Jonathan Rabinovitch

The Union filed a grievance seeking damages for scheduled wage increases, statutory holidays, and personal loss/mental health caused by a suspension pending investigation.

The Arbitrator dismissed the grievance without detailed written reasons, finding that the damages sought would not be awarded regardless of the merits.

The claim for wage increases was barred by res judicata due to a prior decision determining the grievor's anniversary date.

The claim for statutory holidays was speculative, and damages for mental health were not available as the suspension was inherent to the grievor's position under the Public Service of Ontario Act.

The complainant challenged the employer's decision not to select her for a Manager of Court Operations position.

She alleged the competition was flawed because the selection panel failed to independently consider her prior experience and performance in the role, and instead relied on an interview and presentation.

She also alleged the panel improperly considered her age.

The Board found the employer's choice of rating methods was reasonable and complied with its Employment Policy.

However, the Board found that notes from the panel's debrief meeting referencing an 'age factor' and 'stale' concepts established a prima facie case of age discrimination that the employer failed to rebut.

The Board ordered the competition to be re-run.

Following a finding that the Employer failed to comply with the procedural requirements of a Memorandum of Settlement during an investigation into alleged use of force, the Union sought damages for loss of earnings, general damages, and violation damages.

The Arbitrator held that the Board lacked jurisdiction to award loss of earnings or general damages because, even if the proper procedure had been followed, the grievors would have been suspended and suffered the same losses.

The Arbitrator declined to award violation damages, noting the breach was inadvertent, there was no bad faith, and there was no need for deterrence.

The grievor, a driver responsible for delivering vaccines, was suspended for one day after deliberately leaving vaccines on a loading dock, causing temperature excursions.

The employer also alleged the grievor breached his oath of office by making disparaging comments to public health units.

The arbitrator found the temperature excursions were proven and caused by the grievor's deliberate actions in protest of operational changes.

While the breach of the oath of office was not established due to reliance on hearsay, the one-day suspension was upheld as a reasonable penalty for the misconduct.

In an ongoing arbitration regarding allegations of workplace discrimination and harassment, the employer brought a motion to disallow the union from calling three proposed witnesses in reply.

The employer argued the witnesses were not present during the specific incident that led to the grievor's suspension and their evidence would be irrelevant or improper similar-fact evidence.

The arbitrator dismissed the employer's motion, finding that the employer had previously led general evidence regarding the office environment and the grievor's interactions, thereby opening the door.

The arbitrator held that a liberal approach to admissibility is appropriate in complex harassment cases, and the proposed evidence constituted proper reply evidence.

The union filed grievances on behalf of two employees regarding the application of a lump sum payment provision in the collective agreement.

One grievor retired before the qualifying date of January 1, 2016, and the other was on maternity leave during the calculation period, receiving EI but no employer pay.

The arbitrator dismissed both grievances, finding the retired employee did not meet the clear membership date requirement.

For the employee on maternity leave, the arbitrator accepted the employer's interpretation that the payment was calculated only on base salary earnings paid by the employer, and found no Code-based discrimination.

The grievor, a Customer Care Representative, was terminated for refusing to comply with the employer's Safe Workplace Directive, which required unvaccinated employees to undergo rapid antigen testing.

The grievor consistently refused to test, claiming it was discriminatory and a violation of her Charter rights.

She also engaged in insubordinate behaviour, including threatening her manager with personal liability and criminal charges.

The arbitrator found that the testing requirement was reasonable and that the grievor's refusal to comply, coupled with her unacceptable behaviour and lack of remorse, justified the termination.

The grievances challenging her unpaid leave, suspension, and termination were dismissed.

The employer raised three preliminary objections to a grievance challenging the decision to place a pilot on an unpaid leave of absence for refusing to disclose his COVID-19 vaccination status.

The employer argued the grievance was untimely, impermissibly expanded by the union's particulars, and failed to disclose a prima facie violation of the collective agreement.

The arbitrator dismissed all three objections, finding reasonable grounds to extend the short time limit delay, that the particulars regarding the application of Transport Canada's interim order flowed naturally from the original grievance, and that the unpaid leave decision raised a justiciable issue.

The Employer brought a motion to adjourn the hearing scheduled for October 27, 2023, citing a recent change in counsel, incomplete production of documents, and the medical unavailability and anxiety of its first witness.

The Union opposed the adjournment, arguing it would cause undue delay and negatively impact the grievor's mental health.

The Arbitrator granted the adjournment, finding that the lack of full production and the specific circumstances of the witness justified the delay, and ordered a schedule for document production and the drafting of an Agreed Statement of Facts.

The Grievance Settlement Board issued a procedural decision clarifying the order of proceedings for multiple grievances filed by the union.

The Board confirmed that the 2013 and subsequent grievances would not be heard together with the 2021 and 2022 grievances.

For the older matters, the union will proceed first on issues where it bears the onus, followed by the employer's response and evidence on disciplinary matters where the employer bears the onus, subject to normal rules regarding reply evidence.

The parties sought procedural directions regarding the hearing of two grievances filed by the union on behalf of the grievor.

The arbitrator directed that the two grievances be heard together but not consolidated.

Directions were given that the employer would call its case first, the parties would exchange documents and explore an agreed statement of facts, and the evidence would be limited to events between July 12, 2021, and March 14, 2022.

The grievor, a correctional officer, was suspended and ultimately terminated for refusing to comply with the employer's COVID-19 Safe Workplace Directive, which required unvaccinated employees to undergo rapid antigen testing.

The grievor also claimed Short Term Sickness Plan benefits for a period during which he was absent due to his refusal to test, which the employer denied.

The arbitrator found that the grievor's refusal to test constituted insubordination and did not fall within the safety or privacy exceptions to the 'obey now, grieve later' rule.

The arbitrator also found that the grievor's claim for sick leave benefits was fraudulent.

The grievances challenging the suspension, the denial of sick leave benefits, and the termination were all dismissed.

Prior to the hearing of a discharge grievance, the union requested the production of an investigation report and related materials.

The arbitrator ordered the employer to produce the investigation report, appendices, and all non-privileged materials to the union, subject to strict confidentiality conditions regarding electronic distribution, copying, and sharing with the grievor.

The Union indicated that the grievor was prepared to comply with a 2016 production order and requested further hearing dates.

The arbitrator determined it was appropriate to recuse herself from any further proceedings in the file.

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.

During a grievance arbitration, the Union objected to the Employer calling viva voce evidence from a police officer who witnessed an exchange between the grievor and a co-worker.

The Union argued the evidence was irrelevant because the grievor had already received a non-culpable letter of counsel for the incident, which sealed the facts.

The Arbitrator dismissed the objection, finding the evidence admissible as it was relevant to the Union's allegations of a discriminatory and harassing course of conduct by the Employer, and did not offend the rule in Browne v. Dunn.

In an ongoing arbitration, the Arbitrator previously directed the Employer to call viva voce evidence regarding its efforts to comply with a production order for staff emails.

The Employer called two witnesses who testified about their efforts to restore data tapes and search mailboxes.

The Arbitrator found that the Employer made its best efforts to comply with the order to uncover what existed, noting that some data was only available due to an unrelated litigation hold.

The cross-examination of the witness was directed to commence on the next scheduled hearing day.

The grievor, an Application Analyst/Developer, filed six grievances alleging workplace harassment, discrimination based on age, race, and disability, and unjust termination.

The employer terminated her for non-culpable inability to perform the core duties of her position, specifically coding.

The arbitrator dismissed the harassment and discrimination grievances, finding that the managers' actions were legitimate exercises of management rights and that the grievor's inability to code was not related to a medical condition.

However, the arbitrator upheld the termination grievance in part, finding that the employer failed to take reasonable steps to move the grievor into other work within her qualifications.

Due to the complete breakdown of the employment relationship and the grievor's lack of insight into her performance deficiencies, the arbitrator awarded damages in lieu of reinstatement, ordering the employer to pay 1.5 years of salary and $45,000 in damages.

During a grievance arbitration regarding a five-day suspension, the Union brought an evidentiary motion seeking to test the Employer's compliance with a prior production order for emails and text messages.

The Employer initially claimed the emails could not be found, but later produced some after renewed efforts.

The Arbitrator ordered the Employer to call viva voce evidence detailing its search efforts before the cross-examination of its witness could commence, emphasizing the Board's duty to oversee compliance with its orders.

The union brought a motion for the production of documents to verify the employer's calculation of premium payments owed to the grievor pursuant to a 2013 remedial order and a 2015 settlement.

The employer argued that the 2015 settlement resolved the methodology for calculating premium pay and opposed producing documents from before 2015 or relating to certain premiums.

The arbitrator ordered the employer to produce the requested documents from 2011 onwards, finding them arguably relevant to the union's claim that the employer breached the settlement and remedial order.

The arbitrator declined to declare a breach of the settlement or appoint an auditor at this preliminary stage.