OGSB 2008

The grievor, a seasonal employee, was not recalled for a third season due to performance concerns.

The employer moved to dismiss the resulting grievance on the basis that it was untimely.

The Grievance Settlement Board found that the grievor was aware of the facts giving rise to the grievance by mid-April 2007, but the grievance was not filed until December 2007.

The Board declined to exercise its discretion under section 48(16) of the Labour Relations Act to extend the time limits, noting the significant, unexplained delay and the fact that the employer had already filled the seasonal contracts for the upcoming season.

The employer's motion was allowed and the grievance was dismissed.

The Grievance Settlement Board issued a procedural order regarding 73 scheduled grievances concerning Appendix 32 to the collective agreement.

To facilitate the adjudication of common or generic issues, the Board ordered the parties to exchange full written particulars of the material facts on which they rely, along with copies of relevant documents, according to a specified timetable.

The Union sought an order requiring the Employer to disclose assignment control sheets, expense claims, and time sheets for several employees to support a grievance alleging differential treatment regarding travel and expense policies.

The Employer argued the particulars provided were insufficient to justify the broad disclosure requested.

The Grievance Settlement Board allowed the motion in part, ordering disclosure for specific employees where the grievor had direct information about their expense claims, but denying disclosure where the allegations relied on vague third-party information.

The Union filed twenty-three policy grievances under the Bargaining Unit Integrity (BUI) Protocol, each naming an entire Ministry.

The Employer objected, arguing the Protocol did not contemplate grievances framed so broadly, as it would make the required disclosure obligations impossible to meet within the stipulated six-week timeframe.

The Grievance Settlement Board agreed with the Employer, finding that the language of the Protocol, which refers to 'units, branches, departments, or offices', indicates an intention to identify areas smaller than a Ministry to ensure the process can be managed efficiently.

The grievances were dismissed.

The union filed a grievance asserting that the position of Administrative Coordinator should be included in the bargaining unit.

The employer brought a motion requesting that the Grievance Settlement Board defer the proceedings pending a determination by the Ontario Labour Relations Board (OLRB) on whether the person filling the position is an employee under the Crown Employees Collective Bargaining Act.

The Board found that it had concurrent jurisdiction with the OLRB to determine employee status.

Considering the delay that deferral would cause and the Board's expertise in public sector labour relations, the Board declined to exercise its discretion to defer to the OLRB and dismissed the employer's motion.

The employer brought two preliminary motions challenging the Grievance Settlement Board's jurisdiction to hear a grievance regarding the denial of a compressed work week (CWW).

The union alleged the employer unreasonably exercised its management rights by denying the grievor a CWW while granting it to others, and alternatively claimed promissory estoppel based on a pre-employment promise.

The Board upheld the employer's first motion, finding it lacked jurisdiction to review the exercise of management rights absent an alleged violation of a substantive collective agreement right.

However, the Board denied the second motion, holding it had jurisdiction to apply the equitable doctrine of promissory estoppel to a pre-employment promise that was confirmed post-employment, as doing so would not undermine the collective agreement or the union's status.

In a grievance arbitration concerning the termination of the grievor's employment, the union alleged the employer failed to provide particulars during the grievance procedure and sought to have the grievance allowed on that basis.

The Grievance Settlement Board ordered a timetable for the exchange of full written particulars and production of documents between the parties prior to the hearing on the merits, deferring the determination of the consequence of any prior failure to provide particulars.

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 Employer brought a motion to dismiss certain allegations after the grievor refused to comply with a Board order requiring her to provide the names of co-workers who were told about her grievances.

The grievor argued she feared reprisals against her colleagues and sought to be excused from the order.

The Board held that the grievor could not unilaterally ignore a clear order and dismissed the insufficiently particularised allegations.

The grievor was off work due to stress and sought to return to a different work location.

He did not formally request accommodation or provide detailed medical information until June 28, 2007.

The employer subsequently accommodated him in September 2007.

The union grieved that the employer failed to accommodate him earlier.

The arbitrator dismissed the grievance, finding the employer was not aware of the need for accommodation and did not have the necessary medical information prior to June 28, 2007.

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 group grievance claiming overtime pay for 1.5 hours spent by a fire crew waiting for food and travelling to a hotel after their shift ended.

The union argued the time was work time because the crew leader had care and control of a Ministry vehicle.

The Grievance Settlement Board dismissed the grievance, finding the time was not work time as the employees were not obligated to use the vehicle or the time for the employer's benefit.

The Board also found no enforceable right to the overtime pay despite other crews receiving it due to a different manager's discretion.

The union filed group grievances on behalf of seasonal crew leaders, alleging that the employer unfairly assigned overtime work to out of district and contract fire crews while local crew members were required to take scheduled days off.

The employer argued the assignment complied with Ministry Directive No. FM:3:05, considering financial and safety factors.

The arbitrator found that the collective agreement provision relied upon by the union did not apply to seasonal employees and that there was no evidence of bad faith or unreasonable exercise of management discretion.

The grievances were denied.

The union filed grievances alleging that a letter dismissing a workplace harassment complaint contained defamatory statements about the grievor and was distributed too widely.

The Grievance Settlement Board found that the distribution of the letter to relevant management and human resources personnel was reasonable.

The Board held that the communication was protected by qualified privilege, as the author and recipients had a legitimate interest in the matter, and the union failed to establish malice to defeat the privilege.

The grievances were denied.

The union brought a motion for non-suit at the close of the employer's case regarding disciplinary issues.

The employer had presented evidence over 47 days concerning allegations that the grievor undermined a shift leader, behaved inappropriately with the public, and demonstrated a discriminatory attitude.

Applying the established principles for non-suit motions, the Vice-Chair found that the employer had presented some evidence that, left unchallenged, might arguably support discipline.

The motion for non-suit was dismissed.

The Employer brought a motion to dismiss the grievances or, in the alternative, for an order for further particulars regarding the grievor's allegations of differential treatment, discrimination, and harassment.

The Union had refused to provide the names of co-workers allegedly treated differently, citing the grievor's fear of employer retaliation against them.

The Grievance Settlement Board found that the particulars provided were insufficient, as the Employer is entitled to know the case it must meet.

The Board declined to dismiss the grievances but ordered the Union to provide full and sufficient particulars, including names, dates, and specific details of the alleged differential treatment.

The Grievance Settlement Board dismissed several grievances due to the union's failure to deliver particulars in accordance with previous orders.

The hearing for the remaining grievances was adjourned to allow counsel to complete arguments on whether the union's particulars established a prima facie case, including whether the claims were precluded by the Workplace Safety and Insurance Act.

The union grieved that the grievor was not paid the correct premium for working on a statutory holiday.

The union argued that working on a statutory holiday constituted overtime, and because the grievor was forced to work, she was entitled to a higher premium rate under the collective agreement.

The employer maintained that statutory holiday work and overtime were governed by separate provisions, and the statutory holiday provision did not include an enhanced premium for forced work.

The arbitrator dismissed the grievance, finding that the collective agreement treated overtime and statutory holiday pay as separate and distinct, and the hours worked on the statutory holiday did not attract the forced overtime premium.

The grievor, a cashier with 17 years of service, was terminated for theft after failing to ring in a $50.05 bottle of vodka and allegedly pocketing the $50.00 paid by the customer.

The grievor claimed he found the money under the counter and forgot to put it in the safe, only remembering when he pulled out his cell phone later.

The Grievance Settlement Board rejected the grievor's explanation, finding based on cell phone records and witness testimony that he only attempted to return the money after being tipped off about a customer complaint.

Given the finding of theft and the grievor's lack of honesty or remorse, the Board upheld the termination and dismissed the grievance.

In a grievance arbitration, the parties agreed to a timetable for the exchange of particulars and productions.

The employer delivered its materials on time, but the union failed to do so because the grievor did not provide the necessary information to union counsel and could not be reached.

The Vice-Chair extended the deadline for the union's particulars and productions, ordering that if the union fails to comply, it will be called upon to show cause why the grievance should not be dismissed.