An arbitrator has dismissed two grievances filed by the Ontario Nurses Association (ONA) on behalf of a nurse who had been terminated by Age Care Royal Oak Long Term Care for allegedly sleeping on the job, citing the nurse’s prolonged lack of engagement with the union and the case.
Arbitrator Norm Jesin rejected the union’s request for an adjournment of the case, citing the failure of the grievor, T.M., to participate in the proceedings or maintain contact with the union for more than a year and a half.
T.M., who had been employed as a nurse at the long-term care facility, was initially suspended by the College of Nurses in the fall of 2022 and subsequently terminated by her employer on March 3, 2023. The ONA filed two grievances in response, the first concerning allegations that Maxwell had been sleeping on the job and the second, filed after her termination, claiming that she was dismissed without just cause.
Union argued depression or addiction could be behind lack of contact
However, despite the union’s continued attempts to contact Maxwell, she has not responded to any phone calls or emails since March 1, 2023, just days before her termination grievance was filed. According to the ONA, they had reached out weekly following the termination and then reduced the frequency of attempts to once a month, but there had been no response from T.M. during this time.
The union argued that T.M.’s absence and lack of communication might be due to medical reasons, such as depression or addiction. However, no medical evidence was provided to substantiate these claims. “The Association asserts that it has carriage of the grievance regardless of whether the grievor wants to proceed with the grievance. I agree. But not surprisingly, the Association is unable to proceed in the circumstances of this case without the presence of the grievor,” Arbitrator Jesin wrote in his decision.
Accusations of sleeping on the job
The situation began when T.M. was accused of sleeping during her shift, which led to an investigation. During this time, she disclosed to the union that she had been suffering from several disabilities, including post-traumatic stress disorder (PTSD) and depression. However, the employer also noted that she had failed to complete a required criminal background check. The College of Nurses suspended her license around the same time, and she has not returned to work since.
The termination grievance, which was filed by the ONA on March 8, 2023, was not signed by T.M. herself, and the union has not had any communication with her since shortly before that date. Despite the union’s attempts to maintain the grievance on T.M.’s behalf, Arbitrator Jesin noted the difficulty of proceeding without her active participation.
“Notwithstanding the able submission of Association counsel, I do not think an adjournment of the proceedings is appropriate in the circumstances of this case,” Jesin wrote.
He pointed out that the grievor had “never shown any interest in pursuing these matters” and that there was “no evidence to support that the grievor suffers from a disability that would prevent her from contacting the Association at any time in the last year and a half.”
The employer opposed the union’s request for an adjournment, arguing that the grievances should be dismissed in light of T.M.’s failure to engage. The arbitrator ultimately agreed with this stance, determining that without her involvement, the grievances could not proceed.
“For these reasons the request for an adjournment is denied,” Jesin concluded. “Given that the grievor was not present at the scheduled hearing and given the Association’s inability to proceed, it is my determination that the grievances are hereby dismissed.”
For more information, see Ontario Nurses Association v Age Care Royal Oak Long Term Care, 2024 CanLII 88968 (ON LA).
