N.V Dissanayake

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 regarding the meeting was inextricably interwoven with the evidence on the merits of the discharge, which involved allegations of misrepresentation and surreptitious surveillance.

The arbitrator denied the motion, finding that the potential for gaining efficiency was outweighed by the need for fairness and the necessity of hearing the full context of the employer's investigation.

In a grievance alleging discrimination and harassment, the union sought production of employment references provided by the Ministry to a third-party employer (Serco).

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

The Grievance Settlement Board held that the references were arguably relevant to the union's bad faith allegations.

Applying the Wigmore test, the Board distinguished the peer-review context in Straka and found that the injury to the relationship between the Ministry and Serco did not outweigh the benefit of correctly disposing of the litigation, which involved public policy rights under the collective agreement.

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

The grievor, a part-time cleaner, was denied a promotion to a general cleaner position despite having the most seniority among relatively equal candidates.

The employer based its decision on the grievor's attendance record, which included significant absences due to compensable work injuries (WCB).

The union grieved, arguing this constituted discrimination based on handicap under the collective agreement and the Human Rights Code.

The Grievance Settlement Board allowed the grievance, finding that considering WCB absences in evaluating qualifications constituted direct and constructive discrimination because of handicap.

The Board directed that the grievor be appointed to the position with compensation for lost wages.