Brian McLean

The parties convened for a grievance arbitration regarding a claim for unpaid sick time.

Following an unsuccessful mediation, the arbitrator issued procedural directions ordering the union to provide additional particulars and production of all arguably relevant material, and directing the employer to respond and raise any preliminary objections.

The grievor, a Court and Client Representative, suffered a non-work-related concussion and was off work for over two years.

Upon her return, the parties agreed to a graduated return-to-work plan.

When the grievor struggled to progress with new duties, the employer paused her hour increases and requested an Independent Medical Examination (IME).

The grievor resisted the IME for several months.

The arbitrator dismissed the grievance, finding that the employer acted in good faith, provided extensive support, and was justified in requiring the IME to understand the grievor's medical restrictions and prognosis.

The employer fully satisfied its duty to accommodate.

Three correctional officers filed grievances alleging that a senior co-worker engaged in a long-term pattern of workplace violence, bullying, and harassment, including repeatedly threatening them with a knife.

The employer investigated, substantiated the allegations, and terminated the co-worker, who then grieved his dismissal.

In this preliminary decision on the facts, the arbitrator found the complainants' evidence credible despite the delay in reporting, which was attributed to the correctional 'Code of Silence'.

The arbitrator concluded on a balance of probabilities that the co-worker did carry a knife in the institution and had threatened the grievors with it on multiple occasions.

The Union filed multiple grievances regarding employees at the Toronto South Detention Centre who were sent home without pay for failing to submit negative Covid-19 rapid antigen test results prior to their shifts.

The Arbitrator ruled that employees who failed to submit results due to their own fault are entitled to 50% of their wages for the missed shift.

Employees who can demonstrate they took the test and attempted to submit the results, but were prevented by technological issues, are entitled to 100% of their wages, subject to providing required documentation within 60 days.

The union filed a grievance on behalf of the grievor claiming wages during a period of lost income.

At mediation, the union orally advised that the grievor would withdraw the grievance.

Several days later, the grievor changed her mind and refused to sign the formal withdrawal form, seeking to pursue the grievance with new arguments.

The employer objected, arguing the oral withdrawal was a binding settlement.

The arbitrator held that the oral agreement to withdraw the grievance was binding, despite the absence of a signed form, and dismissed the union's request to proceed.

During a grievance arbitration involving multiple grievances, one grievor failed to attend the first two hearing dates without explanation.

The employer moved to dismiss his grievances.

The arbitrator declined to dismiss the grievances immediately, finding it would be unfair without giving the grievor an opportunity to explain his absence.

The arbitrator ordered that the grievor has two weeks to provide an explanation to the union, failing which his grievances will be deemed abandoned or dismissed.

The employer brought a preliminary motion to dismiss a grievance for delay, arguing it was filed outside the 30-day time limit set out in the collective agreement.

The grievance alleged the employer failed to provide sick leave credits to the grievor while she was on a graduated return to work plan.

The arbitrator dismissed the motion, finding that the failure to provide sick credits was not a single discrete decision but rather a continuing breach of the collective agreement that recurred each time the grievor worked the requisite number of days without receiving a credit.

Therefore, the grievance was timely, and any issues of delay would be addressed in the damages phase.

The union grieved the grievor's discharge.

At the hearing, the employer was unable to provide full production of video recordings it intended to rely on due to technical difficulties in transferring the files.

The union objected to the employer's failure to produce the videos and brought a motion.

The arbitrator found that the employer had not addressed the technical issue with sufficient seriousness, but granted the employer an extension until September 30, 2024, to produce the videos and other requested documents.

If the employer fails to produce the materials, a conference call will be convened to determine next steps, including whether the employer will be permitted to rely on the events recorded in the videos.

In a discharge grievance involving a correctional officer terminated for failing to conduct adequate security patrols, the Union brought a motion to preclude the Employer from leading evidence about an inmate's suicide that occurred during the grievor's shift.

The Union argued the evidence was irrelevant and prejudicial since the Employer did not allege the grievor's conduct contributed to the death.

The Arbitrator dismissed the motion, finding the evidence relevant to provide context for the investigation, the penalty imposed, and the grievor's activities, though the Employer was prohibited from leading evidence to show the grievor caused the death without formally amending the grounds for discharge.

The employer brought a preliminary motion to dismiss two union grievances related to COVID-19 workplace safety at a correctional institute for failing to disclose a prima facie case.

The first grievance alleged the employer violated the collective agreement and the Occupational Health and Safety Act by holding a staff appreciation drop-in event in March 2020.

The arbitrator dismissed this grievance, finding the union's particulars lacked facts showing the event was actually unsafe.

The second grievance alleged the employer circumvented the Joint Health and Safety Committee (JHSC) by shifting health and safety responsibilities to an employer-controlled committee.

The arbitrator dismissed the employer's motion regarding the second grievance, finding it arguable that the statutory duty to take every reasonable precaution could require scheduling more frequent JHSC meetings during a pandemic.

The union filed four grievances relating to health and safety concerns at a correctional facility during the early stages of the COVID-19 pandemic.

In each case, the union had previously sought an order from a Ministry of Labour inspector under the Occupational Health and Safety Act, but the inspector declined to make an order.

Instead of appealing the inspectors' decisions to the Ontario Labour Relations Board, the union filed grievances.

The employer brought a preliminary motion to dismiss the grievances.

The arbitrator granted the motion, finding that the grievances constituted an improper collateral attack on the inspectors' decisions and were barred by issue estoppel, as the union had chosen the statutory enforcement route and failed to exhaust its appeal rights.

The Grievance Settlement Board previously ordered that any grievors who did not respond to the Union's request for information by October 4, 2023, would have their grievances dismissed.

Several grievors failed to respond by the deadline.

Consequently, the arbitrator dismissed their respective grievances and remained seized of the remaining grievances.

In the context of a grievance arbitration, the Employer sought production of treatment records from a third-party wellness clinic, XR Wellness.

A representative of the clinic indicated they possessed the documents but required an order from the Grievance Settlement Board to produce them.

The Arbitrator ordered the clinic to produce all documentation regarding treatments provided to the grievor and another individual between July 2015 and February 2019 to counsel for the Employer.

In a grievance arbitration under the Crown Employees Collective Bargaining Act, the employer advised it had not received fulsome particulars and production from the union.

The arbitrator ordered the union to provide particulars, production, and any medical documentation by April 2, 2024, and to request production from the employer.

The employer was ordered to provide full production by May 3, 2024, and the union to provide the grievor's will-say statement by June 3, 2024.

The scheduled hearing date was adjourned.

The Grievor, a correctional officer, was discharged after an altercation with an inmate in a maximum-security unit.

The Employer alleged the Grievor used excessive force, including prohibited closed-fist strikes, and engaged in unprofessional behaviour by intentionally intimidating the inmate.

The arbitrator found the Grievor's evidence lacked credibility and preferred the testimony of other correctional officers and video evidence.

The arbitrator concluded the Grievor instigated the physical altercation by invading the inmate's personal space, threatened the inmate, and used excessive force by punching the inmate while he was restrained by other officers.

Finding no significant mitigating factors and noting the Grievor's failure to take responsibility for the most serious misconduct, the arbitrator dismissed the grievance and upheld the discharge.

The parties met to discuss the efficient litigation of a complicated policy grievance involving benefit claims and the interplay between the collective agreement and the insurer's plan documents.

The parties agreed to bifurcate individual remedial claims from the hearing on the merits and established a timeline for the employer to provide a draft agreed statement of facts and a 'will say' statement from any Canada Life witness.

The Arbitrator issued a mutual production order in a grievance proceeding.

The Employer was ordered to produce a redacted OPP Intelligence Report to the Union, and the Union was ordered to produce arguably relevant medical documentation to the Employer.

Both productions were made subject to strict confidentiality conditions, limiting disclosure to counsel and instructing advisors, restricting copying, and prohibiting use outside the proceeding.

Two nurses filed individual grievances after the Employer denied them the N3 nursing allowance for holding a degree in nursing science.

The collective agreement provides that the application of the allowance is at the discretion of management.

The Employer conceded that it did not consider the criteria set out in the collective agreement and therefore failed to appropriately exercise its discretion.

The arbitrator allowed the individual grievances and remitted the requests back to the Employer to exercise its discretion properly.

The Union filed a grievance alleging the Employer failed to accommodate the Grievor's permanent medical restrictions by not offering him a temporary or permanent Rehabilitation Officer position.

The Employer brought preliminary motions arguing the accommodation claim did not disclose a prima facie breach of the collective agreement or the Human Rights Code, and that the job posting claim was untimely.

The Arbitrator granted the Employer's motions, finding that the Grievor had already been reasonably accommodated in a temporary control module position, and that the grievance regarding the May 2018 job posting was filed out of time without compelling reasons to extend the time limits.

The Union sought production of an Investigation Report and related materials.

On consent of the parties, the arbitrator ordered the Employer to produce the documents subject to strict confidentiality conditions, including restrictions on copying, distribution, and use solely for the purposes of the arbitration.