OGSB 2017

The parties entered into a Memorandum of Settlement regarding the potential inclusion of 375 excluded positions into the bargaining unit.

The union selected 375 positions from a list of 8,000 provided by the employer.

Subsequently, the employer disclosed that approximately 32 of the selected positions had been eliminated, become vacant, or were otherwise problematic.

The union sought to select replacement positions to maintain the 375 count.

The arbitrator held that the list of disputed positions crystallized on the date the union made its selection.

The union was permitted to select replacements only for positions that became unavailable prior to its selection date, but not for those that changed due to the normal ebb and flow of the workplace after the selection was made.

During a grievance arbitration concerning multiple discipline grievances, a procedural issue arose regarding the disclosure of an audio recording made by the grievor during a meeting.

The arbitrator directed the union to produce the recording to the employer's counsel forthwith, subject to strict conditions limiting its further disclosure to specific employer representatives for the purpose of seeking instructions.

The grievor, a Corrections Officer, filed three grievances alleging that the employer violated the collective agreement and the Human Rights Code by failing to accommodate her, allowing harassment, breaching a prior settlement, and running an unfair job competition.

The parties referred the matter to mediation/arbitration and requested a decision without written reasons.

The arbitrator found no evidence to support the allegations and dismissed the grievances.

During a mediation session, the Grievance Settlement Board directed the union to request a medical opinion from the grievor's doctor regarding her fitness to return to work and participate in the arbitration process.

The union was further directed to provide particulars of the grievance to the employer within 90 days of obtaining a medical note confirming her ability to participate.

The Association filed two disputes challenging the employer's decision to reduce the performance standard for completing investigations from 110 days to 90 days, and a blanket prohibition on teleworking more than one day a week.

The employer raised a preliminary objection to the Board's jurisdiction to hear the first dispute, arguing it was a free-standing challenge to management rights.

The Association brought a motion requesting the employer proceed first with its evidence.

The Arbitrator dismissed the employer's jurisdictional objection, finding the dispute raised issues tied to merit pay under the collective agreement.

The Arbitrator also dismissed the Association's motion, ruling that the union must proceed first to establish a prima facie case in accordance with the Board's general practice.

In an arbitration proceeding, the parties disputed several production requests and particulars.

The Employer sought an order restricting the Union from using disclosed medical records to trigger a future duty to accommodate, which the Arbitrator denied, noting the implied undertaking protects the disclosing party's privacy and does not limit their own future use.

The Arbitrator also denied the Employer's request for the grievor's tax returns to verify outside employment, finding them not arguably relevant given privacy interests and the availability of less intrusive means.

However, the Arbitrator ordered the Union to provide particulars regarding the grievor's part-time work discussions, as they were arguably relevant, subject to the Employer's agreement not to discipline the grievor regarding conflict of interest forms.

The employer brought a motion to strike portions of the grievor's Will Say Statement in an arbitration concerning workplace accommodation and termination.

The employer argued the evidence was irrelevant, unparticularized, and included privileged mediation discussions.

The union also requested that the grievor remain anonymous due to the personal medical information involved.

The Grievance Settlement Board granted the anonymity request and allowed the employer's motion in part, striking evidence regarding other employees, pre-disability events, post-grievance Stage 2 meetings, and confidential mediation discussions, while permitting some evidence of alleged differential treatment.

The union filed a policy grievance challenging the employer's Health Information Program Guide and consent forms, arguing they violated privacy rights under PHIPA and FIPPA by seeking overly broad, prospective, and multi-purpose consent for the release of employee medical information.

The Grievance Settlement Board found that while the employer's actual practices largely complied with legal requirements, the written policy and forms were drafted too broadly and could be interpreted in a manner that violated privacy rights.

The Board directed the employer to amend its documents to ensure employees are clearly informed of the specific medical professional being contacted, the exact information requested, and the specific purpose for the request, and to eliminate prospective consent language.

The Union filed grievances challenging the Employer's decision to withhold pay and impose discipline on correctional officers who engaged in a work refusal at the Hamilton-Wentworth Detention Centre.

The work refusal was triggered by a missing metal electrical cover plate, which the officers feared could be weaponized.

The officers refused to work unless they were permitted to wear protective vests and a Level 2 search of the entire institution was conducted.

The Ministry of Labour determined that the officers did not have the right to refuse work under section 43 of the Occupational Health and Safety Act.

The Arbitrator agreed, finding that the danger of homemade weapons is inherent in a correctional officer's work and that the Employer's search protocol and vest policy were normal conditions of employment.

The Arbitrator also dismissed the Union's claims that the Employer's actions constituted a reprisal or a lock-out, concluding that the Employer was justified in withholding pay and imposing discipline for the unlawful work refusal.

The grievor, a Psychologist 1, filed a grievance alleging that the Employer violated the collective agreement by refusing to credit her prior work experience when setting her starting salary, while later granting such credit to a newly hired employee.

The Grievance Settlement Board dismissed the grievance, finding that the grievor's starting salary was in accordance with the collective agreement and the Employer's policy at the time of her hire.

The Employer's subsequent policy change to allow discretionary salary adjustments for new hires due to recruitment concerns did not violate the collective agreement.

The employer brought a preliminary motion arguing the Grievance Settlement Board lacked jurisdiction to award damages to the grievor for a compensable workplace injury.

The grievor, a Court Services Officer, was injured during a physical altercation between litigants and received WSIB benefits.

The union grieved that the employer failed to provide a safe working environment and sought damages for lost wages, credits, and pain and suffering.

The Board granted the employer's motion, following previous jurisprudence which held that section 26(2) of the Workplace Safety and Insurance Act precludes the Board from awarding damages for a compensable injury.

The union was permitted to proceed with its claims for declaratory and directory relief.

In a grievance arbitration concerning multiple suspensions and the termination of the grievor's employment, the parties disputed the production of various documents.

The Vice-Chair of the Grievance Settlement Board reviewed the outstanding disclosure requests, applying the test of arguable relevance.

The Board issued directions ordering the production of certain occurrence reports, emails, and performance appraisals, while confirming that other requested documents either did not exist or were not arguably relevant to the issues in dispute.

The grievor, a Court Services Officer with nine months of service, was discharged after yelling and swearing at a co-worker in a courthouse hallway.

The union conceded that the conduct warranted discipline but argued that discharge was excessive.

The Grievance Settlement Board upheld the discharge, finding that the grievor failed to take any responsibility for his misconduct, showed no remorse, and was untruthful during the investigation and the hearing.

The Board concluded that the grievor's belief that his conduct was justified and his lack of remorse made reinstatement inappropriate.

The grievor, a Maintenance Foreman, alleged that his personal vehicle was damaged in the employer's parking lot by a stone discharged from a lawnmower operated by another employee.

The union argued this violated the health and safety provisions of the collective agreement.

The employer objected that the grievance was not arbitrable.

The arbitrator held that the essential character of the dispute related to a claim of negligence regarding personal property, not health and safety, and lacked a sufficient nexus to the collective agreement.

The grievance was dismissed.

The Union requested four additional hearing dates in anticipation of the matter proceeding to hearing.

The Employer resisted setting dates until the Union complied with a prior production order for the grievor's medical records and benefit applications.

The Vice-Chair directed the parties to set four additional dates, but ordered the Union to provide confirmation of best efforts to comply with the production order within 30 days, and to satisfy the order by September 29, 2017, failing which the additional dates would be cancelled.

The Union requested an order for the production of documents in relation to a grievance filed by a correctional officer.

The Employer did not oppose the request.

The Grievance Settlement Board directed the Employer to produce the requested documents by a specified date.

The parties participated in an expedited mediation-arbitration process regarding multiple grievances.

Ten grievances alleged the grievor was inappropriately refused overtime because he was on modified work duties due to a disability.

The Vice-Chair directed the employer to provide ten attendance credits as a compromise settlement.

Two grievances alleging harassment were dismissed.

A grievance regarding a three-day suspension was upheld in part, with the suspension reduced to one day and the employer directed to reimburse the grievor for two days' pay.

The union filed grievances regarding two letters of reprimand issued to the grievor.

The matter proceeded via expedited mediation-arbitration.

The arbitrator directed the employer to remove the first letter of reprimand from the grievor's file, as it was more than three years old and could no longer be used in subsequent disciplinary proceedings pursuant to the collective agreement.

The arbitrator directed the employer to convert the second letter of reprimand to a letter of counsel given the length of time that had passed since it was issued.

The grievances were upheld in part.

The employer brought a motion to dismiss a grievance filed in 2011 that was not referred to arbitration until 2015, arguing it was untimely.

The union argued the grievance was arbitrable because the parties agreed to postpone the Stage 2 meeting indefinitely, there was a past practice of holding grievances in abeyance while an employee was on sick leave, and the employer waived its right to object to the time limits.

The Grievance Settlement Board rejected the first two arguments but found that, on an objective basis, the employer's representative had waived the right to object to the late referral during a telephone conversation with the union representative.

The motion to dismiss was denied and the grievance was scheduled for a hearing.

The employer requested an adjournment of the hearing because its advisor was ill and unable to attend.

The Grievance Settlement Board granted the adjournment and directed the parties to contact the Board to arrange further dates.