OGSB 2016

The union grieved the termination of a correctional officer who was dismissed for allegedly using excessive force against an inmate and failing to file complete and accurate reports.

The incident involved the officer pushing an inmate against a wall with his stomach, after which the inmate spat in the officer's face.

The employer alleged the officer then slapped and attempted to punch the inmate.

The arbitrator found that while the officer used excessive force by pushing the inmate and was misleading in his subsequent reports, the evidence did not support the allegation that he slapped or punched the inmate.

Given the officer's 12-year unblemished record, the termination was substituted with a 20-day unpaid suspension.

The grievor, a fixed-term Youth Services Officer, applied for and accepted a position as a fixed-term Correctional Officer.

She filed grievances alleging she was incorrectly required to take Correctional Officer training and should have been placed higher on the salary grid rather than at the start rate.

The Grievance Settlement Board dismissed the grievances, finding that the job posting clearly required the training and set out the salary rate.

The Board noted that because the grievor obtained the position through the normal job posting process rather than a MERC agreement, the usual Collective Agreement provisions applied.

The Employer moved to dismiss a grievance alleging discrimination and unfair reclassification on the basis that it failed to establish a prima facie case.

The Grievor alleged he was paid less than a white colleague who had been secretly reclassified, and raised issues regarding other positions.

The Grievance Settlement Board found documentary evidence disproved the secret reclassification, and the Grievor lacked standing to challenge the other positions.

The motion to dismiss was granted.

The grievor, a Correctional Officer, received a letter of warning following an incident in the maximum area of the Quinte Detention Centre.

The union grieved the discipline through an expedited mediation-arbitration process.

The Grievance Settlement Board upheld the grievance, finding that the employer failed to discharge its onus to show just cause for disciplining the grievor, and ordered the letter of warning removed from his file.

The union filed a grievance on behalf of a correctional officer, alleging the employer violated the protocol for assigning community escort duties.

The grievor had the highest number of escort hours and argued he should have been assigned to the Admission and Discharge area instead.

The employer maintained that the assignment of escort duties is subject to local operational needs, and it was not feasible to assign the grievor to Admission and Discharge on a busy day due to his lack of recent experience in that area.

The arbitrator dismissed the grievance, concluding that the employer's operational needs necessitated the assignment.

The grievor refused to sign a mandatory confidentiality agreement related to a Design-Build project, arguing it exceeded management's authority and conflicted with existing legislation.

He was subsequently removed from the project.

The Union filed a grievance alleging a breach of management rights and, on the eve of the hearing, raised a claim of unjust discipline.

The Employer brought preliminary motions arguing improper expansion of the grievance and failure to disclose a prima facie case.

The Grievance Settlement Board allowed both motions, finding the unjust discipline claim was a distinct issue not inherent to the original grievance, and that the Employer's requirement to sign the confidentiality agreement did not violate the collective agreement or conflict with statutory obligations.

The union grieved a 20-day unpaid suspension imposed on a correctional officer for using a racial slur during an exchange with an inmate.

The union acknowledged that discipline was warranted but argued the penalty was excessive given the grievor's clear disciplinary record and apologies.

The arbitrator dismissed the grievance, finding that the use of a racial slur by a correctional officer towards an inmate constitutes extremely serious misconduct.

The arbitrator held that the 20-day suspension was reasonable and necessary to convey a strong message of deterrence, particularly because the grievor failed to report the incident immediately.

The grievor, a Psychologist 2 at Thistletown Regional Centre, filed a grievance alleging he should be classified as a Psychologist 2 at the Toronto South Detention Centre following a cross-ministry transfer.

The employer argued that the Cross-Ministry Agreement explicitly stated the position offered was a Psychologist 1, and that subsequent correspondence referring to a Psychologist 2 position was a typographical error.

The Grievance Settlement Board dismissed the grievance, finding that errors in individual communications cannot alter the express terms of agreements made between the parties.

The grievor, a Probation Officer II, alleged that the Employer violated the collective agreement by failing to convert her to classified status after she performed the same work in the same region for over eighteen consecutive months.

The Employer argued that a Memorandum of Agreement signed by the parties waived the conversion entitlements for Probation Officers for the duration of the collective agreement in exchange for a new roll-over process.

The Grievance Settlement Board found no violation of the collective agreement, noting the waiver was valid and the grievor had already been rolled over to classified status under the new process.

The grievance was dismissed.

The Complainant, an Oracle Business Analyst, was discharged after a forensic investigation of a USB key found in the workplace revealed his involvement in sending anonymous emails containing false allegations against his Branch Director.

The USB key, which belonged to the Complainant, contained both personal files and highly confidential government documents.

The Association argued that the Employer's search of the USB key violated the Complainant's privacy rights and section 8 of the Charter, seeking to exclude the evidence under section 24(2).

The Grievance Settlement Board held that the Complainant had a diminished expectation of privacy due to his use of the personal USB key for work-related purposes.

The Board found the Employer's search was reasonable, authorized by law, and minimally intrusive.

Even if a section 8 breach occurred, the Board concluded the evidence should not be excluded under section 24(2) as its admission would not bring the administration of justice into disrepute.

The motion to exclude the evidence was denied.

The parties sought assistance from the Grievance Settlement Board regarding the implementation of a Memorandum of Settlement signed in August 2012.

The issue concerned the grievor's continuous service date.

Following a conference call, the parties agreed to an order.

The Board ordered the employer to adjust the grievor's continuous service date from August 20, 2012, to March 22, 1995.

The Union alleged that the Employer breached a Memorandum of Settlement by failing to locate and return Black History Month posters from 2013 to the grievor, and that the Employer misled the grievor into signing the settlement knowing the posters were destroyed.

The Grievance Settlement Board dismissed the allegations, finding that the Employer fulfilled its obligation to assist in searching for the posters, and that there was no evidence to support the claim that the Employer misled the grievor.

Following a merits decision where the matter of damages was remitted to the parties, the parties were unable to agree.

The Grievance Settlement Board issued a supplemental decision ordering the Employer to pay the Union $3,000 in damages, with the Union to determine the dispersion of the funds.

The decision was issued without precedent or prejudice pursuant to Article 22.16.

The union alleged the employer breached Minutes of Settlement by failing to pay the grievor within the agreed 60-day timeframe.

The union requested an order declaring the breach, directing immediate payment with interest, and awarding $1,000 in damages for the breach.

The employer admitted the late payment but opposed the $1,000 damages claim, arguing the breach was a technical error without bad faith.

The Vice-Chair found the employer breached the settlement and ordered immediate payment with interest, but declined to award the $1,000 damages, noting it was too harsh for a first-time request while putting the employer on notice for future breaches.

During an arbitration hearing regarding a grievance for discharge without just cause, the Union requested disclosure of a document seen in the possession of an employer witness.

The Employer argued the document was protected by litigation privilege.

The Grievance Settlement Board found that while the document was originally protected by litigation privilege, the privilege was waived when the document was deliberately reproduced and found in the possession of an independent fact witness.

The Employer was ordered to disclose the document to the Union.

At a hearing before the Grievance Settlement Board, the union sought disclosure of documents related to a Workplace Discrimination and Harassment Prevention (WDHP) report.

The Board issued an oral order, subsequently rendered in writing, requiring the employer to disclose all arguably relevant documents contained in the specified WDHP file.

The union and the employer brought preliminary motions regarding particulars in a grievance arbitration.

The union sought an order for the employer to provide full particulars, while the employer sought to strike out portions of the union's 92-page particulars.

On the agreement of the parties, the Vice-Chair ordered that no further particulars were necessary, the union's particulars would stand as the grievor's examination-in-chief, and set a schedule for the exchange of arguably relevant documents.

The employer proposed to call an expert witness to provide opinion evidence on whether the grievor, a correctional officer, complied with use of force regulations and policies during an incident with an inmate.

The union brought a motion to exclude the portion of the expert's evidence relating directly to the application of force by the grievor.

The Grievance Settlement Board ruled that the expert opinion evidence is admissible and denied the union's motion.

The grievor, a registered nurse at a correctional facility, filed grievances alleging harassment, bullying, and discrimination by management, and claimed her resignation was forced under duress.

The employer argued she voluntarily resigned after being implicated in an inmate's suicide and facing potential termination and a report to the College of Nurses of Ontario.

The Grievance Settlement Board determined that the grievor had the opportunity to consider her options with union representation and exercised independent judgment.

The Board concluded the resignation was voluntary and denied the union's request for reinstatement.

The Union filed grievances on behalf of two long-service employees who were denied approval for the Transition Exit Initiative (TEI) under Appendix 46 of the collective agreement.

The Employer denied the requests because the grievors' local office was under complement, meaning their departure would not result in cost savings or prevent layoffs.

The Union argued that the Employer's discretion was fettered by the seniority provisions in Appendix 46, requiring TEI requests to be considered on a bargaining-unit-wide basis.

The Grievance Settlement Board dismissed the grievances, finding that the collective agreement granted the Employer broad discretion to approve TEI requests based on operational needs and whether the exit supported the transformation of the Ontario Public Service, without being strictly bound by seniority at the approval stage.