Failure to participate in hearing made process untenable
An Ontario worker’s termination and harassment grievances have been dismissed by an arbitrator after the worker had no interest in participating in a rehearing.
The worker was a federal government employee on fixed-term employment contract under a collective agreement that required the employer to have just cause to terminate the employment of any employee.
In July 2018, the employer terminated the contract without just cause. The worker filed two grievances — one over the contract termination and one alleging that the employer harassed and discriminated against her.
The matter went to arbitration and the case proceeded with both sides presenting arguments and witnesses presenting evidence. The worker attended all of the arbitration hearings and fully participated.
However, in November 2019 the arbitrator was unable to continue. Another arbitrator was appointed and the process was restarted.
Several hearing dates were proposed over late 2019 and early 2020 and both the employer and union counsel indicated availability for them. They were unable to schedule any hearings, however, because the worker didn’t respond to requests about her availability.
On March 2, 2020, the employer asked that the arbitrator direct the union and the worker to confirm their availability for hearing dates and proposed that if they didn’t, both grievances should be dismissed. It argued that it couldn’t wait “indefinitely” for hearings to be scheduled, as the longer things took, the less credible witnesses would be due to memories deteriorating over time. In addition, a longer delay created more liability on the employer’s part for a potential award of back wages if the decision went against it.
As it turned out, the worker had also filed a claim of harassment with the Ontario Human Rights Tribunal that had been deferred pending the outcome of the arbitration case. When it was determined that the arbitration case would have to be reheard, the worker was disappointed because it would further delay her human rights claim.
The union suggested that the worker should be given “a reasonable period of time” to get advice from her legal representative in the human rights proceeding so she could decide if she wanted to pursue the grievances or focus on the tribunal case. The arbitrator agreed on March 27 to grant the worker 30 days to make her decision and stipulated that, if she elected to continue with the arbitration matter, she must co-operate with the efforts to schedule hearings.
Four weeks later, the union indicated that after telling the worker about the order, she said she was “moving forward with the [Human Rights Tribunal]” and didn’t show any willingness to participate in the rehearing. However, the union said it would not withdraw the grievances.
The employer said that it would be unfair to delay the proceedings any longer due its concerns of liability and witness credibility over time. It reiterated its request to dismiss the grievances on the basis of the worker’s refusal to participate.
The arbitrator found that the employer had “the right to have the proceeding against it determined as expeditiously as possible” and “fairness dictates that some finality be brought to this matter.” With the worker’s failure to respond to efforts to schedule rehearing dates and her statement to the union that she was moving forward with her human rights application, it had become clear that she wasn’t going to be available for or co-operate with the proceedings, making it difficult to go ahead with it, said the arbitrator in dismissing the grievances.
“Despite being given ample opportunity to participate in the rehearing of her grievances, the [worker] had clearly chosen not to do so,” said the arbitrator. “Allowing this matter to continue in the face of the [worker’s] ongoing refusal to participate in the hearing process would result in an abuse of process.”
Reference: OPSEU and Ontario (Ministry of the Solicitor General). Sheri Price — arbitrator. Peter Dailleboust for employer. Ed Holmes for employee. Oct. 19, 2020. 2020 CarswellOnt 15636