Daniel A. Harris

The employer brought a motion arguing that the Grievance Settlement Board lacked jurisdiction to award compensatory damages to the grievor for workplace harassment and a poisoned work environment, asserting that the Workplace Safety and Insurance Board (WSIB) had exclusive jurisdiction.

The arbitrator dismissed the motion, finding that the employer's actions and inactions fell within the 'employment function bar' under s. 13(5) of the Workplace Safety and Insurance Act, 1997.

Because the WSIB had already denied benefits for the ongoing harassment on this basis, the claims were not compensable under the WSIA, leaving the GSB with jurisdiction to award damages for breaches of the collective agreement and the implied duty of care.

The Union sought damages following a merits decision that found the Employer breached the collective agreement and the Human Rights Code by failing to investigate a poisoned work environment and harassment involving racial and sexual discrimination.

The Employer argued the Grievance Settlement Board lacked jurisdiction to award mental distress damages, asserting such claims were barred by the Workplace Safety and Insurance Act.

The Arbitrator rejected this argument, finding the claims were for human rights and collective agreement breaches, not WSIA-compensable injuries.

The Arbitrator awarded the grievor $35,000 in general damages for the Employer's systemic failure to maintain a safe and respectful workplace.

The Union filed two grievances alleging that the Employer failed to provide a workplace free from discrimination and harassment.

The first grievance arose after a co-trainer produced a racialized sex toy during a training session, which the Grievor reported.

Following her report, the Grievor was subjected to a barrage of meritless occurrence reports from the co-trainer's allies, which the Employer failed to adequately investigate or address, leading to a poisoned work environment.

The second grievance alleged that the Employer failed to honor an agreement to keep the Grievor separated from the co-trainer.

The Arbitrator allowed both grievances, finding that the Employer breached the collective agreement, the Occupational Health and Safety Act, and the Human Rights Code by failing to investigate the harassment and manage the workplace.

The union grieved alleged violations of the Occupational Health and Safety Act and workplace anti-violence provisions.

At the hearing, the union withdrew its human rights and collective agreement claims without prejudice.

The union also raised the employer's ongoing failure to comply with two previous Board orders requiring the production of investigation reports, occurrence reports, and notes from a retired employee.

The arbitrator noted the employer's duty to obtain and produce the arguably relevant notes.

The union put the employer on notice that continued non-compliance would result in a request for a show cause hearing for contempt.

The Union sought a supplementary order, alleging the Employer failed to comply with a prior production order dated November 22, 2017.

The Arbitrator heard submissions and ordered the Employer to forthwith produce the complete Local Investigation Report, associated notes, notes of meetings with the grievor and the union, and any occurrence reports or complaint forms issued by staff against specific individuals.

In a job-posting grievance arbitration, the parties sought preliminary rulings on notice to incumbents and retroactive pay.

The Arbitrator ruled that successful applicants in the original competition should be given notice and party status, with certain exceptions.

On the issue of retroactive pay, the Arbitrator held that if a re-run of the job competition is ordered, any retroactivity for a successful grievor would commence from the starting date of the re-run competition, not the original competition.

The Union filed grievances regarding the calculation of compensating time for Correctional Officers who miss meal breaks while on hospital escort duty.

The Union argued that under the Memorandum of Settlement, officers on a twelve-hour shift missing two meal breaks should receive two hours of compensating time.

The Arbitrator found the language of the Memorandum unambiguous, stating that officers are entitled to one hour of compensating leave 'for the shift' regardless of its length or the number of missed breaks.

The grievances were denied.

The Union sought production of documents in a grievance alleging that a male correctional officer was harassed and assaulted by a female co-worker and her husband.

The Union requested documents relating to complaints about other incidents not involving the grievor or the co-workers to show differential treatment based on gender, as well as documents relating to other complaints against the specific co-workers.

The Arbitrator denied the first request, finding the documents were not arguably relevant and would unduly extend the proceedings.

The Arbitrator granted the second request, finding the documents were arguably relevant to the Employer's knowledge and obligation to provide a harassment-free workplace.

The Union alleged that the Employer breached a Memorandum of Settlement (MOS) regarding the grievor's use of the Short Term Sickness Plan (STSP) for a reduced work week accommodation.

The MOS stipulated that the use of STSP for this accommodation would cease.

Prior to the cut-off date, the grievor submitted a medical note recommending she remain off work for five days a week if the two-day STSP accommodation was unavailable, despite noting that occupational tasks were beneficial.

The Arbitrator found that the Employer did not breach the MOS by refusing to expand the STSP benefits to five days per week, as the MOS intended to halt the use of STSP for this purpose and the medical evidence did not support total disability.

In a grievance alleging workplace harassment, discrimination, and constructive dismissal resulting in mental health damages, the employer sought production of the grievor's medical records.

The union did not oppose the production but contested the temporal scope.

The arbitrator ordered the production of the clinical notes and records, extending the temporal scope to one year prior to the grievor's secondment to provide a baseline for assessing her mental health before, during, and after the alleged workplace changes.

In a grievance arbitration concerning a job competition, several grievors failed to attend scheduled hearing dates and failed to provide timely particulars.

The arbitrator ordered the grievors to provide specific particulars regarding their interview scores and alleged irrelevant questions by a set deadline.

The arbitrator further ordered that failure to attend the next hearing date would result in dismissal of the grievances, and failure to provide particulars would preclude calling evidence on those matters.

The employer applied to dismiss the grievance without a hearing on the basis that it disclosed no prima facie case.

The grievor, a 33-year employee, resigned after being informed that his employment would be terminated following a workplace investigation into alleged inappropriate comments.

The union grieved, seeking damages for a flawed investigation, but did not seek to undo the resignation.

The Grievance Settlement Board found that because the grievor voluntarily resigned to avoid termination and litigation, the adequacy of the investigation was irrelevant.

The grievance was dismissed as there was no case to meet.

The Employer raised a preliminary objection that the Grievance Settlement Board lacked jurisdiction to hear grievances concerning its unilateral decision to cease agreeing to compensating time off (CTO) for overtime worked.

The Employer argued that the collective agreement made CTO subject to mutual agreement, and its refusal to agree was an unreviewable exercise of management rights.

The Union argued the decision violated local agreements, past practice, and other collective agreement provisions.

The Board dismissed the Employer's preliminary objections, finding it had jurisdiction to determine whether the Employer's exercise of management rights adversely affected substantive rights under the collective agreement, and that the Union had provided sufficient particulars of its case.

The union filed a grievance claiming travel and meal expenses for the grievor's temporary assignment from June 2004 to December 2006.

The employer brought a preliminary motion to dismiss the grievance as untimely, arguing the claims should have been filed as they were incurred.

The Grievance Settlement Board applied the employer's policy directive, which required claims to be submitted by the end of the first quarter of the following fiscal year.

The Board found the claims for 2004 and 2005 were significantly out of time with no reasonable grounds for an extension.

However, the claim for 2006 was raised within the allowable timeframe.

The preliminary objection was partially granted, dismissing the 2004 and 2005 claims but allowing the 2006 claim to proceed.

The union grieved that the employer violated the collective agreement by denying correctional officers at a youth centre paid rest and meal breaks away from their direct duties.

The employer brought a preliminary application to dismiss the grievances without a hearing on the merits.

The Grievance Settlement Board found that the collective agreement provisions relied upon by the union did not require formal, paid breaks away from residents, consistent with prior jurisprudence.

The Board also found that the union's particulars failed to establish facts that would demonstrate a risk to health and safety under Article 9.

The preliminary application was allowed and the grievances were dismissed.

The union applied to consolidate two new grievances with three existing grievances already before the Board.

The existing grievances related to a letter and training opportunities, while the new grievances alleged a death threat from a supervisor and management's failure to investigate.

The Board found that the new grievances did not share common questions of fact or law with the existing ones, as they involved a discrete episode and different individuals.

The motion to consolidate was dismissed.

The Grievance Settlement Board ordered the employer to pay the grievor $6,204.78, minus statutory deductions, for outstanding vacation credits.

The parties agreed that this payment satisfied all outstanding issues regarding the implementation of their memorandum of settlement, rendering the Board functus officio.

The union filed a grievance on behalf of a Maintenance Service Person who worked overtime night shifts on Saturdays.

The grievor was paid the overtime premium but not the night shift premium.

The union argued that both premiums were payable and that this did not constitute pyramiding.

The employer argued that the collective agreement limited the night shift premium to regular hours and excluded weekend overtime hours.

The arbitrator dismissed the grievance, finding that the collective agreement defined the night shift within the context of normal hours of work, and since the weekend shifts were not regular work days, the night shift premium was not payable.

The grievor, a seasonal employee, was discharged after stealing $16,445.25 from gate receipts.

The Board previously found just cause for discipline but adjourned the hearing to allow the union to provide medical evidence regarding the grievor's capacity to participate and particulars for mitigation of the penalty.

The union failed to comply with the Board's order, citing difficulties obtaining medical reports and instructions from the grievor.

The only medical evidence provided indicated the grievor was medically unfit for gainful employment.

Given the seriousness of the thefts, the failure to comply with the order, and the lack of prospects for mitigation evidence, the Board dismissed the grievance.

The union sought to introduce three documents into evidence to prove the employer's discriminatory attitude in a grievance arbitration.

The employer objected to their admissibility.

The Grievance Settlement Board ruled that an internal culture report was admissible with weight to be determined, a prior Board decision between the parties was binding where issues were identical, and a prior Human Rights Board of Inquiry decision was not binding due to lack of issue estoppel, though portions relevant to the grievor could be admitted as narrative.