OGSB 2009

The Grievance Settlement Board heard several grievances concerning the interpretation of Appendix 32 to the collective agreement, which established the 'flexible part-time' (FPT) category for court workers.

The union raised several questions of general application regarding work assignments, reporting pay, and call-back pay for FPT employees.

The Board found that the employer is not required to schedule FPT staff to a particular courthouse, that assigning different set-up times to different classifications does not violate the agreement, and that FPT employees are not entitled to a minimum number of after-lunch work hours merely by returning from lunch.

The Board also held that reassigning an employee to another courthouse during their scheduled shift does not constitute a 'call back'.

All illustrative grievances were dismissed.

The grievor, a correctional officer, was reassigned from a property officer post to accommodate his family responsibilities after his wife was injured.

Eight months later, he requested to return to the property officer post, but the employer assigned him to a different post.

The union grieved, alleging a breach of a local Post Rotation Protocol and discrimination on the basis of family status under the Ontario Human Rights Code and the collective agreement.

The Grievance Settlement Board dismissed the grievance, finding that the employer's decision not to return the grievor to the property officer post was reasonable and did not constitute a failure to accommodate his family responsibilities.

In a grievance arbitration involving multiple files, the Grievance Settlement Board dismissed several grievances.

The 'Slat et al.' grievances concerning vacation credits were dismissed because the union conceded it had no dispute with the employer, and the Board lacks jurisdiction over disputes solely between employees and the union.

The 'Sign In Sheet' grievances were also dismissed insofar as they claimed the employer was obliged to provide employees with photocopies of their daily sign-in sheets, as no provision in the collective agreement required the employer to do so.

Two correctional officers grieved the employer's decision to deny them the opportunity to work overtime on their scheduled days off while they were serving disciplinary suspensions.

The union argued that the employer could not unilaterally ban overtime during a suspension because of local overtime protocols, and alternatively, that any denied overtime hours should count towards the suspension period.

The Grievance Settlement Board held that the employer had the statutory authority under the Public Service Act to remove an employee from employment without salary, which includes a ban on working overtime.

The Board further held that the employer was not obliged to credit the grievors with suspension hours for the overtime opportunities they were denied.

The union filed a grievance alleging the employer failed to maintain a past practice of providing free parking when employees were relocated to a new building.

The employer raised a preliminary objection that the union was improperly expanding the scope of the grievance by adding health and safety claims and allegations of differential treatment, and that the failure to provide free parking did not breach the collective agreement.

The arbitrator upheld the preliminary objection, finding the new claims were beyond the scope of the original grievance and that the collective agreement contained no provision requiring the employer to provide free parking.

The grievance was dismissed.

The bargaining agents (AMAPCEO and OPSEU) sought interim relief to prevent the Employer from implementing new security checks for employees involved in the Enhanced Driver's Licence program, pending a challenge to the validity of the checks.

The new checks, required by the Western Hemisphere Travel Initiative, included criminal, credit, and CSIS checks.

The Grievance Settlement Board granted the interim relief, finding that the balance of convenience favored the bargaining agents because the incursions on privacy could not be reversed if the unions ultimately prevailed, whereas the public could still use passports to cross the border if the program was delayed.

The Grievance Settlement Board issued an amendment to its January 7, 2009 decision.

The amendment replaces the last sentence of paragraph 16 to clarify that only the Article 42.10 issue raised by the grievor's February 25, 2008 grievance is dismissed, while any remaining issues from that grievance remain outstanding.

The grievor, a Correctional Officer, developed PTSD and was unable to return to his custodial position.

After receiving LTIP benefits, he returned to work on temporary assignments in a different role.

The Union grieved, arguing that under Article 42.10 of the Collective Agreement, the grievor was entitled to the employment stability provisions of Article 20B, as if he had received a surplus notice.

The Grievance Settlement Board dismissed the grievance, finding that Article 42.10 is merely a timing provision that delays the application of Article 20B for employees who have received a surplus notice until they are able to return to full-time employment.

It does not grant access to Article 20B benefits to an employee who has not received a surplus notice.

The grievor, a Bee Inspector, filed two grievances challenging the Employer's rulings that his roles with beekeeping associations constituted conflicts of interest.

The Employer raised a preliminary objection that the Grievance Settlement Board lacked jurisdiction because no discipline was imposed and no specific provision of the collective agreement was violated.

The Board upheld the preliminary objection, finding that the letters directing the grievor to choose between his employment and association roles were not disciplinary in nature, and therefore did not violate the discipline and dismissal provisions of the collective agreement.

The grievances were dismissed for lack of jurisdiction.

The grievor, a Conservation Officer, requested a lateral transfer to a vacant identical position in Vineland to assist his aging parents.

The employer denied the request, concluding it was not based on strong compassionate grounds and citing the grievor's past performance issues.

The Grievance Settlement Board allowed the grievance, finding that the employer failed to reasonably consider the request as required by the collective agreement and lateral transfer policy.

The Board held that the employer unreasonably relied on vague assumptions about the parents' health without seeking clarification, and improperly considered irrelevant performance issues when the grievor was already qualified for the identical position.

The employer was ordered to grant the lateral transfer.

The grievor, a full-time employee, suffered a workplace injury resulting in a permanent restriction limiting him to working six hours per shift.

The employer subsequently converted his status from full-time to part-time, which reduced his access to attendance and vacation credits.

The union grieved, arguing the change in status constituted discrimination on the basis of disability contrary to the collective agreement and the Human Rights Code.

The Grievance Settlement Board dismissed the grievance, finding that the grievor's permanent inability to work full-time hours provided just cause to terminate his full-time status.

The Board held that compensating a disabled employee working part-time hours on the same basis as other part-time employees does not amount to prohibited discrimination, as the duty to accommodate does not require an employer to top up compensation for work the employee cannot perform.

In a grievance arbitration under the Crown Employees Collective Bargaining Act, the parties agreed to exchange particulars and productions prior to the hearing.

The Grievance Settlement Board issued a consent order detailing the requirements and a timetable for the exchange of written particulars and documents.

The order included specific directions for the employer to produce documents related to the grievor's job matching and certain job competitions.

The union filed a grievance concerning whether the Long Term Income Protection (LTIP) Plan provided a right of subrogation to the employer.

The collective agreement and the LTIP Plan were silent on subrogation, requiring an analysis under common law principles of insurance.

The arbitrator reviewed extensive caselaw to determine if the LTIP Plan was a contract of indemnity.

Finding that the Plan required proof of loss and contained reduction clauses designed to avoid double recovery, the arbitrator concluded it was a contract of partial indemnity.

Consequently, the employer has an equitable right of subrogation, and the grievance was dismissed.

The Union raised a preliminary objection arguing that the grievor's termination was void ab initio because the Employer violated the union representation clause (Article 26.3) of the collective agreement.

A shift leader had confronted the grievor about a co-worker's harassment allegations without offering union representation.

The Grievance Settlement Board found that the shift leader was acting as a representative of management and the meeting triggered Article 26.3.

However, because the termination was also based on subsequent alleged misconduct not discussed at that meeting, the termination was not void ab initio.

The Employer was merely precluded from relying on the allegations discussed at the improper meeting.

The grievor, a return-to-work mediator at the WSIB, requested an unpaid leave of absence to accept a six-month secondment as an Employer Specialist at the Office of the Employer Advisor.

The employer denied the request, citing concerns about a reasonable apprehension of bias upon his return and potential service disruption.

The Grievance Settlement Board found that the employer's exercise of discretion was unreasonable, as it relied on subjective opinions without gathering objective evidence and failed to properly balance the employer's operational needs with the employee's developmental opportunities as required by its own policy.

The grievance was allowed.

The grievor sought to participate as an independent party, separate from the union, in a reconvened grievance arbitration hearing concerning the implementation of a 1983 reinstatement award.

The union and the employer opposed the request.

The Grievance Settlement Board held that under the applicable collective bargaining legislation, the union has exclusive carriage rights over grievances.

The Board found no exceptional circumstances to justify granting the grievor independent standing, noting that disputes over the union's duty of fair representation fall within the exclusive jurisdiction of the Ontario Labour Relations Board.

The grievor's request for party standing was denied.