GSB#1470/91, 3080/92

UNION#91E069, 93A167

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hyland)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE Ken Petryshen Vice-Chair

FOR THE GRIEVOR David Wright, Counsel Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER John Smith, Counsel Legal Services Branch Management Board Secretariat

HEARING April 25, 2001.

DECISION

When the hearing of some of Mr. B. Hyland’s grievances resumed on April 25, 2001, the Employer requested that I direct Mr. Hyland to participate in an independent medical assessment by Dr. D. Wong. The Union and Mr. Hyland opposed such a direction. In making submissions on the Employer’s motion, each party set out what it viewed as the appropriate factual context, with neither party electing to call evidence.

The grievances before me claim that the Employer has failed to properly accommodate Mr. Hyland. Mr. Hyland, a Correctional Officer employed at the Toronto East Detention Centre, has a history of confirmed asthma. The Employer has accommodated Mr. Hyland as a result of his contention that second-hand smoke is an irritant, which causes asthma symptoms. Mr. Hyland takes the position that the Employer’s failure to enforce its no smoking policy and his continued exposure to second-hand smoke has resulted in many absences from work due to asthma symptoms.

At the Employer’s request, Mr. Hyland participated in an independent medical assessment by Dr. Wong on November 29, 2000. As one might expect, the focus of the assessment was on Mr. Hyland’s need to be accommodated due to his asthmatic condition and sensitivity to second-hand smoke. There is reference in Dr. Wong’s report to Mr. Hyland advising Dr. Wong that he felt worse following exposure to dust and animal hair, particularly cat hair. In his earlier evidence before me, Mr. Hyland testified that exposure to excessive dust could trigger asthma symptoms.

After an absence from the workplace for approximately 4 months, Mr. Hyland returned to work on December 27, 2000. Mr. Hyland noticed that dust had been accumulating in various parts of the workplace since he had last been at work. He brought this matter to the attention of Mr. E. Reid, the Employer’s Staff Services Manager. Mr. Hyland subsequently provided the Employer with a note from his physician dated March 27, 2001, in which Dr. Berger wrote that “this patient should avoid excessive dust in his work environment which may trigger an allergic asthmatic reaction.”

The Employer believes that Mr. Hyland advised Mr. Reid in early February 2001 that he had to avoid dust and that he had to be accommodated for dust. These alleged statements to Mr. Reid and Dr. Berger’s note caused the Employer to conclude that a further independent medical assessment is necessary in order to determine what impact dust in the workplace may have on Mr. Hyland and the Employer’s duty to accommodate him. The Employer submitted that it would be relevant to this proceeding to have Dr. Wong assess Mr. Hyland with respect to his sensitivity to dust, an issue that was not the focus of the first assessment.

The Union claims that all that has occurred here is that Mr. Hyland, upon noticing more dust at the workplace when he returned to work, made the Employer aware of the situation and told the Employer that excessive dust could cause him to have an allergic reaction. The Union indicated that Mr. Hyland has not had a reaction to dust in the workplace in the past and that he has not been absent from work due to exposure to dust. The Union also indicated that Mr. Hyland has not previously and is not now requesting the Employer to accommodate him because of a sensitivity to excessive dust. The Union claims that Mr. Hyland, in essence, merely advised the Employer to remove excessive dust from the workplace, otherwise he may have a reaction in the future.

The Union submitted that the Employer had not demonstrated that it would be appropriate to make the order that it requested and that the issue of dust exposure has no relevance to this proceeding. The Union also argued that the GSB did not have the jurisdiction to order Mr. Hyland to participate in a medical assessment.

During the submissions, I was referred to the following provisions of the Collective Agreement:

ARTICLE 44 – SHORT TERM SICKNESS PLAN

44.9 Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer.

44.10 After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than (5) days.

For purposes of this decision, I will assume, without deciding, that the GSB has the jurisdiction to make the direction requested by the Employer. After considering the submissions of the parties, it is my conclusion that the Employer has not demonstrated that such an order is appropriate in the circumstances.

It appears that the Employer made its motion in part because it believed that Mr. Hyland now needs to be accommodated because of a sensitivity to excessive dust in the workplace. The Union made it clear at the hearing that Mr. Hyland has not reacted to dust at the workplace, that he has not been absent as a result of exposure to excessive dust and that Mr. Hyland is not seeking to be accommodated because of his sensitivity to excessive dust. Since it is not now faced with a request to accommodate Mr. Hyland due to his sensitivity to excessive dust, one of the Employer’s reasons for seeking a further independent medical assessment is no longer present.

It is not obvious that the Employer could require Mr. Hyland to undergo a further independent assessment in these circumstances under Article 44.9 of the Collective Agreement. Mr. Hyland has not been frequently absent from work or unable to perform his duties because of an asthmatic reaction to excessive dust. It would be inappropriate for the GSB to make the requested order in circumstances where it appears that the Employer could not require Mr. Hyland to submit to a further medical examination pursuant to Article 44.9 of the Collective Agreement.

It is also not obvious that Mr. Hyland’s sensitivity to dust has any relevance to the issues raised by the grievances before me. The focus in this matter has been on Mr. Hyland’s sensitivity to second-hand smoke and his claim that the Employer has failed to properly accommodate him. As noted above, Mr. Hyland has not been absent because of his sensitivity to excessive dust, nor is he now asserting that he requires an accommodation because of excessive dust. Dr. Berger’s note simply indicates that Mr. Hyland should avoid excessive dust because it may trigger an asthmatic reaction. It is difficult to appreciate how, in these circumstances, a medical inquiry into Mr. Hyland’s sensitivity to excessive dust at this time will be relevant to the issues now before me.

As counsel for the Employer conceded, the Employer is unaware of what Dr. Wong would need in order to assist the Employer in securing the information it seeks or whether Dr. Wong would require a further visit from Mr. Hyland. Therefore, in addition to the other concerns expressed above, it would appear that the Employer’s request for a direction is premature.

For the foregoing reasons, the Employer’s motion is dismissed.

Dated at Toronto, this 7^th day of May, 2001.