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 UNION David Wright Counsel Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER John Smith Senior Counsel Management Board Secretariat
HEARING August 14 and 16, 2002.
DECISION
In a decision dated May 7, 2002, I determined that “the Employer has failed to demonstrate that it properly accommodated Mr. Hyland to the point of undue hardship” and I directed the Employer “to renew efforts, in consultation with OPSEU and Mr. Hyland, to find an appropriate accommodation for Mr. Hyland”. Mr. Hyland has asthma and a sensitivity to cigarette smoke, which I found to constitute a handicap within the meaning of the Ontario Human Rights Code. Further to my direction, the Employer made an accommodation proposal to Mr. Hyland at a meeting which took place on July 4, 2002. Mr. Hyland rejected the proposal. The parties requested a hearing for the purpose of determining the reasonableness of the Employer’s proposal and whether Mr. Hyland should have attempted the accommodation.
At the hearing, the parties provided me with the following statement of agreed facts:
The Employer, represented by Kathrine Curkan and accompanied by John Smith and Suneel Bahal, Counsel, met with Mr. Hyland and his Counsel, David Wright, on July 4, 2002.
At this meeting the employer proposed the following accommodation for Mr. Hyland:
a) Mr. Hyland will be assigned to the Control Room at the Toronto East Detention Centre.
b) He will work at the back of the Control Room monitoring doors, distributing keys, radios, answering the phone and dealing with lawyers and other professionals. He will be required from time to time to back up the person who handles visits at the front of the Control Room.
c) Prior to the start of visiting hours at 09:00 and 13:00, the CO in the Control Room will announce to visitors over the PA system that all cigarettes must be extinguished before entering the building.
d) His schedule will remain 07:00 to 15:00 pending review of his medical requirements by an Independent Medical Examination.
e) Mr. Hyland’s position was that he did not feel this was an adequate accommodation since he believed that he still risked exposure to second hand smoke.
f) The employer’s response was that Mr. Hyland had an obligation to try the offered accommodation before rejecting it.
g) The parties agreed that the determination of the risk of exposure would be put to Arbitrator Petryshen. In the Interim, Mr. Hyland would not be required to attempt the accommodation until Arbitrator Petryshen ruled on this issue. The parties would also ask Arbitrator Petryshen to rule on Mr. Hyland’s refusal to attempt the accommodation. If Arbitrator Petryshen ruled that Mr. Hyland should have attempted the accommodation, then the employer could set off Mr. Hyland’s salary for the period he refused the accommodation from the amount owing to Mr. Hyland as a result of Arbitrator Petryshen’s earlier award.
In addition to the statement of agreed facts, the Union called Mr. Hyland and Mr. M. McKinnon, an acting OM16, to testify. The Employer called Mr. J. Russo and Mr. W. Lee, both of whom are COs who work in the control room, and Ms. R. Buhagiar, deputy superintendent-administration, as witnesses. I was also provided with a medical report from Dr. Berger dated June 15, 2002, which indicates that Mr. Hyland “continues to have significant and serious occupational asthma …” and that “Mr. Hyland is unable to return to work unless he has a 100% smoke free environment and suitable accommodations and restrictions …” Mr. Hyland has been off work from at least early February 2002 and he provided the Employer with a medical note from Dr. Berger to cover his absence. As indicated in the statement of agreed facts, the Employer is reviewing Mr. Hyland’s medical requirements.
In his testimony, Mr. Hyland indicated that he had been assigned to the control room for brief periods and that he was exposed to cigarette smoke, both before and after the Toronto East Detention Centre (“TEDC”) became a smoke free institution. In his view, the Employer’s proposal offered an accommodation which he had tried and which had failed. Mr. Hyland testified that he did not believe that the announcement at the commencement of the visiting periods would decrease the risk of exposure to cigarette smoke, particularly since the announcement would have no impact on visitors who attended the institution after the start of the visiting period. Mr. Hyland also stated that he had been advised by other COs, and Mr. M. McKinnon, that the situation regarding cigarette smoke had deteriorated during 2002. Mr. McKinnon testified that, in his view, the situation regarding cigarette smoke was worse now than it was a year ago. He stated that he often attends at the control room and while there he is frequently exposed to cigarette smoke.
Mr. Lee testified that he did not smell cigarette smoke or see evidence of smoking anywhere within the TEDC during 2002, including the control room. Mr. Russo, who always works on days in the control room, testified that on average he would be exposed to cigarette smoke once a week at the back of the control room and that he would also be exposed if he worked the front desk during visits. Mr. Russo attributed the presence of cigarette smoke in the control room to visitors smoking outside the front entrance and visitors who continue to smoke while entering the institution.
After considering the submissions of counsel and all of the evidence on the issue before me, it is my conclusion that the Employer’s proposal to accommodate Mr. Hyland is unreasonable in the circumstances and not an accommodation which Mr. Hyland should have attempted. Even if one were to place no weight on Mr. McKinnon’s evidence, the testimony of Mr. Russo, the Employer’s witness, demonstrates that working in the control room would subject Mr. Hyland to a fairly high risk of exposure to cigarette smoke which could lead to absences from work. Based on the information available to him, Mr. Hyland’s decision not to try the accommodation was not unreasonable. As long as some visitors continue to ignore the smoking policy and the Employer is unable or unwilling to compel visitors to comply with the smoking policy, the assignment of Mr. Hyland to the control room during the day shift would be problematic. Although the Union argued that the Employer’s proposal was wanting because of the presence of cigarette smoke in other areas, such as the locker room and washrooms, and because it precluded Mr. Hyland from performing the full range of CO duties, my conclusion as to the reasonableness of the Employer’s proposal is based solely on the risk of exposure to cigarette smoke in the control room.
In the course of his submissions, counsel for the Union again requested that I direct the Employer to accommodate Mr. Hyland with a position outside the TEDC. I am still of the view that such a direction would be inappropriate in the circumstances. It appears that the parties agreed to put before me at this time the narrow issue of whether the Employer’s proposal was reasonable and related matters as reflected in paragraph 2g of the agreed statement of facts, and not the broader issue of whether the Employer can accommodate Mr. Hyland at the TEDC. If the Employer is unable to accommodate Mr. Hyland at the TEDC within a reasonable time, it should consider relocating him to an institution where his handicap can be accommodated.
Dated at Toronto this 28th day of August 2002.