Nimal Dissanayake

During a grievance hearing alleging harassment and discrimination by a manager, the union sought to call another employee to provide similar fact evidence regarding the manager's interference with decision-making authority.

The employer objected.

The Grievance Settlement Board ruled the evidence inadmissible, finding that it raised unparticularized allegations that would prejudice the employer and unduly prolong the hearing.

The Board also held that the proposed similar fact evidence lacked relevance beyond showing propensity, and its admission would inappropriately require the Board to make findings of fact on un-grieved allegations concerning another employee.

During a mediation-arbitration process concerning a grievance for unpaid stand-by time, the employer requested an order that the union provide particulars regarding the factual basis of the grievance.

The union did not oppose the request.

The Grievance Settlement Board ordered the union to provide the requested particulars in writing.

The grievor filed two grievances claiming his continuous service date was incorrectly calculated and that he was entitled to buy back pension credits for the period 1964 to 1971 with the employer sharing the cost.

The employer argued the grievances were inarbitrable due to extreme delay, as the grievor sought to remedy alleged mistakes from the 1960s and 1970s.

The Grievance Settlement Board found the explanation for the delay insufficient to extend the mandatory time limits.

The grievances were dismissed as untimely and inarbitrable.

The union filed a grievance alleging the employer failed to provide a safe workplace free from harassment and discrimination.

The employer brought a preliminary motion to dismiss the grievance as inarbitrable because it was referred to arbitration outside the mandatory time limits set out in the collective agreement.

The Grievance Settlement Board found that the grievance was clearly outside the mandatory time limits and that it lacked jurisdiction to extend the time limits under section 48(16) of the Labour Relations Act.

The grievance was dismissed as untimely.

The union grieved the results of several job competitions for Worker Adviser positions, alleging the employer violated article 6.3 of the collective agreement by relying exclusively on interview scores and failing to consider the internal candidates' past performance and qualifications.

The Grievance Settlement Board found the selection process fundamentally flawed because the employer failed to review personnel files, performance evaluations, or resumes beyond initial screening.

The Board ordered the retroactive appointment of two grievors who demonstrated they were relatively equal or met the minimum qualifications, and ordered the competitions to be re-run for the other two grievors.

The union filed a group grievance alleging that the employer violated the collective agreement by failing to pay acting pay to Investigators (FO5) who were assigned files with a tax value exceeding $25,000, which the union claimed were duties of the higher-classified Senior Investigator (AFA20) position.

At the conclusion of the union's case, the employer brought a non-suit motion.

The Grievance Settlement Board applied the 'sufficient evidence' standard and upheld the non-suit motion, finding that the union failed to establish a prima facie case.

The Board concluded that the work performed was not outside the scope of the FO5 position and, even if it were, the grievors did not perform all the core or significant duties of the AFA20 position, such as leadership, training, and mentoring.

The union brought a motion alleging that the employer's particulars did not establish a prima facie case justifying its failure to comply with a prior Board order and Minutes of Settlement requiring the grievor to be returned to full duties as a Conservation Officer.

The employer argued it had justifiable grounds, citing the need for training, alleged inappropriate conduct, and health and safety concerns raised by co-workers.

The Grievance Settlement Board found that the employer could not unilaterally impose new conditions for the return to work and that subsequent events did not justify non-compliance with the legal obligation to restore the grievor to full duties.

The motion was granted, and the employer was directed to restore the grievor to full duties.

The employer brought a motion to dismiss the grievance on the basis that the particulars provided by the union did not disclose a prima facie violation of the collective agreement or the Human Rights Code.

The motion was brought after the union had commenced its case and its first witness was testifying.

The Grievance Settlement Board dismissed the motion as untimely, finding that a motion based on inadequate particulars must be brought prior to the commencement of the union's evidence, while a non-suit motion can only be brought after the union has closed its case.

The Union claimed the Employer contravened a prior Board direction and Minutes of Settlement by failing to restore the grievor to full duties as a conservation officer.

The Employer argued the prior Board direction was supplanted by the Minutes of Settlement, which did not explicitly require a return to full duties.

The Board determined as a preliminary jurisdictional issue that the prior direction to return the grievor to full duties remained in effect, subject to the terms of the Minutes of Settlement, as there was no clear agreement to override the Board's order.

The Union claimed the employer contravened a previous Board direction and subsequent Minutes of Settlement by failing to restore the grievor to full duties as a conservation officer.

The employer argued the previous Board direction was supplanted by the Minutes of Settlement, which did not include an obligation to restore full duties.

The Board found that the Minutes of Settlement did not amend or substitute the previous direction, but rather set out the terms for its implementation.

The Board ruled its previous direction remains in effect subject to the settlement terms.

The union filed a grievance alleging that the employer contravened the collective agreement by paying overtime to unclassified hosts under article 31.A.3.1(d) rather than sub-article (c).

The issue was whether the unclassified hosts had 'regularly scheduled work days'.

The Grievance Settlement Board found that while schedules were posted in advance, the actual hours worked varied significantly due to unpredictable operational needs, such as after-hours events and extended opening hours.

Consequently, the employees did not work regularly scheduled days on an ongoing and consistent basis.

The grievance was dismissed, affirming the employer's application of sub-article (d).

The union sought an extension of time limits under s. 48(16) of the Labour Relations Act to file a grievance alleging the employer's conduct contributed to the grievor's alcoholism and depression.

The grievance was filed over two years late.

The union argued the grievor lacked the mental capacity to file earlier due to his illness.

The arbitrator rejected the medical opinion supporting incapacity, finding it inconsistent with the grievor's actions during the delay period, such as filing other grievances and writing a detailed letter to his insurer.

Finding no reasonable explanation for the extreme delay, the arbitrator declined to extend the time limits and dismissed the grievance as inarbitrable.

In an interim decision regarding a discharge grievance, the employer raised a preliminary objection that the Grievance Settlement Board lacked jurisdiction to extend the time limits for referring the grievance to arbitration.

The union argued that section 48(16) of the Labour Relations Act permitted the extension.

The Vice-Chair analyzed the collective agreement's language and structure, concluding that the referral to arbitration was distinct from the grievance procedure.

Consequently, following established jurisprudence, the Board held it had no jurisdiction under section 48(16) to extend the time limits for referral to arbitration, and upheld the employer's objection.

The union requested a hearing to direct the employer to withdraw a request for medical information from the grievor's physician.

The employer objected to the Board's jurisdiction, arguing that the request was based on new performance issues that arose after the Board's previous order restoring the grievor to full duties.

The Board upheld the employer's objection, finding that it lacked continuing jurisdiction over new management decisions affecting the grievor, except as they related to compliance with the earlier order.

The union's request was dismissed.

The Association filed a policy grievance alleging that the employer contravened the collective agreement by requiring ministry specific knowledge when matching surplussed employees for direct assignment to vacant positions.

The Association argued that such requirements constituted unacceptable employment barriers inconsistent with the 'entry level qualifications' standard.

The Grievance Settlement Board dismissed the policy grievance, finding that while ministry specific knowledge generally appears inconsistent with the requirement to recognize transferable skills, it could not conclude that such knowledge could never be a legitimate entry level qualification for any position.

The Board held that such determinations must be made on a case-by-case basis with evidence regarding the specific duties and responsibilities of the position in question.

The employer brought a motion to dismiss the union's grievance on the basis that it did not disclose a prima facie case.

The grievance alleged that the employer discriminated against and harassed the grievor by including her name in a list of employees to be interviewed during an investigation into an offensive workplace email, allegedly in retaliation for grievances she had filed 17 years prior.

The Grievance Settlement Board found no evidence that the employer's actions were discriminatory or harassing, noting that the employer was obligated to investigate the email and did so without disparaging the grievor.

The motion was granted and the grievance was dismissed.

The grievor, an Employment Training Consultant, filed a grievance alleging the employer contravened the collective agreement by denying 8 days of his 33-day summer vacation request.

The employer denied the 8 days because they overlapped with the vacation request of the only other bilingual consultant in the office, raising concerns about maintaining adequate client service.

The Grievance Settlement Board dismissed the grievance, finding that the manager's decision was not based on a rigid policy but was a genuine exercise of discretion that reasonably balanced the operational needs of the office with the employees' interests.

The union filed a grievance alleging the employer failed to provide a healthy and safe workplace, contributing to the grievor's alcohol abuse and depression.

The employer raised preliminary objections that the grievance was untimely and barred by prior settlements of similar grievances.

The union argued that the time limits should be extended under s. 48(16) of the Labour Relations Act and the prior settlements reopened because the grievor lacked the mental capacity to appreciate the connection between the workplace stressors and his illness at the time.

The Vice-Chair held that there was insufficient evidence to rule on the preliminary objections and directed that further medical evidence and submissions be heard before determining arbitrability.

The grievor, a Conservation Officer, requested a lateral transfer to a vacant identical position in Vineland to assist his aging parents.

The employer denied the request, concluding it was not based on strong compassionate grounds and citing the grievor's past performance issues.

The Grievance Settlement Board allowed the grievance, finding that the employer failed to reasonably consider the request as required by the collective agreement and lateral transfer policy.

The Board held that the employer unreasonably relied on vague assumptions about the parents' health without seeking clarification, and improperly considered irrelevant performance issues when the grievor was already qualified for the identical position.

The employer was ordered to grant the lateral transfer.

The grievor, a return-to-work mediator at the WSIB, requested an unpaid leave of absence to accept a six-month secondment as an Employer Specialist at the Office of the Employer Advisor.

The employer denied the request, citing concerns about a reasonable apprehension of bias upon his return and potential service disruption.

The Grievance Settlement Board found that the employer's exercise of discretion was unreasonable, as it relied on subjective opinions without gathering objective evidence and failed to properly balance the employer's operational needs with the employee's developmental opportunities as required by its own policy.

The grievance was allowed.