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

June 3 & 4, 2003.

DECISION

In paragraph 4 in a Memorandum of Settlement dated May 23, 2003 (“the Memorandum”), which resolved some issues arising from grievances filed by Mr. Hyland, the parties identified certain issues which remained unresolved. One of these issues is whether Mr. Hyland is entitled to compensation for lost promotional opportunities. The parties addressed this issue at the hearing on June 4, 2003. Another issue is whether Mr. Hyland is entitled to compensation for lost overtime from 1994 to the present. This issue was addressed at the hearing on June 3, 2003. These issues arise from an earlier decision wherein I directed the Employer to compensate Mr. Hyland for his losses after determining that the Employer failed to properly accommodate him to the point of undue hardship at the Toronto East Detention Centre. After considering the facts and the submissions related to these unresolved issues, I propose to briefly address both of them.

(i) The Lost Promotional Opportunity Issue

The parties agreed to some facts and each side called one witness to testify on this issue. Mr. Hyland testified for the Union and Mr. Dvorak, who at the time was the Deputy Superintendent-Operations at the Toronto East, testified for the Employer. There was no dispute with respect to the relevant facts.

In 1997 Mr. Hyland applied for the position of acting Operational Manager

(“acting OM”). The Employer’s response to his application is contained in a Memorandum dated October 27, 1997, from Mr. Dvorak, the text of which reads as follows:

I am in receipt of your application and resume which you submitted for consideration as an acting Operational Manager.

I will keep these items on file for some future considerations, however you will not be able to be considered at this time due to your limited accommodations and the problems you have with second hand smoke.

If you have any questions about the above correspondence contact me.

Along with providing him with the above Memorandum, Mr. Dvorak also met with Mr. Hyland to discuss the matter. He explained to Mr. Hyland that the Employer was looking for acting OMs who would spend most of their time working on the floors where the inmate living units were located. Mr. Dvorak also advised Mr. Hyland that these acting OM positions were not appropriate for him due to his accommodation and his sensitivity to second hand smoke. Mr. Dvorak confirmed in his testimony that the Employer determined that the acting OM positions were not suitable for Mr. Hyland because of his disability.

Mr. Hyland has asthma, with a particular sensitivity to cigarette smoke. For a number of years prior to 1997, Mr. Hyland’s physicians had advised the Employer that Mr. Hyland required a smoke free environment. In an effort to comply with this advice the Employer assigned Mr. Hyland to areas of the Toronto East which were designated smoke free. The floors which housed the inmate living units were not smoke free areas when Mr. Hyland applied for the acting OM position. The Employer policy at the time allowed inmates to smoke in the living units, with the result that cigarette smoke permeated these floors. When the Employer did on occasion attempt to assign Mr. Hyland to work on these floors, he complained that such assignments were inconsistent with his accommodation.

The Employer takes the position that it acted properly when it denied Mr. Hyland an acting OM position in the circumstances. The Union argued that the Employer’s decision to deny Mr. Hyland an acting OM position flows from its general failure to accommodate his handicap. Given my view of this matter it is unnecessary to detail the remedy requested by the Union.

The acting OM position Mr. Hyland applied for in 1997 required the person performing the job to work the floors where the inmate living units were located. At this time inmates were permitted to smoke in the living units and they did so constantly. Given his accommodation, these were areas where Mr. Hyland was unable to work. The fact that the Employer was unable to properly accommodate Mr. Hyland even in those areas which were designated smoke free, but in fact were not smoke free, does not lead to the conclusion that the Employer improperly denied Mr. Hyland an acting OM position. In the circumstances, the Employer acted properly and within its rights when it denied Mr. Hyland an acting OM position which would have placed him in a smoke filled environment. Accordingly, Mr. Hyland is not entitled to compensation for a lost promotional opportunity.

(ii) The Lost Overtime Issue

The Union takes the position that Mr. Hyland is entitled to compensation for

lost overtime opportunities from 1994 to the present because of the Employer’s failure to properly accommodate him. It argued that the extent of that lost opportunity should be based on the institutional average of overtime worked by COs. The Employer argued that Mr. Hyland did not lose overtime opportunities, and that if he did, what he lost is nowhere near the institutional average. Counsel argued this issue on the basis of agreed facts.

In reaching my conclusion on this issue, I have considered all of the facts, including the medical reports, Mr. Hyland’s history of working overtime and the submissions of counsel. In my view, the failure of the Employer to properly accommodate Mr. Hyland has resulted in him incurring lost overtime opportunities. However, on the basis of the material before me, particularly the indication that prior to 1994 Mr. Hyland did not often express a desire to work overtime, I am not prepared to conclude that Mr. Hyland would have worked much overtime even if he had the opportunity to do so. Although I am satisfied that he would have worked some additional overtime from 1994 to the present, it is my conclusion that it would be inappropriate to award Mr. Hyland damages for lost overtime based on the institutional average. I find it is appropriate in this instance to direct the Employer to compensate Mr. Hyland on the basis that since 1994 he lost the opportunity on average to work 5 overtime hours per month, with interest. I will remain seized of this issue should the parties encounter difficulties in implementing this award.

Dated at Toronto, his 27th day of June, 2003