Nimal Dissanayake

During a hearing on an employer's preliminary motion to dismiss 31 consolidated grievances, the parties agreed to consolidate five additional newly discovered grievances.

The employer objected to the union providing particulars for the new grievances, arguing it was too late and prejudicial as the employer had already commenced its submissions on the motion.

The Arbitrator held that the union was entitled to provide particulars for the new grievances, as the employer's prior submissions related only to the original grievances and the employer would not be prejudiced.

The union was ordered to provide the particulars by a specified date.

The employer requested a case management conference call after the union failed to provide written particulars by the previously agreed-upon deadline.

The employer sought an order compelling the union to provide the particulars by September 29, 2023, failing which it would seek dismissal of the grievance.

The union explained the delay and did not object to the requested order.

The arbitrator ordered the union to provide its particulars by the requested date.

Three correctional officers grieved the employer's refusal to indemnify their legal costs incurred in defending criminal charges of aggravated assault arising from a use of force incident against an inmate.

The criminal charges were withdrawn.

The employer argued the officers were not entitled to indemnification because they engaged in 'code of silence' behaviour following the incident, demonstrating bad faith.

The Grievance Settlement Board allowed the grievance, finding that under Article COR 14.1.2 of the collective agreement, the requirement of good faith applies only to the acts that led to the criminal charges.

Since the employer's own investigation concluded the force used was justified and reasonable, the good faith condition was met.

Following unsuccessful mediation, the parties agreed on timelines for production pursuant to a prior Board order.

The Grievance Settlement Board issued a consent order setting out the deadlines for the employer's production, the union's requests for further production, dispute resolution, and the filing of a chart of incidents.

The Grievance Settlement Board issued a consent order directing the Employer to produce an Investigation Report, appendices, and non-privileged materials to the Union.

The production was subject to strict confidentiality conditions, including restrictions on copying, forwarding, and use of the documents solely for the purpose of the arbitration.

The employer brought a motion seeking a declaration that a grievance was fully and finally resolved.

Following mediation, the union and employer had agreed to terms of settlement and signed the Minutes of Settlement.

The grievor initially agreed but subsequently refused to sign the document.

The arbitrator held that the union has carriage rights of the grievance and the union's representative has the authority to bind both the union and the grievor.

The grievance was declared fully resolved and binding on all parties.

The employer brought a motion to determine whether its jurisdictional objection (a Monk motion) regarding the Board's authority to award monetary remedies for a workplace assault should be heard as a preliminary issue.

The union argued the motion should be deferred until after the merits of the grievance were decided.

The Arbitrator held that, absent agreement between the parties, the timing of a Monk motion must be determined on a case-by-case basis considering efficiency and labour relations principles.

Finding no efficiency in hearing the motion preliminarily, the Arbitrator deferred the Monk motion to the end of the hearing.

The employer brought a preliminary motion objecting to the Grievance Settlement Board's jurisdiction to hear two group grievances alleging harassment.

The employer argued that the union referred the grievances to arbitration prematurely, before the employer had the opportunity to hold a Formal Resolution Stage (FRS) meeting and issue a decision.

The arbitrator found that the employer failed to hold the mandatory FRS meeting within the 15-day time limit specified in the collective agreement.

Relying on prior Board jurisprudence, the arbitrator held that the employer's failure to hold the meeting within the mandatory time limit meant the grievance procedure had ended without a settlement, triggering the union's right to refer the grievances to arbitration.

The employer's preliminary motion was dismissed.

The parties jointly requested a consent order for the production of an investigation report and related materials in a discharge grievance.

The arbitrator granted the request and ordered the employer to produce the documents subject to agreed-upon confidentiality and use conditions.

The parties made submissions regarding the process for a timely and efficient hearing of seven grievances filed by the grievor.

The Arbitrator issued a procedural order setting out a schedule for the exchange of written requests for particulars, production of documents, and notification of preliminary objections.

The union filed individual grievances on behalf of 14 Court Reporters claiming kilometre rates, travel time, and meal allowance for a period when their workplace was temporarily relocated from Milton to Burlington due to health and safety concerns.

The union relied on travel reports of one grievor showing such payments were made.

The employer clarified that those payments were made because the grievor was required to travel from the Burlington workplace to other locations to perform assigned work, not for commuting from home to the headquarters.

The arbitrator accepted the employer's explanation, finding no violation of the collective agreement, and dismissed the grievances.

The union filed a policy grievance alleging that the employer violated the collective agreement by temporarily relocating employees to alternate work sites 22 kilometres away due to mould remediation at their permanent headquarters, without providing travel time or meal allowances.

The employer brought a preliminary motion to dismiss the grievance for failing to disclose a prima facie case.

The Grievance Settlement Board granted the motion, finding that under the collective agreement, a change in headquarters and entitlement to associated benefits requires a relocation of at least 40 kilometres.

As the temporary relocation was only 22 kilometres, the asserted facts could not support a violation of the collective agreement.

In a job competition grievance, the parties requested a procedural order regarding disclosure.

The Arbitrator ordered the Employer to produce the applications, interview records, and appraisals of the top eight applicants, with personal identifying information redacted and replaced by unique identifiers.

The order also included a confidentiality provision restricting the use of the materials to the present proceeding.

In a grievance arbitration regarding the employer's alleged failure to accommodate the grievor, the employer sought production of the grievor's complete medical record.

The arbitrator balanced the employer's need to present its case against the grievor's privacy interests.

The union was ordered to produce all medical records substantiating the medical restrictions at the time accommodation was sought, with the employer retaining the right to seek further production if necessary.

The union filed grievances alleging the employer violated the collective agreement by failing to provide requested position descriptions within 20 working days.

Following mediation, the parties agreed to a consent order wherein the employer acknowledged the violation and agreed to provide the outstanding position descriptions by a specified date.

The arbitrator issued the consent order as a binding decision of the Grievance Settlement Board.

The union filed a policy grievance alleging the employer violated the collective agreement by failing to recall a senior seasonal employee to his Far North Specialist position, and instead distributing his work to four less senior Biologist 1 employees.

The arbitrator found that while there was some overlap in duties, the core functions and responsibilities of the grievor's position, which included a leadership role and program coordination, were not substantially similar to the entry-level tasks performed by the Biologist 1 employees.

The grievance was dismissed.

The union filed a grievance alleging harassment, failure to accommodate, and a poisoned work environment.

During mediation, the parties reached an agreement in principle for a $5,000 payment to the grievor.

The grievor objected to a release clause in the draft Minutes of Settlement.

The employer agreed to remove the disputed clause, but the grievor requested further time to consult a lawyer before signing.

The employer argued the grievance was settled as all terms were agreed upon.

The arbitrator agreed, finding that once the disputed clause was removed, there was consensus ad idem on all terms.

The arbitrator declared the grievance settled and binding on all parties.

The union filed group grievances on behalf of Fixed-Term Investigators in the Special Investigations Unit, arguing that time spent travelling to employer sites for non-investigation administrative purposes should be compensated as work time rather than travel time.

The union asserted that the investigators were not 'responsibility free' during travel because they were required to transport employer equipment, adhere to dress codes, and remain available for call-outs.

The arbitrator reviewed arbitral jurisprudence and concluded that general responsibilities inherent to the position, such as carrying tools of the trade or being subject to employer policies, do not convert travel time into work time absent actual job duties performed during the journey.

The grievances were dismissed.

The employer brought a motion for summary dismissal of ten individual grievances alleging violations of health and safety, harassment, and discrimination related to the employer's return-to-office scheduling during the COVID-19 pandemic.

The union alleged that the employer failed to accommodate the grievor's request to alter her in-office days to avoid public transit and protect her vulnerable spouse from potential COVID-19 exposure, claiming discrimination based on marital status.

The arbitrator held that the desire to protect a spouse from infection, while understandable, does not constitute an obligation flowing from marital status that triggers the duty to accommodate.

Finding that the union's particulars, even if accepted as true, failed to establish a prima facie case for any of the alleged violations, the arbitrator granted the employer's motion and dismissed all ten grievances.

The union sought an adjournment of a scheduled hearing because the grievor had a conflicting Family Court matter.

The arbitrator granted the adjournment but ordered the grievor to provide documentary evidence of the court date.

The employer subsequently argued the provided documentation was insufficient and sought an order for better documentation.

The arbitrator found the grievor made a good faith effort to comply but ordered him to provide written information regarding when he became aware of the conflict and why he could not advise the Board earlier.