The following decisions are reported in Labour Arbitration Cases (LAC) Fourth Series:

Waterloo ( Regional Municipality ) and C.U.P.E., Local 1883 (Kelly) (Re) (2008), 171 L.A.C. (4th) 107 Arbitrability -- Mootness -- Grievance alleging failure to accommodate -- Request for modified work hours to accommodate temporary mental disability -- Grievor now recovered and lost no pay during period of disability -- Underlying issues of duty to accommodate not resolved even if individual portion of grievance has disappeared -- Live controversy remaining.  Arbitrability -- Mootness -- Grievor no longer in need of requested accommodation -- Issue of whether employer required to accommodate grievor prior to arrival at work remains outstanding -- Live controversy existing -- Appropriate for arbitrator to exercise discretion to hear dispute even if grievance moot at individual level. Disability -- Accommodation -- Grievor developed post-traumatic stress disorder after hitting deer on way to work -- Grievance alleging failure to accommodate mental disability -- Grievor now recovered but underlying issues of scope of accommodation unresolved -- Grievance not moot.

Kawartha Pine Ridge District School Board and E.T.F.O. (D. (S.)) (Re) (2008), 169 L.A.C. (4th) 353 Arbitrators -- Jurisdiction -- General -- Grievance concerning principal's release of teacher's confidential medical information to parents -- Privacy of employee's medical information in employer's possession at issue -- Dispute arising at least inferentially if not expressly from collective agreement. Collective agreement -- Implied terms -- Confidentiality of medical information in employer's possession implied from various provisions of collective agreement. Management rights -- Arbitral review -- Grievance alleging improper disclosure of teacher's medical information -- Municipal Freedom of Information and Protection of Privacy Act an employment-related statute incorporated into collective agreement -- Arbitrator has jurisdiction to decide grievance and to consider all appropriate remedies including damages arising in tort -- Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

Toronto (City) and Toronto Professional Firefighters' Assn., Loc. 3888 (Halls) (Re) (2007), 161 L.A.C. (4th) 339 Wages -- Deductions -- Employer paid grievors' legal costs directly to solicitors -- Income tax levied on taxable benefit deducted from grievors' pay -- Indemnification for reasonable legal costs not including income tax levied on value of benefit -- Employer not required to gross up its payment of legal costs to cover additional tax liability. Interpretation -- Words and phrases -- "Indemnify" -- Parties' use of the word "indemnify" not disclosing intention to shift tax burden resulting from receipt of taxable benefit from grievors to employer.

Kitchener (City) and Kitchener Professional Fire Fighters Assn. (Waganka) (Re) (2006), 154 L.A.C. (4th) 228 Evidence -- Similar fact evidence -- Grievance concerning discharge for alleged sexual harassment -- Proposed similar fact evidence in form of complainant's involvement in domestic disturbance -- Proposed evidence not reaching striking similarity standard -- Evidence of general propensity not admissible under guise of similar fact evidence. Evidence -- Witnesses -- Cross-examination -- Captain discharged for alleged sexual harassment of female subordinate -- Scope of cross-examination of complainant not restricted to question of whether complainant convicted of criminal offence -- Association entitled to cross-examine complainant on broad range of issues in connection with domestic dispute, subject to collateral evidence rule

Re McKesson Canada and Teamsters Chemical, Energy and Allied Workers Union, Loc. 424 (Trinh) (2004), 136 L.A.C. (4th) 102 - Privacy – Statutory obligations – Admissibility of video surveillance evidence – Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA) not applicable to employment relationship in Ontario provincial private sector – Values inherent in PIPEDA and implied concept of arbitral due process under a collective agreement are appropriate considerations – Application of PIPEDA values and of arbitral due process requiring balancing of parties’ competing interests – Employer required to demonstrate reasonableness of decision to conduct surreptitious surveillance.

Re Waste Management Inc. and Teamsters, Local 419 (Woodward) (2004), 134 L.A.C. (4th) 188 - Contracting out — Collective agreement limitations — Administrative suspensions of driver's licences — Grievors no longer qualified to perform driving function but able to perform loading function — Contracting out in violation of collective agreement. Job evaluation — Arbitral review — Suspension of driver's licences — No requirement that employees rotate between two essential job functions — Employer obliged to maintain grievors in loading job within classification.

St. Joseph's General Hospital, Elliot Lake and Ontario Nurses' Association (2004), 134 L.A.C. (4th) 86 - Disability — Innocent absenteeism — Grievor claimed right to be terminated — Twofold test for innocent absenteeism applicable — Permanent disability preventing performance of employment obligations not demonstrated. 

Re Sobeys Inc. and Canadian Auto Workers, Local 1090 (2004), 131 L.A.C. (4th) 166 Evidence — Expert evidence — Video analysis — Opinion evidence not meeting criterion of necessity. Disciplinary offences — Dishonesty — Theft — Theft of money from co-worker's wallet — Totality of evidence including video surveillance pointing to grievor as person who stole money — Discharge justified. 

Re McKesson Canada and Teamsters Chemical, Energy and Allied Workers Union, Local 424 (2004), 130 L.A.C. (4th) 439 Disciplinary action — Procedural requirements — Union representation — Provision permitting notification of termination by letter whenever employee not in active employment relationship — Discharge not void ab initio. Disciplinary action — Procedural requirements — Notice — Provision permitting notification of termination by letter for employees not actively at work, with copy to union — Negotiated failsafe balancing parties' respective rights.
 
Re West Lincoln Memorial Hospital and Christian Labour Association of Canada, Local 302 (2004), 126 L.A.C. (4th) 52 Management rights — Employer rules — Policy prohibiting wearing of facial jewellery by dietary aides — No demonstrated connection between nose piercing and increased risk of disease transmission — Policy unreasonable. Privacy — Balance of interests — Personal appearance regulations — Prohibition against wearing of facial jewellery by dietary aides — Absent evidence of increased risk of cross-contamination, balance of interests favouring grievors' right of self-expression.
 
Re Fleet Industries Ltd. and I.A.M., Frontier Lodge 171 (Cromb) (2002), 112 L.A.C. (4th) 120 Grievance procedure — Reference to arbitration — Lay-offs postponed — Strike intervening — Notice of lay-off triggering arguable violation of collective agreement — Grievances not premature. Arbitrability — Mootness — Expiry of collective agreement not extinguishing live controversy. 

Re Tembec Inc. and C.E.P., Loc. 32 (2002), 111 L.A.C. (4th) 313 Estoppel — Applications — Change in practice not pursuant to general management privileges — Practice founded upon substantive provision in collective agreement — Estoppel available. Estoppel — Representation — By conduct — Vacation allotment — Long-standing practice of "going further" than collective agreement requirements — Failure to alert union to intended change in practice — Detrimental impact upon union's opportunity to negotiate on issue — Estoppel established. 

Re Toronto (City) and Toronto Civic Employees' Union, Loc. 416(Watters) (2002), 106 L.A.C. (4th) 159 Arbitrability — Settlement — Minutes of settlement releasing employer from all past, present and future claims by grievor — Language of release sufficiently comprehensive to include claim for long-term disability benefits from employer. Benefits — Entitlement to coverage — Employer liable for long-term disability benefits under administrative services only arrangement — Release clause under minutes of settlement concluding relationship between grievor and employer — Minutes of settlement constitute absolute bar to grievance. 

Re Kawneer Co. Canada Ltd. and International Assn. of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Loc. 835 (2001), 100 L.A.C. (4th) 129 Disability — Medical certificates — Medical opinion of employee's physician not determinative of initial entitlement to benefits. Benefits — Disability plans — Medical opinion one factor in insurer's assessment of claim — Additional information requested by insurer relevant and reasonable. 

Re Associated Spring (Barnes Group), Burlington Division and U.S.W.A., Loc. 8761 (Kartalianakis) (2001), 99 L.A.C. (4th) 129 Skill and ability — Assessment — Examinations and tests — Incumbent selected by joint committee using selection matrix — Not appropriate to overturn parties' agreement resulting in selection of incumbent. Job posting — Posting procedure — Incumbent selected by joint representatives who were in position to bind parties — No material unfairness in process or misapplication of selection matrix. 

Re Lakehead District School Board and C.U.P.E., Loc. 2486 (Swearengen) (2001), 96 L.A.C. (4th) 315 Procedure — Order of proceedings — Termination of insurance benefits — Onus of proof not shifting from grievor by reason of receipt of benefits for initial period. Evidence — Onus of proof — Discrimination on basis of handicap — Union required to proceed first and establish breach of Human Rights Code — Onus shifts to employer to prove reasonable accommodation once prima facie case of discrimination established — Human Rights Code, R.S.O. 1990, H.19. 

Re Advanced Metal Products Ltd. and C.A.W.-Canada, Loc. 636 (2000), 93 L.A.C. (4th) 170 Procedure — Adjournment — Other proceedings pending — Employer filed voluntary assignment in bankruptcy — Parties referred related employer question to Ontario Labour Relations Board — No risk of labour board and arbitrator reaching inconsistent decisions on same issue — Balancing of relative interests favours proceeding with hearing on issues of liability. Arbitrators — Jurisdiction — Voluntary assignment in bankruptcy — No express court order staying all proceedings — Proceedings before arbitrator to [page171] determine wages and other entitlements under Employment Standards Act not stayed by provisions of Bankruptcy and Insolvency Act — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 — Employment Standards Act, R.S.O. 1990, c. E.14. Arbitrability — Collective agreement — Existence — Termination of employment relationship as result of bankruptcy not depriving union of access to statutory expedited arbitration. 

Re Tembec Industries Inc. and I.W.A.-Canada, Local 2995 (2000), 86 L.A.C. (4th) 42 Remedies — Damages — Missed work opportunity — Bias against awarding in-kind remedy not overcome.

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