Richard Brown

Following a finding that the grievor was discharged without just cause, the employer argued that the remedy should be limited to damages in lieu of reinstatement.

The arbitrator reviewed the arbitral jurisprudence, noting that damages are an exceptional remedy awarded only when the employment relationship is no longer viable.

Finding that the grievor's case did not present such exceptional circumstances, the arbitrator ordered reinstatement with a 20-day suspension substituted for the discharge, but denied compensation for lost wages due to the grievor's serious dereliction of duties.

The grievor, a Worker Advisor with 19.5 years of seniority, was terminated for substandard performance, gross negligence in handling case files, and insubordination.

The union grieved the termination, arguing that the employer's delay in imposing discipline precluded it and that the penalty was excessive.

The arbitrator found that the delay did not preclude discipline because the grievor was on union leave and failed to respond to employer inquiries.

The arbitrator also found cause for discipline based on the grievor's admissions of insubordination and performance shortfalls.

However, considering the grievor's seniority, the impact of approved absences on her performance, and her disciplinary record (which included a previous 15-day suspension that was waived), the arbitrator concluded that termination was an excessive penalty.

The employer should have imposed a 20-day suspension as the next step in progressive discipline.

The issue of remedy (reinstatement vs. damages) was deferred for written submissions.

The Grievance Settlement Board issued a supplementary order amending a previous order regarding disclosure timelines in a policy grievance.

The amendment was intended to address occasions when the employer failed to comply with the timeline for disclosure.

The Board established a revised schedule for identifying divisions, providing disclosure, and holding meetings, and directed that any expected failure to meet time limits must be communicated and resolved by agreement or by the Vice-Chair.

The union requested the reinstitution of the hearing process for a policy grievance concerning whether certain persons performing bargaining unit work should be characterized as employees.

The Vice-Chair issued a procedural order setting out a schedule for mediation/arbitration dates, updated disclosure requirements for the employer, and a process for the parties to state their positions and meet to narrow the issues in dispute.

The union and employer had agreed to argue the legal question of whether time spent at muster is compensable under the collective agreement.

On the scheduled hearing date, the employer requested an adjournment, stating counsel lacked instructions to proceed in the absence of the client.

The union opposed the request.

The Vice-Chair expressed concern over the employer resiling from the agreement without adequate explanation, but granted the adjournment on the condition that the issue be argued by teleconference on a specified date.

The Grievance Settlement Board issued modifications to a prior procedural order in a grievance arbitration.

The Vice-Chair directed that the grievor is entitled to review his personnel file before providing particulars.

Deadlines for the union to provide particulars, for the employer to respond to a consolidation request, and for the employer to notify the union of preliminary objections were all extended.

The Grievance Settlement Board issued procedural directions in a grievance arbitration between OPSEU and the Crown.

The directions ordered the employer to allow the union access to the grievor's personnel file, required the union to provide further particulars regarding existing and additional grievances sought to be consolidated, set a deadline for the employer's response to the consolidation request, and established a deadline for the employer to notify the union of any preliminary objections.

The union filed grievances arguing that an employee who worked reduced hours due to a workplace injury retained full-time status and was entitled to all associated benefits.

In a prior decision, the arbitrator ruled that the employee was entitled to specific benefits listed in the collective agreement, but not to other benefits like pension and vacation.

The union subsequently argued that the prior ruling implicitly recognized the employee's full-time status, thereby entitling her to all benefits.

The arbitrator dismissed this argument, holding that the union was bound by the initial decision and precluded from raising the same argument a second time.

The union grieved the employer's correction of an error in an employee's seniority date, which resulted in the grievor losing shift selection preference.

The union argued that a prior memorandum of agreement barred adjustments to seniority dates after a specific deadline, and alternatively relied on the doctrine of estoppel.

The arbitrator dismissed the grievance, finding that the language of the current collective agreement expressly permitted the correction of errors by stating an employee's seniority date is the greater of the specified formula or the previous agreement.

The estoppel argument also failed because the union had agreed to the current wording.

The union sought production of documents and particulars related to the grievor's termination.

The Grievance Settlement Board ordered the employer to provide all documents relied upon in terminating the grievor's employment, including written complaints, interview notes, and the investigator's report.

The employer was also ordered to provide written particulars of the facts relied upon to establish just cause for dismissal within thirty days.

The grievor, a correctional officer, was discharged by the Ministry after it discovered he had been fired from his previous employment at a private correctional facility for sexually inappropriate conduct.

When applying to the Ministry, the grievor submitted a resume and letter that inadvertently misrepresented he was still employed at the private facility.

The Grievance Settlement Board applied the Gould Manufacturing approach to assess whether the misrepresentation justified discharge.

Finding the misrepresentation was inadvertent rather than deliberate, and weighing the grievor's prior unblemished seven-year service with the Ministry, the Board concluded the mitigating factors outweighed the misconduct.

The grievance was allowed in part, and the grievor was reinstated without compensation.

The union filed individual and group grievances alleging the employer failed to ensure the security of documents containing confidential employee information.

The employer raised a preliminary objection that the Grievance Settlement Board lacked jurisdiction to hear the grievances.

The Vice-Chair ruled on a non-precedential basis, without reasons, that the matters did not lie within the board's jurisdiction and dismissed the grievances.

The Grievance Settlement Board issued directions regarding a policy grievance concerning document disclosure and bargaining unit exclusions.

The employer was ordered to comply with a previous production order for specific positions at the Ministry of Health, regardless of contentions that the positions involved work done by OPSEU members or ceased to exist.

The employer was also directed to state its position on whether disputed positions involved AMAPCEO work and whether the individuals were employees or excluded from the bargaining unit.

The grievor, an air quality technician, was laid off and subsequently grieved the employer's refusal to recall him to fill a vacancy for an EO4 abatement officer.

The union argued that the grievor would have been qualified if he had been provided the same post-appointment training offered to other newly hired abatement officers, invoking an exception to the 'present ability' test.

The Grievance Settlement Board found that while new hires did receive some basic training, the union failed to demonstrate on a balance of probabilities that this limited training would have remedied the specific deficiencies in the grievor's qualifications.

The grievance was dismissed.

In a grievance arbitration regarding statutory holiday pay for essential workers during a strike, the union sought interest on the monies owed.

The employer argued the union was estopped from claiming interest because it was only raised on the last day of the hearing.

The arbitrator rejected the estoppel argument, finding no detrimental reliance by the employer.

The employer was directed to pay interest on monies owing under the expired collective agreement and on the retroactive wage increase, with the latter accruing from the date the retroactive payments were reasonably completed.

The Grievance Settlement Board determined the entitlement of correctional workers to holiday pay for Good Friday and Easter Monday during the 2002 strike.

The employer argued that correctional workers on the emergency part of their rotation should be treated as emergency employees, only covered by the collective agreement when called to work.

The union argued they were essential workers covered throughout the strike.

The Vice-Chair ruled that because correctional workers were designated to provide essential services, they were covered by the collective agreement for the entire duration of the work stoppage, provided they performed any work during it, and are therefore entitled to holiday pay.

The employer raised a preliminary objection that the union's grievance concerning the transfer of operations to a new agency was untimely.

The employer argued that the seven-day time limit under article 8.3 of the collective agreement applied.

The union contended that the standard thirty-day time limit under article 22.13.1 applied because the dispute concerned the application of the agreement to job offers, not the transfer agreement itself.

The arbitrator held that article 8.3 did not apply to disputes about the quality of job offers under articles 6.5 and 6.6.

The preliminary objection was dismissed as the grievance was filed within the thirty-day limit.

The grievor sought payment for scheduled shifts during the 2002 Ontario public service work stoppage.

The grievor elected not to cross a picket line, despite being invited to do so by the picket captain.

The Grievance Settlement Board dismissed the grievance, finding that the grievor was not entitled to be paid in these circumstances.

The union sought a further order for the production of documents relating to individuals engaged by the Ministry of Health who are not formally classified as public servants, to determine if they belong in the bargaining unit.

The Grievance Settlement Board ordered the employer to produce contracts, secondment agreements, or job specifications for the disputed individuals by April 26, 2004, unless the employer concedes they are members of the bargaining unit.

The Union requested that the Ministry produce resumes for several individuals who held Enforcement Officer 4 positions between 1998 and 2002, following an earlier order for training documentation.

The Employer opposed the request.

The Grievance Settlement Board directed the Ministry to produce the resumes, finding them arguably relevant to the issue in dispute.