Dr. D. Wong

The grievor, who has asthma, had been accommodated with steady day shifts for many years.

The employer sought to have the grievor try shift work and presented expert medical evidence indicating that the only way to determine if the grievor could tolerate shift work was to have him try it.

The union relied on past medical notes but did not call medical witnesses.

The arbitrator accepted the employer's expert evidence and concluded that the grievor should try shift work, subject to further medical review if it adversely affected his condition.

The grievor, a correctional officer with asthma, filed grievances alleging the Employer failed to accommodate his disability by exposing him to second-hand cigarette smoke at the Toronto East Detention Centre.

Despite the implementation of smoking policies, the grievor was frequently exposed to smoke due to poor enforcement and assignments that required him to enter inmate living areas.

The arbitrator found that the grievor's asthma constituted a handicap under the Human Rights Code and that the Employer failed to demonstrate it had accommodated him to the point of undue hardship.

The grievances were allowed, and the Employer was directed to renew accommodation efforts and compensate the grievor for lost time caused by smoke exposure.