailed Mr. Muldoon to inquire if he was to be represented by counsel and if so, asked to be advised. She stated further, in essence, that if the complainant did not intend to have legal counsel, she wanted to ensure that he was aware of the nature of the motion. On March 10 having not heard from Mr. Muldoon, she emailed again with the same request. The complainant did not advise counsel of his representative’s name until 10:36 PM the night before the hearing. Between Mr. Muldoon’s first response on March 16 to shortly before the hearing there were a series of emails where Mr. Muldoon requested that employer counsel arrange for his fellow management representative to get time away from work with pay. Counsel for the employer explained multiple times that she was not able to do that. She advised Mr. Muldoon that the manager who was to act as Mr. Muldoon’s representative was responsible for seeking time off to attend the hearing.

The Submission’s of the Parties

6Counsel for the employer submitted that the complaint before me should be dismissed without a hearing into their merits because the complainant failed to attend the November 12, 2010 hearing. She argued further that Mr. Muldoon has not demonstrated that he should have been given an adjournment, either on November 12 or at the full hearing of the motion on March 30, 2011. He has not provided adequate medical evidence to support the adjournment. Given the history of the previous request for an adjournment in September 2010, the complainant cannot claim that he did not know what was required. Counsel argued further that the grievor has delayed setting dates, has failed to respond at times to the Board’s emails canvassing dates and then has accused the employer of creating delay. Counsel relied on Rule 13 of the Board’s Rules to argue that I have the power to dismiss this complaint given the circumstances and that I should do so. She submitted the following cases in support of her argument: Teevens and MGS (1991) P/0006/91 (Willes); Mitchell and MCSCS (2005) P/2004/1725 (Leighton); Laforest et al and MCSCS [2008] O.P.S.G.B.A No. 29 (O’Neil).

7Although a representative attended with the grievor, Mr. Muldoon spoke on his own behalf. Mr. Muldoon argued that out of courtesy he advised the Board on November 12, 2010 that he could not go forward with the conference call because he was too ill to do it. When he realized the employer was taking the position that the complaint should be dismissed for his failure to attend, his wife contacted the Board to see if she could act on his behalf. He also submitted that a sick note was provided to the employer for November 12, 2010, since he was also scheduled to work that day. He argued in reply to counsel’s submission that he is causing delay into the hearing of his complaint, that it is his disability that is preventing the hearing going forward. He requested an opportunity to provide the Board with a copy of a medical note for November 12, 2010.

8After counsel for the employer made her reply, the complainant asked to make additional comments, which I permitted and summarize here for brevity’s sake. The complainant argued that he did not know that the conference call on November 12, 2010 was a hearing. He believed that it would be no problem to schedule another day to set dates. He claimed that he did not appreciate what was required for medial support for an adjournment request.

9Counsel for the employer argued in reply and in response to Mr. Muldoon’s extra comments that he should not be allowed another opportunity to provide medical evidence to support his failure to attend on November 12, 1010. He has provided a medical note dated March 22, 2011, which addresses his general health, but not November 12, specifically. In counsel’s submission, Mr. Muldoon knew what was required because the Board advised him what was required when it gave him a second chance to support his request for an adjournment of the September 23 and 24, 2010. In addition, she tried to speak to him or his representative for a full month before the hearing on the motion. He declined to speak to her.

Decision

10Having carefully considered the submissions of the parties, I have decided to grant the employer’s motion and dismiss the complaint before me. The complainant here has failed to explain why he purported to cancel the November 12, 2010 date less than 15 minutes before it was to go forward. The only medical note provided is one that addresses his medical issues generally. In addition, he has offered no other credible reason. His other reasons are that he did not understand that the conference call was a hearing and that he believed that it would be no problem to set another date for the call.

11Mr. Muldoon’s submission is not persuasive, especially, given the history of the case. In September 2010, the complainant participated in a hearing by conference call to consider his request to adjourn September 23 and 24, 2010. His attitude initially in that hearing was that he was entitled to an adjournment. I explained to him that without the employer’s consent he was not entitled to an adjournment and that the Board would decide if there was adequate evidence to support the request. He realized during the hearing that he was not in a position to provide a proper medical, or a submission on why the hearing should not be dismissed. The complainant also said that he needed legal representation. I permitted him time to do both. He did provide a medical and his own submission and subsequently I granted the adjournment, dismissing the employer’s motion. I was of the view at the time that natural justice required that an unrepresented complainant be given a second chance to withstand a motion that would dismiss his case on the merits.

12However, there is no reason to be lenient here. I am not persuaded that the complainant was ignorant of what was required for an adjournment based on ill health. He did know. I told him myself in September 2010. For his own reasons he chose to ignore it on November 12, 2010. In fact, he did not ask for an adjournment: on November 12, he purported to cancel the hearing. Instead of granting the employer’s motion to dismiss the case without further input from the complainant, which was completely within my power to do under Rule 13 of the Board’s rules of procedure, I gave Mr. Muldoon an opportunity on March 30, 2011 to explain his failure to attend on November 12. Here again he provided nothing credible to explain his failure to attend the hearing.

13Late in his submission to the Board on March 30, Mr. Muldoon asked for additional time to provide a note for being sick on November 12, 2010. In balancing the interests of the parties here, I am of the view that to grant this request would be unfair to the employer. It would not be reasonable in all the circumstances to require the employer to attend at another hearing because the complainant was not properly prepared. There was no reason for the complainant not to be prepared. Counsel for the employer tried to speak with Mr. Muldoon, regarding the nature of the employer’s motion, over the course of a month before the hearing. He refused to speak to her or provide the name of his representative.

14Further, Mr. Muldoon’s submission that he did not think the conference call was a hearing is not credible. He had experience of hearings proceeding by conference call. Mr. Muldoon participated in the September 23, 2010 hearing by conference call. Moreover, pursuant to its normal practice, the Board confirmed the conference call for November 12, 2010 by a formal hearing notice. I should also note that the hearing notice itself states that the Board may proceed with the complaint without further notice and dispose of it should a party fail to attend.

15Finally, considering his submissions as a whole, I am of the view that Mr. Muldoon has not been entirely candid with the Board with regard to his failure to attend the November 12, 2010 hearing. One particular claim stands out. He initially submitted that he was too ill because of the flu to attend a conference call to set dates for the hearing into the merits of his 2008 complaint. Then he argued that it was his disability that prevented him from going forward. This is a major inconsistency and troubling given Mr. Muldoon was under no obligation to set dates on the merits of his complaint. My order of August 30, 2010 provided that “the hearing on the merits of Mr. Muldoon’s complaints should proceed when he advises the Board that he is fit to go forward. Any further dates in this matter shall be set by conference call with the parties and the Board.” Thus, no one was forcing him to do a conference call. And no one was forcing him to set dates on the merits of his case. However, once he agreed to dates he was obliged to go forward, unless there was some significant impediment to prevent it. There was no evidence of such an impediment and therefore, I must conclude that the motion should be granted and Mr. Muldoon’s complaint dismissed.

16Thus, for the reasons above, I hereby grant the employer’s motion and dismiss the complaint before me.