Ken Petryshen

The union filed grievances alleging that the employer contravened the overtime provision of the collective agreement by not including attendance credits in the calculation of overtime for unclassified correctional officers.

The union argued that an employee using an attendance credit for a sick day should be treated as having worked that day for the purpose of reaching the weekly overtime threshold.

The arbitrator dismissed the grievances, finding that the collective agreement required unclassified employees to actually perform work to meet the overtime threshold, and that the use of attendance credits provided income protection only, not deemed hours worked for overtime purposes.

The Employer sought an adjournment of a scheduled grievance hearing date because its advisor was summonsed to attend a criminal proceeding on that day.

The Union opposed the adjournment.

Following a conference call, the Grievance Settlement Board granted the Employer's request to adjourn the hearing date and scheduled an additional hearing day.

The grievor alleged that the Employer reneged on an oral term of a grievance settlement negotiated on November 26, 2002, which allegedly guaranteed him an interview for a Maintenance Mechanic position.

The written Memorandum of Settlement did not contain any reference to an interview.

The Grievance Settlement Board found that the Union failed to establish on a balance of probabilities that the parties were ad idem regarding the interview.

The grievance was dismissed.

The union filed a grievance alleging the employer breached a prior settlement agreement by failing to interview the grievor for a Maintenance Mechanic position.

The union sought an order requiring the employer to interview the grievor, a process ultimately designed to secure the position for him.

The arbitrator held that the successful applicant for the position was entitled to third party notice of the hearing, as his rights under the collective agreement could be affected.

In the context of discharge and other grievances filed by the grievor, the Union sought disclosure of documentation recording medication dispensed to a particular inmate.

The Grievance Settlement Board found the documents arguably relevant and directed the Employer to provide them to Union counsel, subject to the condition that they be used only for purposes related to the hearing.

In a grievance arbitration concerning the termination of four correctional officers, the union brought a motion for the production of material contained within a youth offender's file relating to a specific incident.

The employer did not dispute that the requested material was arguably relevant.

The Grievance Settlement Board granted the motion and ordered the employer to produce the material, with the youth offender's name redacted.

The Union filed a policy grievance arguing that under the collective agreement and the Employment Standards Act, 2000, an employee is entitled to split their parental leave into multiple periods, provided the total does not exceed the maximum statutory entitlement.

The Employer maintained that parental leave must be taken in one continuous period and is exhausted once the employee returns to work.

The Grievance Settlement Board dismissed the grievance, finding that the statutory language and scheme of the ESA contemplate a single, continuous parental leave of absence.

Consequently, an employee who returns to work before exhausting their full entitlement cannot take a second period of parental leave with top-up benefits.

The union filed a grievance alleging the employer reneged on an oral agreement to grant the grievor a job interview, which was allegedly reached during a grievance meeting.

The employer brought a preliminary motion to dismiss the grievance, arguing that the subsequent written Memorandum of Settlement did not contain this term and constituted the entire agreement.

The Grievance Settlement Board dismissed the employer's motion, holding that while written settlements are generally sacrosanct, circumstances may exist where a written agreement does not reflect the complete mutual agreement of the parties.

The Board directed that evidence regarding the alleged oral agreement be heard.

The Employer raised a preliminary objection that three grievances filed in 1992 should be dismissed based on laches or undue delay.

The Union argued that the proceeding should not be bifurcated and that the laches issue should be deferred until the merits are heard to better assess prejudice.

The Vice-Chair concluded that the appropriate approach was to reserve on the laches issue and hear the merits of the grievances, directing the Registrar to schedule the matter accordingly.

The Union alleged that the Employer contravened a Memorandum of Settlement by failing to provide the grievor with a classified meat inspector position closer to his residence.

The grievor had secured a classified position in another region through a competitive process but preferred to work closer to home.

The Employer offered him an unclassified position in his preferred region, which he declined due to concerns about sufficient hours.

The Grievance Settlement Board dismissed the grievance, finding that the Employer was not obligated to create a classified position in the preferred region and that its decision to use two unclassified positions was based on reasonable operational considerations.

The Board also found no bad faith or misleading conduct by the Employer regarding the potential for additional hours in the unclassified position.

The Grievance Settlement Board issued a direction regarding the placement of the grievor at the Brookside Youth Centre.

The Board directed the grievor to attend MSA training and, upon successful completion, commence duties as a Youth Services Officer starting with two weeks of orientation.

At a preliminary hearing for three grievances raising pension issues, the Employer requested particulars.

The Union consented, and the Board ordered the Union to provide written particulars of the remedies sought and the facts relied upon.

Additionally, an individual grievor attended with independent counsel.

The Board ruled that the Union has carriage of the grievances and the individual grievor does not have the right to be represented by independent counsel.

During a conference call, the employer requested an adjournment of a scheduled hearing, citing difficulties in receiving the notice of proceeding and the unavailability of their advisor.

The union opposed the request.

The Vice-Chair granted the adjournment and rescheduled the hearing.

The grievor, a Correctional Officer with asthma requiring a smoke-free workplace, was previously determined to be appropriately accommodated at the Brookside Youth Centre.

However, no vacancies existed.

Following the closure of other facilities, positions were transferred to Brookside, leaving one unfilled.

The Union sought to have the grievor placed in this unfilled position.

The Employer argued that the position was unfunded and that it had no obligation to create a job.

The Grievance Settlement Board held that placing the grievor in the unfilled transferred position did not amount to creating a new position and would not cause the Employer undue hardship.

The Employer was directed to place the grievor in the position.

The Grievance Settlement Board previously determined that the grievor, a Correctional Officer with asthma and sensitivity to cigarette smoke, should be placed at the Brookside Youth Centre to accommodate his medical needs.

Following the transfer of several positions to Brookside, one position remained unfilled.

The Union argued the grievor should be placed in this unfilled position, while the Employer opposed.

The Vice-Chair concluded that placing the grievor in the unfilled position was consistent with the Employer's duty to accommodate and did not constitute undue hardship.

In a grievance alleging the Employer contravened the management rights provision by not providing certain training to a pilot, the Employer requested particulars.

The Grievance Settlement Board directed the Union to provide the requested particulars to the Employer.

During a grievance arbitration concerning the discharge of six employees for inappropriate use of the employer's e-mail system, the employer sought to call reply evidence to contradict the testimony of a union witness and challenge his credibility.

The union objected on the basis that the employer failed to cross-examine the witness on those points, violating the rule in Browne v. Dunn.

The Grievance Settlement Board upheld the union's objection, finding it would be unfair to the witness and the union to permit the reply evidence when the employer did not comply with the rule in Browne v. Dunn and provided no justification for the failure.

The grievor, who has asthma, had been accommodated with steady day shifts for many years.

The employer sought to have the grievor try shift work and presented expert medical evidence indicating that the only way to determine if the grievor could tolerate shift work was to have him try it.

The union relied on past medical notes but did not call medical witnesses.

The arbitrator accepted the employer's expert evidence and concluded that the grievor should try shift work, subject to further medical review if it adversely affected his condition.

The Union brought a motion requesting that the Employer be directed to canvass certain employees about their interest in transferring to the Toronto East Detention Centre.

This was to facilitate the placement of the grievor, who required accommodation at the Brookside Youth Centre due to asthma and smoke sensitivity.

The Employer argued this was an unreasonable burden.

The Vice-Chair granted the motion, finding the request reasonable and consistent with the Employer's duty to accommodate.

The Union filed a policy grievance alleging the Employer failed to implement the 2002 collective agreements and pay retroactive wage adjustments 'as soon as reasonably possible' after ratification.

The Employer argued the delay until October 10, 2002, was reasonable given the complexity of the system changes required for the new Unified bargaining unit and numerous special adjustments.

The Grievance Settlement Board found that the Employer dedicated significant resources to the implementation and that the time taken was reasonable under the circumstances.

The grievance was dismissed.