Home Arbitration/Labour Relations Arbitrator dismisses four COVID-19 safety grievances at Ontario Correctional Institute

Arbitrator dismisses four COVID-19 safety grievances at Ontario Correctional Institute

by HR Law Canada

An arbitrator has rejected a series of grievances related to safety measures in place at the Ontario Correctional Institute (OCI) in Brampton, Ont., during the early stages of the COVID-19 pandemic.

Four grievances were filed by the Ontario Public Service Employees Union (OPSEU) alleging that the Ministry of the Solicitor General failed to provide adequate personal protective equipment (PPE) and information to employees. The grievances were deemed barred due to issue estoppel and abuse of process by arbitrator Brian McLean

The grievances were initially addressed through complaints to the Ministry of Labour (MOL) under the Occupational Health and Safety Act (OHSA). However, after the Ministry’s Inspectors declined to make orders against the employer, the union chose not to appeal these decisions to the Ontario Labour Relations Board (OLRB) and instead pursued grievances under the collective agreement.

The four grievances

  • Grievance GSB #2020-1161: A correctional officer (CO) requested a mask on April 14, 2020, after four inmates exhibited flu-like symptoms. The request was denied based on health center assessments, leading to a work refusal and an MOL investigation. The Inspector concluded that masks were not necessary without confirmed COVID-19 cases.
  • Grievance GSB #2020-1163: The Union alleged that the Employer failed to provide daily updates on COVID-19 cases between April 14 and April 20, 2020. The MOL Inspector found that the required information was shared in a call with Peel Public Health and the Union on April 20, 2020.
  • Grievance GSB #2020-1165: COs refused to work on April 6, 2020, due to the lack of masks during inmate transfers. The Inspector ruled that the Employer made reasonable safety provisions since there were no confirmed COVID-19 cases at the time.
  • Grievance GSB #2020-1169: The Union claimed the Employer failed to notify the Joint Health and Safety Committee about details of employees contracting COVID-19. The MOL Inspector found that the Employer was following legal advice and protocols were under corporate discussion with OPSEU.

Ruling and implications

Arbitrator McLean upheld the employer’s motion, emphasizing that the union (and the employer) had the opportunity to appeal the Inspectors’ decisions within 30 days of their ruling but chose not to.

“In the cases before me, the union had the right to file an application to the OLRB to appeal the inspector’s decisions,” he said. “They did not do so. That makes the inspector’s decisions final in these circumstances.”

The process chosen by the union in this case “amounts to a collateral attack on the inspectors’ decisions,” said McLean.

“The issues before me involve the same people and circumstances as those reviewed by the Inspectors,” McLean noted.

If OPSEU had appealed their ruling to the OLRB, they “would have likely ended up with a hearing process very similar to that as before the (grievance settlement board),” he said.

“In these circumstances there is little unfairness to the Union and its members to, having chosen the Inspector route to deal with their health and safety concerns, require them to follow that process through rather than to choose a different process: the grievance and arbitration procedure,” said McLean.

He also said that there was no suggestion that inspectors “do not have expertise in health and safety matters.”

Lesson from this ruling

  1. Follow Proper Appeal Channels: When dissatisfied with decisions from health and safety inspectors, utilize the designated appeal processes rather than initiating parallel grievance procedures.
  2. Clear Communication Protocols: Ensure robust communication and documentation practices, especially during health crises, to provide timely and accurate information to employees and their representatives.
  3. Adherence to Established Safety Protocols: Maintain and enforce established safety protocols and agreements, particularly those developed in response to previous health emergencies, to avoid disputes and ensure employee safety.

For more information, see Ontario Public Service Employees Union (Union) v Ontario (Solicitor General), 2024 CanLII 52265 (ON GSB)

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