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 Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

John Smith Senior Counsel Management Board Secretariat

HEARING

May 27, June 17, October 30 & 31, November 19, December 5, 2002.

DECISION

The grievances before me were filed by Mr. Blair Hyland, a Correctional Officer 2 (“CO”), when he was employed at the Toronto Jail. In essence, the grievances allege that the Employer failed to properly accommodate Mr. Hyland because it did not provide him, an asthmatic with a particular sensitivity to cigarette smoke, with a smoke free environment, thereby contravening the Collective Agreement and the Ontario Human Rights Code (“the HRC”). While at the Toronto Jail, Mr. Hyland was frequently exposed to cigarette smoke which often resulted in symptoms causing him to be absent from work. The Employer takes the position that it did accommodate Mr. Hyland as best it could in the circumstances based on the information available to it at the time. There was no challenge to my jurisdiction to hear and determine these grievances.

The grievances before me were not the only ones filed by Mr. Hyland which raise accommodation issues. As a result of winning a job competition Mr. Hyland moved to the Toronto East Detention Centre (“ the Toronto East”) in early February 1995. While at that institution, he grieved, filed incident reports and WSIB claims all of which had as their underlying theme the assertion that the Employer was not properly accommodating his handicap. The parties agreed to deal first with these grievances with the hope that a decision relating to them might provide a basis for the parties to resolve Mr. Hyland’s other grievances, including those he filed at the Toronto Jail. In a decision dated May 7, 2002, after 18 days of hearing, I determined that the Employer had not properly accommodated Mr. Hyland at the Toronto East 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. I also directed the Employer to compensate Mr. Hyland for those losses which were a direct result of absences caused by exposures to cigarette smoke at the Toronto East. The May 7, 2002 decision addressed a number of issues, including whether Mr. Hyland’s assignments at the Toronto East were appropriate given his handicap, the Employer’s failure to accommodate Mr. Hyland’s requests to be transferred to another institution, the Employer’s failure to enforce the smoking policy by not disciplining staff who smoked in non-smoking areas, the unwillingness of Mr. Hyland to disclose the names of individuals who contravened the smoking policy and the relevance of this conduct to the issue of whether the Employer had met its obligation to accommodate Mr. Hyland.

In two subsequent decisions, one dated August 28, 2002, and the other dated November 13, 2002, I determined that two Employer proposals to accommodate Mr. Hyland were not appropriate in the circumstances. In the latter decision I agreed with the Union’s position that the Employer had had enough time to accommodate Mr. Hyland at the Toronto East and I directed the Employer to focus its efforts to accommodate him outside of the Toronto East.

The May 7, 2002 decision did not have the effect of resolving Mr. Hyland’s remaining grievances. The grievances now before me required 6 hearing days. The Union called Mr. Hyland, Ms. K. McCabb, Mr. C. Crosier, who over the years held a number of positions within the local union, and Mr. A. Della-Terza, as witnesses. The Employer called as witnesses Mr. J. Street, an Operational Manager at the relevant time, who is currently employed as a paramedic by the Township of Peterborough, Mr. J. DeFranco, a Deputy Superintendent during the relevant period and Mr. F. Williams, Superintendent at the Toronto Jail from February 1992 until September 1995. Although the location and time frame were different, the issues and the factual context in this proceeding bore a striking resemblance to the issues and the factual context in the proceeding which dealt with Mr. Hyland’s accommodation grievances at the Toronto East. Both counsel opened their final argument by noting that their submissions for the Toronto Jail accommodation grievances were similar to the ones they had made previously for the Toronto East accommodation grievances. Given this similarity, it is unnecessary to set out the facts and submissions with the same detail as contained in the May 7, 2002 decision.

Mr. Hyland commenced his employment as an unclassified employee at the Toronto Jail in September 1986 and he became a classified employee in 1987. Until the introduction of a smoking policy in March 1989, there were no restrictions on smoking within that institution for inmates or staff. Cigarette smoke and evidence of smoking were pervasive throughout the institution, particularly in the inmate living units where one could often observe smoke hovering close to the ceiling. Mr. Hyland first raised the issue of cigarette smoke and the air quality in August or September 1988. At that time he provided the Employer with a note from his family doctor which advised of his sensitivity to cigarette smoke and recommended that Mr. Hyland be placed in a smoke free environment. This did not result in any immediate change to Mr. Hyland’s work assignments.

In March 1989, a new smoking policy provided that inmates could smoke in their living areas, the segregation cells, the exercise yards and in work areas, such as the laundry and kitchen. Staff could only smoke in inmate corridors, at the back of “B” landings, while supervising inmates in the exercise yards and while supervising inmates on work duty at times specified by the area supervisor. The effect of the smoking policy in theory was to make certain areas of the institution smoke free. Mr. Hyland was not working at the Toronto Jail when the smoking policy came into force. In February 1989 he was suspended with pay and in May 1989 his employment was terminated for reasons unrelated to his accommodation and attendance issues. Mr. Hyland returned to the Toronto Jail approximately two years later in May 1991 after the GSB allowed his grievance and directed the Employer to reinstate him. The parties focused on Mr. Hyland’s tenure at the Toronto Jail between May 1991 and February 1, 1995. During this period Mr. Hyland was temporarily assigned to the Toronto East from May 1993 until early January 1994 pursuant to a settlement of a number of his grievances.

Not long after his return to the Toronto Jail in May 1991, Mr. Hyland provided the Employer with a medical note again advising that he needed to avoid cigarette smoke. He filed his first grievance on July 11, 1991, in which he claimed that his health was being jeopardized due to being placed in an unhealthy smoke filled environment and he requested that he be placed in a smoke free workplace. Mr. Hyland filed his first incident report in November 1991 and in March 1992 he initiated his first Workers Compensation Board claim based on his breathing difficulties due to cigarette smoke and poor air quality. For his remaining time at the Toronto Jail, Mr. Hyland provided the Employer with more medical notes of a similar nature, more incident reports and he initiated more WCB claims. In an Appeals Resolution Officer Decision dated February 11, 1999, Mr. Hyland was compensated for lost time at the Toronto Jail for absences due to exposures to cigarette smoke.

The Employer did eventually assign Mr. Hyland to areas of the institution which were designated as smoke free. For example, he was assigned to 5A, the medical unit, to “B” Landings, to the exercise yards, to the control area and he was assigned to supervise construction workers for a period of time. However, these assignments did not result in eliminating his exposure to cigarette smoke. Mr. Hyland testified that staff smoked in the medical unit and that part of this assignment involved escorting a doctor to see inmates in areas where they were permitted to smoke. One of the tasks of a CO assigned to the “B” Landings is to light cigarettes for inmates in the segregation cells. An assignment to the exercise yards requires the CO to escort inmates to the yards from their living areas. Given the presence of a television and VCR in the control room, it appears that the staff treated the control room like a lounge at night, and it was not uncommon for cigarette smoke to be present in that area. Mr. Hyland was exposed to cigarette smoke on occasion during the time he supervised construction workers who were involved in a major retrofit of the air handling system. In 1993, Mr. Hyland missed 14 days of work due to exposures to cigarette smoke, even though he was at the Toronto East for most of that year. In 1994, Mr. Hyland missed 53 days of work due to exposures to cigarette smoke. These exposures occurred, in part, because Mr. Hyland was assigned duties in areas where inmates were permitted to smoke or, more often, because staff, including managers, smoked in areas where smoking was not permitted. Mr. Crosier’s testimony to the effect that staff, including managers, often smoked in non-smoking areas was not challenged in cross-examination.

By the summer of 1992, Mr. Hyland had requested a transfer to another institution. It appears that the Employer’s refusal to accommodate this request was based on Mr. Hyland’s relatively low seniority and the absence of a vacancy. However, Mr. Hyland understood that these impediments could be overcome in circumstances where medical or compassionate reasons were present. The Employer did not provide evidence to satisfactorily explain why it could not transfer Mr. Hyland to another institution at that time in order to accommodate his handicap. As noted previously, Mr. Hyland was temporarily assigned to the Toronto East beginning in 1993 as a result of a settlement, but he eventually returned to the Toronto Jail even though his preference at the time was not to return to that institution.

The Employer’s efforts to enforce the smoking policy consisted of posting memos to staff, on occasion advising staff at the commencement of their shift about the smoking policy, reminding operational managers of their obligation to enforce the policy and taking appropriate action when there had been a breach of the policy. Although two managers, Mr. Street and Mr. Smith, were suspended for contravening the smoking policy, no bargaining unit members were disciplined between May 1991 and February 1995 for smoking contrary to the policy. The evidence relating to the extent to which staff smoked in contravention of the policy, particularly the evidence of managers smoking with staff in non-smoking areas, suggests that the failure to discipline employees in the bargaining unit had little to do with the difficulty of identifying persons acting contrary to the smoking policy.

Counsel for the Employer submitted that in assessing the Employer’s efforts to accommodate Mr. Hyland at the Toronto Jail it is important to recognize that Mr. Hyland’s handicap was in a developmental stage while he was at that location and that it did not become fully developed until he was permanently stationed at the Toronto East. I agree that an Employer’s accommodative response should take into account the medical condition of an employee at a particular point in time and that it may be necessary to alter the response if the medical condition changes. In the case at hand, Mr. Hyland first raised concerns, supported by medical evidence, about a sensitivity to cigarette smoke in 1988 and he continued to raise such concerns not long after his return to the Toronto Jail in 1991. He filed another medical note and his first grievance in 1991, both clearly indicating the need to be placed in a smoke free environment. Although his sensitivity to cigarette smoke did get progressively worse, by at least the summer of 1991 his condition required an appropriate accommodative response. Given the nature of Mr. Hyland’s handicap, the Employer’s obligation to provide him with a smoke free environment to the point of undue hardship did not change from the summer of 1991 and for the remainder of his time at the Toronto Jail.

Counsel for the Employer also raised the issue of enforcement and Mr. Hyland’s unwillingness to provide the Employer with the identity of persons he saw smoking in contravention of the smoking policy. Counsel submitted, just as he did with respect to the Toronto East accommodation grievances, that Mr. Hyland’s failure to meet his obligation to assist the Employer in enforcing the smoking policy had a detrimental impact on the Employer’s efforts to provide him with a proper accommodation.

There is no dispute that Mr. Hyland did not willingly provide the names of persons who contravened the smoking policy. His reluctance to do so was undoubtedly due to the code which provides that a CO shall not “rat” on another employee. Mr. Hyland testified that he was prepared to give names if an operational manager ordered him to do so and that he advised managers that he would give names if so ordered. Mr. Hyland testified that while at the Toronto Jail he was given such an order by Mr. Street on two occasions in 1994 and that he provided the names in response to the order. He testified that in the second instance he provided the name of a manager and was never again ordered to provide names while at the Toronto Jail.

Mr. Street testified about the general difficulties managers faced in identifying persons who have contravened the smoking policy. During his examination-in-chief he indicated that he did not recall observing an employee or a manager smoking contrary to the policy. Mr. Street testified that Mr. Hyland always refused to provide names of persons he observed smoking in prohibited areas, even when he ordered him to do so on one occasion. Mr. Street stated that in the circumstances he decided not to follow up on Mr. Hyland’s refusal to follow his order, which normally consists of suspending the employee and referring the matter to the Superintendent for his attention. Counsel for the Employer submitted that Mr. Street’s testimony with respect to the issue of Mr. Hyland’s response when he was asked for names should be preferred to Mr. Hyland’s testimony. After assessing the testimony of each of these witnesses, I prefer the testimony of Mr. Hyland on this point.

Mr. Street’s recollection of some events improved considerably when he was advised during the start of his cross-examination that some witnesses had identified him as one of the managers who consistently contravened the smoking policy. Mr. Street conceded that prior to quitting smoking in the early 1990s, he often smoked in prohibited areas, and often did so with COs. This inconsistency with his evidence-in- chief when he stated that he did not recall seeing employees and managers smoking contrary to the smoking policy did little to enhance his credibility. Mr. Street often responded to questions in cross-examination by stating that he could not recall. Given the passage of time such responses are not surprising, but they do adversely affect the reliability of his testimony. I accept as true Mr. Hyland’s testimony that he was prepared to disclose names if ordered to do so and that he did so when given such an order. Since a method was available to the Employer to discover the names of those persons Mr. Hyland observed smoking in prohibited areas, one cannot fault Mr. Hyland for creating an obstacle to the enforcement of the smoking policy or to the Employer’s ability to provide him with an appropriate accommodation.

Given the similarity in general between the circumstances and the submissions relating to the Toronto East accommodation grievances and the Toronto Jail accommodation grievances it should not be surprising that the result here is the same as the one in the decision dated May 7, 2002. While working at the Toronto Jail between the summer of 1992 and February 1, 1995, Mr. Hyland was often exposed to cigarette smoke and often missed work as a result. Managers at the Toronto Jail often advised Mr. Hyland that exposure to cigarette smoke is a fact of life for a CO. This same sentiment is reflected in the Employer’s responses in March 1992 and January 1995 to Mr. Hyland’s WCB claims, a sentiment which Mr. Williams testified that he shared. The Employer did make some effort to assign Mr. Hyland to work in designated non-smoking areas. However, these areas were not in fact smoke free because staff, including managers, frequently contravened the smoking policy. Although I appreciate that enforcing the smoking policy does have its challenges, the fact that managers contravened the policy, and at least one of them smoked with COs in prohibited areas, and the absence of discipline for any bargaining unit member for violating the policy suggest that the smoking policy was not adequately enforced. The failure to enforce the smoking policy, at least in part, resulted in Mr. Hyland encountering cigarette smoke in non-smoking areas. By at least 1992, Mr. Hyland requested transfers to institutions where he believed the environment would be better suited for his handicap. Given the consent of the Union, I am not satisfied that the Employer provided an adequate explanation for not transferring Mr. Hyland to another institution in 1992 in order to accommodate his handicap.

For the foregoing reasons, it is my conclusion that the Employer failed to properly accommodate Mr. Hyland to the point of undue hardship during his tenure at the Toronto Jail from the summer of 1991 until he left permanently in February 1995. The Employer is directed to compensate Mr. Hyland for his losses which are a direct result of absences caused by exposures to cigarette smoke during this period. I will remain seized of these grievances should the parties encounter difficulties in resolving the compensation issue.

Dated at Toronto this 17th day of March, 2003.