FPSLREB Decisions

Individual grievance referred to adjudication

1 Adrienne Smid (“the grievor”) was working for the Courts Administration Service in its Toronto, Ontario, office as a support clerk (CR-04). On April 30, 2012, the deputy head terminated her employment for misconduct. On May 25, 2012, she filed a grievance against the employer’s decision to terminate her employment, alleging that it was wrongful and requesting that she be reinstated without loss of pay.

2 The employer denied the grievance at the final level of the grievance procedure, and on May 13, 2013 the grievance was referred to adjudication.

3 The grievor is a member of the Program and Administrative Services Group and as such was represented by the Public Service Alliance of Canada (PSAC) until February 3, 2014, when it withdrew its representation.

4 By letter dated May 16, 2013, the parties were advised by the registry of the Public Service Labour Relations Board (“the Board”) that the matter was tentatively scheduled for hearing from February 10 to February 14, 2014, in Ottawa, Ontario. The parties were to advise the Board by June 17, 2013, if they were not available on those proposed dates. The grievor was specifically advised that it was her responsibility to inform the Board of any change in residential address or telephone number. A copy of the Board’s letter was sent directly to the grievor at that time.

5 On June 24, 2013, the Board wrote to the parties and advised them that the hearing for this matter was confirmed for the week of February 10 to 14, 2014, in Ottawa, and that the dates were considered final.

6 On January 14, 2014, counsel for the employer wrote to the Board and requested a pre-hearing conference (PHC). Counsel for the employer confirmed that she had canvassed availability with the grievor’s representative at the PSAC and provided to the Board their mutual availability. A PHC was scheduled for January 20, 2013, at 9:00, via teleconference. The dial-in particulars were provided to the parties via email from the Board on January 15, 2014.

7 On January 20, 2013, at 9:00, I presided over the PHC teleconference. Counsel for the employer together with representatives from the employer were present, as was a representative from the PSAC, on behalf of the grievor. At the outset of the PHC, the PSAC representative advised that it had not been able to get hold of the grievor for some time and requested that it be given until Friday, January 31, 2014, to try to reach the grievor. The PSAC representative stated that if it were able to get in touch with the grievor by January 31, 2014, that would still allow him sufficient time to prepare for the hearing scheduled to start on February 10, 2014. The PSAC representative also advised that if he were not able to reach the grievor by January 31, 2014, the PSAC would be withdrawing its representation. Given the information provided, I adjourned the PHC to continue on Monday, February 3, 2014, at 9:30.

8 On February 3, 2014, at 9:30, the PHC teleconference reconvened. Counsel for the employer together with representatives of the employer were present, as was the grievor’s PSAC representative. The PSAC representative advised that he was unable to contact the grievor in the days between the PHCs. The PSAC representative stated that he had attempted to contact the grievor both in writing and by telephone and that the last time the PSAC had actual confirmed contact with the grievor was in June of 2012. The PSAC representative advised that the PSAC would be withdrawing representation of the grievor, and a letter to that effect would be forthcoming to the Board. Counsel for the employer advised that it would be seeking to have the grievance declared abandoned.

9  On February 3, 2014, the Board received correspondence from the PSAC, advising that it was withdrawing representation of the grievor. The PSAC confirmed that it had been unable to reach the grievor at the last known address and phone number it had on file, which address and phone number it provided to the Board.

10 On February 4, 2014, the Board’s registry wrote to the grievor via regular mail and priority post at the address it had on file, which was also the same address provided by the PSAC. The correspondence confirmed the hearing dates and place and advised the grievor to contact the Board.

11 The Registry Officer responsible for the file attempted to reach the grievor by telephone at the phone number on file with the Board, which was the same as the one provided by the PSAC. The Registry Officer called the telephone number on February 4, 5, 7 and 10, 2014. At no time did anyone answer the telephone.

12 On February 10, 2014, at 9:30, the hearing convened. The grievor was not present.

13 Counsel for the employer advised me that, since receiving confirmation from the PSAC that it was withdrawing its representation of the grievor, both she and her client attempted to contact the grievor at the telephone number provided by the PSAC and were unsuccessful.

14 Counsel for the employer advised me that the grievor’s address the employer had on file for her was the same one as confirmed by the PSAC and was the same address to which the employer had sent correspondence to the grievor in the past, before and after the termination of her employment, which the grievor had executed receipt of and returned to the employer.

15 Counsel for the employer moved that the grievance be dismissed as abandoned.

16 The employer argued that the grievor should have been aware of the hearing date, as she was copied on the letter sent to the parties on May 16, 2013, advising the parties that the hearing had been tentatively scheduled for February 10 through 14, 2014. The employer relied on Tshibangu v. Deputy Head (Canadian Food Inspection Agency), 2011 PSLRB 143, for the proposition that it is the grievor’s responsibility to inform the Board that the contact information it has on file is up to date. It is not the obligation of the employer or the Board to chase the grievor.

17 The grievor’s representative was aware of the hearing dates and confirmed that the PSAC had attempted to reach the grievor, to no avail. It is the obligation of the grievor to act reasonably to ensure she is informed of the progress of the grievance she has commenced. In this regard, the employer relied on Cardinal v. Deputy Head (Department of Citizenship and Immigration), 2013 PSLRB 137; Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119; and Gallan v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 19.

18 The employer pointed out that the PSAC’s last contact with the grievor, in June of 2012, predated the reference to adjudication that was made on May 13, 2013.

19 The employer also referred me to Laroque v. Treasury Board (Indian and Northern Affairs), 2004 PSSRB 117, which stands for the proposition that the Board need not hold an oral hearing to determine a matter of abandonment.

20 Finally, the employer referred me to Rupolo v. Canada, 2010 FCA 289, which stands for the proposition that once a matter is set down for a hearing, the parties must be prepared to proceed at the scheduled time or risk losing their case. The decision to grant or deny an adjournment is discretionary.

Reasons

21 The grievor was provided with notice that the hearing was tentatively scheduled for the week of February 10, 2014, by letter sent to her bargaining agent representative on May 16, 2013, which letter was also sent to her directly. On June 24, 2013, the Board wrote to the parties, confirming the hearing in this matter as being set for the week of February 10, 2014, for five days at Ottawa, commencing at 9:30. On December 23, 2013, a “Notice of Hearing” was sent to the parties confirming the exact location of the hearing, for the week of February 10, 2014, commencing at 9:30.

22 The grievor filed her grievance on May 25, 2012. The grievance form listed her address and phone number, and it is the same address and phone number that the Board has on its file, that the PSAC provided to the Board (on February 3, 2014) as the last known address and phone number it had on file, and that the employer had on its file and to which the employer could confirm it sent correspondence that the grievor confirmed receipt thereof.

23 As set out in its correspondence of May 16, 2013, it is the grievor’s responsibility to inform the Board of any change in residential address or telephone number. This is echoed in Tshibangu, at paragraphs 15 and 17, where it states as follows:

[15]… The Board’s letter of October 14, 2010, copied to the grievor, stated expressly that it was his responsibility to inform the Board of any change in address or telephone number.

…

[17]… despite the Board’s efforts to contact him, the grievor has made no attempt to contact the Board. This demonstrates no interest on his part in advancing his grievance.

24 From all the information available, there has been no change in the grievor’s address or telephone number since before the termination of her employment. It is the grievor’s responsibility to notify the Board of any change of contact information. The contact information the Board has on file is the same as that which the employer had for the grievor prior to and at the time of the termination of her employment and the same as the PSAC had at the time of the filing of the grievance and at the time of the withdrawal of its representation. There is no evidence that the grievor had moved or changed her telephone number. The PSAC representative advised that it attempted to contact the grievor at the address and phone number on file and could not reach her. The employer advised the Board that it too was unable to reach the grievor at the same contact address and phone number, and the Board’s registry also was unable to reach the grievor at the same contact address and phone number.

25 Either the grievor has moved and has failed to advise her representative and the Board of her new contact information, or she does not wish to be contacted. At a bare minimum, a grievor should respond to contact from his or her representative and the Board. It is clear, given the inability of any of the PSAC, her former employer and the Board to reach the grievor, and given that the last contact the PSAC had with the grievor predated the reference to adjudication, if the grievor were serious about advancing her grievance, she would have taken some step to apprise herself of the state of the grievance proceedings.

26 As set out in Cardinal, Cooper and Gallan, the grievor is required to act reasonably in ensuring she is kept informed of the proceeding she has commenced. At a bare minimum, a grievor should keep in touch with his or her representative, such that he or she can be contacted with critical information. This grievor has not done even the bare minimum, and as such, I consider her grievance abandoned.

27 For all of the above reasons, I make the following order:

Order

28 The grievance is dismissed.

February 28, 2014.

John G. Jaworski,
adjudicator