Nimal Dissanayake

The grievor, a classified Correctional Officer, was on a temporary assignment as a Probation and Parole Officer.

After her temporary assignment ended, she was recalled to her home position at a detention centre.

She provided medical documentation stating she could not work as a Correctional Officer or in a correctional environment due to a permanent disability.

The employer insisted she return to her home position and did not explore other accommodation options, including her previous Probation and Parole Officer role.

The Grievance Settlement Board found that the employer failed to comply with its procedural and substantive duties to accommodate the grievor under the Human Rights Code.

The Board also found that the employer harassed and bullied the grievor during a return-to-work meeting by aggressively pressuring her to return to her home position despite clear medical restrictions.

Grievances relating to her time on temporary assignment were dismissed.

The employer requested a conference call after the union failed to provide documentary evidence confirming the grievor's father's scheduled surgery, which was the condition for the employer's consent to adjourn the previously scheduled hearing.

The union advised that the grievor was unable to obtain the documentation.

The arbitrator granted the employer's request and ordered the union and grievor to produce the documentary evidence or provide particulars for non-compliance, reserving the employer's right to bring a motion to dismiss the grievance.

The employer brought preliminary motions to dismiss two grievances for failing to disclose a prima facie case and to strike certain particulars in a consolidated grievance arbitration.

The arbitrator granted the motion to dismiss the two grievances, finding that the employer's request to waive stage 2 grievance meetings and its issuance of a letter of expectation to a co-worker did not, even if true, constitute a violation of the grievor's rights.

The arbitrator dismissed the employer's motion to strike particulars relating to a co-worker's workplace harassment complaint, finding them arguably relevant to the grievor's claim of differential treatment, and ordered production of the file.

The arbitrator partially granted the motion to strike other particulars for vagueness.

At a hearing convened for two grievances relating to job competitions and alleged discrimination, the parties agreed to use the day for mediation.

However, mediation was unlikely to be productive due to a lack of meaningful exchange of particulars or documents.

The Arbitrator ordered both parties to provide full written particulars of material facts and produce relevant documents according to a set timetable, and directed the employer to provide notice of any preliminary motions or objections.

The union sought to expand its grievances regarding salary progression for fixed term employees to include claims about how salary progression resumed after a freeze ended.

The employer objected to the Board's jurisdiction, arguing it was an undue expansion of the original grievances.

The arbitrator upheld the employer's objection, finding that the post-freeze issue was not raised in the original grievances or during the hearing, and could not be considered a remedial claim flowing from the Board's earlier decisions.

The union's new particulars were struck.

The union filed a grievance alleging the employer failed to return the grievor to work with appropriate accommodation.

The parties previously agreed to a timeline for the exchange of particulars and production.

The employer brought a motion for an order compelling the union to provide particulars and production, as the union had not yet done so.

The Arbitrator ordered the union to provide written particulars and copies of documents by specified dates, and ordered the employer to provide its particulars and documents thereafter.

A related grievance was also consolidated into the proceeding.

The Union requested an order permitting service of a summons by email on a witness after attempts at personal service failed.

The Employer did not object to the request.

The Arbitrator granted the order, directing that the summons served by email would have the same legal effect as one served personally.

The employer brought a preliminary motion to dismiss four grievances regarding overtime assignments because the union failed to provide requested particulars and documents.

Despite multiple requests from the employer and warnings that the hearing could not proceed, the union did not provide the particulars or offer any explanation for the delay.

The arbitrator granted the employer's motion and dismissed the grievances, noting that the union's failure compromised the ability to proceed and undermined the efficiency of the grievance arbitration system.

The employer brought a motion to dismiss two grievances alleging workplace harassment and bullying by a manager, arguing the union's particulars failed to disclose a prima facie case.

The union alleged the manager yelled at an employee for sitting at the wrong desk, mocked two employees for standing close together, and aggressively reprimanded an employee regarding mask-wearing.

The arbitrator accepted the allegations as true for the purpose of the motion and noted the manager's conduct was inappropriate and disrespectful.

However, the arbitrator concluded the conduct fell short of the definition of harassment under the collective agreement and the Occupational Health and Safety Act.

The motion was granted and the grievances were dismissed.

The union filed a grievance alleging the employer violated the collective agreement by failing to maintain a smoke-free environment in the workplace, exposing the grievor to second-hand smoke.

The parties agreed to settle the grievance and requested a consent order.

The arbitrator upheld the grievance, declaring that the employer breached the health and safety provisions of the collective agreement by failing to prevent exposure to residual smoke in the garage and fleet vehicles.

The Grievance Settlement Board issued procedural directions following an unsuccessful mediation under article 22.16 of the collective agreement.

The Board ordered the union to provide full particulars and documents 60 days before the hearing, and the employer to produce its documents and particulars 45 days after receiving the union's materials.

The parties were also directed to discuss expediting the process and to address whether a compressed work week grievance should be heard together with the other grievances.

The employer brought a motion to dismiss two grievances claiming call-back pay on the basis that they were filed outside the mandatory 30-day time limit under the collective agreement.

The union argued the time limit only began to run when the employees realized their preparatory work might constitute compensable work and their amended timesheets were denied.

The Arbitrator rejected this argument, finding the employees were aware of the facts giving rise to the claim at the time the work was performed.

The Arbitrator declined to extend the time limits under s. 48(16) of the Labour Relations Act and dismissed the grievances as untimely.

In a grievance arbitration involving multiple related grievances filed by an employee at the Ontario Correctional Institute, the Grievance Settlement Board issued a case management order.

The Board ordered the union and the employer to provide each other with full written particulars of the material facts and copies of all relevant documents in their possession, establishing a timetable for the exchange and for raising any preliminary motions.

The employer brought a motion to dismiss a grievance regarding missing pension contributions on the basis that it was not filed within the 30-day time limit set out in the collective agreement.

The grievor discovered in 2014 that there was an 18-month period in 1993-1994 with no pension contributions, and learned in 2015 that the employer was responsible for failing to remit the withheld funds.

The employer argued the grievor ought reasonably to have discovered the issue much earlier by reviewing his annual pension statements.

The arbitrator dismissed the motion, finding it was not reasonable to expect an employee to conduct a detailed forensic analysis of annual statements to verify that every deducted contribution had been properly remitted, absent any indication of a problem.

The grievance was deemed timely.

During a grievance arbitration concerning the employer's alleged failure to accommodate the grievor's restrictions, the employer sought an order for the disclosure of the grievor's complete medical file going back to 2012.

The employer argued that the grievor's family physician had reviewed the pre-2016 file when making recommendations during the relevant 2016-2018 period.

The arbitrator dismissed the request for broad disclosure, finding that the employer's ability to cross-examine the physician was not prejudiced in the absence of the complete file.

The union was directed to disclose only a 2012 x-ray that the physician had specifically relied upon.

The employer brought a motion arguing that the union was estopped from asserting its rights under article 31A.2.3 of the collective agreement, which governed when fixed-term employees in corrections progress through the salary grid.

The employer had a long-standing practice since 1992 of applying merit increases on the first day of the month following the completion of the required hours, rather than immediately upon completion.

The arbitrator found that the employer's policy was clear and consistently applied, and that the union had constructive knowledge of the practice.

The arbitrator concluded that all elements of estoppel were established, including detrimental reliance in the form of a lost opportunity to bargain, and held that the union was estopped from asserting its strict rights under the collective agreement.

The union filed a policy grievance alleging that provisions in the collective agreement requiring employees on Long Term Income Protection (LTIP) with 30 years of pension credit to pay their own pension contributions discriminated on the basis of age.

The arbitrator found that the provisions resulted in adverse effect discrimination, as only older employees could accumulate 30 years of pension credit.

The employer failed to justify the discrimination as a bona fide occupational requirement or under section 1 of the Charter, as the sole objective was cost savings.

The impugned provisions were struck from the collective agreement.

The union filed a grievance alleging that the employer violated the collective agreement by denying the grievor a twelve-hour overtime shift.

The arbitrator found that the collective agreement only required the employer to develop fair and equitable methods of distributing overtime, subject to operational requirements, and did not require distribution based on seniority.

The evidence showed the grievor had performed more overtime hours than most other employees, and the employee assigned the shift had performed significantly less and was qualified.

The grievance was dismissed.

The parties jointly requested a procedural order to guide the mediation-arbitration of several group grievances concerning the treatment of work time spent travelling to and from assigned headquarters for administrative work, mandatory meetings, and training.

The arbitrator issued an order setting timelines for the exchange of willsays and arguments, after which a decision on the merits, estoppel, and timeliness objections will be issued.

The parties reached a settlement resolving a 2014 policy grievance and an associated application for judicial review.

As part of the settlement, the parties requested that the Grievance Settlement Board issue a further decision amending two paragraphs of its July 18, 2017 decision regarding the breadth of a medical consent form and the employer's entitlement to health information.

The Board ordered the requested amendments and deemed the grievance and judicial review application withdrawn.