Worker must provide medical proof of injury after missing grievance hearing

Board refuses to dismiss grievance for disregard of proceedings

Worker must provide medical proof of injury after missing grievance hearing

An Ontario government employee should be allowed the opportunity to provide documentation supporting a medical reason for skipping a grievance hearing before dismissing her grievance, the Ontario Grievance Settlement Board has ruled.

An employee of the Ontario government filed a grievance against her employer on April 23, 2021. The hearing for the grievance was originally set for Jan. 19, 2022, but the union, the Ontario Public Service Employees’ Union (OPSEU), requested an adjournment. The provincial government consented to the request and the hearing was rescheduled to April 3, 2023.

The hearing was set to be virtual, with all parties connecting via videoconference. However, the employee didn’t show up. Neither the government nor OPSEU had been informed that the worker wasn’t going to attend and OPSEU was unable to contact her during the hearing.

The board adjourned the hearing and issued a consent order directing the worker to “provide sufficient written explanation to the parties and the board for her non-attendance” by April 13.

Worker was injured

Three days later, on April 6, the worker contacted OPSEU by email and said that she had “a full tear in the rotator tendon of my right shoulder with excruciating pain and was resting the whole day.” She also claimed that she had emailed the union late in the evening on the hearing day. The union passed the message to the board and the government’s counsel.

The worker did not provide any medical documentation supporting her absence.

The government said that the worker’s explanation was insufficient and it sought to have the grievance dismissed. It argued that the worker did not explain why he injury kept her from logging into the virtual hearing or why she was unable to communicate with OPSEU before or during the hearing. It pointed out that the worker knew that the union could have requested an adjournment, as it had already done so once. Ultimately, the worker’s conduct “displays a complete disregard for the board’s proceedings,” the government said.

The board agreed that the worker did not provide a sufficient explanation for her failure to appear at the hearing. However, she did not fail to appear or communicate previously, so it wasn’t egregious enough to show a “complete disregard” for the proceedings, the board said.

Consent order didn’t require documentation

The board also noted that the consent order it sent after the missed hearing did not explicitly require medical documentation to support the worker’s explanation, which likely led the worker to believe her email would be enough.

The board found that when an absence from a hearing involves medical issues, it generally must be substantiated with medical documentation and the worker might have anticipated that. However, it wasn’t enough to reflect a disregard for the proceedings serious enough to justify dismissing the grievance, said the boar.

The board ordered OPSEU to provide it and the employer medical documentation verifying the reasons the worker provided for her absence from the hearing, within 30 days. If the order was not fully complied with, the provincial government had the right to bring a further motion for dismissal. See Ontario Public Service Employees Union (D’Souza) v. Ontario (Ministry of the Solicitor General), 2023 CanLII 49453.

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