GSB# 2021-2072

UNION# G-111-21-TS

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Whynott)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

April 25, 2023

Decision

1This grievance challenges the Employer’s decision to place the Grievor on unpaid leave for failing to comply with the mandatory Covid-19 testing policy. The Union did not challenge the policy, but argued that the Grievor had a sincerely and deeply held belief that she should not be required to take rapid antigen tests, and it was therefore unreasonable for the Employer to deny the Grievor’s request to work from another site where the testing policy was not in place.

2The Employer brought a preliminary motion arguing that the Union had not established a prima facie breach of the collective agreement. The parties asked that I issue a bottom-line decision in advance of a continuation date, with reasons to follow.

3The parties provided an agreed statement of fact for the purposes of the motion, in which they set out facts regarding the operation of the workplace. The Union’s particulars were also provided and assumed to be true for the purposes of this motion.

4The Employer argued that the Board does not have jurisdiction to review the reasonableness of its decision. They relied on a line of cases which holds that the GSB does not have jurisdiction to review the exercise of management rights unless the Employer's exercise of management rights results in the denial or abridgement of an employee’s right under the collective agreement or a statutory provision (Ontario Public Service Employees Union v Ontario (Ministry of the Environment) (Dobroff), [2008] O.G.S.B.A. No. 73; Ontario Public Service Employees Union v. Ontario (Ministry of Attorney General) (Difederico), [2009] O.G.S.B.A. No. 214; Ontario Public Service Employees Union v Ontario (Ministry of Transportation) (Brydges), 2014 CarswellOnt 16144; Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (Pozderka), [2016] O.G.S.B.A. No. 19).

5The decision to send an employee home on unpaid leave engages her rights under the collective agreement, including the provisions relating to hours of work which include a guarantee of hours.

6However, I find that the facts of the case, as pled by the parties, and assumed to be true are not capable of establishing a violation of the collective agreement. Though the Union pointed to facts that some employees worked from an alternate location, there are no facts to support the Union’s contention that the decision not to allow the Grievor to do so was unreasonable. The agreed facts, which are accepted by the parties to be true, include explanations as to why others were allowed, in some circumstances, to work off-site. The Employer asserted these facts would form the basis of their evidence of the rationale for their decisions. The Union noted that it had no evidence to contradict that rationale. They stated only that they wished to cross-examine the decision maker, but could not point to any evidence, circumstantial or direct, that would serve to impeach the Employer’s rationale, and thereby meet their onus of establishing that the decision was unreasonable.

7The grievance is therefore dismissed.

8I have provided this bottom line decision with brief reasons as requested by the parties. If either party seeks more fulsome reasons, they may make such a request within 7 days of this decision.