OGSB 2013

The employer sought production of the grievor's medical records in relation to an accommodation request and the alleged effect of the employer's actions on the grievor's mental health.

The Grievance Settlement Board ordered the union and the grievor to produce arguably relevant clinical notes and records from specified health practitioners.

The Board imposed conditions limiting the review and use of the documents to the current proceedings and authorized review by specific employer representatives and medical experts.

The grievor, an employee of the WSIB, was suspended for two days for allegedly making unfounded harassment complaints against a manager, and subsequently terminated for failing to provide satisfactory medical justification for a prolonged absence.

The Grievance Settlement Board found that the employer failed to prove the harassment allegations were unfounded, as the manager did not testify.

Regarding the termination, the Board held that the employer violated the collective agreement by failing to hold a disciplinary meeting with union representation.

As a remedy for this procedural breach, the Board considered medical reports that the employer had not received prior to termination.

Relying on a psychologist's diagnosis of PTSD stemming from the workplace encounters, the Board concluded the grievor was unfit for work and had a justifiable reason for her absence.

Both grievances were allowed, and the grievor was reinstated with compensation for lost wages and benefits.

During a power outage at the Central North Correctional Centre, the employer sent some employees home with pay while requiring others to remain at work.

The union filed a group grievance alleging favouritism and a failure to provide fairness and equity to all staff, seeking two hours of overtime pay for those who remained.

The arbitrator dismissed the grievance, finding no violation of the collective agreement.

The grievor, a fixed term Correctional Officer, filed a grievance alleging that the Employer violated the Collective Agreement by denying him compassionate leave and discriminating against him based on his employment status.

The matter proceeded to expedited mediation-arbitration.

The arbitrator found no violation of the Collective Agreement and no evidence of discrimination.

The grievance was denied.

The grievor, a Correctional Officer, filed two grievances alleging that the Employer violated the Collective Agreement by applying the Attendance Support Program to him and other officers at the Toronto West Detention Centre, while allegedly not applying it to officers at other institutions.

The grievances were heard through an expedited mediation-arbitration process.

The arbitrator dismissed the grievances, finding that the Attendance Support Program is in effect and being applied consistently throughout the Province, with no exceptions or disparate treatment.

The parties disputed the interpretation of a Memorandum of Agreement requiring WDHP/Human Rights training for 'all staff' at a correctional centre.

The union argued the employer had an ongoing obligation to train all new employees in the future, while the employer disagreed.

The Vice-Chair held that 'all staff' referred only to those employed as of the date the Agreement was signed, meaning there was no ongoing obligation for future hires.

However, the Vice-Chair also ruled that the employer must ensure all staff employed at the time of signing who missed the training (due to leaves, illness, etc.) complete it, as the Agreement did not qualify the requirement.

A group grievance was filed by three Correctional Officers claiming entitlement to the Absenteeism Target Incentive for all hours in 2012, including periods they were on paid or unpaid leave.

The Grievance Settlement Board dismissed the grievance, finding that the collective agreement explicitly required the incentive to be paid based on 'hours worked' rather than hours paid.

Since the grievors did not work any hours during their leave, they were not entitled to the bonus for that period.

The grievor, a Correctional Officer with mental health issues, was accommodated with a specific schedule and limited inmate contact.

A manager, unaware of the specifics of the grievor's mental health needs, held a meeting to announce schedule changes and made comments suggesting the accommodation was short-term and that the grievor could be replaced.

The grievor's mental health subsequently deteriorated.

The Grievance Settlement Board found that the Employer discriminated against the grievor and failed in its duty to accommodate by not considering his mental health issues when communicating the changes.

The Board also found that certain comments made by the manager constituted harassment under the Human Rights Code.

The grievance was allowed and the issue of remedy was remitted to the parties.

The union filed a policy grievance alleging that the employer violated the collective agreement by ceasing its practice of providing formal disclosure when increasing the complement of existing positions.

The union argued that an increase in complement constituted the creation of a "new position" under article 1.4, triggering disclosure obligations.

The employer maintained that the disclosure obligation only applied when a completely new position was created.

The arbitrator dismissed the grievance, finding that reading the provision in context and applying canons of interpretation supported the employer's position.

The arbitrator noted that the union's interpretation would lead to absurd results and an unreasonable administrative burden.

The union filed a grievance alleging the employer discriminated against a 69-year-old fixed-term cook on the basis of age by failing to schedule him for extra shifts during a co-worker's sick leave.

The employer brought a preliminary motion to dismiss the grievance on the basis that the union's particulars did not establish a prima facie case.

The Grievance Settlement Board granted the motion, finding that the particulars failed to establish adverse treatment or that the grievor's age was a factor in the scheduling decisions.

The grievance was dismissed.

The union filed a grievance on behalf of a correctional officer who accepted a temporary assignment as a Maintenance Mechanic 3.

The union argued that under the collective agreement, the grievor was temporarily assigned by the employer and should have been paid his higher correctional officer wage for the period before he signed a secondment agreement.

The arbitrator found that the employer did not require the grievor to take the assignment, but rather offered it to him, and he accepted it.

Relying on previous jurisprudence, the arbitrator concluded that the grievor was not assigned from his position, but was permitted to take leave to accept the temporary role.

The grievance was denied.

The grievor was released from employment during his probationary period for failure to meet the requirements of the position.

The union grieved the release, alleging it was a disguised disciplinary dismissal and discriminatory.

The employer brought a preliminary motion to summarily dismiss the grievance, arguing the union's particulars failed to disclose a prima facie case.

The Grievance Settlement Board dismissed the employer's motion, finding that while the union's particulars were insufficient, summary dismissal was an extraordinary remedy.

The Board held that the employer bears a limited onus to establish the release was valid, and ordered the employer to call its evidence first while directing the union to provide further particulars.

The Employer brought a motion to adjourn a scheduled grievance mediation/hearing because an independent medical examination (IME) for the grievor was scheduled for the same day.

The Employer argued it would be more productive to meet after the IME report was completed.

The Union opposed the adjournment, arguing there were outstanding issues regarding the substance and form of the IME that needed to be resolved.

The Grievance Settlement Board denied the motion, finding that the scheduled day could be well used to mediate the outstanding issues regarding the IME and lost sick pay, preparing the setting for the major issue of future accommodation.

During a grievance proceeding, the Union requested the production of the Family Responsibility Office's Case Management System (FCMS) records for a client involved in an incident.

The Grievance Settlement Board ordered the Ministry to produce the requested records, subject to conditions including restricting the timeframe, redacting all personal information as defined by the Freedom of Information and Protection of Privacy Act, and limiting the use of the records solely to the proceeding.

The grievor, a Risk and Assurance Consultant, was discharged for using government IT resources to send personal emails related to her civil lawsuit against the Crown, blind-copying senior government officials, and failing to cooperate with the subsequent investigation.

The Grievance Settlement Board found that while the grievor's conduct warranted discipline, discharge was an excessive response given her prior disciplinary record of a 10-day suspension.

The Board substituted a 20-day suspension and ordered reinstatement without compensation, rejecting the employer's request for damages in lieu of reinstatement.

The union alleged that the employer breached the terms of a settlement agreement that had been resolved over ten years prior, citing incidents in July and August 2010 and November 2012.

The union sought only declaratory relief.

During a teleconference, the employer conceded the breaches and did not object to the requested relief.

The Grievance Settlement Board issued a declaration that the employer breached the settlement terms, with no other relief ordered.

The union filed three grievances on behalf of a correctional officer under an expedited mediation-arbitration protocol.

The first grievance challenged a ten-day suspension for an incident; the arbitrator found the discipline somewhat harsh given the grievor's clean record and reduced it to a five-day suspension.

The second grievance alleged a failure to provide overtime during a family status accommodation period; this was dismissed as the accommodation plan noted it would affect overtime ability.

The third grievance alleged violations regarding a workplace harassment complaint; the arbitrator found no violation but ordered the employer to complete the recommended coaching for the co-worker and a joint session.

The Union filed a policy grievance regarding the overtime pay entitlement of unslotted Fixed Term Correctional Officers (FTE/COs) at the Vanier Centre for Women.

The Union argued that when a FTE/CO fills in for a Regular Full Time Correctional Officer and works beyond the scheduled shift hours, they are entitled to overtime under article 31A.3.1(b) of the collective agreement.

The Employer contended that FTE/COs do not have regularly scheduled work days and thus fall under a different provision requiring them to exceed 40 hours a week for overtime.

The Grievance Settlement Board held that because the shifts themselves are regularly scheduled under a compressed work week agreement, a FTE/CO filling in for such a shift is working on a regularly scheduled work day.

The grievance was allowed, entitling FTE/COs to overtime pay for shift extensions.

The employer raised a preliminary objection regarding the Board's jurisdiction to entertain two grievances due to their untimely referral to arbitration.

The union argued that the Board had jurisdiction to extend the time limits based on the collective agreement, a subsequent collective agreement, or the Human Rights Code.

The Vice-Chair held that the Board lacked jurisdiction to extend time limits for untimely referrals to arbitration under the applicable collective agreement and section 48(16) of the Labour Relations Act.

The grievances were dismissed.

The Grievance Settlement Board ordered the Union to provide full written particulars of eight grievances filed by the grievor.

The Union was directed to specify whether the grievances raised allegations different from those decided in a previous award, and if so, why they were not raised earlier.

The Employer was ordered to advise of any preliminary objections and respond to disclosure requests.