Gordon Fitzgerald

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, claiming the respondent failed to consider his disability-related needs when investigating alleged workplace misconduct.

The respondent filed a Request for Order During Proceedings seeking production of the clinical notes and records of the applicant's family physician.

The applicant did not respond to the request.

The Tribunal found the medical records arguably relevant to the central issue of the applicant's medical condition at the material times.

The Tribunal granted the request but limited the production to the one-year period prior to the applicant's termination.

The applicant and respondent both filed Requests for Order During Proceeding in a human rights application alleging discrimination in employment on the basis of disability.

The applicant sought to amend the Application to include further job competitions, which the Tribunal denied because the proposed amendments were unclear and the request was made too close to the scheduled hearing date.

The respondent sought to dismiss an allegation relating to a 2008 job competition on the basis of delay.

The Tribunal granted the respondent's request, finding the allegation was filed well outside the one-year limitation period under section 34(1) of the Human Rights Code and the applicant provided no explanation to justify waiving the delay.

The applicant filed a human rights application alleging sexual harassment and reprisals by her employer and several individuals.

The applicant had also filed a union grievance concerning the same facts.

The Tribunal considered whether to defer the application pending the conclusion of the grievance proceeding.

Finding that the grievance process was ongoing, involved the same facts and issues, and that the arbitrator had the authority to apply the Human Rights Code, the Tribunal ordered the deferral of the application.

The applicant filed a human rights application alleging discrimination based on race and colour more than two years after the last alleged incident.

The applicant argued the delay was in good faith due to medical conditions, a motor vehicle accident, and ongoing criminal proceedings.

The Tribunal found that the medical evidence did not establish that her condition prevented her from filing in a timely manner.

Furthermore, waiting for criminal proceedings to conclude does not constitute a good faith reason for delay, especially since the applicant waited an additional 15 months after the charges were dropped before filing.

The application was dismissed as out of time.

The applicant filed a human rights application alleging discrimination on the basis of disability after resigning from his employment and signing a full and final release.

The respondents sought to dismiss the application as an abuse of process.

The applicant argued the release was signed under economic duress because the employer threatened to terminate him for working another job while collecting sick leave benefits.

The Tribunal found no duress, as the employer's threat of termination for fraudulent behaviour was not illegitimate pressure.

The Tribunal also found the allegations against the union related to inadequate representation, not discrimination.

The application was dismissed against all respondents.

The applicant alleged that the respondent hospital discriminated against him on the basis of age regarding his medical treatment and the handling of his subsequent complaint.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found no evidence to support the allegation that the emergency room delays, staff interactions, or the inordinate delay in the complaint process were related to the applicant's age.

The application was dismissed as having no reasonable prospect of success.

The applicant alleged that the respondents reprised against her by failing to offer her employment after she disclosed a prior human rights complaint during a job interview.

The disclosure occurred when the applicant refused to sign a reference release form.

The Tribunal found that the subsequent two-month delay in processing her application was due to unintentional miscommunications and the unresponsiveness of her references, not a deliberate plan to deny her employment.

The Tribunal concluded there was no intent to reprise and dismissed the application.

The grievor was terminated for threatening and intimidating a co-worker, whom he had previously assaulted in 2004.

The union grieved the termination, arguing it was an excessive penalty and that the employer improperly relied on the 2004 incident, which fell outside the collective agreement's three-year sunset clause.

The arbitrator found that the grievor did threaten the co-worker and that the conduct warranted significant discipline.

However, the arbitrator also found that the employer improperly relied on the stale 2004 discipline to the grievor's detriment.

Considering the grievor's genuine remorse and the improper reliance on the prior record, the arbitrator substituted the termination with an unpaid suspension of approximately 11 months and reinstated the grievor with conditions.

The grievor was terminated for allegedly threatening a fellow employee.

The arbitrator found that the grievor engaged in threatening and intimidating behavior justifying significant discipline.

However, the arbitrator ordered the grievor to be conditionally reinstated without compensation, treating the time off as an unpaid suspension.

Reinstatement was conditional upon proof of continued psychiatric treatment, participation in anger management through the Employee Assistance Program, and strict adherence to the Workplace Intimidation And Violence Prevention Policy.

The union filed a grievance alleging that the employer violated the collective agreement by denying the grievor a promotion to a permanent customer service representative position.

The employer screened the grievor out of the job competition because she had received a five-day suspension 18 months prior for consuming alcohol during her shift.

The union argued this amounted to double punishment.

The arbitrator held that the employer was entitled to consider the grievor's disciplinary record in assessing her suitability for the position, particularly given the employer's social responsibility mandate regarding alcohol.

Finding the employer's decision reasonable, the grievance was dismissed.

The employer brought a motion to dismiss the grievance after the grievor failed to attend the scheduled arbitration hearing.

The union had made reasonable efforts to contact the grievor and provide notice of the hearing, but the grievor was uncooperative and did not provide any indication of when she would be available.

The arbitrator declined to exercise the discretion to adjourn the matter, noting that the grievor's conduct prevented the hearing from proceeding and caused prejudice.

The motion was granted and the grievance was dismissed.

The grievor, a nine-year employee of the LCBO, was terminated for accumulating Air Miles reward points on customer purchases to her own personal card on approximately 240 occasions over six months.

The union grieved the dismissal, arguing the grievor did not realize the seriousness of her actions and that the penalty should be mitigated.

The Grievance Settlement Board applied the CBC mitigation factors and the McKinley proportionality test, finding that the grievor's actions were premeditated, surreptitious, and repetitious.

The Board concluded that the employment relationship was irreparably broken and upheld the dismissal.

The union grieved the termination of the grievor's employment.

The Grievance Settlement Board ordered the grievor reinstated on strict conditions for a two-year period.

The conditions require the grievor to provide medical notes for absences, explain non-medical absences in a timely manner, and stipulate that any attendance-related discipline will result in the specific penalty of discharge.

The time off work was deemed an unpaid leave of absence, with a two-day suspension on record.

The union grieved the employer's failure to award the position of Quality Control Logistics Representative to the grievor.

The employer raised a preliminary objection that the grievance was inarbitrable because the grievor had been reclassified to the same level as the posted position after the posting closed, making the move a transfer rather than a promotion.

The Grievance Settlement Board dismissed the preliminary objection, holding that an applicant's status must be determined as of the closing date of the posting period, at which time the position represented a promotion for the grievor.

The Board also ordered the production of documents relating to the competition process.

The union filed grievances claiming that casual employees should be granted seasonal status based on hours worked prior to the coming into effect of the new collective agreement, applying the new formula.

The employer argued that the new formula only applied to hours worked after the ratification date, resetting the hours bank to zero.

The Grievance Settlement Board held that the new formula did not apply retroactively, but hours worked under the old formula were not wiped out.

Employees could still achieve seasonal status if they met the requirements of the old formula, even if some weeks were worked after the new agreement came into effect.

The grievances were dismissed.

The union requested an adjournment of a discharge grievance arbitration because the grievor failed to attend the hearing.

The employer opposed the adjournment and moved to dismiss the grievance.

The Grievance Settlement Board noted that the grievor had been warned by union counsel that failure to attend could result in dismissal, yet failed to appear or provide an explanation.

Finding that the delay and non-attendance caused unnecessary prejudice and costs, the Board denied the adjournment and dismissed the grievance.

The union requested an adjournment of a discharge grievance hearing because the grievor failed to attend.

The employer requested that the grievance be dismissed.

The grievor had previously been granted two adjournments and had failed to maintain contact with union counsel or provide updated contact information.

The arbitrator found that the grievor had compromised the union's ability to proceed and had likely abandoned interest in pursuing her grievance.

The request for an adjournment was denied, and the grievance was dismissed.

The union raised a preliminary objection arguing that a four-day suspension imposed on the grievor was void ab initio because the employer failed to provide advance notice and union representation during a meeting, as required by Article 26.3 of the collective agreement.

The meeting involved a police officer investigating a workplace altercation, with a management representative present.

The arbitrator found that the presence of the management representative created a potential for the grievor to make statements against his interest, triggering the protections of Article 26.3.

The failure to provide these protections rendered the discipline void ab initio.

The Union filed a group grievance on behalf of Clerks at the Employer's Durham Warehouse, claiming they were entitled to a uniform allowance under the collective agreement.

The collective agreement provided a uniform allowance to employees who were 'previously eligible for uniforms'.

The Union argued that the Clerks' duties and working conditions exposed them to dirt and damage similar to Warehouse Workers, making them eligible.

The Employer maintained that Clerks had never been issued or asked for uniforms, and their duties were primarily clerical and performed in offices.

The arbitrator found that the Clerks spent the vast majority of their time in offices and were not exposed to the same level of dirt or damage as Warehouse Workers.

The grievance was dismissed.

The employer moved to dismiss a grievance alleging that the grievor's transfer was discriminatory based on marital status, arguing the transfer was implemented pursuant to a prior grievance settlement involving the grievor's spouse.

The arbitrator dismissed the preliminary objection, holding that parties cannot contract out of the Human Rights Code and that a settlement agreement does not bar an inquiry into whether its terms violate an employee's statutory human rights.