Nimal V. Dissanayake

The union filed grievances on behalf of several employees claiming they were entitled to double time for working on Sundays, their second scheduled day off, even if they had not worked the preceding Saturday.

The union relied on article 6.6(a) of the collective agreement, while the employer relied on article 6.6(e), which specifically provided for time and a half for Sunday work.

The Grievance Settlement Board dismissed the grievances, finding that article 6.6(e) was the specific governing provision for Sunday work when the employee had not worked a prior day off, and that the union's interpretation would render article 6.6(e) redundant and contradict the rationale for overtime premiums.

The grievor, who suffered from an alcohol addiction, was reinstated under a last chance agreement (LCA) that required her to provide medical documentation within three days of returning from any absence.

She was absent for one day due to an illness unrelated to her addiction and provided the medical note late, resulting in her termination.

The union grieved the termination, arguing the LCA requirement was discriminatory under the Human Rights Code.

The arbitrator found that the three-day requirement imposed a higher standard on the grievor because of her disability, making it discriminatory.

As the employer did not establish that the requirement was a bona fide occupational requirement or that accommodating the delay caused undue hardship, the LCA provision was void and unenforceable.

The grievance was allowed and the grievor reinstated.

At the commencement of a grievance arbitration hearing regarding the denial of a leave of absence and subsequent resignation, the union moved to adjourn the proceedings to provide third party notice to the incumbent who had filled the grievor's former position.

The employer opposed the motion.

The Grievance Settlement Board denied the request for an adjournment, ruling that third party notice was not required because the union was not challenging the competition process through which the incumbent was appointed, but rather seeking to invalidate the grievor's resignation.

The grievor was hired on an unclassified contract as an Operator Trainee, which required him to obtain an O.I.T. license.

Despite extensions and assistance, he failed to obtain the license.

During his final contract extension, he suffered a workplace injury and went on WSIB benefits.

The employer subsequently notified him that his contract would not be renewed.

The union grieved, alleging the cessation of employment was a termination based on disability contrary to the Human Rights Code.

The Grievance Settlement Board dismissed the grievances, finding that the cessation was a non-renewal based solely on the grievor's failure to obtain the required qualifications, and that the employer had no duty to accommodate by renewing the contract of an employee totally incapacitated from working.

The union filed a group grievance alleging the employer contravened the collective agreement by taking too long to implement negotiated wage increases.

At the hearing, the union advised it had no dispute with the employer regarding the subject matter.

The grievance was dismissed.

The union filed a group grievance claiming the grievors were entitled to the Oak Ridge salary note G24 even though they did not work at Oak Ridge.

At the hearing, the union took the position that it had no dispute with the employer regarding the subject matter of the grievance.

Consequently, the grievance was dismissed.

In a grievance alleging discrimination on the basis of race, colour, and ethnicity regarding the denial of developmental opportunities, the employer moved for a non-suit after the union closed its case.

The Vice-Chair reviewed the legal principles governing non-suit motions, noting that the standard is whether a prima facie case has been established, not a balance of probabilities.

The motion for non-suit was dismissed without written reasons, in accordance with the Board's practice and the parties' agreement, and the hearing was ordered to continue.

The union filed two group grievances on behalf of 173 employees at the North Bay Psychiatric Hospital, alleging the employer violated the collective agreement by failing to extend a weekend shift premium negotiated for correctional officers.

At the hearing, the union advised the Board it was not pursuing the grievances further.

The grievances were dismissed.

The union filed health and safety grievances seeking monetary compensation for a workplace injury.

The employer brought a preliminary motion arguing that the Grievance Settlement Board lacked jurisdiction to award monetary compensation because the Workplace Safety and Insurance Act (WSIA) grants exclusive jurisdiction over such compensation to the Workplace Safety and Insurance Board.

The Board dismissed the employer's motion, finding that while the predecessor legislation extinguished 'all rights and rights of action', section 26(2) of the current WSIA only extinguishes 'rights of action'.

Since a grievance is not an action, the Board retained its remedial jurisdiction to award compensation for a violation of the collective agreement.

The union served a subpoena duces tecum on a witness from a third-party service provider, requiring the production of contact information for individuals who checked the grievor's references.

The witness brought the information but requested a written Board order due to privacy concerns and questions of relevance.

The Board ordered the production, noting that the union is entitled to seek clarification of the reference checkers' notes, which were already in evidence.

The union filed a discharge grievance on behalf of a casual correctional officer.

The employer brought a preliminary motion arguing the Board lacked jurisdiction because a prior grievance concerning the same discharge had been settled via a Memorandum of Agreement signed by the grievor, the union, and the employer.

The union argued the settlement should not bar the grievance because the grievor signed it under extreme personal duress.

The Board held that the grievor's signature was not a necessary condition for the validity of the settlement, as the union and employer are the necessary parties to a grievance settlement.

The Board found the settlement valid and binding, upheld the employer's motion, and dismissed the grievance for lack of jurisdiction.

The employer brought a motion arguing that the Grievance Settlement Board lacked jurisdiction to hear the grievor's discharge grievance because a prior grievance regarding the same discharge had been settled.

The union argued that the settlement document was not a typical settlement and that the grievor signed it under duress.

The Vice-Chair found that the settlement document was a valid and binding settlement of the prior grievance, which barred any further grievance.

The employer's motion was upheld and the grievance was dismissed.

The grievor, a store manager with 23 years of service, was discharged for three incidents of misconduct: making inappropriate sexual comments to a casual employee, asking a casual employee to purchase marijuana during work hours, and consuming alcohol with a contractor's crew on company premises while on duty.

The union argued the discharge was void due to the employer's delay in confronting the grievor, but the arbitrator found no actual prejudice.

While the arbitrator found the grievor's conduct constituted serious culpable misconduct and noted his lack of true remorse, the penalty of discharge was deemed excessive because the grievor had not received the benefit of progressive discipline for these types of offences.

The grievor was reinstated subject to a lengthy suspension without pay and a strict two-year discipline-free condition.

The union brought a motion to bifurcate the hearing of a discharge grievance to determine as a preliminary matter whether the employer violated the collective agreement by meeting with the grievor without union representation.

The employer opposed the motion, arguing that the evidence required to determine the preliminary issue was inextricably intertwined with the evidence on the merits.

The Grievance Settlement Board denied the motion, finding that the employer was entitled to establish its position by demonstrating the totality of its investigation, and that the overall considerations of practicality, economy, efficiency, and fairness did not favour bifurcation.

The grievor, a Property Assessor, was off work on long-term disability when the employer divested its Property Assessment Division to a new entity.

The employer and union negotiated an agreement whereby disabled employees had a one-year window to recover and accept a job offer with the new entity.

The grievor did not recover within the one-year window, and when he sought to return to work later, his position no longer existed in the Ontario Public Service.

The union grieved that the one-year limit and the failure to accommodate him constituted discrimination on the basis of handicap.

The Grievance Settlement Board dismissed the grievance, finding that the appropriate comparator group was employees whose jobs had been eliminated while on disability benefits, and that the one-year window was actually a beneficial grace period rather than discriminatory.

During a grievance arbitration concerning the grievor's discharge for alleged sexual harassment and workplace alcohol consumption, the employer raised numerous objections to the grievor's testimony based on the rule in Browne v. Dunn.

The employer argued that the union failed to cross-examine employer witnesses on points the grievor later contradicted in his testimony.

The Vice-Chair reviewed the legal principles of the rule, noting that a cross-examiner must indicate an intention to challenge a witness's credibility.

The Vice-Chair ruled on 30 specific objections, excluding the grievor's testimony where the rule was violated and permitting it where the rule did not apply or the cross-examination was sufficient.

In a grievance alleging discrimination and harassment based on disability and union activity, the union issued a subpoena duces tecum to a third-party employer (Serco) for the production of employment references provided by Ministry supervisors.

Serco and the Ministry objected, claiming the references were protected by case-by-case privilege.

The Grievance Settlement Board applied the Wigmore test and concluded that the fourth condition was not met, as the benefit of correctly disposing of the litigation (which involved public policy rights under the Labour Relations Act and Human Rights Code) outweighed the potential injury to the relationship between Serco and the reference-givers.

The motion to quash the subpoena was denied and production was ordered subject to confidentiality safeguards.

The grievor, an employee at the LCBO, received a four-week suspension without pay for making harassing comments to another employee.

The union grieved the suspension.

The Grievance Settlement Board reduced the suspension to five days and ordered the employer to reimburse the grievor for the remainder of the four-week period.

The Board also ordered the grievor to issue a written apology to the victim and required the grievor and his department to attend a human rights sensitivity training session.

The union filed two grievances on behalf of the grievor regarding a suspension and termination.

The hearing was adjourned twice previously due to the grievor's unavailability, with the second adjournment granted on the condition that the grievances would be withdrawn if the grievor failed to attend the next scheduled date.

The grievor failed to attend the rescheduled hearing despite the union's efforts to contact him.

Consequently, the union withdrew the grievances and the files were closed.

The union requested an order for pre-hearing production pursuant to s. 48(12)(b) of the Labour Relations Act in relation to a policy grievance.

The employer opposed the request or alternatively sought to restrict it to data from the year 2000 onwards.

The Grievance Settlement Board ordered the employer to produce the requested information restricted to the year 2000 and after, with leave for the union to request prior years' information at the hearing.