PSGB#P-2014-4875

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT OF ONTARIO

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

October 22, October 26, October 28, 2015

Decision

1The Board issued an interim decision dated April 17, 2015 with respect to this matter. A hearing date was scheduled for September 18, 2015. The complainant was advised in that interim decision that any asserted inability to attend and consequent request to adjourn that day due to reasons of disability must be supported by appropriate and sufficient medical documentation. On September 10, 2015, the complainant e-mailed a scanned copy of a medical note dated September 9, 2015, asking to be advised of “the next step”.

2By decision dated September 17, 2015 the Board found that the medical note provided was insufficient to support any claim that the complainant was unable to attend the hearing on September 18, 2015. However, and notwithstanding that finding, the Board adjourned the scheduled hearing date of September 18, 2015. In an effort to ensure that the complainant understood his obligations in the context of pursuing his complaint the decision of September 17, 2015 reviewed the process and the nature of the medical evidence required in order to support any request for accommodation based on disability. That decision concluded:

11This matter will therefore proceed as follows. I hereby direct that:

1. The complainant provide the Board with a more fulsome medical report that addresses the concerns raised in this decision and the direction provided in the decision dated April 17, 2015. Any further medical report must include an indication from that medical practitioner that they have been provided with and have read this Board decision and the Board’s decision dated April 17, 2015. Absent such report the Board will not be in a position to properly consider any request for accommodation.

2. The complainant provide to the Board, in writing, a full statement of the asserted facts on which he intends to rely in pursuit of his complaint. This is to include the detail as to the “who, what, where, and when” of any issue he seeks to raise. In addition, he is to provide a clear statement as to the remedy that he is seeking, that is, what is he asking the Board to order should it uphold his complaint. The complainant should understand that the Board expects, as a result, to be in a position to be able to ascertain the extent of any factual dispute between the parties.

12The complainant will have until 5:00pm on Friday, November 20, 2015 to comply with both directions outlined above.

3By e-mail dated October 22, 2015 the complainant asks that the Board “vary/change their decision of Sept. 17, 2015”. The basis for this request is not entirely clear but appears to relate to an assertion that the treating specialist has seen the prior decisions and has concluded that her note of September 9, 2015 is sufficient, and further, that confidentiality issues preclude the provision of further medical evidence. The complainant then again describes why, in his view, he cannot attend a hearing and asks that the Board make a “file review decision based on the evidence already submitted on at least the issue of my correct WIN status”.

4There is subsequent reference in the e-mail to two medical notes as being attached. However, only one was provided. That is a note dated June 22, 2015 from a different medical practitioner than the specialist who subsequently provided the note dated September 9, 2015. There is nothing in the June, 2015 medical note that would change or alleviate the Board’s concerns regarding the insufficiency of the medical evidence being tendered in support of any inability to attend and/or participate in these proceedings in the normal course.

5Whether or not the specialist has seen the prior decisions, it is the complainant’s responsibility to ensure that sufficient and appropriate medical evidence be provided in support of any request for accommodation. I note that no issue of confidentiality precludes the provision of such medical documentation provided the complainant provides the appropriate consent. Absent such consent, the complainant places himself in the position of being unable to provide the necessary evidence from which this Board may make a determination as to any request for accommodation of the hearing process.

6Even assuming (without finding) that the Board has any ability to reconsider an earlier decision, there is no basis for doing so here. The complainant merely repeats his own assertion of an inability to attend a hearing and appears to be ignoring the Board’s earlier explanation as to what is required in order for it to be able to properly address any request to accommodate the hearing process based on disability.

7I note too that, although the complainant reiterated various remedial requests in his latest e-mail, there is little in the way of particulars, that is, the factual basis on which he asserts he is entitled to any of these remedial requests. Nor does the complainant indicate why asserted actions of the employer are allegedly improper - as opposed to merely asserting that the employer took certain actions, for example, surplussing his employment in 2012; placing him on “discretionary leave without pay” rather than “sick leave without pay”; or requiring him to provide more fulsome medical evidence in support of his leave of absence from work.

8The employer asks that this complaint be dismissed in its entirety at this stage. I defer consideration of that request. The complainant remains subject to both directions set out at paragraphs 11 and 12 of the decision of September 17, 2015 and cited above. The complainant has until November 20, 2015 to comply.