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 October 30, 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. In the May 7, 2002 decision, I did not direct the Employer, as the Union had requested, to focus its efforts to accommodate Mr. Hyland at a facility other than the Toronto East Detention Centre (“TEDC”).
The Employer made an accommodation proposal to Mr. Hyland at a meeting that took place on July 4, 2002, which Mr. Hyland rejected. In essence, the Employer proposed that Mr. Hyland be assigned to the control room at the TEDC during his usual day shift. In a decision dated August 28, 2002, I determined that the Employer’s proposal was unreasonable in the circumstances, primarily on the basis of the testimony of an Employer witness who indicated that he is exposed to cigarette smoke on an average of once a week in the control room. Given the narrow issue before me at the time, I again refused the Union’s request to direct the Employer to accommodate Mr. Hyland with a position outside the TEDC.
At a hearing on October 30, 2002, I was again asked to evaluate the reasonableness of an Employer proposal rejected by Mr. Hyland. The proposal is contained in a letter dated September 24, 2002, to the Union’s counsel, the substance of which reads as follows:
As an interim accommodation while the employer reviews its ability to provide a permanent accommodation, the employer is offering Mr. Hyland (the grievor) a temporary assignment in the administrative offices of the Toronto-East Detention Centre.
Reporting to the Office Manager, Mr. David Price, Mr. Hyland will perform clerical work and other related duties as assigned.
This assignment will be at Mr. Hyland’s Correctional Officer 2 salary.
His schedule will remain 0700-1500, pending the employer’s review of his medical requirements.
The administrative offices are 100% smoke free and this is a suitable interim accommodation.
At the hearing, counsel for the Employer indicated that the temporary assignment is for a period of two weeks.
The Employer was content to have this proposal considered in light of the evidence heard previously. The Union called Ms. K. McCabb to testify. Ms. McCabb, who is a smoker, has been employed as a CO2 at the TEDC since August 1991. She testified that she smokes within the institution and outside the building, contrary to the smoking policy. Ms. McCabb also testified that other staff members smoke within the institution. It appears that Ms. McCabb only refrains from smoking in the institution when she works in the control room, when her partner asks her not to smoke and when supervised by Mr. M. McKinnon. Although a manager witnessed her smoking and managers have detected cigarette smoke in circumstances where only she could have been smoking, Ms. McCabb has not been cautioned or disciplined for smoking in the workplace.
In arguing that the two week assignment in the administrative offices at the TEDC constitutes a reasonable interim accommodation, counsel for the Employer noted that there is no evidence of smoking in the office area and he argued that the risk of Mr. Hyland being exposed to cigarette smoke in other areas of the institution, such as the locker room and washroom, is an acceptable risk. If I found the Employer’s proposal unreasonable in the circumstances, counsel took the position that I should not preclude the Employer from searching for an appropriate accommodation for Mr. Hyland at the TEDC.
The Union had a number of concerns with respect to the Employer’s most recent proposal. It asserts that there has been no explanation as to why a two week temporary assignment is needed or warranted, particularly when the Employer has had many months to provide an appropriate accommodation for Mr. Hyland. Counsel also noted that the Employer provided no indication as to how the temporary assignment outside of his classification will lead to a permanent accommodation for Mr. Hyland as a CO2. The Union notes that there is no evidence about the smoking situation in the office and it argued that it was incumbent on the Employer to call evidence on this issue in the circumstances. The Union submitted that the testimony of Ms. McCabb illustrates that the risk of Mr. Hyland being exposed to cigarette smoke within the institution and upon exiting the facility is real and substantial. It argued that the Employer continues to be unwilling or unable to enforce the smoking policy at the TEDC and that it is now time to direct the Employer to find an accommodation for Mr. Hyland at another institution.
For purposes of dealing with the issue at hand I will assume that Mr. Hyland would not be exposed to cigarette smoke in the administrative offices at the TEDC. However, even when assigned to work in the office area, it would be necessary for him to attend at other locations in the institution, such as the locker room, the staff lounge and washroom, and the hallways to get to these locations. The testimony of Ms. McCabb establishes that staff continue to smoke within the institution and that management, apart from Mr. M. McKinnon, is unwilling to enforce the smoking policy. The Employer recognizes that there is a risk of exposure to cigarette smoke when Mr. Hyland leaves the confines of the administrative offices, but asserts that the risk is an acceptable one. I am unable to accept the Employer’s position. The evidence establishes that the risk of exposure to cigarette smoke for Mr. Hyland at the TEDC is real and significant, given that staff continue to smoke within the institution and on the property, apparently without fear of being disciplined. In the absence of undue hardship, a proposal which would require Mr. Hyland to accept such a risk is unreasonable in the circumstances. It is unnecessary to address the other concerns the Union raised with respect to the Employer’s September 24, 2002 proposal.
The Employer has not succeeded in its efforts to accommodate Mr. Hyland at the TEDC since the decision of May 7, 2002, directed it to find an appropriate accommodation for him. Given the evidence I have heard subsequent to issuing that decision, it appears unlikely that the smoking situation at the TEDC will change sufficiently in the near future to permit Mr. Hyland to work at that location as a CO2. Therefore, I agree with the Union’s position that the Employer has had enough time to accommodate Mr. Hyland at the TEDC and that it is time for it to focus beyond this location in its efforts to accommodate Mr. Hyland. The Employer has not indicated or attempted to demonstrate that it would cause it undue hardship to accommodate Mr. Hyland at an institution other than the TEDC. Accordingly, the Employer is directed to attempt to accommodate Mr. Hyland, to the point of undue hardship, as a CO2 at a location other than the TEDC.
Dated at Toronto this 13th day of November 2002.