Ron Ihasz v. The Crown in Right of Ontario (Ministry of Finance), 2015 CanLII 32589

PSGB#P-2014-4875

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ron Ihasz

Complainant

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Ron Ihasz

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

April 2, 2015

Decision

1A Form 1 has been received from the complainant. By way of remedy the complaint seeks to have the complainant’s payroll account and personnel file transferred from the Ministry of Finance to the Ministry of Government and Consumer Services. It further seeks to confirm the complainant’s status as an employee on “disability/sick leave without pay” rather than as an employee on “leave without pay”. The complainant requests assistance with an early retirement and asks that the Ministry of Government and Consumer Services confirm that he is “eligible for all government policies & procedures for individuals with disabilities”.

2The limited particulars provided in the complaint appear to arise from and relate to the fact that the complainant’s position with the Ministry of Finance was surplussed in 2012. Notice received by the complainant in that regard was filed with the complaint. The complainant advises that he is currently absent from work. Although not entirely clear from the material provided, it appears that, as a result, he is “on hiatus” concerning the outcome of any surplussing of his position.

3In an e-mail exchange between the complainant, counsel for the employer, and Board staff, attempts were made to schedule as early a date as possible, that was available to all involved. In that regard, the Board has received agreement from the parties that this matter proceed on September 18, 2015. The employer’s response to the complaint has not yet been received and is due no later than 20 days prior to the first scheduled hearing date.

4By e-mail, the complainant requested a “phone” hearing. He asserted that mediation should take no more than an hour. The complainant further asserted that he was on disability/sick leave and was seeking this as an accommodation. In an e-mail dated March 19, 2015 sent at 11:10am, the complainant asserted that he would have difficulty travelling to and from a hearing in Toronto and that his doctor had not cleared him to return to work or attend a “physical hearing”. Nor, he asserted, did he expect medical clearance this year. No medical documentation has been received by the Board with respect to any medical restrictions or limitations interfering with the applicant’s ability to attend and participate in a hearing.

5In the same e-mail the complainant asked that the employer make a formal proposal and/or state why the four remedial requests could not be discussed or resolved over the phone via mediation. In response, the employer took the position that the complainant’s assertion of disability was insufficient to warrant the Board’s departure from its usual procedure. It noted that a legal proceeding had been commenced and the employer was entitled to the opportunity to respond appropriately. The employer also noted that in proceedings before the Human Rights Tribunal of Ontario the complainant had similarly taken the position that he was unable to attend. That request for accommodation of the hearing process was dismissed by that tribunal (at Ihasz v. Ontario (Revenue), 2013 HRTO 784).

6In an e-mail dated March 26, 2015 sent at 13:28, the complainant advised the Registrar of the Board in part that the Board could schedule the hearing for September 18, 2015 but “I will not be able to attend a physical hearing until I receive medical clearance closer to the date, due to my disability…”. The complainant again asserted that the issues could be resolved over the phone before that date and before the employer’s Form #2 was submitted. In a further e-mail on March 28, 2015 sent at 11:04am the complainant asked that a telephone conference be booked on the September 18, 2015 date.

7Finally, in an e-mail dated April 2, 2015 the complainant asked the Board to make a decision based on submissions already sent, asserting that the Board did not need a hearing to decide the issue of the complainant’s WIN status. He again asserted that he is on disability leave and will not attend any hearing until off disability leave in accordance with his physician’s instructions. The complainant then indicated that he will provide a medical note a week before September 18, 2015.

8The complainant should understand that the Board does not make any determination as to the merits of a complaint without hearing from both parties to the dispute. At this stage, the Board has not received the employer’s response to the complainant’s complaint that gives rise to the remedial requests outlined above. Proceedings before the Board are legal proceedings and, while less formal than court proceedings, require similar attention to the rules of natural justice.

9The complainant must also understand that the Board does not provide accommodation of its processes on request. The Board is prepared to accommodate pursuant to the duty under the Human Rights Code in order to ensure that anyone seeking to participate in its processes is able to appropriately do so. However, any assertion that an individual participating in the proceeding requires accommodation on the basis of a disability must substantiate that request with accompanying medical documentation that is both appropriate and sufficient to the request for accommodation. That medical documentation must indicate any medical restrictions or limitations resulting in an inability to attend and/or participate in the hearing process in its usual course. Those restrictions and limitations often provide information as to how the process may be adjusted in order to allow appropriate participation. An individual’s preferences or their assertion of disability are insufficient to warrant the Board departing from its usual processes.

10I hereby direct the Registrar to schedule this matter for hearing in the normal course at the Board offices in Toronto on September 18, 2015. Should the parties and Vice-Chair at that time determine that mediation is an appropriate alternative, that can and will be determined at that time. The matter will however be scheduled for hearing.

11If the complainant is unable to attend on September 18, 2015 and seeks to adjourn the day due to reasons of disability, that inability must be supported by appropriate and sufficient medical documentation filed with the Board. Failing the provision of appropriate and sufficient medical documentation supporting the applicant’s inability to attend, the matter may proceed in the complainant’s absence.

12This matter is hereby referred to the Registrar for purposes of issuing a Notice of Proceeding.