Craig Flood

The Union grieved the dismissal of a probationary Programmer Analyst, alleging a violation of the collective agreement's just cause provision.

The grievor was hired for an intermediate-level position but demonstrated significant performance deficiencies and a lack of basic programming skills during his probationary period.

The Grievance Settlement Board applied the Bell standard for probationary employees, finding that the Employer provided a fair and reasonable orientation, communicated performance expectations, provided reasonable assistance, and gave the grievor an opportunity to improve.

The Board concluded that the Employer's decision to terminate the grievor for failing to meet the expected standards was reasonable and established just cause.

The grievance was dismissed.

In a grievance challenging a demotion based on an alleged failure to accommodate a disability, the employer raised a preliminary issue arguing that other employees potentially affected by the outcome should receive notice and standing.

The Grievance Settlement Board reviewed the principles of third-party standing in arbitration and concluded that the identified individuals were not entitled to notice.

The grievance did not seek to displace the current incumbents, and any potential impact on them was contingent and indirect.

The preliminary objection was dismissed.

The union brought a preliminary motion arguing that the discipline imposed on the grievor was void ab initio because the employer failed to comply with article 26.3 of the collective agreement.

The grievor was called to a meeting where he was handed a notice of intended discipline without prior notice of the meeting's purpose or his right to union representation.

The Grievance Settlement Board found that the meeting triggered article 26.3 and that the employer breached the provision by failing to provide advance notice.

The discipline was declared void ab initio and the employer was directed to compensate the grievor.

In a grievance arbitration regarding shift premiums, the employer sought to introduce extrinsic evidence of past practice and negotiating history to establish estoppel or a latent ambiguity.

The Grievance Settlement Board ruled that the employer's particulars regarding past practice, even if proven, would not establish estoppel or a latent ambiguity because they showed the union consistently protested the employer's practice rather than acquiescing to it.

The Board permitted the employer to introduce limited evidence of negotiating history to show changes in collective agreement language, despite the late filing of particulars, as it would not significantly prejudice the union.

The applicant filed a complaint alleging that the union breached its duty of fair representation under section 74 of the Labour Relations Act, 1995 by withdrawing his grievances concerning a denied promotion and his subsequent termination.

The union had sought a legal opinion, which concluded that the grievances were unlikely to succeed at arbitration due to the applicant's short tenure, substantial disciplinary record, and complaints from fellow employees.

The Board found that the union turned its mind to the grievances, considered relevant information, and did not act in a manner that was arbitrary, discriminatory, or in bad faith.

The application was dismissed.

The union filed a grievance claiming the grievor was entitled to a shift premium for hours worked on a paid holiday.

The employer argued the collective agreement was ambiguous and sought to introduce extrinsic evidence of past practice and negotiating history to establish a latent ambiguity or estoppel.

The union objected to the admission of extrinsic evidence, arguing the language was clear.

The Grievance Settlement Board found no patent ambiguity in the collective agreement.

However, to determine whether a latent ambiguity or estoppel existed, the Board directed the employer to provide detailed particulars of the proposed extrinsic evidence before ruling on its admissibility.

The employee was convicted of sexually assaulting a young boy in the course of his employment as a recreation instructor.

The employer subsequently dismissed him.

The union grieved the dismissal.

At the arbitration, the arbitrator allowed the union to relitigate the employee's culpability, ultimately finding the employee innocent and ordering his reinstatement.

The Divisional Court quashed the arbitrator's decision.

On appeal, the Court of Appeal upheld the Divisional Court's ruling, holding that the arbitrator erred in law.

The Court found that permitting the relitigation of a final criminal conviction in a grievance arbitration, where the facts and issues are identical, violates the finality principle and constitutes an abuse of process.

The appellant appealed an order of the Divisional Court.

The appeal was heard together with a companion appeal involving the City of Toronto and the Canadian Union of Public Employees.

For the reasons provided in the companion appeal, the Court of Appeal dismissed this appeal with costs.

The Employer raised a preliminary objection to the arbitrability of a grievance concerning shift premiums for overtime hours, arguing that the Union was barred from proceeding because a prior grievance on the same issue had been withdrawn at the complaint stage.

The Grievance Settlement Board dismissed the objection, finding that the mere withdrawal of a grievance at an early stage, without explicit agreement to the Employer's interpretation of the collective agreement, does not constitute issue estoppel, res judicata, or abandonment.

The grievance was permitted to proceed.

The applicant filed an application for termination of bargaining rights.

The responding party union challenged the voters list, asserting that the individuals were not at work or not performing bargaining unit work on the application date, and sought extensive document production from the employer.

The Board denied the document production request, finding the union was seeking documents to find a case rather than support one, given its prior agreement on the job site and its routine inspections.

After hearing credible testimony from the three individuals, the Board ruled they were properly on the list.

The ballots were counted, resulting in a vote against the union, and the Board declared the union no longer represented the employees.

The grievor was denied long-term income protection (LTIP) benefits and filed a grievance seeking an order confirming eligibility.

The employer raised a preliminary objection that the grievance was inarbitrable because the collective agreement only obliged the employer to pay the premiums for the insurance plan, not to provide the benefits directly.

Applying the framework from Weber and Dubreuil, the Grievance Settlement Board found that the plain language of the collective agreement indicated an intention to provide benefits through an insurance plan, without incorporating the master contracts by reference.

As the employer's only obligation was to pay premiums, the dispute over benefit entitlement was not within the ambit of the collective agreement and was therefore inarbitrable.

The applicant trade union applied for certification and filed an unfair labour practice complaint against the responding party employer.

The Board found that the employer violated sections 70 and 72 of the Labour Relations Act, 1995 by terminating an employee for his union support and engaging in intimidation.

The Board ordered the employer to pay $35,440 in lost wages to three affected employees and to post a notice of the violations.

The Board declined to award costs or general damages, finding no statutory authority to do so.

The union was certified for the ICI and all other sectors in Board Area 8.

Mid-way through a grievance arbitration hearing, the union indicated it would seek an order terminating the employment of the employer's present employees in the bargaining unit.

The employer asserted the affected employees were entitled to notice.

The Board directed the employer to provide a copy of the decision to the affected employees, outlining the procedure for them to request participation in the hearing.

The employer and an intervenor employee requested reconsideration of a Board decision that declared a sale of business and related employer status between Volta and Urban.

They argued that a subsequent certification vote where employees rejected the union, and a three-year delay in issuing the decision, warranted reconsideration.

The Board dismissed the requests, finding that the certification vote did not extinguish the union's prior bargaining rights and that the delay, while excessive, did not justify overturning the decision, though it might be relevant to mitigating damages in the related grievance referrals.

The employer, Urban Electrical Contractors, requested reconsideration of a Board decision declaring it bound to a provincial collective agreement.

The Board noted that an employee, Danny Ajamian, had previously attempted to challenge the decision but was mistakenly turned away by a Board Solicitor.

The Board directed that if the employee wished to make submissions regarding the reconsideration request, he must deliver them to the union and the employer by a specified date, and set a schedule for responsive submissions.

During a hearing for a related employer and sale of business application, the applicant union sought to adduce evidence from a witness regarding an alleged scheme by the responding parties' principals to avoid the union's bargaining rights.

The responding parties objected, arguing that the union had failed to put this allegation to their key witness during his earlier cross-examination, in violation of the rule in Browne v. Dunn.

The Board upheld the objection, finding that the union's failure to give the witness an opportunity to respond to the serious allegation of a scheme caused considerable prejudice.

Given the late stage of the proceedings and the lack of explanation for the delay, the Board barred the union from calling or relying on evidence relating to the witness's involvement in the alleged scheme.

The Ontario Labour Relations Board issued a procedural decision scheduling the continuation of a hearing for two referrals of grievances to arbitration.

The hearing was set to continue on October 12 and 19, 2000, and the Vice-Chair remained seized of the matter.

The grievor, a store manager with 24 years of service, was discharged for violating the employer's cash handling policy regarding US currency.

During the investigation, the employer held a meeting with the grievor where he made self-incriminating statements.

The employer failed to advise the grievor of his right to union representation prior to or during this meeting, as required by article 26.3 of the collective agreement.

The Grievance Settlement Board found that the meeting triggered the grievor's substantive right to representation, which he did not waive.

The Board declared the discharge void ab initio and ordered the grievor reinstated with compensation from the date the union raised the representation issue.

The employer raised a preliminary objection to the arbitrability of a grievance claiming disability benefits, arguing that the union's withdrawal of a similar grievance in a different matter created an estoppel or rendered the issue res judicata.

The Grievance Settlement Board dismissed the objection, finding that the parties and objects of the two grievances were not identical, and the withdrawal of the prior grievance did not constitute a final determination or a representation on which the employer could detrimentally rely.

Three employers applied for judicial review of arbitration awards that reinstated employees who had been discharged following criminal convictions for sexual assault in the workplace.

In each case, the arbitrators had allowed the unions to collaterally attack the criminal convictions and had concluded the employees were innocent.

The Divisional Court granted the applications and quashed the arbitration awards, holding that a criminal conviction cannot be collaterally attacked at a subsequent arbitration.

The doctrine of abuse of process prevents an arbitrator from retrying a criminal case and treating a conviction as merely prima facie evidence.