Richard Brown

The grievor's original position was improperly classified.

While a classification grievance was pending, he promoted to a different position.

The original position was later reclassified to a higher pay level, resulting in a retroactive wage increase for the period before he changed jobs.

The grievor sought compensation for the ongoing difference in pay between his new job and the reclassified original job.

The Grievance Settlement Board dismissed the grievance, finding that the loss of income was caused by the combination of the employer's erroneous classification and the grievor's subsequent conduct in applying for another job, making the loss too remote a consequence of the breach of contract to be compensable.

The grievor sought Long Term Income Protection (LTIP) benefits and wished to pursue a complaint before the Joint Insurance Benefits Review Committee.

The employer argued that a memorandum of settlement, which resolved four previous grievances and terminated the grievor's employment, barred her claim.

The Grievance Settlement Board found that the release clauses in the settlement were broad enough to encompass the LTIP complaint, precluding the grievor from pursuing her claim.

The employer raised a preliminary objection that the union's grievance, which sought a right of re-election for classified employees regarding a transfer of services, was barred by a memorandum of settlement resolving an earlier grievance.

The arbitrator interpreted the release clause in the settlement, which barred claims 'arising out of' the prior decision.

The arbitrator concluded that the release only covered claims posed by the earlier grievance and left unresolved, and did not extend to the current claim for re-election.

The preliminary objection was dismissed.

The union advanced grievances on behalf of four employees, alleging they were unfairly denied a step-to-step increase and instead only received a 3 per cent promotional increase when moving to a new wage grid.

At the hearing, the union conceded there was insufficient evidence to support the allegation of unfair treatment.

The Vice-Chair dismissed this component of the grievances.

A separate claim regarding one grievor's reclassification remained outstanding and was scheduled for a future hearing.

The union filed a grievance concerning the entitlement of surplus employees to retire with an actuarially unreduced pension upon reaching 'Factor 80'.

The issue was whether an employee who receives a notice of layoff by March 31, 2004, but does not reach Factor 80 until a later date, is entitled to 'bridge' to Factor 80 using unpaid leave.

The Grievance Settlement Board held that there was nothing in the collective agreement indicating that surplus employees seeking to bridge to Factor 80 should be treated differently from those bridging to Factor 90 or 60/20.

The grievance was allowed, permitting employees to use the pension bridging option to reach Surplus Factor 80 after March 31, 2004.

The union (OPSEU) grieved the transfer of family court work formerly performed by Parental Support Workers to lawyers employed by the Ministry.

The Association of Law Officers of the Crown (ALOC), representing the lawyers, applied for intervenor standing.

The Grievance Settlement Board reviewed the law on third-party standing at arbitration, distinguishing between third parties with a direct legal interest under a collective agreement and those with merely a financial or commercial interest.

The Board concluded that ALOC's interest was analogous to that of a third-party contractor whose financial interests might be affected by a contracting-out grievance, rather than a union with a competing legal claim to the work.

Consequently, ALOC's application for standing was denied.

The union filed a grievance regarding holiday compensation for full-time, classified employees designated to provide essential or emergency services during an OPSEU strike spanning Good Friday and Easter Monday.

The Grievance Settlement Board determined the general rules for applying the collective agreement to these employees.

The Board held that emergency workers were covered by the collective agreement only between being scheduled to work and completing all scheduled work.

Essential workers who performed essential services were covered by the collective agreement for the entire duration of the strike.

The specific application of these rules to holiday compensation was deferred.

The grievor, who was receiving Long Term Income Protection (LTIP) benefits, claimed discrimination on the basis of handicap because his LTIP benefits and pension contributions were not increased to reflect a salary increase that came into effect after he became disabled.

The Grievance Settlement Board dismissed the grievance, applying the Court of Appeal's reasoning in Orillia Soldiers Memorial Hospital.

The Board found that the differential treatment was based on work, not disability, and that the grievor was not treated less favourably than able-bodied employees absent from work.

The union filed a group grievance claiming compensation for vandalism to employees' vehicles in the workplace parking lot.

In an interim award, the arbitrator held that the alleged facts did not constitute a violation of the collective agreement.

The union argued that the arbitrator nevertheless had jurisdiction under the Supreme Court of Canada's decision in Weber v. Ontario Hydro.

The arbitrator dismissed the grievance, holding that Weber does not expand arbitral jurisdiction beyond controversies governed by the express or implied terms of a collective agreement.

Because the property damage claim did not arise under the agreement, the arbitrator lacked jurisdiction.

The grievor filed a grievance objecting to the employer's refusal to recall him from layoff to fill a vacancy as an abatement officer.

The employer raised a preliminary objection that the grievance was barred by issue estoppel, as a previous grievance by the same grievor seeking to displace a junior employee in the same position had been dismissed on the basis that he lacked the 'present ability' to perform the work.

The Vice-Chair held that the 'present ability' test applies differently to displacement versus redeployment/recall if mandatory training is required for the position.

Because there was an unresolved factual dispute about whether training for the abatement officer position was mandatory, the Vice-Chair deferred a final ruling on issue estoppel until that factual issue could be determined.

The union grieved the employer's refusal to convert unclassified driver examiners to classified status after they had worked full-time for more than two years.

The employer argued that the impending privatization of driver examination services meant there was no 'continuing need' for the work.

The Grievance Settlement Board found that the employer's plan to continue providing services for at least six months prior to the transfer constituted a determination of continuing need.

The grievance was allowed, and the employer was directed to convert all eligible driver examiners.

The union filed multiple grievances on behalf of an unclassified court reporter, alleging failure to convert to classified status, religious discrimination, workplace harassment, unfair distribution of work, and discipline without just cause.

At the conclusion of the union's case, the employer brought a motion for non-suit.

The Grievance Settlement Board applied the standard of whether sufficient evidence was presented to establish a prima facie case.

The Board granted the non-suit motion for the majority of the claims, finding insufficient evidence of wrongful denial of work, systemic religious discrimination, or general harassment.

However, the Board dismissed the non-suit motion and found a prima facie case was established regarding one alleged anti-Semitic comment, one alleged physical assault by a manager, and one instance of alleged discipline without just cause involving removal from a trial assignment.

The union filed a group grievance claiming compensation for vandalism to the grievors' vehicles in the employer's parking lot, alleging the employer failed to take reasonable precautions.

The employer raised a preliminary objection that the matter was not covered by the collective agreement.

The arbitrator held that the management rights clause (article 2.1) did not create a positive obligation to protect employee property, and the health and safety clause (article 9.1) only applied where employees themselves were placed at risk of bodily injury.

As the union did not allege the employees were endangered, the facts alleged would not constitute a violation of the collective agreement.

The arbitrator left open whether jurisdiction flows from the principles in Weber v. Ontario Hydro.

The grievor, a casual employee, grieved a three-day suspension for alleged misconduct.

The parties directed the arbitrator to issue a bottom-line award without written reasons, determining only whether a suspension was warranted.

The arbitrator concluded that the employer failed to discharge the burden of proving that a suspension of any length was warranted, and directed the employer to rescind the suspension and compensate the grievor.

The union filed four grievances concerning the transfer of psychiatric facilities from the provincial government to hospitals and the subsequent enrollment of transferred employees in the Hospitals of Ontario Pension Plan (HOOPP) instead of the OPSEU Pension Trust (OPT).

The employer raised a preliminary objection that the grievances were untimely.

The Grievance Settlement Board found that the grievances were filed late but granted an extension of time under s. 48(16) of the Labour Relations Act for the claims based on Appendices 9, 11, and article 2.1 of Appendix 18, as the delay was largely due to the union pursuing court proceedings and the employer suffered no substantial prejudice.

However, the Board denied an extension for the claims based on article 6.0 of Appendix 18, which had a strict seven-day time limit, due to the length of the delay and the lack of explanation.

The union alleged that the employer improperly surplussed Parental Support Workers (PSWs) when their duties were reorganized and transferred to other components of the Ministry, including outside the bargaining unit.

The Grievance Settlement Board determined that the employer's reorganization did not inherently violate the collective agreement or section 22(4) of the Public Service Act.

However, the Board found that the union could potentially establish a violation if the largest portion of the PSWs' duties (over 50%) was transferred intact to the Legal Services Branch, or if the transfer of work outside the bargaining unit violated an implied restriction.

The matter was deferred for further evidence and argument.

The grievor filed a two-part grievance alleging the employer failed to recognize his full wage for enhanced severance and improperly paid him as a driver while he performed youth worker/court liaison duties.

The first part was settled at stage two, with the employer agreeing to include the Custodial Allowance in the termination pay calculation.

The second part was deemed inarbitrable as it dealt with a matter of classification, a position the union did not contest.

The Vice-Chairperson found he lacked jurisdiction to hear the second part of the grievance.

The union filed a grievance alleging that a Request for Proposals (RFP) for the private operation of a new correctional facility did not adequately protect the seniority rights of transferring employees.

The Grievance Settlement Board held that article 6C.3.4 of the collective agreement mandates the recognition of Ontario Public Service (OPS) seniority by a receiving employer, even if they do not otherwise have a seniority system.

The Board further held that RFP employees must be able to assert their OPS seniority against non-RFP employees.

Finally, the Board concluded that the collective agreement precludes 'end-tailing' of RFP employees by a receiving employer bound by an existing collective agreement.

The union filed a policy grievance challenging the employer's inclusion and exclusion of certain employees in a Request for Proposals (RFP) for the operation of the new Central North Correctional Centre (CNCC).

The union argued that the employer violated the collective agreement by improperly identifying the jobs or functions attached to the services being transferred to the private sector.

The Grievance Settlement Board found that the employer acted arbitrarily in failing to exclude some food-service employees and employees working with inmates serving intermittent sentences, directing the employer to amend the RFP accordingly.

The remainder of the grievance regarding other employee classifications was dismissed.

The union filed a policy grievance concerning the impending opening of the Central North Correctional Centre and the government's intention to privatize its operation.

The issue was whether employees whose work is relocated to the new facility and simultaneously privatized are entitled to reimbursement for relocation costs under Appendix 13 of the collective agreement.

The arbitrator held that Appendix 13 applies only to the relocation of operations within the public service and does not apply when work is transferred to a private-sector employer.

The grievance was dismissed.