Nimal Dissanayake

The employer brought two preliminary motions challenging the Grievance Settlement Board's jurisdiction to hear a grievance regarding the denial of a compressed work week (CWW).

The union alleged the employer unreasonably exercised its management rights by denying the grievor a CWW while granting it to others, and alternatively claimed promissory estoppel based on a pre-employment promise.

The Board upheld the employer's first motion, finding it lacked jurisdiction to review the exercise of management rights absent an alleged violation of a substantive collective agreement right.

However, the Board denied the second motion, holding it had jurisdiction to apply the equitable doctrine of promissory estoppel to a pre-employment promise that was confirmed post-employment, as doing so would not undermine the collective agreement or the union's status.

The union filed a group grievance claiming overtime pay for 1.5 hours spent by a fire crew waiting for food and travelling to a hotel after their shift ended.

The union argued the time was work time because the crew leader had care and control of a Ministry vehicle.

The Grievance Settlement Board dismissed the grievance, finding the time was not work time as the employees were not obligated to use the vehicle or the time for the employer's benefit.

The Board also found no enforceable right to the overtime pay despite other crews receiving it due to a different manager's discretion.

The union filed group grievances on behalf of seasonal crew leaders, alleging that the employer unfairly assigned overtime work to out of district and contract fire crews while local crew members were required to take scheduled days off.

The employer argued the assignment complied with Ministry Directive No. FM:3:05, considering financial and safety factors.

The arbitrator found that the collective agreement provision relied upon by the union did not apply to seasonal employees and that there was no evidence of bad faith or unreasonable exercise of management discretion.

The grievances were denied.

The Association filed a grievance alleging the employer contravened the collective agreement by awarding a Health Care Coordinator position to an external candidate instead of the grievor, an internal candidate.

The arbitrator found the selection process was fundamentally flawed because the employer relied almost exclusively on interview and test scores, failing to consider the grievor's ten years of actual experience in the same position or to check her references.

The arbitrator declared the competition results null and void and ordered a new competition restricted to the grievor and the successful candidate.

During a grievance arbitration regarding workplace accommodation, the employer requested disclosure of a notebook kept by the grievor.

The union resisted disclosure, claiming litigation privilege because the grievor recorded the notes anticipating her grievances would proceed.

The arbitrator held that litigation privilege protects materials prepared with the dominant purpose of litigation, such as preparing a position, but does not extend to mere factual recordings of events as they occur.

Since the notebook contained factual notes of events about which the grievor had testified, it was not privileged and was ordered to be disclosed.

In the course of an arbitration, the employer sought disclosure of notes contained in the grievor's diary.

The Grievance Settlement Board ruled that any notes recording events, conversations, or interactions between the grievor and the employer about which she testified or will testify are not protected by litigation privilege.

The union was directed to disclose such notes, with unrelated information to be excluded.

During an arbitration regarding a 2005 job competition, the union sought to introduce evidence that an interview panel member made racial slurs against the grievor during a subsequent 2006 job competition.

The employer objected to this post-grievance evidence.

The Grievance Settlement Board applied the Supreme Court of Canada's test from Québec Cartier and ruled the evidence admissible.

The Board reasoned that racial bias is a state of mind, and evidence of the panel member's bias in 2006 helps shed light on whether he held a similar bias during the 2005 interview.

The union grieved the employer's decision to restrict a Conservation Officer to clerical duties and deny him his firearm and badge pending an independent medical examination (IME).

The employer argued the grievor's past behaviour, including a firearm storage incident and angry outbursts, raised safety concerns justifying the IME under the collective agreement.

The Grievance Settlement Board found that the employer lacked reasonable and probable grounds to believe the grievor was unable to perform his duties for health reasons, as the past incidents were treated as culpable misconduct rather than health issues.

The grievance was allowed, and the employer was directed to restore the grievor to full duties.

The union filed grievances on behalf of three Air Quality Analysts (AQAs) after the employer reclassified both AQAs and Water Group Leaders (WGLs) to Scientist 4, but only temporarily assigned the WGLs to Acting Geoscientist 4, resulting in higher pay for the WGLs.

The union argued this differential treatment violated the collective agreement by breaching an implied duty of reasonableness and was motivated by anti-union animus against the grievors.

The Grievance Settlement Board held that under the Weber doctrine, it lacked jurisdiction to review the exercise of management rights for reasonableness unless the action impacted an express or implied right under the collective agreement, which was not established here.

Furthermore, the Board found no evidence that the employer's decision was tainted by anti-union animus, concluding it was driven by legitimate business concerns regarding the recruitment and retention of water scientists.

The union filed a policy grievance challenging the employer's Absenteeism Control Procedures and Innocent Absenteeism Guidelines, specifically the issuance of non-disciplinary letters after a certain number of absences and the alleged failure to consider individual circumstances.

The arbitrator held that the employer is entitled to issue non-disciplinary letters to address innocent absenteeism and that a trigger of four absence incidents is permissible.

The arbitrator also found that the policy grants sufficient discretion to the employer to modify its application based on an employee's individual circumstances.

The grievance was dismissed, subject to the employer providing 90 days' notice for future changes to the policy.

The union grieved that a seasonal Fire Crew Leader should have been paid overtime rates rather than travel time rates for time spent travelling to a forest fire assignment in British Columbia outside of his regular working hours.

The employer argued that the travel was essentially responsibility-free and thus properly compensated at straight time under the collective agreement's travel time provisions.

The arbitrator reviewed the jurisprudence and concluded that the sole test for determining whether travel time constitutes work is whether the employee had actual job responsibilities during the journey.

Finding that the grievor had no such responsibilities while travelling by rented van and chartered plane, the arbitrator dismissed the grievance.

The grievor alleged that the employer contravened the collective agreement by forcing her into resignation.

Following an oral presentation of facts on consent, the Grievance Settlement Board ordered that the grievor's original seniority date be adjusted to reflect her initial start date.

No monetary compensation was awarded.

The grievor, a casual employee, filed a grievance regarding a job posting for a Product Consultant position.

The employer raised a preliminary objection that the Board lacked jurisdiction because article 31.4(b) of the collective agreement only applies to entry-level positions, and Product Consultant is not an entry-level position.

The union argued that 'entry level' referred to the wage step, not the position, and alternatively, that the employer was estopped from relying on its strict rights due to past practice.

The Board found that under the strict terms of the collective agreement, the Product Consultant position was not an entry-level position.

However, the Board held that the employer was estopped from relying on its strict rights because it had consistently permitted casual employees to compete for Product Consultant positions in the past, and the union had relied on this representation to its detriment by not raising the issue in collective bargaining.

The grievance was found to be arbitrable.

The employer moved to declare the discharge grievance abandoned after the grievor failed to attend the scheduled mediation/arbitration hearing.

The grievor had been dismissed following an investigation and criminal charges related to issuing forged OHIP cards.

The Vice-Chair issued a conditional order, stating that the grievance would be deemed abandoned unless the union provided evidence by a specified date that the grievor's absence was due to reasons beyond his control.

The union requested an adjournment of a discharge grievance arbitration because the grievor failed to attend the hearing.

The employer opposed the adjournment and moved to dismiss the grievance.

The Grievance Settlement Board noted that the grievor had been warned by union counsel that failure to attend could result in dismissal, yet failed to appear or provide an explanation.

Finding that the delay and non-attendance caused unnecessary prejudice and costs, the Board denied the adjournment and dismissed the grievance.

The grievor, a Customer Service Representative with a history of back problems, was unable to perform cashiering or stocking duties due to medical restrictions.

The employer refused to accommodate him, arguing that cashiering and stocking were essential duties of the position and that it had no obligation to bundle other duties or look outside the grievor's specific job or geographic posting area.

The Grievance Settlement Board held that the employer's view of the duty to accommodate was excessively narrow.

Applying the Meiorin test, the Board found that the employer failed to incrementally broaden its search for accommodation up to the point of undue hardship, and ordered the grievor reinstated on an accommodated basis.

The employer brought a preliminary motion arguing that the union's grievances regarding temporary assignments were in substance classification grievances, which fall outside the Grievance Settlement Board's jurisdiction.

The union alleged that the employer acted in bad faith and discriminatorily by granting temporary assignments to Water Group Leaders but not to Air Quality Analysts, partly as a reprisal for union activity.

The Board found that the union was not seeking a reclassification but rather challenging the exercise of management rights.

Because the union alleged that the employer's actions violated the collective agreement's non-discrimination clause, the Board held it had jurisdiction to hear the grievances on their merits.

The union filed a policy grievance alleging that the employer's use of a sign-up sheet to canvass for overtime violated the collective agreement.

The collective agreement required that overtime be offered to full-time employees on a rotational basis before being offered to part-time or casual employees.

The arbitrator found that the sign-up process, which offered only 'possible' overtime simultaneously to all employees and required employees to take the initiative to sign up, was inconsistent with the mandatory language of the collective agreement.

The grievance was allowed and a declaration issued that the sign-up process violated the collective agreement.

The union filed a grievance regarding the interpretation of a Memorandum of Understanding (MOU) dealing with the treatment of employees on Long Term Income Protection (LTIP) during a divestment to the Ontario Property Assessment Corporation (OPAC).

The employer argued that despite the absence of an explicit time restriction in the MOU, the parties had agreed to a one-year time limit for LTIP employees to return to work and commence employment with OPAC.

The Grievance Settlement Board found a latent ambiguity in the MOU and admitted extrinsic evidence, concluding that the mutual intention of the parties during negotiations was to impose a one-year time limit.

The Board ruled that the MOU ought to be read as containing a one-year time limit.

During an arbitration hearing, the union requested to re-open its examination-in-chief of a witness after previously indicating it had completed the examination.

The request was made to question the witness about medical documents that the employer had just produced.

The employer objected, arguing the union should have requested the documents earlier or reserved its right to continue.

The Grievance Settlement Board granted the union's request, noting that cross-examination had not yet commenced and the employer would suffer no prejudice.

The Board limited the further examination strictly to the newly produced medical documents and related circumstances.