Owen V. Gray

The Employer brought a motion for an order compelling a witness to attend a rescheduled arbitration hearing.

The witness had been duly served with a summons and conduct money but failed to join the video conference on the initial hearing date, later claiming illness and forgetfulness.

The Association did not oppose the motion.

The Arbitrator granted the order pursuant to the powers incorporated from the Labour Relations Act, 1995, directing the witness to attend the next scheduled hearing date and warning of potential consequences for further non-compliance.

The parties agreed to a consent order requiring the exchange of particulars and documents.

The arbitrator issued a procedural order setting out the timetable and requirements for the employer and the union to provide written particulars of their allegations of fact and copies of all documents on which they intend to rely.

The parties disputed Minutes of Settlement agreed upon 'in principle' but not yet signed.

During a teleconference, counsel agreed to an order establishing a timetable for the exchange of pleadings and productions prior to a hearing on the merits.

The Arbitrator issued a procedural order detailing the schedule and requirements for the parties' statements of fact and document disclosure.

The Association sought pre-hearing production of documents, including an unredacted Underwriting Agreement between the Employer and Canada Life, in a grievance concerning the dismissal of an employee for allegedly submitting false benefits claims.

The Employer and Canada Life argued the redacted portions contained proprietary and irrelevant information.

The Arbitrator ordered the Employer to produce the current insurance policies and documents delineating the responsibilities and risk allocation between the Employer and Canada Life, while permitting the Employer to redact privileged or irrelevant/sensitive information provided it supplies a written description of the basis for each redaction.

The union grieved six disciplinary actions, including a discharge, imposed on a GO Transit bus operator for various customer service incidents and insubordination.

The arbitrator upheld a three-day suspension, a letter of warning, and a five-day suspension for insubordination.

A second five-day suspension was set aside as the employer called no evidence.

A nine-day suspension for asking a passenger to mute a cell phone was reduced to five days.

The discharge, which followed an incident where the grievor made inappropriate comments to a young passenger who could not pay the full fare, was found to be excessive in light of the adjusted disciplinary record and the grievor's post-discharge letter acknowledging his mistakes.

The discharge was substituted with a three-week suspension.

The grievor, a GO Transit bus driver, was discharged after a preventable collision with a post at Union Station, which he failed to immediately report.

The union conceded the employer had cause to remove him from his driving position but grieved the termination of his employment, arguing he should be placed on unpaid leave to apply for non-driving vacancies.

The arbitrator found the grievor's failure to report was due to inattention rather than deliberate concealment.

Applying section 48(17) of the Labour Relations Act, the arbitrator substituted a six-month disciplinary suspension and ordered the grievor reinstated to an unpaid leave status, allowing him to apply for non-driving positions within the bargaining unit.

The union grieved that the employer (WSIB) breached the collective agreement regarding organizational and technological changes.

The Grievance Settlement Board found that the employer breached Article 6.03(a) by failing to initiate discussions with the union as soon as possible during the planning of organizational changes.

The Board also found that the employer's notice under Article 6.03(c) did not comply with the collective agreement because it listed far more employees than positions affected.

Furthermore, the employer breached the agreement by placing employees in lower-salaried positions via Voluntary Exit matches without their consent.

Finally, while the collective agreement language did not preclude 'early bumps' (displacing less senior employees before the end of the notice period), the employer was estopped from doing so for the life of the current collective agreement due to past representations.

The union grieved the employer's interpretation of Article 16.02 of the collective agreement regarding paid leave for employees subpoenaed as witnesses.

The employer argued that paid leave only applied if the subpoena was for matters arising out of employment.

The arbitrator agreed with the union, finding that the phrase 'for matters arising out of their employment' only modified 'required in court' and not 'subpoenaed as a witness', as applying it to both would render the latter phrase superfluous.

The grievance was allowed.

The grievor, a Youth Services Officer at a secure custody facility, was discharged for misusing Ministry IT resources by accessing and printing inappropriate sexual images and providing them to young persons in custody, and for allowing young persons to view pornographic videos on a Ministry computer.

The union grieved the discharge, arguing the penalty was excessive compared to other officers who received lesser discipline for similar conduct.

The Grievance Settlement Board dismissed the grievance, finding the grievor's misconduct was more severe and compounded by his lack of candour and failure to take responsibility during the investigation.

The union sought production of documents related to organizational and technological changes noticed in 2012.

The Grievance Settlement Board ordered the employer to produce all relevant documents received or created by its Executive Committee or Board of Directors regarding the planning or implementation of those changes.

The Association alleged the Employer breached the collective agreement by failing to directly assign the surplus complainant to either of two positions.

In a preliminary motion regarding the order of proceeding and document production, the Association sought full production of documents relevant to the entry level qualifications for the positions, including documents related to a subsequent job competition.

The Grievance Settlement Board ordered the Employer to produce all documents in its possession, custody, or power that are arguably relevant to determining the entry level qualifications for each position, including documents created after the dispute arose.

The union filed grievances alleging that the employer engaged in reprisals against a health and safety inspector for issuing orders contrary to management's wishes, violating section 50 of the Occupational Health and Safety Act.

The employer raised a preliminary objection, arguing that an inspector is not a 'worker' and the Ministry is not an 'employer' under section 50 when the inspector is enforcing the Act regarding the safety of others.

The Grievance Settlement Board dismissed the preliminary objection, finding that the statutory definitions apply and the inspector is a worker protected by section 50, though this does not isolate inspectors from management direction or discipline for failing to conform to standards.

The employer raised a preliminary objection to the timeliness of over 200 grievances filed by correctional officers regarding exposure to second hand smoke prior to the institutions going smoke-free in 2001.

The grievances were filed in or after 2005.

The union conceded the grievances were untimely but sought an extension of time limits.

The Grievance Settlement Board found that the union failed to establish a prima facie case for extending the time limits, as the grievors knew of the circumstances giving rise to the complaints years before filing and provided no reasonable explanation for the multi-year delay.

The grievances were dismissed as untimely.

The union filed a grievance on behalf of the grievor alleging harassment and discrimination based on disability.

The employer raised a preliminary objection that the grievance, filed more than nine years after the events in question, was untimely.

The union argued the grievor was incapable of filing earlier due to severe mental illness and requested an extension under s. 48(16) of the Labour Relations Act.

The Grievance Settlement Board found that while the grievor suffered from a debilitating mental illness, she had been capable of pursuing a WSIB claim regarding the same events during the delay period.

The Board concluded the union failed to establish a reasonable explanation for the delay and declined to extend the time limit.

The grievance was dismissed as untimely.

The union requested a remedy for the employer's failure to produce documents as ordered by the Grievance Settlement Board.

The employer admitted non-compliance, citing limited resources devoted to settlement efforts.

The Board directed an Assistant Deputy Minister to ensure compliance by a specified deadline and to attend a subsequent hearing to show cause why he should not be punished for contempt if compliance was not achieved.

The parties resolved a grievance by Minutes of Settlement and requested a consent order.

The Grievance Settlement Board ordered the employer to comply with the settlement and remained seized with respect to its interpretation, application, or implementation.

The union requested an order directing the employer to produce documents relevant to grievances alleging the employer failed to consider impacted employees for temporary assignments under Appendix 40 of the collective agreement.

The employer opposed the broad production sought but could not explain why the documents were not arguably relevant.

The Grievance Settlement Board granted the union's request and ordered the employer to produce all documents relating to communications and considerations regarding temporary assignments for impacted employees during the relevant period.

The union filed grievances alleging improper scheduling of a permanent part-time employee.

The parties sought a preliminary ruling on the interpretation of the collective agreement regarding the allocation of additional hours.

The arbitrator held that the employer is not required to offer hours outside a permanent part-time employee's recorded availability before scheduling a casual employee, nor is the employer required to modify a full shift to offer a portion of it to a permanent part-time employee.

The union filed a grievance on behalf of an irregularly scheduled fixed-term correctional officer who was denied attendance credits for October 2009.

The collective agreement provided that employees working 40 hours per week earn attendance credits for each month of full attendance.

The employer argued that the grievor did not meet the 160-hour threshold set out in its Human Resources Guide.

The arbitrator found that the grievor worked 40 non-overtime hours in each week that fell within or overlapped the month, satisfying the collective agreement's requirements.

The arbitrator rejected the employer's estoppel argument, finding that the union had not clearly acquiesced to the 160-hour rule in the context of a compressed work week.

The grievance was allowed.

The union filed grievances alleging workplace harassment, failure to accommodate, and unjust suspension.

The Grievance Settlement Board previously ordered the union to provide detailed particulars of the allegations.

The union failed to meet the deadline and subsequently provided deficient particulars that lacked specific details of the alleged harassment.

The Board granted the union a final opportunity to deliver proper particulars and rescheduled the hearing to Toronto due to witness availability and the likelihood of procedural delays.