Suneel Bahal

The grievor, a Black correctional officer, alleged multiple incidents of racial discrimination and harassment at the Toronto Jail and Toronto South Detention Centre.

She claimed the employer failed to investigate her complaints or respond appropriately, perpetuating a poisoned work environment.

The Grievance Settlement Board found that the employer breached the Workplace Discrimination and Harassment Policy (WDHP) by failing to advise the grievor of the outcome of an investigation into a co-worker's conduct for 15 months, awarding $3,500 in general damages.

The Board also found the employer breached a safe departure Protocol by unilaterally requiring her to return to work without an accommodation meeting, and violated the collective agreement by failing to investigate a separate incident.

The remaining allegations of discrimination and harassment were dismissed.

The employer brought a preliminary motion to have the discipline grievances of three correctional officers heard together.

The grievances all stemmed from the same alleged use-of-force incident involving an inmate and the ensuing investigation.

The union opposed the motion, arguing that the legal issues were specific to each grievor and that hearing them together would cause delay and prejudice.

The Grievance Settlement Board granted the motion, finding that hearing the matters together would be more efficient given the significant overlap in evidence and would avoid the possibility of conflicting findings of fact.

The union filed grievances regarding the employer's failure to canvass all classified correctional officers for available escort duty shifts.

The parties asked the Grievance Settlement Board to determine two preliminary questions regarding the application of provincial agreements, without considering local conditions.

The Board held that prior to the implementation of the 'hands-up' system, the employer was obligated to canvass classified correctional officers for escort duty even if they had not indicated their availability, following the precedent in Megahy.

Furthermore, the Board found that the July 2004 Memorandum of Settlement did not immediately implement the hands-up system; rather, the system only became effective once the computerized Provincial Overtime Protocol was fully implemented.

The employer sought to consolidate the grievor's termination grievance with the discipline grievances of two other employees arising from the same incident.

The employer sought to give third party notice of the consolidation motion to the other two employees.

The union opposed the notice, arguing it had carriage of all grievances and there was no conflict of interest.

The Grievance Settlement Board held that the other employees had no third party interest in the outcome of the grievor's grievances, as their collective agreement benefits would not be affected.

The Board found third party notice was not warranted.

The union filed grievances regarding the employer's failure to respond to press statements.

The Grievance Settlement Board issued a procedural decision setting out the further conduct of the case.

The Board ordered that the determination of liability be bifurcated from the determination of remedy.

The threshold issue of liability will be argued based on the parties' statements of fact and agreed documents.

The parties disputed the appropriate placement for the grievor, who had medical restrictions preventing him from working past 5:00 p.m. and on weekends.

The union argued the hours of the Video Conferencing position could be adapted without undue hardship, while the employer disagreed.

The arbitrator found that altering the schedules and the resulting extra cost would constitute undue hardship.

The parties subsequently reached an agreement to modify the General Duty Officer position to meet the grievor's restrictions, and the arbitrator directed the employer to place the grievor in that modified position.

The parties agreed to address the outstanding issue of the grievor's placement at the Central East Detention Centre via mediation/arbitration.

Following a conference call to address disputes over how the placement issues should be addressed, the Vice-Chair issued procedural directions.

The directions established the schedule and order of issues to be heard, prioritizing the assessment of the grievor's preferred posts (Video Conferencing and GDO) before considering the employer's proposed alternatives.

As part of ongoing systemic remedies regarding racist hate letters sent to the Toronto Jail, an independent review was conducted by Michael A. Davis.

The Vice-Chair directed that a hearing be convened to consider the Ministry's explanation for not implementing one or more of the recommendations from the Davis report, and to address other matters to optimize the Ministry's investigation.

The Union brought a motion requesting the Grievance Settlement Board to direct the Employer to find a placement for the grievor, a correctional officer with asthma requiring a smoke-free environment, outside of the Central East Correctional Centre (CECC).

The Union alleged the Employer continued to fail to properly accommodate the grievor and enforce the smoking policy.

The Vice-Chair denied the motion, finding that the number of smoke exposures had declined, the Employer had successfully assigned the grievor to smoke-free posts, and there was evidence of improved enforcement of the smoking policy.

The Vice-Chair concluded that the circumstances did not establish that the Employer could not properly accommodate the grievor at the CECC.

The Union filed a grievance alleging the Employer breached Article 9 of the Collective Agreement and the Health and Safety Contractor Policy when concrete grinding resulted in dust and particulates entering work areas.

The Employer acknowledged it did not take sufficient precautions.

The Grievance Settlement Board declared the Employer breached Article 9 and directed the parties to consult on implementing the policy's procedures.

The grievor requested a hearing arising from Minutes of Settlement over which the Vice-Chair remained seized.

A hearing was scheduled, but the grievor failed to provide particulars of the issue despite the employer's request.

As the parties were unable to prepare, the hearing was cancelled.

The Vice-Chair directed that particulars must be provided before any future hearing is scheduled.

The Grievance Settlement Board directed the union to provide the employer with full particulars of its claims by May 16, 2014.

The employer agreed to provide further information upon receipt of the particulars.

The Board also scheduled separate hearing dates for the two grievances.

The grievor, a correctional officer with asthma and sensitivity to cigarette smoke, filed grievances alleging the Employer failed to reasonably accommodate him at the Central East Correctional Centre.

The Grievance Settlement Board found that the Employer breached its duty to accommodate by denying him access to the secure part of the facility, restricting his initial post options without considering broader duties, failing to consider modifying a schedule to permit him to work in a specific area, and failing to reasonably police and enforce the smoking policy.

The Board awarded compensation for lost wages during a mental health absence caused by the Employer's conduct, as well as $18,000 in general damages and $12,000 for mental anguish.

The Union filed a grievance alleging the Employer violated the collective agreement by refusing to properly compensate fixed-term employees for violations of the Provincial Overtime Protocol.

The parties disputed two issues: the entitlement to a day in lieu for employees who work on a holiday but are absent on their adjacent scheduled shift, and the meaning of 'exhausted' regarding the assignment of non-overtime resources before offering overtime.

The Grievance Settlement Board held that the Employer cannot presume an absence adjacent to a holiday is without reasonable cause, and must request medical proof if abuse is suspected.

On the second issue, the Board found that the Employer must make a genuine effort to exhaust non-overtime resources before offering overtime, but this obligation is qualified by the phrase 'to the extent possible' and is not strictly mandatory.

The employer brought a motion to dismiss a province-wide union grievance on the basis that it was referred to arbitration approximately one month beyond the time stipulated under the collective agreement.

The union argued that the employer had waived any right to object to the tardy referral, given that seven years had elapsed and significant litigation events had occurred before the employer raised the objection.

The arbitrator agreed with the union, finding that the employer must be taken to have waived any reliance on the time limit.

The employer's objection was dismissed.

The union filed grievances on behalf of two employees regarding escort duty.

The parties agreed to resolve the grievances through a mediation-arbitration process under the collective agreement.

The arbitrator issued a decision without reasons, directing the employer to pay the grievors the equivalent of 12 and 24 hours' pay, respectively, at the applicable rates.

The decision was issued on a without-prejudice basis for any other proceedings.

The Union brought a motion to allow Local Union officers to testify about management's failure to enforce a workplace smoking policy without disclosing the names of bargaining unit members they observed smoking.

The Union argued that compelling disclosure would undermine members' confidence in their representatives.

The Grievance Settlement Board dismissed the motion, finding that the Employer's right to fully cross-examine witnesses on a highly relevant issue outweighed any potential labour relations interest in protecting the confidence of Union members in their representatives.

The Union alleged the Employer breached the Human Rights Code by failing to accommodate the grievor's family status during a mandatory Staff Learning Day.

The grievor had an ongoing accommodation for her work hours, but the Employer temporarily changed the hours for the event.

At the close of the Union's case, the Employer brought a motion for non-suit.

The Grievance Settlement Board found that the grievor failed to clearly communicate her need for accommodation to her manager, relying instead on general emails sent in her capacity as a union steward.

As clear communication of the request is an essential element of a failure to accommodate claim, the Union failed to make out a prima facie case.

The grievance was dismissed.

In a grievance arbitration concerning the surplussing of employees and the creation of new positions, the union alleged the employer's reorganization was a bad faith scheme to 'clean house'.

The union sought disclosure of application materials and personnel files of the individuals selected for interviews and appointments to the new positions.

The employer opposed, arguing it amounted to an improper job competition grievance.

The Grievance Settlement Board ordered the disclosure, finding the requested materials were arguably relevant to the union's bad faith allegation and did not constitute a fishing expedition.

Prior to the commencement of an arbitration hearing regarding a ten-day suspension and non-disciplinary transfer for alleged sexual harassment, the union objected to the employer's intention to introduce an investigation report into evidence.

The union argued the report was hearsay, contained opinions that would usurp the Board's role, and was highly prejudicial.

The Board dismissed the objection, following previous jurisprudence that such reports are relevant to how the employer arrived at its decisions and that the Board is capable of weighing hearsay evidence appropriately.