Stewart McMahon

A deputy superintendent challenged his dismissal arising from the preferential treatment of an incarcerated correctional officer and his subsequent statements during the employer's investigation.

The Board found that the complainant, as a senior manager, set the stage for preferential treatment, failed over several days to correct obvious policy breaches, and materially misled investigators by omissions and false statements.

Applying the contextual just-cause approach, the Board held that the misconduct and resulting loss of trust were irreconcilable with continued employment.

Lengthy service and a prior clean record were insufficient mitigating factors.

The complainant requested reconsideration of a previous Board decision dismissing her complaint of reprisal for disclosing wrongdoing.

The complainant argued that her application to the Human Rights Tribunal of Ontario constituted a disclosure of wrongdoing.

The Board dismissed the request for reconsideration, finding that the HRTO application could have been raised at the original hearing.

The Board also dismissed the complainant's second complaint regarding her termination, finding that she failed to establish a prima facie case of reprisal and that the complaint was filed outside the mandatory timelines in the Regulation.

The employer raised a preliminary objection arguing that the complainants' notices of proposal to file a complaint were untimely under Regulation 378/07.

The dispute centered on when the complainants became aware of the working condition giving rise to the complaint regarding the removal of a salary allowance under a new compensation plan.

The Board found that the working condition crystallized gradually and the complainants did not have the complete picture until they saw the changes reflected in their pay stubs.

Therefore, the notices were filed within the 14-day time limit and the preliminary objection was dismissed.

The Grievor, a Correctional Officer, was discharged after failing to scan a dayroom and inspect a shower stall, resulting in his failure to observe an ongoing inmate fight and an injured inmate.

The Union grieved the discharge, arguing it was excessive and amounted to differential treatment compared to other officers who missed similar incidents.

The Arbitrator found the Grievor's misconduct was serious, as he neglected his core duties, and that his previous disciplinary record for similar conduct undermined his rehabilitative potential.

The Arbitrator also rejected the differential treatment argument, finding the comparator incidents were not substantially similar.

The grievance was dismissed and the discharge upheld.

The Employer brought a preliminary motion to strike various paragraphs from the Union's Statement of Particulars in a workplace harassment grievance.

The Employer argued the particulars were untimely, irrelevant, failed to establish a prima facie case, or constituted an improper expansion of the grievance.

The arbitrator reviewed the scope of the grievances and the applicable tests for striking particulars.

Several paragraphs were struck for being untimely or expanding the scope of the grievance, while others were retained either because they fell within the permissible timeframe or because they provided necessary context to the in-scope allegations.

The parties agreed to a consent order regarding the production of the grievor's medical records from health care practitioners.

The order established a process for producing redacted and unredacted copies, handling objections to redactions, and maintaining confidentiality.

The parties also agreed to consolidate a newly filed grievance with the existing grievances, with the employer waiving timeliness objections in exchange for the union agreeing not to raise allegations about the handling of a prior workplace harassment complaint.

The Union requested that one or two of its witnesses be permitted to testify by videoconference or teleconference in a grievance regarding a denied direct assignment.

The Employer opposed the request.

The Arbitrator denied the request, finding that the circumstances were not sufficiently compelling or exceptional to warrant testimony by video or teleconference.

The grievor attended a Grievance Settlement Board hearing that concluded by noon.

He then reported to work and was paid for 6 hours.

The union grieved, arguing he should have been paid for 7.5 hours, as he likely would have worked that amount had he not attended the hearing.

The arbitrator dismissed the grievance, finding the grievor had no right to be assigned more than the minimum guaranteed hours and would not have been assigned court duties due to an ongoing accommodation dispute.

The arbitrator also denied the union's request to withdraw the grievance after argument.

The complainant, a retired Health Care Manager, filed a complaint regarding her entitlement to an enhanced severance payment under the Voluntary Exit Registry.

The employer raised a preliminary objection that the complaint was not filed within the mandatory time limits set out in Regulation 378/07.

The Board determined that a February 7, 2018 conference call constituted the dispute resolution meeting under section 9(3) of the regulation, meaning the complaint filed on March 6, 2018 was premature.

The Board further held that the time limits in Regulation 378/07 are substantive, not procedural, and therefore cannot be waived under section 4(1) of the Statutory Powers and Procedures Act.

The complaint was dismissed for lack of jurisdiction.

The union requested an order compelling the employer to make a quarterly payment due under Minutes of Settlement on or before April 29, 2019.

The employer assured the Board the payment would be made but the union sought an order because the employer had been late with three payments in 2018.

The Arbitrator, remaining seized of disputes under the settlement, ordered the employer to make the payment on or before April 29, 2019.

In an interim decision regarding a workplace grievance, the Grievance Settlement Board ordered the Employer to produce video surveillance footage from the Ottawa Carleton Detention Centre.

The production was subject to strict conditions, including that the video be examined at a neutral location, not be copied or distributed, and be returned at the conclusion of the proceedings due to safety, security, and privacy concerns.

A correctional officer filed a grievance alleging the employer violated the collective agreement and the Occupational Health and Safety Act by failing to prevent inmates from setting a series of fires in the Special Handling Unit, resulting in her suffering smoke inhalation.

The arbitrator found that the employer had been forewarned of escalating tensions and failed to take reasonable precautions, such as closing meal hatches or removing contraband, even after the first fires were set.

The grievance was upheld, with a declaration that the employer breached its duty to take reasonable precautions for the safety of the grievor.

The complainant, whose position was declared surplus, elected to exit the workplace with salary continuance until his retirement date.

Later that year, the employer announced retroactive pay improvements for managers.

The complainant sought these improvements, arguing he was still an employee during his salary continuance.

The Public Service Grievance Board dismissed the complaint, finding that under the applicable pay policies, the complainant was no longer in a non-bargaining unit position and was considered to be on a leave of absence pending termination, making him ineligible.

Furthermore, the Board held that the exit agreement and release signed by the complainant constituted a complete bar to his claim, and there was no evidence of misrepresentation or duress to invalidate the release.

At a scheduled hearing for a grievance filed by several correctional officers, one of the remaining grievors failed to attend despite receiving due notice.

The arbitrator dismissed the grievance as it related to that individual.

The hearing for the sole remaining grievor was directed to continue at a later date.

The Union sought to interrupt the Grievor's testimony to accommodate the pre-arranged evidence of her family physician.

The Employer objected, arguing it would be prejudiced in its cross-examination and risk having to recall the physician.

The Arbitrator ruled that the Union may interrupt the testimony, noting the difficulty of scheduling physicians and the Board's reluctance to dictate how parties present their case.

The Employer failed to demonstrate compelling prejudice.

In a grievance alleging a failure to accommodate, the Union sought conditions on the disclosure of the grievor's medical documents and an order for particulars from the Employer.

The Employer sought production of a confidential Memorandum of Settlement regarding the grievor's LTIP benefits.

The Arbitrator ordered that the medical documents be disclosed only to Employer counsel and one instructing advisor, with further disclosure requiring consent or a Board order.

The Arbitrator also ordered the Employer to provide particulars of the accommodation steps taken, noting the shifting onus in accommodation cases.

Finally, the Union was ordered to produce the Memorandum of Settlement due to its arguable relevance.

The Grievance Settlement Board heard a preliminary motion regarding document exchange, particulars, and the scope of the grievances.

The arbitrator ordered the parties to exchange arguably relevant documents and particulars by specified dates in January 2019.

The arbitrator also ruled that if the grievances include systemic incidents of harassment or discrimination, the evidence at the hearing will be limited to three years prior to December 1, 2017.

In a group grievance alleging workplace harassment, the employer brought a motion to strike paragraphs of the union's particulars that relied on facts from previously settled grievances.

The union argued it was not seeking additional remedies but only relying on the facts to establish a pattern of harassment.

The arbitrator upheld the employer's motion, applying the arbitral principle of the sanctity of settlements.

The arbitrator found that allowing the union to rely on the underlying facts of settled grievances, especially where minutes of settlement included broad release clauses, would undermine the finality of settlements.

In a grievance arbitration concerning the discharge of a correctional officer for failing to identify an inmate fight and injured inmate, the Union brought a preliminary motion for the production of documents relating to three other incidents where staff allegedly missed inmate fights but were not disciplined.

The Employer argued the request lacked specificity and was a fishing expedition.

The Arbitrator granted the motion, finding the documents arguably relevant to the Union's claim of differential discipline, and ordered production with procedural safeguards to mitigate any prejudice to the Employer.

The Employer requested an adjournment of a scheduled hearing date because its counsel was inadvertently double-booked.

The Union opposed the request, arguing that the matter had already been delayed and that the Employer could assign a different lawyer.

The Arbitrator granted the adjournment, noting that the underlying grievance regarding temporary higher pay was not time-sensitive, the scheduling error was inadvertent, and the assigned counsel had already invested time in the file and settlement discussions.

The hearing was rescheduled with a delay of only six days.