OGSB 2005

The union filed grievances on behalf of unclassified employees, alleging they were performing the work of a higher-rated classification and should be paid at that equivalent civil service classification rate under the collective agreement.

The employer raised a preliminary objection, arguing the grievances were disguised classification grievances over which the Grievance Settlement Board lacks jurisdiction under the Crown Employees Collective Bargaining Act.

The Board agreed with the employer, finding that determining the equivalent classification for wage purposes would require evaluating whether the grievors were performing the work of a different classification, which is a classification issue reserved for the Joint System Subcommittee.

The grievances were dismissed for lack of jurisdiction.

The Union filed grievances alleging that the Employer violated the collective agreement by failing to pay negotiated wage increases to correctional officers while they were on temporary acting assignments as non-bargaining unit Operational Managers.

The Union argued that under the collective agreement, employees on temporary assignment outside the bargaining unit remain covered by the agreement and are entitled to its negotiated wage increases.

The Grievance Settlement Board dismissed the grievances, finding that while the collective agreement continues to apply, an employee's pay is tied to the classification of the work they are performing during the temporary assignment, not their home position.

The Board also found that the Union would be equitably estopped from enforcing its interpretation due to a lengthy past practice of tying acting pay to the acting position.

The grievor filed a grievance alleging an improper application of the Collective Agreement, claiming he was moved to a new position prior to other staff and before all inmates were removed from his home institution.

He also alleged the move was motivated by anti-union animus.

The Grievance Settlement Board found that the Employer had the right under the Memorandum of Agreement to move employees once the institution's inmates were gone, noting that the remaining inmates were from a different unit.

The Board also dismissed the claim of anti-union animus due to a lack of clear and cogent evidence.

The grievance was denied.

The grievor was surplussed and took a package, ending her employment on August 22, 2000.

She later applied to be rehired and was offered a position starting February 26, 2001.

The union grieved, arguing her rehire date should be recognized as February 22, 2001, which would place her within six months of separation and entitle her to return to the top of the salary grid.

The Grievance Settlement Board dismissed the grievance, finding the employer had the inherent management right to determine the date of hire, and the grievor was treated consistently with the employer's rehire policy for employees returning after six months.

The union filed a grievance alleging that the employer failed to follow the overtime protocol at the Maplehurst Correctional Complex.

The matter proceeded under an Expedited Mediation-Arbitration Protocol.

The union was unable to contact the grievor to obtain further particulars.

The Vice-Chair reviewed the evidence and submissions, found no evidence of a breach of the collective agreement, and dismissed the grievance.

The union served a subpoena duces tecum on a witness from a third-party service provider, requiring the production of contact information for individuals who checked the grievor's references.

The witness brought the information but requested a written Board order due to privacy concerns and questions of relevance.

The Board ordered the production, noting that the union is entitled to seek clarification of the reference checkers' notes, which were already in evidence.

In a grievance alleging discrimination and harassment based on disability and union activity, the union issued a subpoena duces tecum to a third-party employer (Serco) for the production of employment references provided by Ministry supervisors.

Serco and the Ministry objected, claiming the references were protected by case-by-case privilege.

The Grievance Settlement Board applied the Wigmore test and concluded that the fourth condition was not met, as the benefit of correctly disposing of the litigation (which involved public policy rights under the Labour Relations Act and Human Rights Code) outweighed the potential injury to the relationship between Serco and the reference-givers.

The motion to quash the subpoena was denied and production was ordered subject to confidentiality safeguards.

The union filed grievances on behalf of the grievor alleging denial of access to several job competitions.

The employer raised a preliminary objection that the grievances were filed well outside the mandatory 30-day time limit under the collective agreement.

The grievor, a long-time union activist, admitted he knew of the time limits but consciously delayed filing while pursuing other job opportunities.

Applying the Becker Milk test under s. 48(16) of the Labour Relations Act, the Vice-Chair found the grievor was not diligent, the delay of up to 8.5 months was significant, and extending the time limits would prejudice the employer and the successful candidates who had been in the positions for months.

The Board declined to exercise its discretion to extend the time limits and dismissed the grievances regarding the job postings.

The union grieved that the employer denied the grievor an opportunity to fill an OM16 position outside the bargaining unit.

The union alleged the denial was arbitrary, discriminatory, or in bad faith, specifically claiming it was retribution because the grievor's brother successfully represented OM16 employees before the Public Service Grievance Board.

The employer argued the Board lacked jurisdiction as the position was outside the collective agreement.

Proceeding under an expedited mediation-arbitration protocol, the Vice-Chair assumed jurisdiction but dismissed the grievance, finding no clear and cogent evidence of arbitrary, discriminatory, or bad faith conduct by the employer.

Following a previous decision where the local parties at the Maplehurst Complex were unsuccessful in resolving a scheduling issue, the Grievance Settlement Board ordered the MERC Implementation Committee to meet as soon as practicable to attempt to resolve the matter.

The Vice-Chair remained seized in the event the committee fails to resolve the issue.

The union filed a grievance alleging that the employer violated Article 9.1 of the collective agreement by failing to make reasonable provisions for the health and safety of employees at the Toronto Jail.

The union argued that inmate overcrowding and staff shortages led to excessive overtime, which created health and safety risks, including job strain and effort-reward imbalance.

The arbitrator dismissed the grievance, finding that the union's expert evidence on job strain was unreliable due to potential selection and reporting biases.

The arbitrator also concluded that the literature did not support a causal relationship between long work hours and adverse health outcomes, and that the employer's reliance on voluntary overtime did not constitute a failure to make reasonable provisions for health and safety.

The union filed grievances on behalf of water bomber pilots claiming that upon termination of their 1991 compressed work year agreement, they should be governed by the 1995 Float Agreement or alternatively the 1988 Float Agreement.

The employer argued they were excluded from the 1995 Float Agreement and should default to the standard collective agreement.

The Grievance Settlement Board found that the plain language and negotiating history of the 1995 Float Agreement explicitly excluded the water bomber pilots.

However, the Board held that the 1988 Float Agreement remained the default agreement for these pilots, as the 1991 agreement was a temporary trial that did not extinguish their prior rights.

The union filed a grievance alleging the employer failed to act in good faith regarding a memorandum of settlement.

The matter proceeded under an Expedited Mediation-Arbitration Protocol.

The union was unable to contact the grievor to obtain further particulars, and the grievor was no longer employed by the Ministry.

The Grievance Settlement Board found no evidence of a breach of the collective agreement and dismissed the grievance.

The employer brought an interim application in the discharge grievances of two correctional officers who were found guilty of being parties to an assault causing bodily harm against an inmate.

The employer sought an order acknowledging that the Board was bound by all factual findings made by the trial judge in the criminal proceedings, and an order requiring the union to disclose material it intended to rely upon for mitigation.

The Board dismissed the application, holding that in an adversarial proceeding, it is for the employer to decide how to prove the material facts it believes are required to discharge its onus, and the Board would not advise the employer on how to proceed at the outset of its case.

The union grieved the employer's failure to assign out-of-sector work to the grievor, a seasonal fire crew boss, based on his seniority.

The assignment, which would have resulted in overtime pay, was given to a junior employee due to the supervisor relying on an outdated seniority list to meet strict deployment timelines.

The Grievance Settlement Board dismissed the grievance, finding that the collective agreement did not regulate the assignment of the work in question or tie it to seniority.

The supervisor's reliance on limited information to meet operational timelines was not an unreasonable exercise of management rights.

The grievor opted out of a divestment and left the Ontario Public Service, electing to receive severance payments under Appendix 18 of the collective agreement.

He subsequently returned to an unclassified position in the OPS.

The employer withheld a portion of his severance payments pursuant to article 20.2.5, which requires repayment if an employee is re-appointed to a position in the OPS.

The union grieved, arguing that article 20 only applies to classified employees.

The Grievance Settlement Board dismissed the grievance, following previous jurisprudence that the phrase 'position in the Ontario Public Service' includes unclassified positions, and therefore the repayment obligation applied.

The union brought a motion for a compliance order, seeking to compel the employer to implement paragraph 3 of a Memorandum of Understanding signed in January 2005.

The employer argued that implementation of paragraph 3 was conditional on the completion of other paragraphs and that human resources were unavailable due to a subsequent workload review.

The Grievance Settlement Board found that paragraph 3 was not conditional on the other paragraphs and that the employer's obligation could not be excused by a later agreement.

The motion was granted, and the employer was ordered to resume reviewing the outstanding overtime grievances by November 3, 2005.

In a grievance arbitration under the Crown Employees Collective Bargaining Act, the Grievance Settlement Board ordered the Union to provide the tax return information and documentation of the grievor and other witnesses from 1990 forward.

The Board noted it would consider requests by the Employer for additional tax years if the evidence indicated a need.

The Employer moved to dismiss the proceeding on the basis that the Union failed to comply with a Board order regarding the production of the grievor's tax returns.

The grievor had made significant efforts to obtain the documents, but faced difficulties due to the unexpected death of her accountant.

The Board found no intentional disregard of the order and concluded that the missing documents were not central to the case.

The motion to dismiss was denied, though further efforts to obtain the tax returns were ordered.

The union filed a grievance alleging health and safety violations regarding the cleaning of lounge and washroom facilities at the Maplehurst Correctional Complex.

The matter proceeded under an Expedited Mediation-Arbitration Protocol.

At the hearing, the union advised that it had been unable to contact the grievor, who was no longer employed by the Ministry, to obtain further particulars.

The arbitrator reviewed the evidence and submissions, found no evidence of a breach of the collective agreement, and dismissed the grievance.