Ed Holmes

The employer brought a motion to dismiss a grievance alleging failure to take reasonable precautions regarding Covid-19 safety for lack of a prima facie case.

The union brought a motion to consolidate a third grievance regarding improper pay with two already consolidated grievances.

The Arbitrator dismissed the employer's motion, finding the union's particulars regarding differential treatment in PCR testing and close contact protocols sufficient to proceed to a hearing.

The Arbitrator allowed the union's motion to consolidate, finding that the pay grievance arose out of the same series of incidents as the accommodation grievance and should be heard together for efficiency.

In a remedial claim arising from a prior decision, the Grievance Settlement Board ordered the employer to pay a meal allowance expense of $32.60 to each of the 46 grievors.

The decision was issued on a without prejudice and precedent basis and without reasons, pursuant to Article 22.16 of the Collective Agreement.

The parties reconvened to address monetary compensation issues arising from a previous arbitration award that upheld three grievances, including one from the Sudbury Jail.

Despite attempts over three years to identify individual claims for compensation from the Sudbury Jail, no such claims were found.

To ensure finality, the arbitrator dismissed the Sudbury Jail grievance.

During a hearing on an employer's preliminary motion to dismiss 31 consolidated grievances, the parties agreed to consolidate five additional newly discovered grievances.

The employer objected to the union providing particulars for the new grievances, arguing it was too late and prejudicial as the employer had already commenced its submissions on the motion.

The Arbitrator held that the union was entitled to provide particulars for the new grievances, as the employer's prior submissions related only to the original grievances and the employer would not be prejudiced.

The union was ordered to provide the particulars by a specified date.

The employer brought a motion to dismiss eight grievances alleging racial and family status discrimination and anti-union animus, arguing the particulars failed to establish a prima facie case.

The arbitrator applied the test for a prima facie case of discrimination, finding that relatively little affirmative evidence is required at this stage.

The arbitrator concluded that the particulars for seven of the grievances were capable of supporting the alleged violations if proven true.

One grievance relating to general workload issues was dismissed as it did not fit the union's theory of the case.

The employer's alternative motion to strike certain particulars was dismissed as premature.

The employer raised preliminary objections to several grievances filed by the union on behalf of a terminated employee.

The employer argued that grievances relating to a breach of privacy and a delayed Record of Employment (ROE) were inarbitrable because the events occurred after the grievor's termination.

The arbitrator deferred these grievances, noting their arbitrability depends on whether the grievor is reinstated following the hearing of his termination grievance.

The employer also objected to a grievance claiming PTSD injuries, arguing it was untimely and barred by res judicata.

The arbitrator dismissed the PTSD grievance as untimely, finding an extreme delay of over three years without a reasonable explanation.

Finally, the arbitrator declined to strike portions of the union's statement of particulars, noting they are not evidence.

The Employer brought a non-suit motion and a motion to dismiss the grievance for mootness in an arbitration concerning the alleged bad faith reclassification of Executive Support ITSOs.

The Arbitrator applied the established principles for non-suit motions and found that the Union's evidence met the minimum threshold of credibility to establish a prima facie case.

Both the non-suit motion and the mootness motion were dismissed without detailed reasons, in accordance with the Board's practice when denying such motions.

The matter will continue on the scheduled dates.

Three correctional officers grieved the employer's refusal to indemnify their legal costs incurred in defending criminal charges of aggravated assault arising from a use of force incident against an inmate.

The criminal charges were withdrawn.

The employer argued the officers were not entitled to indemnification because they engaged in 'code of silence' behaviour following the incident, demonstrating bad faith.

The Grievance Settlement Board allowed the grievance, finding that under Article COR 14.1.2 of the collective agreement, the requirement of good faith applies only to the acts that led to the criminal charges.

Since the employer's own investigation concluded the force used was justified and reasonable, the good faith condition was met.

Two nurses filed individual grievances after the Employer denied them the N3 nursing allowance for holding a degree in nursing science.

The collective agreement provides that the application of the allowance is at the discretion of management.

The Employer conceded that it did not consider the criteria set out in the collective agreement and therefore failed to appropriately exercise its discretion.

The arbitrator allowed the individual grievances and remitted the requests back to the Employer to exercise its discretion properly.

The union filed 14 grievances on behalf of a flexible part-time registrar regarding hours of work, sick leave, discipline, return to work, and health and safety issues.

The arbitrator dismissed the majority of the grievances, finding that the employer properly applied the collective agreement regarding the scheduling of hours and payment for days attending the Grievance Settlement Board.

The arbitrator upheld a letter of discipline for insubordination but restored 1.5 hours of pay for a medical appointment.

The arbitrator also allowed the return-to-work grievances in part, directing the employer to pay two weeks' pay for failing to accommodate the grievor in a timely manner.

The union sought to consolidate a ninth grievance with eight previously consolidated grievances alleging a pattern of workplace harassment, bullying, discrimination, and denial of union representation by the employer.

The employer opposed the consolidation, arguing the ninth grievance involved different managers, a different timeframe, and a distinct issue regarding the use of Compensating Time Off (CTO).

The arbitrator granted the union's request, finding that the ninth grievance shared sufficient factual and legal overlap with the other grievances, as all alleged a broader pattern of employer misconduct.

The arbitrator concluded that consolidating the grievances would avoid the inefficiency of a third parallel proceeding.

The employer brought a motion to determine whether its jurisdictional objection (a Monk motion) regarding the Board's authority to award monetary remedies for a workplace assault should be heard as a preliminary issue.

The union argued the motion should be deferred until after the merits of the grievance were decided.

The Arbitrator held that, absent agreement between the parties, the timing of a Monk motion must be determined on a case-by-case basis considering efficiency and labour relations principles.

Finding no efficiency in hearing the motion preliminarily, the Arbitrator deferred the Monk motion to the end of the hearing.

The Union filed grievances on behalf of three employees regarding the operation of the Transition Exit Initiative (TEI) under the collective agreement.

Two grievors alleged the Employer improperly denied their requests to exit under the TEI, while the third alleged their approved enhanced benefits were not paid within a reasonable time.

Applying established principles regarding the Employer's broad discretion to approve TEI requests, the Arbitrator found the Employer properly exercised its discretion in denying the two requests and that the payments to the third grievor were made within a reasonable period.

The grievances were dismissed.

The Union filed grievances on behalf of 11 employees who were denied enhanced benefits under the Transition Exit Initiative (TEI).

The Union argued that the Employer improperly exercised its discretion and discriminated against three grievors on Long Term Income Protection (LTIP) by denying their applications as a class.

The Arbitrator dismissed the grievances, finding that the Employer properly exercised its broad discretion under Appendix 46 of the Collective Agreement.

The Arbitrator also held that denying TEI to employees on LTIP did not violate the Ontario Human Rights Code, as they no longer held permanent positions that could be eliminated to prevent surplussing other employees, which is the core objective of the TEI program.

The employer requested an extension of time to file submissions directed in a previous decision due to a medical issue.

The union consented to the request.

The arbitrator granted the extension, allowing the employer until May 10, 2023, to file their submissions.

The union sought a broad production order in a grievance arbitration involving allegations that the employer failed to abide by a 2013 Memorandum of Settlement.

The employer objected to producing documents pre-dating the settlement but agreed to produce post-settlement documents it could locate.

The arbitrator denied the request for pre-settlement documents, finding them too old and related to issues already fully and finally resolved by the settlement.

The arbitrator also denied the request for post-settlement documents, as the employer had already produced all located documents and could not be compelled to produce documents it no longer possessed.

The union filed grievances on behalf of eight employees who were denied enhanced benefits under the Transition Exit Initiative (TEI) before retiring from the Ontario Public Service.

The arbitrator reviewed the principles established in earlier cases regarding the employer's discretion under Appendix 46 of the collective agreement.

The arbitrator concluded that the employer properly exercised its discretion when considering the grievors' requests to exit under the TEI.

The grievances were dismissed.

The grievor, a laundry worker at a correctional institution operating under a Last Chance Agreement (LCA), was discharged following three alleged incidents of inappropriate conduct.

The employer alleged the grievor made threatening comments to inmate workers, acted outside the scope of his duties, and made inappropriate and unprofessional comments to a co-worker.

The arbitrator found that while the first two allegations did not warrant discipline, the grievor's derogatory comments to a co-worker violated the employer's Statement of Ethical Principles.

Because the LCA stipulated that any breach of this policy would result in termination, the arbitrator upheld the dismissal and dismissed the grievance.

Ten grievors filed grievances alleging the Employer improperly exercised its discretion by denying their requests for enhanced benefits under the Transition Exit Initiative (TEI) before they retired from the Ontario Public Service.

The Arbitrator applied established principles from earlier cases, confirming the Employer has broad discretion to determine whether granting a TEI request supports transformation of the public service.

Finding no improper exercise of discretion, the grievances were dismissed.

The Union filed grievances on behalf of 30 Correctional Officers who were suspended with pay pending investigation into allegations of excessive use of force and failure to report.

The Union argued the Employer failed to comply with a 2012 Memorandum of Settlement, which required the Superintendent to consider whether each employee could remain in the workplace in some capacity, the anticipated length of the investigation, and the seriousness of the allegations.

The Arbitrator found the Employer failed to establish that the Superintendent considered these factors for each individual employee prior to deciding to suspend them.

The matter of remedy was remitted to the parties.