Sean Kearney

The grievor, an Operational Manager, claimed his salary was incorrectly calculated and sought an ongoing 3% salary increase based on a letter from senior management.

The employer maintained the letter offered a one-time lump sum payment to address pay inequities caused by the timing of promotions.

The Public Service Grievance Board found that the employer's subsequent communications clarified the offer was for a lump sum, not an ongoing salary adjustment.

As there was no mutual agreement on an ongoing salary increase, it did not become an enforceable term of employment.

The grievance was dismissed.

The grievor filed a grievance claiming that rules relating to promotional increases were incorrectly applied to him.

The employer raised a preliminary objection that the Public Service Grievance Board lacked jurisdiction because the grievor was a member of the AMAPCEO bargaining unit at the time the grievance was filed.

The Board agreed, finding that under section 31(1) of Regulation 977 to The Public Service Act, persons within a bargaining unit are not eligible to file a grievance under that Part.

The grievance was dismissed for lack of jurisdiction.

The employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitrator's award.

The arbitrator had allowed a union grievance on a preliminary motion because the employer's consultant inadvertently destroyed documents relevant to the grievance, concluding that a fair hearing was impossible.

The Court of Appeal allowed the appeal, finding that the Divisional Court erred in applying a reasonableness standard to an issue of natural justice.

The Court held that the inadvertent destruction of documents in a civil context is a procedural matter calling for procedural remedies, such as adverse inferences, rather than the extraordinary remedy of granting the grievance without a hearing on the merits.

The award was quashed and the matter remitted for a hearing on the merits.

A dispute arose between the union and the employer regarding the employer's request to adjourn and reschedule a hearing date set for September 18, 2006.

The Vice-Chair directed the parties to attempt to reschedule the matter at an upcoming Joint File Review meeting.

If unsuccessful, a teleconference hearing would be held to determine the adjournment request.

The union filed grievances alleging the employer failed to properly accommodate the grievor's asthma and sensitivity to cigarette smoke at a youth centre.

Prior to the hearing, the employer requested the grievor's complete decoded OHIP summary and clinical notes from all medical practitioners since June 2004.

The union opposed the breadth of the request, arguing it violated the grievor's privacy rights, and proposed providing a specific medical report from the grievor's family doctor instead.

The Vice-Chair dismissed the employer's broad request, finding it too invasive as the grievor was not making a generalized claim placing his entire medical history in issue.

The Vice-Chair directed the grievor to provide a medical report responding to specific questions about his asthma, absences, and stress-related problems.

The grievor filed a grievance alleging a breach of the employer's policies regarding pay on assignment and pay for performance.

The board previously dismissed the grievance for lack of jurisdiction.

The grievor requested the board to reconsider the pay on assignment portion.

The board held that it was functus officio and lacked the power to reconsider its previous decision.

Furthermore, based on a recent board decision on the same issue, the grievance lacked merit.

The grievance was dismissed.

The grievors, Operational Managers, alleged the employer breached a 2002 memorandum of settlement by requiring them to participate in a selection process to reduce the number of managers from 26 to 13 following a decision not to complete the expansion of a facility.

The memorandum provided that staffing imbalances created by the settlement would not be resolved through a competition process.

The Board found that the staffing imbalance was not created by the 2002 settlement, but rather by the 2005 decision not to finish the expansion.

Therefore, the employer did not violate the memorandum by using a selection process to downsize.

The grievances were dismissed.

The grievors, Operational Managers, alleged the employer breached a 2002 memorandum of settlement by requiring them to compete for their positions during a 2005 downsizing.

The settlement prohibited resolving staffing imbalances created by the settlement through a competition process.

The Board found that the staffing imbalance was not created by the 2002 settlement, but rather by a 2005 government decision not to complete the expansion of the facility.

Therefore, the employer did not violate the settlement by using a selection process to downsize.

The grievances were dismissed.

The employer brought preliminary motions to dismiss several grievances filed by Operational Managers regarding their pay, arguing the grievances were untimely and beyond the Board's jurisdiction.

The grievances raised issues such as salary compression, pay on promotion, and credit for acting assignments.

The Board dismissed the portions of the grievances claiming an entitlement to a review of experience for a 'better than average' promotional increase, finding no arguable breach of policy.

However, the Board allowed the grievances relating to breaks in service during acting assignments and the maintenance of a 3% differential above direct reports to proceed to a hearing on the merits, finding they raised arguable continuing grievances within the Board's jurisdiction.

During a legal strike, the parties operated under an Essential Services Agreement.

Following the return to work, the Union filed grievances alleging the Employer violated the collective agreement by failing to schedule and pay essential Correctional Officers for forty hours per week, regardless of actual hours worked.

The Grievance Settlement Board dismissed the grievance, finding it counterintuitive to labour relations to pay striking employees for unworked hours.

The Board held that the essential services agreements clearly indicated normal shift schedules would cease, and any such substantial benefit would require clear and unambiguous language, which was absent.

The grievor alleged that the Employer reneged on an oral term of a grievance settlement negotiated on November 26, 2002, which allegedly guaranteed him an interview for a Maintenance Mechanic position.

The written Memorandum of Settlement did not contain any reference to an interview.

The Grievance Settlement Board found that the Union failed to establish on a balance of probabilities that the parties were ad idem regarding the interview.

The grievance was dismissed.

The Union filed grievances alleging that the Employer violated the collective agreement by failing to pay negotiated wage increases to correctional officers while they were on temporary acting assignments as non-bargaining unit Operational Managers.

The Union argued that under the collective agreement, employees on temporary assignment outside the bargaining unit remain covered by the agreement and are entitled to its negotiated wage increases.

The Grievance Settlement Board dismissed the grievances, finding that while the collective agreement continues to apply, an employee's pay is tied to the classification of the work they are performing during the temporary assignment, not their home position.

The Board also found that the Union would be equitably estopped from enforcing its interpretation due to a lengthy past practice of tying acting pay to the acting position.

The union filed a grievance alleging the employer breached a prior settlement agreement by failing to interview the grievor for a Maintenance Mechanic position.

The union sought an order requiring the employer to interview the grievor, a process ultimately designed to secure the position for him.

The arbitrator held that the successful applicant for the position was entitled to third party notice of the hearing, as his rights under the collective agreement could be affected.

The grievor filed a grievance seven months after receiving a 20-day disciplinary suspension.

The employer brought a preliminary motion to dismiss the grievance as untimely under the Public Service Act.

The grievor argued the delay was justified because she had pursued a judicial review of the discipline, which was ultimately dismissed by the Divisional Court.

The Board applied the Becker Milk factors and found no compelling reason to extend the time limits, noting the grievor was aware of her right to grieve but chose to pursue judicial review instead.

The grievance was dismissed.

The grievors, acting Operational Managers, filed grievances regarding pay increases with the Public Service Grievance Board after the employer initially claimed the Grievance Settlement Board lacked jurisdiction.

The employer brought a motion to dismiss the PSGB grievances for lack of jurisdiction, arguing the grievors remained OPSEU members covered by their collective agreement while in temporary acting positions.

The Vice-Chair agreed, finding that Section 31 of Regulation 977 to the Public Service Act excludes OPSEU members from grieving at the PSGB.

The grievances were dismissed for lack of jurisdiction.

The union filed a grievance alleging the employer reneged on an oral agreement to grant the grievor a job interview, which was allegedly reached during a grievance meeting.

The employer brought a preliminary motion to dismiss the grievance, arguing that the subsequent written Memorandum of Settlement did not contain this term and constituted the entire agreement.

The Grievance Settlement Board dismissed the employer's motion, holding that while written settlements are generally sacrosanct, circumstances may exist where a written agreement does not reflect the complete mutual agreement of the parties.

The Board directed that evidence regarding the alleged oral agreement be heard.

During negotiations for a collective agreement, a large number of employees were absent from work due to alleged illness just prior to a potential strike.

The employer denied sick leave pay to many of these employees, suspecting an illegal strike or 'blue flu'.

The union grieved the denial of sick leave.

The Grievance Settlement Board held that the onus was on the employees to establish the legitimacy of their illness.

Given the mass absenteeism and the inadequacy of many medical certificates provided, the Board found that the majority of employees failed to discharge this onus and were not entitled to sick leave pay.

However, employees who provided adequate medical certificates or who received express assurances from management that a certificate would ensure payment were found entitled to sick leave.

The Union moved for an indefinite adjournment of the arbitration proceedings involving multiple correctional officers who were disciplined and discharged for alleged excessive use of force, pending the outcome of related criminal charges.

The Employer opposed the motion.

The Grievance Settlement Board denied the request for an indefinite adjournment, finding that the delay would be substantial and uncertain, the criminal trial would not resolve all issues or involve all grievors, and the Employer had a legitimate interest in an expeditious hearing.

However, the Board granted a short adjournment until after the scheduled preliminary hearing in the criminal matter.

The Grievance Settlement Board issued a direction regarding the placement of the grievor at the Brookside Youth Centre.

The Board directed the grievor to attend MSA training and, upon successful completion, commence duties as a Youth Services Officer starting with two weeks of orientation.

The grievor, a correctional officer, was discharged by the Ministry after it discovered he had been fired from his previous employment at a private correctional facility for sexually inappropriate conduct.

When applying to the Ministry, the grievor submitted a resume and letter that inadvertently misrepresented he was still employed at the private facility.

The Grievance Settlement Board applied the Gould Manufacturing approach to assess whether the misrepresentation justified discharge.

Finding the misrepresentation was inadvertent rather than deliberate, and weighing the grievor's prior unblemished seven-year service with the Ministry, the Board concluded the mitigating factors outweighed the misconduct.

The grievance was allowed in part, and the grievor was reinstated without compensation.