Ed Holmes

The union and employer were engaged in a grievance arbitration before the Grievance Settlement Board concerning the death of an inmate.

A media representative attended the hearing.

The Vice-Chair was advised of a publication ban issued by the criminal court under s. 486(1) of the Criminal Code regarding related criminal proceedings involving one of the grievors.

To avoid undermining the court-ordered ban and prejudicing the criminal proceedings, the Vice-Chair ordered a ban on the publication of any evidence presented in the arbitration hearing for the duration of the criminal trial publication ban.

At the commencement of a grievance arbitration hearing regarding a poisoned work environment, several grievors failed to attend.

The employer moved for an order requiring the non-attending grievors to advise whether they intended to pursue their grievances and to provide reasons for their absence.

The employer also requested an order for additional particulars.

The Grievance Settlement Board ordered the non-attending grievors to advise if they wished to pursue their grievances and provide explanations for their absence by a specified date, failing which their grievances would be dismissed.

The Board also ordered the union to provide the requested additional particulars.

At the outset of a grievance arbitration hearing, the union advised that a court-ordered publication ban was in place for related criminal proceedings.

Noting the presence of a media representative, the Vice-Chair ordered an interim publication ban on any evidence presented at the hearing to avoid undermining the court order and potentially prejudicing the criminal proceedings.

The interim ban remains in effect pending review of the terms of the court-ordered ban.

The employer requested an adjournment of a scheduled hearing because its counsel was taking a new position and the file needed to be transferred to new counsel.

The union opposed the adjournment, citing concerns about delay.

The Vice-Chair granted the adjournment, finding that requiring the employer to begin calling evidence with one counsel and continue with another would place the new counsel at a disadvantage and compromise fair procedure.

In an expedited arbitration proceeding under the Crown Employees Collective Bargaining Act, the Grievance Settlement Board ordered the employer to pay $160.41, less statutory deductions, to each of the 48 named employees.

The union acknowledged that there were no further grievances of a like nature.

The union filed grievances on behalf of two correctional officers alleging the employer violated the collective agreement through its application of the Attendance Support Management Program and improper use of confidential medical information.

Following unsuccessful mediation, the union requested an interim order regarding the storage of the grievors' medical files pending litigation.

The Grievance Settlement Board granted the interim order, directing the employer to store the medical files in a locked cabinet with restricted access, and ordered the parties to proceed with scheduling the litigation of the first grievance.

The Employer sought production of the grievor's complete medical records in a grievance arbitration.

The Grievance Settlement Board ordered the production of the records from January 1, 2004, to the present, subject to strict confidentiality conditions restricting their use and dissemination to the Employer's counsel and advisors for hearing preparation purposes only.

The Grievance Settlement Board heard two procedural issues regarding the termination of five employees at the Elgin Middlesex Detention Centre.

The Vice-Chair confirmed oral rulings consolidating two related grievances involving lesser discipline with the termination grievances.

The Vice-Chair also ordered that document disclosure be subject to strict confidentiality conditions, limiting use to the litigation and requiring the return of documents at the conclusion of the proceedings.

Following a policy grievance decision issued on December 10, 2013, the parties convened to address implementation issues pursuant to article 22.16 of the collective agreement.

The Grievance Settlement Board ordered the Employer to comply with the previous decision by February 2, 2015, and determined that the decision applies to all institutions within the relevant ministries.

The Board also ruled that there would be no retroactive remedial entitlement prior to February 2, 2015.

The Ministry of Transportation raised a preliminary objection to the Union's attempt to introduce evidence regarding purported job re-assignment commitments made to the grievor in 2010 and 2011.

The grievances, filed in September 2012, alleged that the Employer failed to properly redeploy or accommodate the grievor following a surplus notice in April 2012.

The Grievance Settlement Board upheld the Ministry's objection, finding that the new claim was fundamentally different from the original grievances and could not be reasonably construed as an inherent part of them, even when reading the grievance language broadly.

The Union was directed that it could not litigate the issue of the 2010 and 2011 commitments as part of the present grievances.

The union filed a grievance alleging the employer violated the collective agreement by asserting that Schedule D of Appendix 18 applied to its Request for Proposal (RFP) for desktop and field services.

The employer intended to issue an RFP to external service providers for functions currently performed by bargaining unit employees.

The employer placed the transfer under Schedule D, arguing that less than eleven full-time bargaining unit related jobs would be created in any one municipality by the receiving organization.

The union argued that the total number of jobs across all municipalities or including support staff would exceed the threshold.

The Grievance Settlement Board accepted the employer's analysis that at most ten positions would be created in Toronto, and dismissed the grievance, finding the placement on Schedule D was appropriate.

The employer brought a preliminary motion to have the discipline grievances of three correctional officers heard together.

The grievances all stemmed from the same alleged use-of-force incident involving an inmate and the ensuing investigation.

The union opposed the motion, arguing that the legal issues were specific to each grievor and that hearing them together would cause delay and prejudice.

The Grievance Settlement Board granted the motion, finding that hearing the matters together would be more efficient given the significant overlap in evidence and would avoid the possibility of conflicting findings of fact.

The union filed grievances regarding the employer's failure to canvass all classified correctional officers for available escort duty shifts.

The parties asked the Grievance Settlement Board to determine two preliminary questions regarding the application of provincial agreements, without considering local conditions.

The Board held that prior to the implementation of the 'hands-up' system, the employer was obligated to canvass classified correctional officers for escort duty even if they had not indicated their availability, following the precedent in Megahy.

Furthermore, the Board found that the July 2004 Memorandum of Settlement did not immediately implement the hands-up system; rather, the system only became effective once the computerized Provincial Overtime Protocol was fully implemented.

The employer sought to consolidate the grievor's termination grievance with the discipline grievances of two other employees arising from the same incident.

The employer sought to give third party notice of the consolidation motion to the other two employees.

The union opposed the notice, arguing it had carriage of all grievances and there was no conflict of interest.

The Grievance Settlement Board held that the other employees had no third party interest in the outcome of the grievor's grievances, as their collective agreement benefits would not be affected.

The Board found third party notice was not warranted.

The union filed grievances on behalf of four registered nurses who were denied an N 3 nursing allowance by the employer.

The collective agreement provided that the allowance may be paid at the discretion of management.

The Grievance Settlement Board found that the employer failed to properly exercise its discretion because the decision-maker did not give due consideration to the merits of each individual request, failed to consider all relevant facts, and made incorrect assumptions without conducting a full inquiry.

The matter was remitted back to the employer for a proper exercise of discretion.

The grievor, a Correctional Officer, was suspended for five days for excessive use of force against an inmate and failing to submit an accurate report.

The incident was captured on video.

The union grieved the suspension, arguing the grievor's actions were appropriate to settle an abusive inmate.

The Grievance Settlement Board reviewed the video and documentary evidence, finding the grievor's version of events inconsistent with the video.

The Board concluded the grievor inappropriately pushed or poked the inmate and attempted to intimidate rather than settle him.

The grievance was dismissed and the five-day suspension upheld.

The Union referred a grievance to arbitration beyond the time limits set out in the collective agreement.

The Employer raised a preliminary objection regarding timeliness.

The Union argued the Employer waived its right to object by failing to raise the issue in a timely manner and by taking fresh steps, including participating in mediation and scheduling hearing dates.

The Grievance Settlement Board found that the Employer's general reservation of rights was insufficient notice of a timeliness objection.

Because the Employer waited many months before specifying its objection, it waived its right to object.

The preliminary objection was dismissed.

The Union filed a policy grievance regarding the overtime pay entitlement of unslotted Fixed Term Correctional Officers (FTE/COs) at the Vanier Centre for Women.

The Union argued that when a FTE/CO fills in for a Regular Full Time Correctional Officer and works beyond the scheduled shift hours, they are entitled to overtime under article 31A.3.1(b) of the collective agreement.

The Employer contended that FTE/COs do not have regularly scheduled work days and thus fall under a different provision requiring them to exceed 40 hours a week for overtime.

The Grievance Settlement Board held that because the shifts themselves are regularly scheduled under a compressed work week agreement, a FTE/CO filling in for such a shift is working on a regularly scheduled work day.

The grievance was allowed, entitling FTE/COs to overtime pay for shift extensions.

The union alleged that the employer breached the terms of a settlement agreement that had been resolved over ten years prior, citing incidents in July and August 2010 and November 2012.

The union sought only declaratory relief.

During a teleconference, the employer conceded the breaches and did not object to the requested relief.

The Grievance Settlement Board issued a declaration that the employer breached the settlement terms, with no other relief ordered.

The Grievance Settlement Board issued a procedural decision regarding a grievance concerning confidentiality under the Attendance Support and Management Program Policy (ASMPP).

The Board confirmed its authority to address issues related to how medical records are sought, maintained, and used, as well as how employees are notified about the program.

The employer was directed that it is not required to respond to 31 questions previously requested, and a further conference call will be scheduled to determine the next steps.