Nimal Dissanayake

The employer requested the Grievance Settlement Board to convene after the union failed to provide particulars regarding an overtime scheduling grievance, as previously agreed.

The Arbitrator ordered the union to provide full written particulars of the material facts on which it relies by January 11, 2021, failing which the union may be barred from introducing evidence or the grievance may be dismissed summarily.

Six Correctional Officers filed grievances alleging the employer violated the collective agreement by failing to pay them overtime based on an annual balancing of hours under Schedule A. The employer brought a motion to dismiss, arguing the grievors are classified as CO2 under Schedule 4.7, not Schedule A. The Arbitrator upheld the employer's motion, finding the collective agreement unambiguously places CO2s in Schedule 4.7, and applying Schedule A would effectively amend the collective agreement.

The grievances were dismissed.

The union filed a grievance challenging the employer's practice of applying merit increases for fixed-term correctional officers on the first day of the month following their completion of the required threshold hours.

The employer argued that the phrase 'a minimum of' in article 31A.2.3 of the collective agreement gave it open-ended discretion to determine when to apply the salary progression.

The arbitrator rejected the employer's interpretation, finding that the mandatory language 'shall progress' requires the progression to be granted immediately upon the completion of the specified minimum number of hours.

The union's interpretation of the collective agreement was preferred.

The grievor, an employee with a permanent medical restriction limiting him to day shifts, applied for an Assistant Store Manager (ASM) position.

The employer screened him out of the competition, arguing that the ability to work afternoon shifts was a bona fide occupational requirement (BFOR) and that accommodating him would cause undue hardship.

The arbitrator found that the employer failed to establish undue hardship, noting that the store regularly operated without an ASM on afternoon shifts and that the financial cost of designating a shift leader was minimal.

The grievance was upheld, and the employer was found to have discriminated against the grievor by failing to accommodate his disability.

The union filed a policy grievance arguing that seven newly created positions should be included in the bargaining unit.

The Board found it was functus officio regarding the union's argument on the scope of the recognition clause, as that issue had been previously decided.

On the alternative argument that the positions performed bargaining unit work, the Board examined the Customer Care Coordinator (CCC) and Project Officer (PO) positions.

The Board dismissed the grievance regarding the CCC position, finding its core functions differed significantly from the Station Attendant position.

However, the Board upheld the grievance regarding the PO position, finding its duties were substantially similar to the bargaining unit Project Coordinator position, thereby drawing it into the bargaining unit.

The union grieved that the employer violated the collective agreement by scheduling seasonal employees for 36.25 hours per week instead of 40 hours.

The union argued that the definition of 'seasonal employee' and the salary schedule entitled them to 40 hours.

The arbitrator found that the collective agreement explicitly excluded seasonal employees from the 40-hour work week provision and that the words 'as applicable' meant the hours depended on individual employment contracts.

The grievance was dismissed.

The union filed grievances alleging the employer violated the collective agreement when two grievors were not offered Group Leader positions after being interviewed.

Following mediation, the parties executed a Memorandum of Settlement and requested a consent award.

The arbitrator found that the employer's decision to lower the benchmark for the competition was a valid exercise of management rights and not tainted by bad faith.

The grievances were dismissed.

The union sought production of a job application submitted by another employee who had been temporarily appointed to the Dispute Resolution Officer position that the grievor sought to bump into.

The union argued the document was relevant to show the employer acted arbitrarily in finding the grievor unqualified, as it believed the other employee lacked the same qualifications.

The arbitrator denied the request for production, finding that the application alone would not establish the other employee's qualifications without evidence of the entire hiring process.

The arbitrator concluded that ordering production would lead to a collateral inquiry into the other employee's qualifications, which would have minimal probative value for the grievor's case.

The grievor failed to attend her termination grievance hearing and subsequently failed to respond to a Board order requiring her to provide an explanation for her non-attendance.

The employer renewed its motion to dismiss the grievance.

The union requested a sine die adjournment, noting it had been unable to contact the grievor.

The Arbitrator granted the employer's motion and dismissed the grievance, finding that the grievor had completely ignored the proceedings and the union's attempts to contact her, and that it would be inappropriate to adjourn the matter indefinitely on speculation about her health.

The third party, a Dispute Resolution Officer, brought a motion arguing that she should not be considered the least senior employee at risk of being bumped by the complainant.

She argued that a more recently hired employee should be displaced instead, and that the current seniority list should be used rather than the list from when the bumping rights crystallized.

The Arbitrator dismissed the motion, holding that arbitral jurisprudence and the collective agreement require bumping rights to be assessed based on the circumstances frozen at the time the alleged violation crystallized, not on a moving seniority list.

The union filed a grievance on behalf of a seasonal employee who was screened out of a competition for a full-time position.

At the scheduled hearing, the grievor failed to appear.

The union representative provided evidence of multiple unsuccessful attempts to contact the grievor to confirm whether he wished to proceed.

The employer moved to dismiss the grievance.

The arbitrator concluded that the grievor had proper notice and had abandoned the grievance in law, and accordingly dismissed the grievance.

The union filed a policy grievance alleging the employer violated the collective agreement by failing to recall a senior seasonal employee and instead redistributing his work to four lower-classified employees.

The employer brought preliminary motions arguing the Board lacked jurisdiction because it was a disguised classification grievance, and alternatively that the union's particulars failed to disclose a prima facie case.

The Arbitrator dismissed both motions, finding the core issue was whether the 'same position' existed for recall purposes, which is a factual determination independent of classification, and that the union's particulars were capable of establishing a violation if proven true.

The grievor failed to attend the scheduled arbitration hearing for her termination grievance.

The union requested an adjournment, while the employer moved to dismiss the grievance.

The arbitrator declined to dismiss the grievance immediately, instead ordering the grievor to provide a written explanation for her absence within 30 days, with the employer reserving the right to renew its motion to dismiss.

A teleconference hearing was held to determine the process for outstanding issues in a group grievance.

The arbitrator ordered the employer to provide its position and preliminary particulars regarding claims for 'category A' employees by September 6, 2019.

Additionally, if the employer intends to raise an estoppel argument, it must provide particulars and identify its first witnesses by September 11, 2019.

The hearing was scheduled to continue on September 27, 2019.

The employer brought a motion to dismiss the claims of ten employees in a group grievance regarding wage clawbacks, arguing the union failed to provide required information within the time limits set out in a First Interim Memorandum of Settlement.

The union argued the settlement only established an information-gathering process, not a final resolution of the grievance, and that a Second Interim Memorandum of Settlement clarified the cut-off date.

The arbitrator dismissed the employer's motion, finding the principle of sanctity of settlements did not apply to an interim process agreement and that equitable grounds favoured allowing the claims to proceed.

The union sought to consolidate two new grievances with six previously consolidated grievances filed by the same grievor.

The existing grievances alleged that the employer used performance coaching sessions to target the grievor for intimidation and harassment.

The new grievances alleged that the employer required the grievor to attend coaching sessions in person contrary to a commitment to conduct them via email.

The employer objected to consolidation, arguing the new grievances raised different issues and involved a different manager.

The Arbitrator granted the consolidation, finding that the union alleged the requirement for in-person sessions was part of the same pattern of intimidation and harassment, making it more efficient to hear all grievances together.

The union filed a grievance alleging the employer failed to inform a disabled employee of early retirement options that would have allowed her to receive full pension benefits at no extra cost.

The employer brought a motion arguing the grievance was inarbitrable because the pension plan was not part of the collective agreement.

The arbitrator upheld the employer's motion, finding that the collective agreement contained no reference to pensions and the employer had no duty to communicate regarding matters outside the agreement.

The grievance was dismissed.

In a grievance arbitration involving multiple grievances filed by an employee, the Grievance Settlement Board made procedural orders at the request of the parties.

The Board ordered the union to provide full particulars relating to each grievance and the employer to make full disclosure relating to the discipline grievance, to be complied with 60 days prior to the next scheduled hearing date.

The employer requested a teleconference to address three procedural issues in a termination grievance: the grievor's failure to attend a scheduled hearing, the grievor's request to change the hearing venue from Toronto to London for accommodation reasons, and the grievor's failure to fully comply with a prior disclosure order.

The Arbitrator declined to issue orders regarding the failure to attend, granted the request to move the hearing venue to London, and ordered the grievor to request specific cellular telephone records (emails, text messages, and internet history) from his service provider to comply with the disclosure order.

In the context of grievances alleging a failure to accommodate, a dispute arose regarding the disclosure of the grievor's medical file.

The union opposed employer counsel sharing the redacted medical file with the instructing client and an employer witness without the grievor's consent.

The arbitrator held that requiring consent for each disclosure would be unworkable and cause delay.

Balancing the grievor's privacy rights with the employer's right to defend the grievances, the arbitrator ordered that employer counsel may share the medical information with the instructing client and witness strictly for the purposes of obtaining instructions and preparing for the hearing, subject to confidentiality conditions.