Nimal Dissanayake

The grievor filed a grievance alleging that management unfairly disciplined him by placing an inaccurate performance appraisal on his file.

The employer brought a motion arguing that the performance appraisal did not constitute discipline and therefore the Board lacked jurisdiction.

The union did not oppose the motion.

The Board held that an appraisal is only disciplinary if used to build a record against the employee, and since the employer took the position that it was not disciplinary, it could not be used as such in the future.

The grievance was dismissed as inarbitrable.

The union filed grievances challenging the employer's attendance review policy.

In a preliminary decision, the Grievance Settlement Board ordered that a separate grievance filed by another employee be heard together with the current grievances, as they involved the same parties and policy.

On the issue of jurisdiction, the Board held that it lacked jurisdiction to review the reasonableness of the employer's exercise of management rights in creating the policy, as the collective agreement did not contain an implied term requiring reasonableness.

However, the Board retained jurisdiction to determine if the policy conflicted with specific employee rights or the Human Rights Code.

The grievor was released from his position pursuant to s. 22 of the Public Service Act.

The union grieved the dismissal, arguing the grievor was no longer on probation.

The employer contended that the grievor's probation period was interrupted by a strike, relying on a Return to Work Protocol.

The arbitrator held that the Protocol did not take away the collective agreement right of classified employees to a fixed probation period that continues to run during absences.

Therefore, the grievor was no longer on probation at the time of his release.

The union alleged that the employer failed to comply with the minutes of settlement by delaying the grievor's reinstatement.

The minutes, executed on March 7, 2002, stipulated that the grievor would be reinstated the first full week following receipt of a medical note, which was February 25, 2002.

The employer argued that the delay was partly due to the union raising a pension issue, and that the retroactive date was unenforceable.

The arbitrator found that the employer executed the minutes without changing the reinstatement date, despite the union's explicit expectation of the February 25 date.

The employer was directed to amend its records to reflect the February 25 reinstatement and compensate the grievor for losses incurred until his actual reinstatement on March 18.

The grievor, a former Cabinet Office employee, was surplussed and laid off prior to the enactment of Bill 7, which excluded Cabinet Office employees from the Crown Employees Collective Bargaining Act.

He was subsequently recalled to a lower-classified position and sought assignment to a vacancy under article 18.8.1(h) of the collective agreement.

The employer denied the assignment, arguing Bill 7 removed him from the bargaining unit.

The Grievance Settlement Board held that the grievor's rights under article 18.8.1(h) vested when he was surplussed, prior to Bill 7.

Applying the presumption against interference with vested rights, the Board found Bill 7 did not deprive the grievor of his entitlement and ordered the employer to assess his qualifications for the vacancy.

In an ongoing grievance arbitration, the parties raised preliminary issues regarding document disclosure and particulars.

The employer sought complete copies of the grievor's income tax returns and particulars of bad faith allegations, which the union undertook to provide.

The union sought disclosure of reference checks from a 1994 job competition and records of discipline imposed on other employees for similar incidents.

The Vice-Chair denied the union's requests, finding them to be impermissible fishing expeditions as the union could not identify specific relevant information or comparable incidents.

The grievor filed a grievance alleging unjust discipline and a two-shift suspension.

Following mediation, the parties executed Minutes of Settlement agreeing to rescind the discipline, remove it from the grievor's file, and provide full redress for the lost wages.

The Grievance Settlement Board issued a consent order incorporating the terms of the settlement.

In a supplementary decision regarding a grievance arbitration award, the parties disputed the calculation of interest on back wages.

The employer had issued a cheque for the award but marked it as full and final payment.

The grievor refused to cash it until the employer provided assurance that cashing it would not prejudice his right to claim additional compensation.

The grievor received this assurance on January 12, 1999, but still delayed cashing the cheque until June 17, 1999, and the union claimed interest for this period.

The Grievance Settlement Board held that the employer's liability for interest ceased on January 12, 1999, as the grievor's loss of the use of the money after that date was a result of his own unjustified decision not to cash the cheque, rather than any wrongful conduct by the employer.

The Grievance Settlement Board reconvened to determine remedial issues following a finding that the employer contravened the collective agreement in laying off the grievor.

The union sought aggravated damages for bad faith and compensation for losses incurred when the grievor liquidated his RRSP and stock portfolio to cover living expenses.

The Board held it was functus officio regarding the bad faith claim, as it had already ruled on the issue in its initial award.

The Board also dismissed the claim for RRSP and stock losses, finding them too remote, not reasonably foreseeable, and speculative.

In a discharge grievance, the parties disagreed on two procedural issues regarding how the hearing should proceed, given several outstanding disciplinary grievances.

The union argued the grievances should be heard seriatim to avoid confusion, while the employer argued they should be heard together for efficiency.

The Vice Chair ruled that the balance of convenience favoured hearing the grievances seriatim.

On the second issue, the union proposed that the Board first determine whether there was a triggering culpable event justifying the discharge before hearing the full merits.

The Vice Chair agreed, ruling that the Board would initially hear evidence and argument on the sole issue of whether a triggering culpable event was required and existed.