Randi H. Abramsky

The grievor, a casual Customer Service Representative at the LCBO, was discharged for allegedly intentionally allowing customers to leave with unpaid products and giving away a value-add item without authorization.

She grieved the discharge and also alleged age discrimination and harassment by her store manager.

The Grievance Settlement Board dismissed the discrimination and harassment claims, finding the employer's requests for medical information were legitimate accommodation efforts and the manager's actions were work-related disagreements.

However, the Board upheld the grievance against the discharge, finding the employer failed to prove by clear and cogent evidence that the grievor had a dishonest intention to commit theft.

The failure to scan items was deemed careless cashiering, and the grievor acted under a mistaken but honestly held 'colour of right' when distributing the value-add item.

The grievance was allowed on the merits, with remedy deferred.

The grievor filed a grievance alleging unjust discipline after receiving a letter of reprimand.

Prior to the hearing, the employer rescinded the letter of reprimand, substituted a non-disciplinary letter of counsel, and moved to dismiss the grievance for mootness.

The Grievance Settlement Board held that the issue of unjust discipline was moot because the letter of counsel was not disciplinary.

However, the Board found that the grievor's claim for damages for alleged loss of reputation and mental distress, which stemmed from the original discipline, remained a live controversy.

The employer's motion was granted in part.

The Employer moved to dismiss over fifty grievances filed by Court Reporters alleging non-compliance with the collective agreement regarding transcript production.

The Employer argued these grievances raised the same issues currently being addressed in the remedial phase of a prior Board decision (Hunt et al.).

The Vice-Chair denied the motion, finding that the prior decision did not give the Board continuing jurisdiction to ensure compliance with the collective agreement, and that the new grievances raised new matters arising from the Employer's ongoing failure to comply with the prior decision.

The Employer brought a preliminary motion to dismiss union grievances regarding the calculation of absenteeism target incentives, arguing that a January 2010 Memorandum of Agreement (MOA) precluded such challenges.

The MOA prevented the Union from challenging the Employer's 2009 data and attendance targets.

The Grievance Settlement Board dismissed the motion, finding that while the MOA settled the attendance target percentage, it did not contain clear language waiving the Union's right to grieve the Employer's calculation of individual 'hours worked' for the purpose of applying the incentive payment.

The Union filed grievances alleging that the Employer violated the collective agreement by failing to pay absenteeism target incentives to fixed-term correctional officers.

The Employer brought a motion to dismiss the grievances on the basis that they did not disclose a prima facie case.

The Grievance Settlement Board granted the motion, finding that the clear language of the collective agreement restricted the incentive payments to 'regular' employees and explicitly excluded fixed-term employees.

The grievances were dismissed.

The parties resolved several grievances, leaving four outstanding.

To ensure an expeditious hearing for the remaining grievances, the Grievance Settlement Board ordered the union to provide full particulars and identify further evidence and documentary disclosure needed.

The employer was ordered to provide the requested disclosure and identify additional facts it would rely upon.

The Union grieved the Employer's unilateral cessation of 'pay in lieu' (PIL) of benefits payments to student employees, a practice that had existed for over 20 years.

The Union argued that PIL was a 'term and condition of employment specifically applicable to students' under Article 33.3 of the collective agreement.

The Grievance Settlement Board held that the collective agreement explicitly limited the provisions applicable to students and did not include PIL payments.

Applying the principle of expressio unius est exclusio alterius, the Board found that the parties specifically included PIL for other fixed-term employees but excluded it for students.

The grievance on this interpretive issue was dismissed, with remaining issues to be set for hearing.

The grievor, a Human Rights Investigator, requested a one-year unpaid leave of absence to accept a temporary position at Toyota, citing mental health issues related to his current workplace.

When the Employer did not provide a decision by his requested start date, the grievor submitted a conditional resignation, stating he would resign if the leave was denied.

The Employer subsequently denied the leave request and accepted the resignation.

The Union grieved, arguing the resignation was not voluntary and that the Employer failed in its duty to accommodate the grievor's disability.

The Grievance Settlement Board dismissed the grievance, finding that the grievor had a clear subjective intent to resign, confirmed by his objective conduct of starting work at Toyota.

The Board also held that the Employer fulfilled its duty to accommodate by seeking medical information and determining the grievor could return to work with a reduced caseload, and that the denial of the leave request was reasonable.

The parties requested a nonprecedential and nonbinding decision without reasons.

The Grievance Settlement Board considered the stipulated facts, case law, and arguments of the parties, and dismissed the grievance.

The Grievance Settlement Board ordered the Employer to engage an outside facilitator to conduct workplace resolution training for the Victim Witness Assistance Office in North Bay.

On this basis, the grievances were dismissed.

The Employer brought a motion to strike certain claims from the Union's particulars in a harassment and unjust dismissal grievance.

The Employer argued that the claims pertained to matters that had been previously grieved and resolved through Memorandums of Settlement.

The Union sought to introduce the evidence to establish a pattern of harassment and bad faith by the Employer.

The Grievance Settlement Board granted the motion to strike, holding that evidence of fully and finally resolved matters is generally inadmissible to establish a pattern of harassment, absent exceptional circumstances akin to bad faith in the settlement process.

The Union was permitted to lead evidence that the prior settlements were breached, as well as evidence of matters not covered by the settlements.

The union grieved the results of a job competition for a Probation Administrative Support position, arguing the grievor was improperly scored during the interview process and should have been awarded the position over a more senior applicant.

The Grievance Settlement Board reviewed the interview scores and found no evidence of improper marking or bias.

The Board concluded that the union failed to establish that the grievor's qualifications and abilities exceeded those of the senior applicant by a substantial and demonstrable margin, as required by the collective agreement.

The grievance was dismissed.

The Grievance Settlement Board issued a brief decision noting the parties' agreement that there is an obligation to consider the accommodation needs of surplus employees in the redeployment process.

The parties agreed to refer the implementation of this obligation to the Central Employee Relations Committee (CERC) and/or its subcommittees to be dealt with on a substantive basis within 18 months.

The parties reached a memorandum of settlement regarding multiple grievances.

On consent, the Grievance Settlement Board issued an order incorporating the settlement terms, which included a confidentiality clause.

The Vice-Chair remained seized of any issues regarding implementation or interpretation.

The Grievance Settlement Board issued an interim order following a conference call.

The grievor was directed to provide the employer with contact information for his referred physiatrist and pain clinic so the employer could seek medical information regarding his return to work.

The union was also ordered to provide particulars of the discrimination and harassment allegations by a specified date, failing which the employer could move to dismiss the grievance.

In the remedial stage of a grievance concerning whether transcript preparation is bargaining unit work, the Employer brought a motion to compel the production of a grievor's income tax returns and supporting documents from 2003 to 2009.

The Union opposed the motion, arguing the documents were not arguably relevant and citing privacy interests under the Income Tax Act.

The Grievance Settlement Board granted the motion, finding that the tax documents were arguably relevant to the Employer's argument that transcript income and other earnings should be offset against claimed losses.

The Board ordered production subject to the redaction of personal information unrelated to income and expenses.

The Union filed a policy grievance alleging the Employer violated the collective agreement by refusing to provide H1N1 vaccinations to institutional employees.

The Employer raised preliminary objections, arguing the grievance was moot because the H1N1 crisis had ended.

The Grievance Settlement Board applied the doctrine of mootness, finding that the issue of vaccinations for staff was no longer a live controversy and a decision on the merits would provide no practical guidance for future pandemics.

The grievance was dismissed as moot.

In an interim decision, the Grievance Settlement Board found that the grievor's return to work medical note was insufficient for the employer to determine if it was medically safe for him to return.

The Board ordered the grievor to have his doctor answer specific questions provided by the employer.

Additionally, the Board ordered the union to provide particulars regarding allegations of discrimination and harassment by a specified date, noting that failure to do so could result in a motion to dismiss the grievance.

The Employer moved to dismiss the grievances, arguing the Union failed to comply with a Board order to provide particulars regarding retrospective remedial claims for court reporters.

The Union acknowledged the particulars were incomplete but argued it made best efforts and faced difficulties gathering historical data for hundreds of employees.

The Board denied the motion to dismiss, finding no abuse of process or deliberate flouting of the order.

The Board noted the grievances had already been found to have merit and the matter was at the remedial stage, making dismissal an extraordinary and inappropriate remedy in these circumstances.

The Union was granted an additional six months to complete the particulars.

The Union requested an extension of time to provide particulars ordered in a previous decision, citing the difficulty of gathering information for over 400 employees.

The Employer opposed the request.

The Grievance Settlement Board granted the extension, finding that the Union provided valid reasons and noting that the original timeline for compliance was relatively brief.