Marilyn A. Nairn

The complainant requested that the Board vary its prior interim decision, which required him to provide more fulsome medical evidence to support his request for an adjournment and accommodation based on disability.

The complainant asserted that confidentiality issues precluded the provision of further medical evidence and requested a file review decision.

The Board dismissed the request to vary, finding no basis to reconsider its earlier decision and noting that confidentiality does not preclude providing medical documentation if consent is given.

The employer's request to dismiss the complaint in its entirety was deferred, and the complainant was directed to comply with the prior directions by the specified deadline.

The complainant requested that his grievance hearing be conducted by telephone conference due to medical reasons.

The employer objected, arguing the medical note provided was insufficient and that an in-person hearing was necessary to properly respond to the complaint.

The Board found the medical note insufficient as it did not clearly identify the basis for the complainant's inability to attend in person or how the risk of decompensation could be managed.

The Board adjourned the hearing and directed the complainant to provide a more fulsome medical report and a full statement of facts.

During a grievance arbitration regarding the termination of a Youth Officer for alleged excessive use of force, the employer sought to introduce a transcript of the youth's interview with an investigator for the truth of its contents.

The youth had been summonsed but failed to attend the hearing.

The arbitrator held that the transcript was hearsay and did not meet the Supreme Court of Canada's test for necessity and threshold reliability under Khelawon.

The transcript was ruled admissible only to show the basis of the employer's decision-making, not for the truth of its contents.

The complainant requested that a scheduled mediation be held in London, while the employer requested it be held in Toronto at the Board's offices in accordance with Practice Note #3.

The complainant argued it was unfair for the employer to insist on Toronto when employer representatives are reimbursed for travel expenses and he is not.

The Board found no basis to depart from its general rule that mediations are scheduled in Toronto unless it results in unreasonable expense and inconvenience, noting that the employer's reimbursement of its representatives is irrelevant.

The mediation was ordered to proceed in Toronto.

In an interim decision regarding a grievance arbitration for termination and discrimination, the Grievance Settlement Board ruled on procedural and production issues.

The Board ordered that the termination and discrimination grievances be heard consecutively rather than concurrently to avoid delaying the termination grievance.

The Board also ordered the employer to produce disciplinary records for specific individuals particularized by the union in support of its differential treatment claim, and directed the union to provide further particulars if additional production was sought.

The complainant requested a telephone hearing as an accommodation for a disability, asserting he was unable to attend a physical hearing in Toronto.

The employer opposed the request, noting the lack of medical documentation.

The Public Service Grievance Board denied the request for a telephone hearing, directing that the matter be scheduled in the normal course.

The Board held that any request for accommodation of its processes on the basis of disability must be supported by appropriate and sufficient medical documentation outlining the restrictions and limitations.

The Union brought a grievance on behalf of a claimant who was denied long-term income protection (LTIP) benefits by the insurer.

The claimant suffered from fibromyalgia and chronic fatigue syndrome, conditions characterized by subjective symptoms such as pain and fatigue.

The employer argued there was insufficient objective medical evidence of impairment.

The arbitrator found the claimant credible, noting her exemplary employment history and the consistency of her self-reported symptoms with the clinical assessments of her treating physicians.

The arbitrator concluded the claimant was wholly and continuously disabled from performing the essential duties of her own occupation and granted LTIP benefits for the 'own occ' period.

The issue of entitlement for the 'any occ' period was remitted to the parties.

The Association filed a grievance alleging the employer failed to directly assign or provide bumping opportunities to a surplussed employee.

The employer raised a preliminary objection, arguing the employee waived all such rights when he elected the pension bridging option to retire under Surplus Factor 80.

The Grievance Settlement Board held that the collective agreement provisions for Surplus Factor 80 and pension bridging were independent.

The employee had no rights to direct assignment or bumping during the notice period because he utilized pension bridging.

However, based on the specific communications and the employer's failure to confirm pension eligibility as required, the employee did not knowingly waive his rights to direct assignment and bumping during the pre-notice period.

The preliminary objection was upheld in part.

The union filed a job posting grievance alleging the employer violated the 'relative equality' clause in Article 6.3 of the collective agreement when it awarded a Senior Field Auditor position to a candidate with greater seniority instead of the grievor.

The grievor, classified as a TA5, argued he had more experience with complex audits than the successful candidate, who was classified as a TA4.

The Grievance Settlement Board found that the successful candidate had been performing TA5-level work and had more relevant experience in the specific area of Electricity Act audits.

The Board concluded the candidates were relatively equal, making seniority the deciding factor, and dismissed the grievance.

The union filed a grievance alleging the employer discriminated against the grievor on the basis of age, race, and place of origin when he was denied an interview for an engineering position.

The employer raised a preliminary objection to the Board's jurisdiction because the position sought was in a different bargaining unit represented by PEGO, not OPSEU.

The Board upheld the preliminary objection, finding that while it has jurisdiction to apply the Human Rights Code, that jurisdiction must be anchored to a right or discretion exercised under the OPSEU collective agreement.

Because the grievance challenged a selection process governed entirely by the PEGO collective agreement, the Board lacked jurisdiction to hear the matter.

The employer raised a preliminary objection regarding the Board's jurisdiction to entertain two grievances due to their untimely referral to arbitration.

The union argued that the Board had jurisdiction to extend the time limits based on the collective agreement, a subsequent collective agreement, or the Human Rights Code.

The Vice-Chair held that the Board lacked jurisdiction to extend time limits for untimely referrals to arbitration under the applicable collective agreement and section 48(16) of the Labour Relations Act.

The grievances were dismissed.

The union filed a grievance claiming that the cost of a psychological assessment for a member's child, which resulted in an autism diagnosis, should be reimbursed at 100% as a diagnostic procedure under the collective agreement.

The employer had reimbursed the claim under the capped provision for psychological services.

The Grievance Settlement Board found that while the assessment was a diagnostic procedure, the collective agreement and a subsequent implementation agreement intended for the cap on psychological services to apply to such procedures when performed by a psychologist.

The grievance was dismissed.

The union filed three grievances on behalf of a permanent full-time controller at the employer's logistics facility, claiming unpaid overtime and meal allowances.

The arbitrator dismissed the first overtime claim because the grievor was not at work when the overtime was distributed, as required by the collective agreement.

The second overtime claim, spanning from 2005 to 2010, was dismissed for being largely untimely and lacking particulars.

The meal allowance claim was also dismissed because the grievor failed to provide proper receipts to prove costs were incurred, instead submitting only a written assertion of grocery purchases.

The employer raised a preliminary objection arguing that the union was improperly attempting to expand the scope of a policy grievance regarding a job posting.

The union initially argued that the grievor should have been awarded the position based on seniority, but later sought to argue in the alternative that the employer exercised its discretion in an arbitrary, discriminatory, or bad faith manner.

The Grievance Settlement Board dismissed the employer's objection, finding that the union was still relying on the same collective agreement provision and that the alternative argument was inherent in the proper interpretation and application of that provision.

The union filed a policy grievance challenging the employer's posting of vacancies for a new Work Transition Specialist position, which required an undergraduate degree and the ability to acquire professional certification.

The union argued the employer violated the collective agreement and past practice by failing to consider equivalency for bargaining unit employees who lacked these formal credentials.

The Grievance Settlement Board dismissed the grievance, finding that the employer had the right to establish minimum qualifications, the requirements reasonably related to the work, and there was no evidence of bad faith.

The union filed grievances alleging the employer violated the collective agreement by refusing to adjust a casual employee's seniority date.

The grievor had resigned and been re-hired multiple times due to geographic relocations, losing her accumulated seniority each time under the rules in place.

Following recent collective agreement changes allowing province-wide postings, the grievor sought recognition of her original 1991 start date.

The arbitrator dismissed the grievances, finding the collective agreement clearly provided that casual seniority accumulates only from the most recent appointment, and the new posting rules did not apply retroactively to alter seniority calculation.

The union filed a grievance on behalf of an employee claiming her permanent full-time seniority date should include her prior service as a casual employee.

The grievance was heard through an expedited mediation-arbitration process.

The arbitrator dismissed the grievance, finding that the collective agreement clearly and unambiguously provided that a casual employee appointed to permanent staff begins employment with a fixed seniority date equal to their first day of permanent employment.

The union filed a grievance alleging the employer violated the collective agreement by failing to assign forklift work by seniority.

The employer had assigned the work to a junior employee as modified duties to accommodate a temporary disability.

The arbitrator dismissed the grievance, finding no collective agreement requirement to assign tasks by seniority and noting that the employer and union have a duty to accommodate disabled workers under the Human Rights Code, which is incorporated into the collective agreement.

The union filed a grievance asserting that clerks working in the warehouse area of the employer's logistics facility should progress between grades without needing to post to the higher grade, similar to warehouse workers.

The arbitrator dismissed the grievance, finding that while warehouse workers perform essentially the same work across grades, the clerk grades reflect different duties and skills.

Under the collective agreement, advancing to a higher grade or classification requires an employee to post to that position.

The union filed a grievance asserting that warehouse clerks at the employer's London logistics facility should progress between grades without needing to post to the higher grade, similar to the progression of warehouse workers.

The arbitrator dismissed the grievance, finding that unlike warehouse workers whose duties are essentially the same across grades, the clerk grades reflect different duties and skills.

Under the collective agreement, advancement to a higher grade or classification requires employees to post to that position.