PSGB# P-2017-3148

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Scaduto

Complainant

• and -

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

Employer

BEFORE: Brendan Morgan, Vice-Chair

FOR THE COMPLAINANT: John Hasted

FOR THE EMPLOYER: Andrew Lynes, Treasury Board Secretariat, Legal Services Branch, Counsel

HEARING: October 25, 2018

DECISION

A. Background

1The Complainant, Ms. Magdalena Scaduto, filed a Form 1 Application with the Board on January 18, 2018. The complaint alleged that the Employer had failed to provide the Complainant with a 4% merit increase.

2The Board assigned File Number P-2017-3148 to the complaint of Ms. Scaduto.

3In her Form 1 Application the Complainant advised the Board that her representative in this matter would be Mr. John Hasted. Mr. Hasted's contact information, including his personal mailing and email addresses were included in the Complainant's Form 1.

4On January 24, 2018, the Board combined the complaint of Ms. Scaduto with those of Mr. Adam Lewis, Board File Number P-2017-3147 and Ms. Anita Mastracci, Board File Number P-2017-3149. The Form 1 Application's disclosed that all of the Complainants' were employed at the Employer's Vanier Centre for Women at the time their complaints were filed with the Board.

5In exercising the authority provided to the Board under Section 13 (1) and (2) of Regulation 378/07 the Board noted that the three complaints appeared to raise similar facts of law and policy. In addition, all three Complainants' Form 1 Applications informed the Board that they would be represented throughout the Board's proceedings by Mr. John Hasted.

6The parties agreed to enter into a mediation session at the Board's offices on May 11, 2018. As a result a 'Notice of Proceeding' was forwarded to the Employer and the Complainant's representative Mr. Hasted, on January 29, 2018.

7This mediation session was subsequently adjourned due to the unavailability of the Complainant's Representative, Mr. Hasted.

MEDIATION SESSION

8A subsequent mediation was scheduled for October 25, 2018 at the Board's offices. Once again the Employer and the Complainants' representative Mr. Hasted were notified of the date and time of the meeting via a 'Notice of Proceeding' issued by the Board.

9At the October 25, 2018 mediation session only Mr. Lewis, Board File Number P-2017-3147 attended. Mr. Lewis advised the Board that he only became aware of the timing of the mediation session through a supervisor at his workplace. Mr. Lewis advised the Board that he had not received any notice from Mr. Hasted as to the date for or location of the mediation session.

10Mr. Lewis's complaint was subsequently resolved on December 11, 2018.

11Ms. Scaduto did not attend the October 25, 2018 mediation session by 10:00 a.m. and she did not appear after the matter had been set down for at least thirty minutes. She did not contact the Board's offices or Counsel for the Employer to provide a reason for her non-attendance.

12The Complainants' representative, Mr. Hasted, did not attend the October 25, 2018 mediation session by 10:00 a.m. and did not appear after the matter had been set down for at least thirty minutes. He did not contact the Board's offices or Counsel for the Employer to provide a reason for his non-attendance.

13Neither the Complainant nor Mr. Hasted contacted the Board or Counsel for the Employer before or during the course of the hearing to request an adjournment of the mediation session.

14The Board's Rule 15 states that:

"Where any person properly served with a Notice of Hearing fails to attend the scheduled hearing, the Board may proceed to dispose of the complaint in the person's absence and without further notice."

15The Complainant's situation before the Board is complicated by the fact that she had advised the Board that Mr. Hasted would be representing her in the proceedings before the Board. As noted above in paragraphs [3] and [5], above, the Complainant had in her Form 1 Application provided the Board with Mr. Hasted's personal mailing and email address.

16Further, Mr. Hasted had been advised by the Board of the dates of the mediation at the Board's offices. He had not written or otherwise communicated with the Board that he would not be attending or that he otherwise required an adjournment of the scheduled proceedings.

17At this time the Board is unable to definitively determine if the Complainant was aware of the scheduled mediation session of October 2018. I am not inclined to dismiss her complaint without giving her an opportunity to provide an explanation for her failure to attend at the October 25, 2018, mediation session at the Board.

18Therefore, I hereby direct the Complainant, Ms. Scaduto, to provide a written explanation to the Board by no later than January 28, 2019, setting out the reasons for her non-attendance at the Board's scheduled mediation session of October 25, 2018, and, further, whether she wishes to continue with her complaint with or without representation.

19Should the Complainant not respond to the Board by January 28, 2019, the Board may ultimately decide to dismiss her complaint without further notice.

20Should the Board determine that the Complainant's reasons for her non-attendance are insufficient or she advises the Board that she no longer wishes to proceed with her complaint the Board may dismiss the complaint without further notice.