Bram Herlich

In a grievance arbitration, the Grievance Settlement Board directed the union to provide the employer with full particulars of its claim and copies of all documents it intends to rely upon by February 3, 2012.

The Board noted that once the union complied, it could make appropriate requests for disclosure from the employer.

The hearing was scheduled to continue on April 3, 2012.

The union grieved the employer's method of assigning community escort duties, arguing the employer was obligated to canvass all correctional officers, including those who had not indicated availability for overtime, before using non-bargaining unit personnel such as police.

The arbitrator reviewed a series of provincial and local agreements.

The arbitrator held that under the local overtime protocol, the employer was required to conduct an 'all-call' before using outside resources.

However, once the Provincial Overtime Protocol was implemented, this obligation ceased, and the employer had discretion to offer overtime to employees not on the list but was not required to do so.

The union filed a policy grievance seeking retroactive compensation for unclassified employees working on the youth side of a correctional facility who were paid at a lower rate.

The parties sought a ruling through mediation-arbitration on how far back the retroactive compensation could extend for grievances filed after a prior Board award on September 7, 2010.

The employer argued for a 30-day limit prior to the grievance filing, while the union sought full retroactivity.

The Vice-Chair ruled that it would be equitable to limit any retroactive claims to the date of the Board's prior award, September 7, 2010.

Following a prior award finding the employer breached the collective agreement by failing to create and fill a Probation Officer 3 (PO3) position, the parties disputed the remedy.

The union argued that progression from PO2 to PO3 should be automatic over time, similar to the progression from PO1 to PO2.

The employer proposed to post and fill eight PO3 positions.

The arbitrator rejected the union's position, finding no basis in the collective agreement, practice, or class standards for automatic progression to PO3, and accepted the employer's proposal as compliant with the prior award.

The union filed a grievance alleging the employer violated the collective agreement by denying the grievor participation in a compressed work week pilot project, assigning him less meaningful work, and destroying his files.

The employer moved to dismiss the grievance for failing to disclose a prima facie violation.

The arbitrator granted the motion, finding that the compressed work week was a trial project the grievor had no entitlement to join, the work assignments fell within management rights, and the destruction of files did not engage collective agreement rights.

The grievance was dismissed.

The union alleged that the employer breached a settlement agreement requiring it to deliver job vacancy information to the grievor's home via courier on a weekly basis.

The grievor, who was on long-term disability and unable to return to work, sought $70,000 in damages for mental distress.

The Grievance Settlement Board found that the employer had failed to deliver the materials on 2 to 4 occasions out of over 100 deliveries, constituting a minor breach.

The Board issued a declaration of the breach but declined to award damages, finding no concrete economic loss or significant psychological harm.

The Board also declined the employer's request to be relieved of its ongoing delivery obligations, emphasizing the sanctity of settlement agreements.

The grievor, a Correctional Officer, was discharged for using excessive force on an inmate and submitting false reports.

The incident involved a 28-second cell entry where the grievor allegedly punched the inmate.

Despite conflicting testimony and the grievor's denial, video evidence and the testimony of another officer, who overcame the 'code of silence' to report the assault, supported the employer's allegations.

The arbitrator found the grievor committed a serious offence without justification and continued to obscure his misconduct.

The grievance was dismissed and the termination upheld.

The Association brought a motion to bifurcate the proceedings arising from a job competition grievance.

The Association sought to have two issues determined separately: whether the qualified complainant should have been awarded one of the unfilled permanent positions, and whether the competition was fundamentally flawed for failing to consider her previous experience.

The Employer opposed the motion, arguing it would cause substantial prejudice and that the entire selection process needed to be examined.

The Grievance Settlement Board granted the motion in part, allowing bifurcation only for the first issue, as it involved a legal/interpretive question that could likely be argued on undisputed facts without requiring a full inquiry into the selection process.

The employer brought a preliminary motion to dismiss the union's request for a 'post and fill' remedy regarding transcription work allegedly performed by non-employees.

The employer argued the remedy was barred by res judicata, issue estoppel, or abuse of process, relying on a prior Board decision involving the same parties where a similar remedial request was rejected.

The Board dismissed the motion, finding that the prior decision rejected the remedy because it was raised late in the proceedings, not because it was inherently improper.

The Board concluded there was no jurisdictional obstacle to considering the remedy if the grievance succeeded.

The Grievance Settlement Board issued a procedural direction ordering the union to provide the employer with full particulars in support of its claim within 30 days.

The parties each sought the production of documents from one another that had already been produced in a separate proceeding before the Grievance Settlement Board.

The prior production was subject to an implied undertaking that the documents only be used for the purposes of that case.

As neither party objected to the request, the Vice-Chair directed the production of the documents, effectively allowing the prior production to be used for the purposes of the instant case.

The grievor failed to attend the continuation of his grievance arbitration hearing, having also missed the previously scheduled date.

The union requested an adjournment, citing the grievor's frustration with the process and his demand that all managers and union officials involved be present.

The employer opposed the adjournment and moved to dismiss the grievance.

The Grievance Settlement Board denied the adjournment request, noting the grievor's lack of respect for the process and failure to provide a reasonable justification for his absence.

As the union could not proceed without the grievor's evidence, the grievance was dismissed.

The grievor failed to appear at the scheduled continuation of the hearing.

The union requested an adjournment, which the employer agreed to on the condition that it be peremptory on the grievor's attendance at the next scheduled hearing day.

The Board granted the adjournment, noting that the employer reserved the right to require a reasonable justification for the non-attendance and could move to dismiss the case if the grievor failed to appear again.

The union filed grievances on behalf of newly hired unclassified General Duty Officers working on the youth side of a detention centre, arguing they should be paid at the Youth Worker (YW) or Correctional Officer 2 (CO2) rate rather than the Correctional Officer 1 (CO1) rate.

The employer argued that CO1 was the appropriate rate based on an underfill policy and that the union was estopped from claiming otherwise.

The Grievance Settlement Board found that the grievors performed the same core duties as classified CO2s and YWs, and met more stringent hiring qualifications than typical COs.

The Board held that YW or CO2 was the equivalent civil service classification and rejected the employer's estoppel argument.

The union filed a grievance asserting that the position of Administrative Coordinator in the Assistant Deputy Minister's office should be included in the bargaining unit.

The employer argued the position was excluded under the Crown Employees Collective Bargaining Act because the incumbent was employed in a confidential capacity relating to labour relations and had duties constituting a conflict of interest.

The Grievance Settlement Board found that the incumbent had regular and material involvement with sensitive labour relations information and effectively authored conflict of interest responses for the Ministry.

The Board concluded the Act did not apply to the position and dismissed the grievance.

In a multi-faceted grievance arbitration, the employer sought particulars of the claims the grievor sought to advance.

The Grievance Settlement Board directed the union to provide full particulars of all aspects of the grievor's claim, excluding matters already covered by a WDHP investigation.

The union was also directed to provide copies of all documents or materials upon which it intended to rely.

The complainant, a former fixed-term unclassified contract employee, alleged the employer conducted an unfair job competition.

The employer raised a preliminary objection to the arbitrability of the dispute, arguing that as a former employee, the complainant could not advance a grievance regarding the competition.

The Grievance Settlement Board dismissed the preliminary objection, finding that the collective agreement explicitly granted former employees the right to apply for restricted competitions for 24 months after layoff.

The Board concluded this negotiated benefit created a substantive right enforceable through the grievance arbitration procedure.

The union filed a grievance alleging the employer breached a Memorandum of Settlement by failing to consider two grievors for restorative sawmill work before contracting it out.

The employer argued it contracted out the work for efficiency and timing reasons, and that considering the grievors would not have changed the outcome.

The arbitrator found the employer completely failed to consider the grievors, breaching the settlement.

As a remedy for the lost opportunity, the arbitrator awarded damages equal to 25% of the wages the grievors would have earned had they been assigned the work during periods they were not otherwise employed by the employer.

In a grievance arbitration, the employer brought a motion asserting that certain particulars provided by the union should be struck because they related to events that transpired long before the grievance was filed, or alternatively, that they failed to disclose the nature and substance of the claim.

The Grievance Settlement Board agreed that the particulars were insufficient.

The Board directed the union to provide full particulars of its claim regarding specific paragraphs, failing which those paragraphs would be struck.

The employer's argument regarding timeliness was deferred until the further particulars were provided.

In a grievance arbitration, the union provided medical reports it intended to rely upon.

The employer requested that the physician who prepared the reports be made available for cross-examination and that the physician's clinical notes and relied-upon documents be produced.

The Grievance Settlement Board directed the union to facilitate the physician's attendance and the production of the requested documents if it intended to rely on the reports.