Gordon Fitzgerald

The employer moved to dismiss a grievance alleging discrimination on the basis of marital status.

The grievor had been transferred to a different store because she was married to a co-worker.

The employer argued the transfer was implemented pursuant to a binding memorandum of settlement resolving the husband's earlier grievance.

The arbitrator dismissed the employer's preliminary motion, holding that neither a union nor an employee can contract out of the protections of the Human Rights Code.

Because the settlement itself was premised on the spousal relationship and prima facie raised a potential violation of the Code, it did not bar an inquiry into the legitimacy of the transfer.

The grievor, a long-service employee subject to a last chance agreement following a previous discharge for honesty-related misconduct, was discharged for allegedly stealing $20.00 from a co-worker's cash deposit.

The co-worker testified as an eyewitness to the theft, and a subsequent count confirmed the $20.00 shortage.

The arbitrator found the eyewitness testimony credible and in harmony with the preponderance of probabilities, while rejecting the grievor's explanations as inconsistent and uncorroborated.

The employer met its burden of proving the theft by clear, cogent, and compelling evidence.

The grievance was dismissed and the discharge upheld.

The grievor, a Customer Service Representative with a history of back problems, was unable to perform cashiering or stocking duties due to medical restrictions.

The employer refused to accommodate him, arguing that cashiering and stocking were essential duties of the position and that it had no obligation to bundle other duties or look outside the grievor's specific job or geographic posting area.

The Grievance Settlement Board held that the employer's view of the duty to accommodate was excessively narrow.

Applying the Meiorin test, the Board found that the employer failed to incrementally broaden its search for accommodation up to the point of undue hardship, and ordered the grievor reinstated on an accommodated basis.

The union filed a grievance on behalf of a Maintenance Service Person who worked overtime night shifts on Saturdays.

The grievor was paid the overtime premium but not the night shift premium.

The union argued that both premiums were payable and that this did not constitute pyramiding.

The employer argued that the collective agreement limited the night shift premium to regular hours and excluded weekend overtime hours.

The arbitrator dismissed the grievance, finding that the collective agreement defined the night shift within the context of normal hours of work, and since the weekend shifts were not regular work days, the night shift premium was not payable.

The union filed a policy grievance alleging the employer failed to create the required number of permanent full-time positions under a Letter of Understanding.

The central issue was whether hours worked by casual employees on night shifts should be included in the calculation of casual hours worked to determine if a full-time position exists.

The employer argued that night shift assignments were temporary under the collective agreement and thus excluded from the calculation.

The arbitrator found that the collective agreement limited night shift assignments to six months, making them temporary by definition.

Therefore, the employer's practice of excluding these hours was consistent with the collective agreement, and the grievance was dismissed.

The union filed two grievances on behalf of the grievor regarding a suspension and termination.

The hearing was adjourned twice previously due to the grievor's unavailability, with the second adjournment granted on the condition that the grievances would be withdrawn if the grievor failed to attend the next scheduled date.

The grievor failed to attend the rescheduled hearing despite the union's efforts to contact him.

Consequently, the union withdrew the grievances and the files were closed.

The union requested an order for pre-hearing production pursuant to s. 48(12)(b) of the Labour Relations Act in relation to a policy grievance.

The employer opposed the request or alternatively sought to restrict it to data from the year 2000 onwards.

The Grievance Settlement Board ordered the employer to produce the requested information restricted to the year 2000 and after, with leave for the union to request prior years' information at the hearing.

The grievor, a customer service representative at the LCBO, was discharged after stealing a case of cognac.

He subsequently pleaded guilty to theft under $5,000.

At arbitration, the union argued that the grievor's misconduct was caused by a gambling addiction and sought reinstatement with a substituted penalty under s. 48(17) of the Labour Relations Act, 1995.

The Grievance Settlement Board dismissed the grievance, finding insufficient medical or expert evidence to establish that a gambling problem caused the theft or to demonstrate a positive prognosis for rehabilitation.

The Board concluded that the trust necessary for the employment relationship had been irreparably broken.

The union filed three grievances alleging that the employer engaged in reprisals contrary to the Occupational Health and Safety Act by issuing disciplinary letters to the grievor following a work refusal and health and safety complaints.

Prior to the hearing, the employer removed the letters from the grievor's file on a without prejudice basis and argued the grievances were moot.

The union sought further declaratory relief and damages.

The Grievance Settlement Board dismissed the grievances, finding that proceeding with a lengthy hearing on largely moot issues would serve no labour relations purpose.

The union filed grievances challenging the employer's attendance review policy.

In a preliminary decision, the Grievance Settlement Board ordered that a separate grievance filed by another employee be heard together with the current grievances, as they involved the same parties and policy.

On the issue of jurisdiction, the Board held that it lacked jurisdiction to review the reasonableness of the employer's exercise of management rights in creating the policy, as the collective agreement did not contain an implied term requiring reasonableness.

However, the Board retained jurisdiction to determine if the policy conflicted with specific employee rights or the Human Rights Code.

The union requested a production order for certain documents and records in the control of the employer.

The Grievance Settlement Board found that the documents sought may be relevant to the issues and directed the employer to produce attendance cards, job descriptions, weekly schedules, temporary employee assignments, and call-in sheets.