Randi H. Abramsky

In a grievance arbitration where the Grievor alleged the Employer's actions caused her harm, a dispute arose over the disclosure of the Grievor's medical records from 2004 to 2007.

The Union consented to provide records from 2007 onwards but objected to earlier records.

The Grievance Settlement Board ordered that the disputed medical records be made available exclusively to the Employer's counsel to determine if they are useful and necessary to the substantive issues.

The Board reasoned that the Employer was entitled to review the records given the allegations of harm and indications of pre-existing issues, subject to strict confidentiality conditions.

The Employer sought an order for particulars and the production of arguably relevant documents from the Union in relation to a labour grievance.

The Grievance Settlement Board granted the request, ordering the Union's counsel to provide the requested particulars and documents to the Employer's counsel by a specified date.

The union filed a grievance alleging that an Area Manager made a comment during a staff meeting suggesting that senior employees come with 'baggage and issues' when discussing how a vacant position would be filled.

The arbitrator found that the comment could be interpreted to mean the employer would not consider older workers, amounting to a breach of the Human Rights Code.

A declaration was issued that the employer breached the non-discrimination clause of the collective agreement.

In a grievance arbitration, the Grievance Settlement Board ordered that all particulars concerning matters that had been withdrawn, settled, or subject to a prior decision be stricken.

The Board further ordered that all generalized particulars alleging discrimination and harassment must be particularized (who, what, where, and when) by a specified date, failing which they may be stricken.

The Employer sought the release of the Grievor's Independent Medical Examination Report and Long Term Insurance Plan file in a dispute over the Grievor's medical condition.

The Grievance Settlement Board directed the Union to provide the documents to the Employer's counsel, subject to strict privacy conditions limiting their use and disclosure to specific individuals involved in the litigation.

The parties sought clarification on three remedial issues following a prior decision finding that the Employer improperly treated Court Reporters as independent contractors for transcript production.

The Grievance Settlement Board held that while transcript production expenses should be factored into the make-whole remedy, the calculation must be done on an overall rather than year-by-year basis.

The Board further ordered the Employer to pay unremitted union dues plus interest, applying the remedy typical for contracting-out violations.

Finally, regarding pension losses, the Board held that the employee is responsible for her share of missed contributions, but the Employer must pay its share plus any interest penalties assessed by the pension trust.

The union filed a grievance in 2010 alleging the employer failed to report the grievor's 1991 surgery and lost time to the WSIB.

The employer brought a preliminary motion to dismiss the grievance as untimely.

The Grievance Settlement Board found the grievor knew or ought to have known of the failure to report by 1994, making the grievance 16 years late.

The Board declined to extend the time limits under section 48(16) of the Labour Relations Act, finding no reasonable grounds for the delay and substantial prejudice to the employer due to faded memories and missing documentation.

The grievance was dismissed.

Three correctional officers grieved their discharges.

One officer was discharged for slapping an inmate during a strip search and covering it up, while the other two were discharged for witnessing the slap and covering it up.

The Grievance Settlement Board found that the slap did occur, relying on the testimony of another officer who came forward despite the 'code of silence'.

The Board upheld the discharge of the officer who slapped the inmate due to the serious nature of excessive force and his continued denial.

However, the Board mitigated the discharges of the other two officers to reinstatement without compensation, benefits, or accumulation of seniority, given their long and unblemished service records.

The union filed a grievance alleging the employer violated the collective agreement and an overtime protocol by failing to offer a recreation officer four hours of overtime when a 12-hour shift became available due to an unplanned absence.

The grievor was already scheduled for an 8-hour shift on the days in question.

The arbitrator found that the union failed to meet its onus to establish a breach, as the protocol's reference to 'off duty' officers was unclear and the evidence of past practice was inconsistent.

The grievance was denied.

The Employer sought to introduce written and verbal statements from inmates regarding an alleged assault by a correctional officer, which led to the discharge of three officers.

The Union opposed the admission of these hearsay statements.

The Grievance Settlement Board held that the statements did not meet the tests of necessity and reliability under the principled approach to hearsay, as the Employer failed to show efforts to obtain testimony through alternative means for deported witnesses, and the statements lacked sufficient guarantees of trustworthiness.

However, the Board admitted the statements into the record under section 48(12)(f) of the Labour Relations Act, leaving the determination of their weight to the conclusion of the hearing.

Following a finding that the grievor was terminated without just cause, the parties could not agree on the calculation of damages in lieu of reinstatement.

The grievor argued that damages should be calculated at a full-time rate, as she would have become full-time had she not been terminated, and at a higher wage rate that took effect shortly after her termination.

The Grievance Settlement Board dismissed both arguments, holding that because the grievor declined reinstatement, she was not entitled to back pay or to be treated as if she had continued working.

Damages in lieu of reinstatement were to be calculated based on her casual rate and the wage rate in effect at the time of her termination.

The Board also found it lacked jurisdiction over Employment Insurance issues.

The Employer requested particulars and disclosure from the Union in relation to multiple grievances.

Following a hearing, the Grievance Settlement Board ordered the Union to provide the requested information within 60 days.

The Board noted that failure to comply could result in the Employer bringing a motion to dismiss the grievances.

The Grievance Settlement Board determined the remedial consequences of its prior finding that the preparation and certification of transcripts by court reporters is bargaining unit work.

The Board established a graduated page-per-hour rate for transcript production based on experience.

It dismissed the union's claim that the grievor should have been converted to full-time status, finding the employer had not determined a continuing need for full-time work.

The Board also held that the grievor was generally not entitled to premium payments like overtime or shift premiums unless specifically authorized.

Finally, the Board ruled that transcript income earned under regulation must be offset against any wages owed, but rejected the employer's argument that it should benefit from the grievor's tax savings as an independent contractor.

The Employer raised a preliminary objection to the jurisdiction of the Grievance Settlement Board, arguing that the Union's grievance was not referred to arbitration in a timely manner.

The Union argued that the Employer waived its objection by participating in the Joint File Review process and exchanging correspondence without raising the timeliness issue.

The Vice-Chair held that while the time limit for referral to arbitration is a procedural matter that can be waived, the Employer did not waive its objection in this case.

The grievance was dismissed for lack of jurisdiction.

The Employer raised a preliminary objection to the Board's jurisdiction, arguing that the Union's grievance was not referred to arbitration in a timely manner.

The Union argued that the failure to refer the grievance within the time limit was a procedural defect that the Employer waived by agreeing to a hearing date and not raising the objection until shortly before the hearing.

The Vice-Chair held that the time limit for referral to arbitration is a procedural matter, not a substantive one, and can be waived.

The Vice-Chair concluded that the Employer waived its objection by taking a 'fresh step' in scheduling the hearing without raising the timeliness issue.

The Employer's preliminary motion was dismissed.

In a grievance arbitration, the Employer requested the production of transcript invoices and tax returns of Court Reporters whom the Union intended to call as reply witnesses.

The Employer sought the documents to assess the witnesses' experience and speed in preparing transcripts, and to potentially challenge their credibility by comparing reported income to invoices.

The Grievance Settlement Board ordered the production of the transcript invoices, finding them arguably relevant to the witnesses' experience and transcript production volume.

However, the Board denied the request for tax returns, characterizing it as an improper fishing expedition barred by the collateral fact rule.

The Union filed a grievance alleging the Employer violated Appendix COR-7 of the collective agreement by excluding time spent on approved leaves of absence and acting assignments from the calculation of 'hours worked' for the Absenteeism Target Incentive.

The Union argued the lump sum payment was effectively a retroactive wage increase and that excluding leave time penalized employees and violated the Employment Standards Act and Human Rights Code.

The Grievance Settlement Board dismissed the grievance, finding the clear language of the agreement provided a lump sum payment based on actual 'hours worked' to reward attendance, not a wage increase, and that prorating a work-driven benefit based on actual attendance did not constitute a reprisal or discrimination.

The union sought to arbitrate a dispute over a correctional officer's entitlement to legal indemnity for criminal charges that were later withdrawn.

The employer moved to dismiss for lack of jurisdiction.

The Grievance Settlement Board held that a prior memorandum of settlement merely preserved the grievor's claim from a general release but did not confer jurisdiction.

Furthermore, the union failed to refer the subsequent grievance to arbitration within the collective agreement's time limits.

The employer's motion to dismiss was granted.

The grievor was previously found to have been terminated without just cause, but her claims of harassment and discrimination were dismissed.

As a remedy, the grievor declined reinstatement and sought both back pay and damages in lieu of reinstatement, along with punitive damages and damages for mental distress.

The arbitrator held that awarding both back pay and damages in lieu of reinstatement is conceptually inconsistent where the employment relationship has not been destroyed by the employer's bad faith.

The arbitrator awarded damages in lieu of reinstatement calculated at 1.25 months' wages per year of service for seven years, plus a 15% top-up for loss of benefits, and statutory entitlements under the Employment Standards Act.

Claims for punitive damages and mental distress were dismissed as the employer's conduct did not amount to bad faith and the secondary effects of termination are not compensable.

The Union filed grievances alleging the Employer violated the collective agreement by improperly reviewing employees' attendance for pattern absenteeism, holding disciplinary meetings, and requiring medical certificates for any absence over a thirty-day period.

The Grievance Settlement Board found that the Employer's methodology for determining attendance patterns was reasonable and that the attendance meetings and letters were non-disciplinary.

The Board also found no double jeopardy in reviewing absences previously addressed under the Attendance Support Program.

However, the Board concluded that the Employer violated Article 44.10 of the collective agreement by imposing a blanket requirement for an employee to submit a medical certificate for every absence over a thirty-day period, as discretion must be exercised at the time of each absence.