Nimal Dissanayake

In a claims review proceeding regarding a denial of long-term income protection benefits, the Association sought to introduce a 'Will Say' statement and viva voce testimony from the claimant, as well as two scientific articles.

The employer objected, arguing the collective agreement contemplated an expeditious and informal review based on the record before the Joint Benefits Committee.

The arbitrator held that the 'Will Say' statement would be admitted subject to conditions, including limiting it to the two-year claim period and allowing the employer to cross-examine the claimant.

However, the arbitrator denied the request for additional viva voce testimony and refused to admit the scientific articles, noting that doing so would undermine the expedition and informality required by the collective agreement.

The Association filed a grievance alleging the employer breached the collective agreement by failing to protect the complainant from personal harassment and reprisal, resulting in mental stress and illness.

The employer brought a preliminary motion arguing the Grievance Settlement Board lacked jurisdiction to award damages because the injury was compensable under the Workplace Safety and Insurance Act (WSIA).

Although the WSIA at the time barred claims for chronic mental stress, the Workplace Safety and Insurance Appeals Tribunal had previously found those provisions unconstitutional and declined to apply them.

The Arbitrator held that the injury would have been compensable under the WSIA in light of the Tribunal's decisions, and therefore the Board lacked jurisdiction to award the requested damages.

The union grieved that the employer violated health and safety provisions when correctional officers were exposed to smoke from fires set by inmates.

The employer brought a preliminary motion arguing that the Board lacked jurisdiction to award monetary redress or damages because the injuries were compensable under the Workers Safety and Insurance Act (WSIA).

The arbitrator upheld the employer's motion, finding that the WSIA's historic trade-off precludes awarding damages for compensable workplace injuries, even if the union frames the claim as a series of collective agreement breaches.

The Association brought a motion to bifurcate the arbitration proceeding to first determine whether the employer's cancellation of a job competition was a bad faith exercise of management rights.

The employer opposed the motion, arguing it would result in duplication of evidence and delay.

The Arbitrator granted the motion, finding that determining the cancellation issue first could dispose of the entire grievance and avoid the need for lengthy testimony regarding the individual complainants' qualifications.

The Arbitrator noted that evidence from the first phase could be applied to the second phase to minimize duplication.

The union filed a policy grievance challenging the employer's Health Information Program Guide and consent forms, arguing they violated privacy rights under PHIPA and FIPPA by seeking overly broad, prospective, and multi-purpose consent for the release of employee medical information.

The Grievance Settlement Board found that while the employer's actual practices largely complied with legal requirements, the written policy and forms were drafted too broadly and could be interpreted in a manner that violated privacy rights.

The Board directed the employer to amend its documents to ensure employees are clearly informed of the specific medical professional being contacted, the exact information requested, and the specific purpose for the request, and to eliminate prospective consent language.

The grievor, a Court Services Officer with nine months of service, was discharged after yelling and swearing at a co-worker in a courthouse hallway.

The union conceded that the conduct warranted discipline but argued that discharge was excessive.

The Grievance Settlement Board upheld the discharge, finding that the grievor failed to take any responsibility for his misconduct, showed no remorse, and was untruthful during the investigation and the hearing.

The Board concluded that the grievor's belief that his conduct was justified and his lack of remorse made reinstatement inappropriate.

The Association requested an order for the immediate production of financial and employment documentation relevant to a policy grievance concerning the monetary entitlement of certain employees excluded from the bargaining unit.

The employer agreed to produce the documents but only simultaneously with their presentation to the employees at a group meeting.

The Grievance Settlement Board granted the Association's request, ordering immediate production to ensure efficiency and adequate preparation time before the scheduled hearing.

The union requested the consolidation of additional grievances filed by the grievor with the present grievances, and an order for the employer to produce documents relating to a WDHP complaint and the grievances.

The Grievance Settlement Board granted the requests, ordering consolidation subject to the union referring the unreferred grievances to arbitration, and ordering the production of the requested documents.

The Association filed a grievance regarding the appropriate adjustment of the Long Term Income Protection (LTIP) benefit entitlement for the 2014 calendar year.

The collective agreement transitioned from indexing LTIP increases to the Consumer Price Index (CPI) to indexing them to active employee wage increases, effective January 1, 2015.

The employer argued that the 2014 increase should be based on the wage increase (which was zero), while the Association argued it should be based on the 2014 CPI increase, applied in 2015.

The Grievance Settlement Board upheld the grievance, finding that the clear language of the collective agreement maintained CPI indexing until December 31, 2014, meaning the 2015 payments must reflect the 2014 CPI increase.

The Union filed a policy grievance alleging that the Employer's unilaterally implemented accommodation and return-to-work policies violated the collective agreement and the Human Rights Code by failing to mandate Union participation in all aspects of the accommodation process.

The Grievance Settlement Board held that the Union's right to participate is not absolute and does not extend to all accommodation meetings or the development of general policies.

Applying the Supreme Court of Canada's decision in Renaud, the Board found that the Union is entitled to participate only when an employee specifically requests representation, when a proposed accommodation impacts collective agreement rights, or when the Union's cooperation is required to waive a discriminatory provision.

The employer brought a motion to dismiss four related grievances alleging bullying, harassment, health and safety violations, reprisal, and constructive dismissal.

The employer argued that the union's particulars and 'will say' statement did not make out a prima facie case for any violation of the collective agreement.

The Grievance Settlement Board applied the established principle that facts asserted in support of a grievance must be accepted as true for the purpose of such a motion.

The Board concluded that the facts asserted by the union were capable of supporting a violation of the collective agreement.

The employer's motion to dismiss was dismissed.

The union filed grievances on behalf of two Engineering Service Technicians who alleged they were improperly placed on the pay grid compared to colleagues in another region performing the same duties.

The employer objected that the grievances were in substance classification grievances.

The Grievance Settlement Board dismissed the grievances, finding that section 51 of the Crown Employees Collective Bargaining Act explicitly prohibits the Board from assuming jurisdiction to order an upward reclassification.

The union filed a policy grievance regarding the entitlement of Fixed Term Correctional Officers to overtime pay under the collective agreement.

The Grievance Settlement Board previously ruled that overtime is payable when a fixed-term employee works in excess of a scheduled shift exceeding eight hours while backfilling for a regular employee.

In this decision, the Board applied that interpretation to five specific scheduling scenarios.

The Board found that overtime rates applied in four scenarios where hours were added to a scheduled backfill shift, regardless of whether the hours were added at the beginning or end, or with advance notice.

Overtime did not apply in the fifth scenario where the employee was scheduled for 'as needed' duties rather than backfilling a regularly scheduled shift.

The employer requested to bifurcate the proceeding to hear a preliminary legal argument regarding the scope of the bargaining unit.

The Grievance Settlement Board had previously denied a similar request.

The employer argued that changed circumstances, specifically particulars provided by the union and the filing of two new policy grievances, warranted reconsideration.

The Board declined to exercise its discretion to bifurcate, citing policy concerns about halting proceedings midstream for reconsideration based on changed circumstances, and finding that the criteria for bifurcation were not substantially met as a favorable decision for the employer would not dispose of the entire grievance.

The employer brought a motion to bifurcate the hearing of a union grievance concerning unilateral changes to post-retirement benefits.

The employer sought to have the Board first hear and determine its motion that the union had not made out a prima facie case for its contractual claims, based solely on the language of the collective agreement without extrinsic evidence.

The Grievance Settlement Board dismissed the motion for bifurcation, finding that the union was entitled to adduce extrinsic evidence to support its position that post-retirement benefits were implicitly incorporated into the collective agreement.

The Board concluded that bifurcation would not result in efficiency, as the issues were intertwined and a decision on the preliminary motion would not dispose of the entire grievance, and would be unfair to the union.

The Association filed a policy grievance alleging the Employer violated the collective agreement by continuing to exclude certain employees from the bargaining unit under the 'HR Ontario' exclusion after HR Ontario was eliminated in a 2014 restructuring.

The Employer argued the exclusion should be interpreted functionally to exclude anyone involved in the delivery of HR services.

The Grievance Settlement Board upheld the grievance, finding no evidence that the parties intended the exclusion to apply functionally rather than based on the specific organizational entity named in the agreement.

As HR Ontario no longer exists, the exclusion has no practical effect.

The union requested disclosure of the grievor's Ministry notebook in the context of a dismissal grievance.

Following communications between the parties, they jointly requested a consent order.

The Grievance Settlement Board ordered the employer to disclose the notebook, subject to redactions for relevance and confidentiality, and restricted its use to the present litigation.

The Association filed a dispute alleging the Employer violated a Letter of Understanding (LoU) regarding the reclassification of certain IT positions.

The Association argued that the LoU required the Employer to reclassify any position sharing a job description number with those listed in the LoU's appendices.

The Employer argued that the LoU only applied to the specific positions listed in the appendices, which included employee names and position numbers.

The Grievance Settlement Board dismissed the dispute, finding that reading the LoU as a whole, the inclusion of specific employee identifiers indicated the parties did not intend to reclassify all positions sharing a job description number.

The employer brought a motion to summarily dismiss the grievor's termination grievance after the grievor failed to attend two scheduled mediation hearings.

The Grievance Settlement Board had previously ordered the grievor to provide written reasons for his absences.

The grievor explained that his first absence was due to unpredictable side-effects of new medication, and his second absence was due to a sudden family cultural purification ceremony following his grandmother's death.

The Board found that while the explanations lacked specificity, they demonstrated that the grievor was not disinterested in pursuing his grievance.

The employer's motion for dismissal was denied, but the grievor was put on notice that future absences could result in summary dismissal.

The employer requested that the grievance be dismissed after the grievor failed to attend two scheduled mediation hearings before the Grievance Settlement Board.

The grievor had provided late notice of his absence on both occasions, citing illness and a family matter.

The Board declined to dismiss the grievance outright, noting that the grievor had not been warned that failure to attend would result in dismissal and had maintained communication with union counsel indicating an interest in pursuing the grievance.

Instead, the Board directed the grievor to provide written particulars explaining his non-attendance and the reasons for the late notice, with the employer granted leave to renew its request for dismissal based on the information provided.