OGSB 2005

The union grieved the employer's decision to include production targets for expected numbers of completed audits in the annual assessment of auditors in the retail sales branch.

The matter was dealt with under the mediation/arbitration procedure.

The Vice-Chair found that the evaluation targets did not violate the collective agreement and dismissed the grievance without reasons, as requested by the parties.

The grievor, a correctional officer, was discharged by the Ministry after it discovered he had been fired from his previous employment at a private correctional facility for sexually inappropriate conduct.

When applying to the Ministry, the grievor submitted a resume and letter that inadvertently misrepresented he was still employed at the private facility.

The Grievance Settlement Board applied the Gould Manufacturing approach to assess whether the misrepresentation justified discharge.

Finding the misrepresentation was inadvertent rather than deliberate, and weighing the grievor's prior unblemished seven-year service with the Ministry, the Board concluded the mitigating factors outweighed the misconduct.

The grievance was allowed in part, and the grievor was reinstated without compensation.

In a grievance regarding the discharge of an employee for alleged improper use of an air miles program, the union challenged the admissibility of videotape evidence captured by workplace security cameras.

The union argued that using the security footage for disciplinary purposes constituted an unreasonable intrusion into the employee's privacy.

The Grievance Settlement Board held that while employees have a marginal expectation of privacy in a public retail setting, this expectation is outweighed by the employer's interest in protecting the safety and security of the store.

The Board found the video surveillance was a reasonable intrusion and, because the tapes were relevant to the disciplinary issues, ruled the evidence admissible.

The grievor, a full-time non-rotational security guard, grieved the employer's decision to deny her application for a full-time rotational security guard position.

The employer argued the matter was res judicata due to a previous arbitration decision three years prior that found the grievor lacked the necessary leadership, communication, and judgment skills.

The Grievance Settlement Board held that res judicata did not apply because the grievance concerned a new job posting, but accepted the previous decision's findings regarding the job's requirements.

The Board dismissed the grievance, finding the union failed to demonstrate that the grievor had acquired the requisite skills and abilities in the intervening three years to meet the threshold for the position.

The Employer brought a motion to dismiss the Union's grievance regarding video display terminal (VDT) benefits for correctional officers, arguing the matter was barred by res judicata and issue estoppel due to a 1983 Grievance Settlement Board decision.

The Vice-Chair dismissed the motion, finding that the central issue in the prior case was whether the equipment was a VDT, whereas in the current case, the Employer conceded the equipment was a VDT but disputed whether the officers operated them continuously.

As the matters in dispute were not identical, the doctrines did not apply.

The Employer's alternative argument that the Board should defer to the prior decision was also dismissed because the factual context had changed significantly since 1983.

In an interim award regarding a grievance over Video Display Terminal (VDT) provisions in the collective agreement, the union brought a motion for the production of computer system data to establish the 'continuous' nature of VDT use by correctional officers.

The employer resisted, arguing the request was untimely, not arguably relevant, and prejudicial due to security concerns and volume.

The Grievance Settlement Board granted the union's motion, finding the data arguably relevant and the request timely.

To address the employer's security and volume concerns, the Board reduced the requested time frame to seven days and imposed strict confidentiality conditions on the disclosure.

In an interim decision regarding the admissibility of a statement taken during an internal fraud investigation, the union objected to the employer questioning the investigator about the statement.

The union argued the statement was inadmissible because the maker was denied union representation and Charter rights.

The arbitrator declined to hold a voir dire or rule the statement inadmissible at this stage, instead allowing the employer to question the investigator and enter the statement into evidence, leaving the determination of its weight to the end of the case.

In an arbitration regarding the discharge of a claims adjudicator for alleged fraud, the employer sought to introduce a recorded statement from a co-conspirator without calling the maker as a witness.

The union objected on the grounds of hearsay.

The Grievance Settlement Board ruled the statement inadmissible, finding it was neither necessary, as the maker was available to testify, nor reliable, as it was a repudiated confession from an interested party.

The union filed a grievance alleging the employer failed to appoint the grievor to a temporary vacancy in the Warehouse Foreman/Woman classification, contrary to the collective agreement.

The employer argued the grievor, classified as a Clerk Grade 3, was not in the same class series as required by the agreement for temporary appointments.

The parties requested a without-precedent decision with no reasons.

The arbitrator found no violation of the collective agreement and dismissed the grievance.

In a grievance arbitration concerning the termination of four correctional officers, the union brought a motion for the production of material contained within a youth offender's file relating to a specific incident.

The employer did not dispute that the requested material was arguably relevant.

The Grievance Settlement Board granted the motion and ordered the employer to produce the material, with the youth offender's name redacted.

The union alleged that the employer breached the confidentiality clause of a memorandum of settlement when a bargaining unit employee, whose normal duties included processing pay cheques, processed the grievor's settlement payment.

The union argued this amounted to improper disclosure of the settlement terms.

The Grievance Settlement Board dismissed the complaint, finding that the payment was processed under normal procedures and there was insufficient evidence to conclude that the employee's handling of the information amounted to a third-party disclosure of the confidential memorandum of settlement.

The grievor, an Industrial Officer 2, was temporarily assigned to work at a different correctional facility and was paid a mileage allowance for 40 kilometers per trip.

He filed a grievance alleging he was not paid proper mileage for the period of his temporary assignments.

The arbitrator found that under Article 13.1 of the collective agreement, the grievor was entitled to the difference between the actual kilometers he drove and the mileage allowance he received.

The grievance was allowed.

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 Grievance Settlement Board issued a procedural order concerning nine grievances heard together.

The parties agreed on the order of proceeding, with the employer proceeding first on a suspension/transfer grievance and the union proceeding first on the remaining grievances.

The Vice-Chair directed both parties to provide full written particulars of the facts on which they rely and to produce copies of all relevant documents in their possession, establishing a timetable for these exchanges.

The grievor, a store manager with 23 years of service, was discharged for three incidents of misconduct: making inappropriate sexual comments to a casual employee, asking a casual employee to purchase marijuana during work hours, and consuming alcohol with a contractor's crew on company premises while on duty.

The union argued the discharge was void due to the employer's delay in confronting the grievor, but the arbitrator found no actual prejudice.

While the arbitrator found the grievor's conduct constituted serious culpable misconduct and noted his lack of true remorse, the penalty of discharge was deemed excessive because the grievor had not received the benefit of progressive discipline for these types of offences.

The grievor was reinstated subject to a lengthy suspension without pay and a strict two-year discipline-free condition.

During a grievance arbitration concerning the grievor's discharge for alleged sexual harassment and workplace alcohol consumption, the employer raised numerous objections to the grievor's testimony based on the rule in Browne v. Dunn.

The employer argued that the union failed to cross-examine employer witnesses on points the grievor later contradicted in his testimony.

The Vice-Chair reviewed the legal principles of the rule, noting that a cross-examiner must indicate an intention to challenge a witness's credibility.

The Vice-Chair ruled on 30 specific objections, excluding the grievor's testimony where the rule was violated and permitting it where the rule did not apply or the cross-examination was sufficient.

The Union filed a grievance asserting that unclassified employees in the Correctional Bargaining Unit are entitled to 'max plus merit' pay increases under the collective agreement.

The Employer raised a preliminary objection that the grievance was untimely, having been filed approximately a year after the increases were first implemented.

The Grievance Settlement Board dismissed the Employer's motion, finding that the grievance was a continuing one because the alleged violation recurred with each pay period and each time an employee reached their anniversary date.

Furthermore, the Board held that the Employer had waived its right to object to timeliness by participating in the Joint Review Process and failing to raise the issue until the eve of the arbitration hearing.

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 group grievance alleging the Employer fostered an unsafe and poisonous work environment due to the threatening behaviour of a co-worker.

The Employer raised preliminary objections, arguing the Grievance Settlement Board lacked jurisdiction or should defer to the Ontario Labour Relations Board (OLRB) because some grievors had filed a concurrent complaint under the Occupational Health and Safety Act.

The Employer also argued the grievance was untimely and failed to disclose a prima facie case.

The Vice-Chair dismissed the preliminary objections, finding the Board had concurrent jurisdiction and no legislative direction required deferral.

The historical allegations were deemed admissible to establish a pattern, and the pleadings were found sufficient to disclose a prima facie case.

The union filed grievances regarding a pay issue at Maplehurst Correctional Complex during the SARS outbreak, seeking compensation for all hours worked.

The parties referred the grievances to mediation/arbitration.

The arbitrator found that the grievors had been compensated in accordance with the Collective Agreement and resolved the grievances without reasons, as requested by the parties.