HomeMy WebLinkAbout2021-2072.Whynott.2023-05-05 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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
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Decision
[1] This 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.
[2] The 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.
[3] The 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.
[4] The 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).
[5] The 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.
[6] However, 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
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serve to impeach the Employer’s rational, and thereby meet their onus of
establishing that the decision was unreasonable.
[7] The grievance is therefore dismissed.
[8] I 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.
Dated at Toronto, Ontario this 5th day of May 2023.
“Annie McKendy”
_________________________
Annie McKendy, Arbitrator