Nimal Dissanayake

A correctional officer filed a grievance alleging the employer violated the collective agreement and the Occupational Health and Safety Act by failing to prevent inmates from setting a series of fires in the Special Handling Unit, resulting in her suffering smoke inhalation.

The arbitrator found that the employer had been forewarned of escalating tensions and failed to take reasonable precautions, such as closing meal hatches or removing contraband, even after the first fires were set.

The grievance was upheld, with a declaration that the employer breached its duty to take reasonable precautions for the safety of the grievor.

The employer brought a motion arguing that certain aspects of two grievances filed by the union were untimely.

The union argued the issues were part of a continuing grievance regarding accommodation and discrimination, or alternatively, that time limits should be extended.

The arbitrator found that the specific employer decisions grieved were discrete acts subject to the 30-day time limit, not a continuing violation.

The arbitrator declined to extend the time limits under s. 48(16) of the Labour Relations Act, finding no reasonable grounds for the delay, despite the lack of prejudice to the employer.

At a scheduled hearing for a grievance filed by several correctional officers, one of the remaining grievors failed to attend despite receiving due notice.

The arbitrator dismissed the grievance as it related to that individual.

The hearing for the sole remaining grievor was directed to continue at a later date.

During an arbitration hearing, the union brought a motion to exclude the employer's representative, the grievor's former manager, from the hearing room during the grievor's testimony.

The union argued that the manager's presence triggered the grievor's anxiety and stress, relying on medical notes from her physician.

The employer opposed the motion, arguing the manager's presence was necessary to instruct counsel.

The arbitrator found that the grievor had a medically supported restriction requiring accommodation.

Balancing the competing interests, the arbitrator ordered that the manager be excluded from the hearing room but permitted to observe the proceedings via a live video and audio feed from another room, satisfying the medical restriction while minimizing prejudice to the employer.

The employer brought a motion to dismiss a grievance filed by a junior employee claiming a right to bump into a Dispute Resolution Officer position.

The employer argued that the claim was barred by a settlement agreement reached with a more senior employee regarding the same position, which contained a broad release clause.

The Arbitrator dismissed the motion, finding that the settlement agreement explicitly applied only to the disputes filed by the senior employee and did not extinguish the bumping rights of other employees.

The grievor's long-term income protection (LTIP) benefits were terminated by the insurance carrier.

The grievor subsequently settled a civil lawsuit against the carrier for a lump sum payment.

The union grieved the employer's cessation of pension and benefit premium payments, arguing the lump sum represented ongoing LTIP benefits under article 42.3.1 of the collective agreement.

The arbitrator dismissed the grievance, finding that a lump sum settlement without reinstatement of benefits does not meet the precondition of 'receiving LTIP benefits' required to trigger the employer's obligation.

In a group grievance alleging workplace harassment, the employer brought a motion to strike paragraphs of the union's particulars that relied on facts from previously settled grievances.

The union argued it was not seeking additional remedies but only relying on the facts to establish a pattern of harassment.

The arbitrator upheld the employer's motion, applying the arbitral principle of the sanctity of settlements.

The arbitrator found that allowing the union to rely on the underlying facts of settled grievances, especially where minutes of settlement included broad release clauses, would undermine the finality of settlements.

In a grievance arbitration involving allegations of harassment, discrimination, and reprisals, the union sought an order for the production of sixteen additional documents.

The employer opposed the request, arguing it was untimely, overly burdensome, and amounted to a fishing expedition.

The arbitrator applied the established test for disclosure, noting that while a liberal approach is generally endorsed, the requested information must be arguably relevant to the issues in dispute.

The arbitrator found that the union's request for most of the documents crossed the boundary into a fishing expedition, as it sought every document mentioning the grievor without demonstrating relevance to the specific allegations.

The arbitrator ordered the production of five items and denied the rest.

The union requested that the Grievance Settlement Board order the employer to recall two witnesses who had already completed their testimony.

The union argued that the witnesses had given contradictory testimony in a separate proceeding before a different arbitrator regarding their use of an internal document to determine whether positions were excluded from the bargaining unit.

The employer opposed the request, arguing that the document related only to statutory exclusions for confidential duties, which was not the basis of the union's claim.

The Arbitrator dismissed the union's request, finding that the witnesses' prior testimony was not strictly contradictory and that recalling them for cross-examination on the document would not serve a useful purpose, as the union's claim relied on similarity to existing bargaining unit positions rather than statutory exclusions.

The union requested the scheduling of four additional hearing dates for multiple grievances filed by a Correctional Officer.

The employer objected, arguing that scheduling dates before the outcome of the currently scheduled February 2019 dates could result in unnecessary cancellation costs if a settlement is reached.

The arbitrator ruled that four additional days would be scheduled beyond 30 calendar days from the last scheduled February date, ensuring no cancellation charges would be incurred if the dates are cancelled by that time.

In the context of a termination grievance, the parties failed to reach a settlement and proceeded to schedule arbitration dates.

Following discussions on process issues, the arbitrator issued an interim decision ordering the grievor to produce his cellular telephone records for a specific date, including calls, emails, text messages, and internet history logs.

The grievor was directed to obtain these records from his service provider if necessary and provide them to the union's counsel.

In a grievance arbitration, the union sought production of various documents relating to the grievor's accommodation and discipline.

The parties resolved several production requests but disputed three.

Applying the West Park Hospital factors, the Arbitrator ordered the employer to produce documents relating to two individuals whose involvement was arguably relevant.

However, the Arbitrator denied the request for documents from a third individual, finding that the burden of searching archived records was disproportionate to her limited involvement of merely being blind-copied on an email.

The union filed a policy grievance challenging the employer's Health Information Program Guide, arguing its definition of health information was too narrow and violated PHIPA and FIPPA.

The union also objected to the employer retaining health information for 50 years and sharing it with local managers.

The arbitrator found that the employer was not providing health care, so the information collected fell under the employment exception in PHIPA.

The arbitrator upheld the employer's right to retain the information and share limited necessary details with managers, subject to clarifying the language around diagnosis disclosure and ensuring knowledgeable consent for retention.

The union filed grievances on behalf of employees required to be available after hours to respond to human-bear conflicts under the employer's Bear Wise Protocol.

The employees were compensated at the on-call rate but claimed entitlement to the higher stand-by rate, arguing the protocol's response times required them to be immediately available to return to the workplace.

The arbitrator dismissed the grievances, finding that the employer's requirement for employees to respond within 30 minutes and be ready to respond within two hours met the collective agreement's definition of on-call duty, not stand-by time.

The parties requested rulings on two preliminary issues in a series of grievances.

The employer objected to parts of the union's particulars for three 2017 grievances, arguing they violated grievance procedure privilege, constituted an abuse of process, and improperly relied on similar fact evidence.

The arbitrator upheld the objection based on grievance procedure privilege, striking several paragraphs.

The abuse of process objection was dismissed, as there was no prejudice to the employer.

The objection regarding similar fact evidence was upheld, and the paragraph was struck due to a lack of particulars and the risk of expanding the hearing's scope.

The union's request for further unspecified document production was denied as an impermissible fishing expedition.

The grievor challenged the outcome of a job competition for a Case Processor position, alleging testing errors, bias by an interview panel member, and insufficient weight given to her past experience.

The arbitrator dismissed the grievance, finding that the union failed to meet its onus of proving the allegations, as there was no evidence beyond the grievor's subjective belief.

During a grievance arbitration involving multiple consolidated grievances, the employer requested an order confirming the Board's jurisdiction over human rights issues and directing that all grievances be heard concurrently.

The union opposed the jurisdiction order as unnecessary and argued for consecutive hearings to avoid delaying the original grievances.

The Grievance Settlement Board declined to issue the jurisdiction order, finding no active dispute on the matter.

However, the Board ordered that all grievances be heard concurrently due to significant evidentiary overlap.

The Board also permitted union counsel to discuss the grievor's will-say statement with her to prepare for the newly consolidated grievances.

The union filed a grievance alleging dismissal without just cause and discrimination.

Prior to the hearing, the parties sought direction on particulars, production of medical documents, and the order of proceeding.

The parties reached an agreement on these preliminary issues, which the arbitrator issued as a consent order.

The union was directed to produce medical records, and the order of proceeding was established with the employer proceeding first on the issue of absenteeism.

The parties engaged in mediation and executed a Memorandum of Settlement resolving the union grievance regarding the Attendance Support and Management Program (ASMP).

The settlement stipulates that absences flowing from a disability as defined by the Human Rights Code must be precluded from the ASMP, and the employer shall accept any note from a legally qualified medical practitioner indicating the absence was related to a disability.

The arbitrator issued the settlement terms as a consent order of the Board.

The grievor, a Client Representative, went off work following a car accident and claimed long-term income protection (LTIP) benefits for the 'own occupation' period.

The insurance carrier denied the claim on the basis that she was not totally disabled, citing a lack of objective evidence of cognitive impairment.

The arbitrator found that the grievor's job required significant cognitive demands and that her diminished cognitive efficiency, as confirmed by an independent medical examination, prevented her from performing her essential duties efficiently and accurately.

The arbitrator held that the absence of objective evidence was not a valid reason to deny the claim, given the credible self-reporting of symptoms.

The grievance was allowed, and the grievor was found to be totally disabled during the relevant period.