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 21 & 23, 2003.

DECISION

In a Memorandum of Settlement dated May 23, 2003 (“the Memorandum”), the parties resolved some of the outstanding issues arising from grievances filed by Mr. B. Hyland and arising from directions contained in previous decisions. In paragraph 4 of the Memorandum, the parties set out the issues which remain to be litigated before the GSB. Three of the issues referred to are: (i) the issue of Mr. Hyland’s work placement; (ii) Mr. Hyland’s entitlement to interest; and, (iii) Mr. Hyland’s entitlement to compensation for statutory holidays for 2002 and 2003. Without calling evidence, the parties agreed to the relevant facts and counsel made submissions concerning these three issues on May 21 and May 23, 2003. I propose to briefly address each of these issues.

(i) The issue of Mr. Hyland’s work placement:

In a decision dated May 7, 2002, I determined that the Employer had not properly accommodated Mr. Hyland at the Toronto East Detention Centre (“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. Mr. Hyland, a Correctional Officer (“CO”), has asthma, with a particular sensitivity to cigarette smoke. Because of this handicap, Mr. Hyland’s physician has indicated that he requires a smoke free workplace. In a decision dated November 13, 2002, I concluded that the Employer was unable to provide Mr. Hyland with such an environment at the Toronto East and I directed the Employer to focus its efforts to accommodate him outside of the Toronto East.

In an effort to accommodate Mr. Hyland, the Employer has offered him a CO position at the Toronto West Detention Centre (“the Toronto West”). Mr. Hyland takes the position that this offer to accommodate him is not a reasonable offer in the circumstances. One of the reasons that he takes this position is because of the additional time and distance it would take to attend work at the Toronto West. Although Mr. Hyland also challenges the Employer’s offer on other grounds, the parties first wished to address whether the time and distance factors alone made the Employer’s offer unreasonable. If this issue were decided in the Union’s favour, it would be unnecessary to consider the other concerns Mr. Hyland has with respect to the Employer’s offer. I note that Mr. Hyland’s view is that the only correctional facility in which he could work given his handicap is the Brookside Youth Centre (“Brookside”), a youth detention facility located at Cobourg.

Mr. Hyland resides at the east end of Oshawa, minutes from Highway #401 (“the 401”). It is 48 kilometers from his home to the Toronto East, which is located in the Warden and Eglinton area in the City of Toronto, and it takes him 35 minutes to make the trip. The Toronto West, which is located close to Highway #427 and the 401, is 73 kilometers from Mr. Hyland’s home. Given the traffic on the 401, it is estimated that Mr. Hyland would take at least 75 to 80 minutes to travel west from his home to the Toronto West. Toronto West is approximately 25 kilometers from Toronto East. Brookside, which is located south and east of Cobourg, is 67 kilometers from Mr. Hyland’s home and takes 50 to 60 minutes travel time.

Counsel for the Union argued that the additional distance and twice the travel time to the Toronto West when compared to travelling to the Toronto East, by itself, makes the Employer’s offer of accommodation unreasonable. Counsel emphasized that it is the Employer’s failure to properly accommodate Mr. Hyland at the Toronto East which has led to this state of affairs and that before requiring Mr. Hyland to travel such a distance, the Employer should consider positions outside of the MPSS. Noting that the cases did not deal with the precise circumstances of the case at hand, counsel referred me to Re Mount Sinai Hospital and O.N.A.(1997), 1997 CanLII 26795 (ON LA), 66 L.A.C. (4th) 221 (Emrich) and to Re Dominion Colour Corp. and Teamsters Chemical, Energy and Allied Workers, Loc. 1880 (1999), 1999 CanLII 35890 (ON LA), 83 L.A.C. (4th) 330 (Ellis).

In Re Dominion Colour, the Employer operated two plants, one at Ajax which utilized lead oxide in the manufacturing process and the other at New Toronto, which is in the south west area of the City of Toronto and which did not use lead. The grievor worked out of the Ajax plant and she was laid off after she became pregnant. The grievor eventually did accept work as a janitor at the new Toronto plant. The arbitrator concluded that the employer did not establish that it could not have accommodated the grievor’s pregnancy at the Ajax plant, without incurring undue hardship. In denying a wage claim for travel time from Ajax to the New Toronto plant, the arbitrator determined that the additional travel time represented a reasonable effort at mitigation of her losses. In commenting on whether and how the factors of time and distance (45 minutes each way on a busy metropolitan expressway) played a role in judging the appropriateness of an offer of employment at another plant, the arbitrator noted that “No question about time and distance would presumably arise if the plants were located in the same town.” On the facts before him, the arbitrator noted that but for the Employer’s failure to properly accommodate the grievor at the Ajax plant, he would have found the offer of a job at the New Toronto plant appropriate and that the grievor’s “acceptance of the additional time and expense involved in the associated travel would not exceed the limits of the cooperation and contribution to be expected from an employee being accommodated for a pregnancy.”

I agree that the factors of time and distance are relevant matters to consider when assessing whether an offer of accommodation at another location is appropriate. When considering these factors in the context of the Employer’s offer to Mr. Hyland, it is my conclusion, after balancing the relevant interests, that the additional distance and time involved in Mr. Hyland travelling to the Toronto West, by themselves, do not make the employer’s offer inappropriate.

The Employer is initially obliged to accommodate Mr. Hyland in a CO position. In an effort to meet this obligation the Employer has offered Mr. Hyland a CO position at an institution within the City of Toronto that is 25 kilometers away from the Toronto East. The distance from Mr. Hyland’s home, which happens to be some distance outside of Toronto, to the Toronto West is not much further than the distance from his home to Brookside. The difference in time that it would take Mr. Hyland to travel to the Toronto West from his home when compared to the time it would take him to travel to Brookside, although not insignificant, is not so great so as to lead me to conclude that the Employer’s offer of a position at the Toronto West is unreasonable. The additional time and distance to the Toronto West would create some undesirable consequences for Mr. Hyland. However, in my view, the additional time, distance and expense associated with a move from the Toronto East to the Toronto West “would not exceed the limits of the cooperation and contribution to be expected from an employee being accommodated”. As Employer counsel argued, Mr. Hyland cannot expect a perfect solution. See, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992], 2 S.C.R. 970.

(ii) Mr. Hyland’s entitlement to interest:

In paragraph 1 of the Memorandum, the Employer agrees to pay to Mr. Hyland a sum of money, less statutory deductions, in respect of credits used by Mr. Hyland to top up sick leave from 1991 to 2001. This agreement arises out of directions I issued to the Employer to compensate Mr. Hyland for his losses which were a direct result of absences at the Toronto Jail and at the Toronto East caused by exposures to cigarette smoke. The Employer argued that Mr. Hyland is not entitled to interest on this amount in the circumstances. Counsel submitted that by using credits, mainly vacation credits, to top up sick leave meant that Mr. Hyland did not lose financially, since what he lost is vacation time. Counsel also noted that the parties based the amount in paragraph 1 of the Memorandum on the rates in 2003 and he argued that since Mr. Hyland will receive more than he is entitled to, he should not be awarded interest on that amount.

Arbitrators generally award interest in order to fully compensate a grievor whom

has experienced a financial loss due to a contravention of the Collective Agreement. See, Re The Queen in right of Ontario and Ontario Public Service Employees Union et al. (1986), 1986 CanLII 2476 (ON HCJ), 57 O.R. (2nd) 641 (Div. Ct.). I agree with counsel for the Union’s submission

that Mr. Hyland did experience a financial loss when he used credits to top up sick leave. If this were not the case there would be no reason for the Employer to agree to compensate Mr. Hyland in the manner set out in paragraph 1 of the Memorandum. The amount set out therein is clearly intended by the parties to compensate Mr. Hyland for his losses over the years. From the Union’s perspective, which the Employer did not dispute, the parties used the 2003 rates to arrive at the amount of compensation owing to Mr. Hyland in order to resolve some other issues involving compensation. But whatever the reason for using these rates, the Employer had been put on notice that the Union claimed interest on the amount. After considering the submissions of counsel, it is my conclusion that Mr. Hyland is entitled to interest on the amount set out in paragraph 1 of the Memorandum and accordingly, I direct the Employer to pay Mr. Hyland interest on that amount, calculated in the usual way. I understand that the parties are agreed on the method for calculating the amount of interest owing to Mr. Hyland.

(iii) Mr. Hyland’s entitlement to compensation for stat holidays for 2002/2003:

Since February 2002 Mr. Hyland has not worked as a result of the Employer’s inability to accommodate his handicap. He has received his regular pay during this period. For a number of years, Mr. Hyland has been scheduled on an 8 hour day shift, from Monday to Friday, as part of his accommodation. As a result of this schedule Mr. Hyland would be scheduled to work all statutory holidays. His absence from the workplace since February 2002 has meant that he did not work 8 statutory holidays in 2002 and 4 in 2003. The Collective Agreement provides that an employee in Mr. Hyland’s position who works on a holiday shall be paid 2 times his hourly rate and receives an 8 hour credit. Since Mr. Hyland has been paid 8 hours for each of the statutory holidays in issue, the Union seeks the difference between the 8 hours he has been paid for the 12 statutory holidays and what he would have been entitled to if he had worked those 12 days. The Union argued that Mr. Hyland is entitled to be compensated for having lost the opportunity to work the statutory holidays due to the Employer’s failure to accommodate him. Counsel for the Employer argued that Mr. Hyland is not entitled to the remedy requested and that such a remedy would simply represent a windfall for Mr. Hyland.

Mr. Hyland is entitled to be placed in the position he would have been in but for the Employer’s breach of the Collective Agreement and the Ontario Human Rights Code.

The reason Mr. Hyland lost the opportunity to work the statutory holidays in issue is because the Employer has not placed Mr. Hyland in a work setting which will accommodate his handicap. In these circumstances, and in order to fully compensate him for his losses, Mr. Hyland is entitled to paid for the loss of the opportunity to work the relevant statutory holidays. I agree with counsel for the Union’s submission that COR13.3 does not apply in these circumstances and note that the Employer did not take the position that this provision was applicable. Accordingly, the Employer is directed to pay Mr. Hyland for 96 hours at the appropriate rate, with interest, and to give him 12, 8 hour credits. Rather than give Mr. Hyland 8 days pay instead of credits for the 2002 holidays, as argued by counsel for the Union with reference to COR13.6, I find it appropriate to award the credits that Mr. Hyland would have received, rather than money.

Dated at Toronto this 6th day of June, 2003.