GSB#1991-1470, 1992-3080

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 Public Safety and Security)

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

December 1, 2003.

DECISION

In a decision dated December 4, 2003, I determined that the appropriate placement for Mr. B. Hyland, a Correctional Officer, is at the Brookside Youth Centre (“Brookside”), located near Cobourg, and indicated that reasons would follow. Mr. Hyland has asthma, with a particular sensitivity to cigarette smoke and he requires an accommodation for this handicap. I also concluded that Mr. Hyland is not entitled to be paid mileage for the additional 19 kilometers each way that it will take him to travel to Brookside from his home, when compared to the distance from his home to the Toronto East Detention Centre (“Toronto East"), where his home position had been located. The reasons for these determinations are as follows.

In a decision dated November 13, 2002, I found that the Employer was unable to provide Mr. Hyland with an appropriate accommodation at the Toronto East and I directed the Employer to find an appropriate position for him elsewhere. In a letter dated February 19, 2003, the Employer offered to accommodate Mr. Hyland in a position at the central control module and front desk module at the Toronto West Detention Centre (“Toronto West”), which Mr. Hyland rejected. Rather than focus the dispute only on the appropriateness of this offer, the parties agreed that I should consider the issue of whether the appropriate placement for Mr. Hyland was at either the Toronto West, Brookside or the Central East Correctional Centre (“Central East”), located at Lindsay. A related issue arose from the Union’s claim for payment for any differential in mileage if Mr. Hyland was assigned to an institution which would require him to travel a greater distance than the distance from his home to the Toronto East.

In support of its position that Brookside is the best option for Mr. Hyland the Union called Mr. Hyland, Mr. D. Graves and Mr. B. Scanlon to testify. Mr. Hyland and Mr. Scanlon testified about the presence of cigarette smoke and evidence of smoking at the three institutions under consideration while Mr. Graves’ testimony on this issue focused on the situation at the Toronto West. Mr. Scanlon expressed the opinion that Brookside is the most appropriate of the three institutions for Mr. Hyland because the risk of exposure to cigarette smoke is significantly lower at that institution than at the other two.

The Employer elected not to call evidence. The Employer took the position that there is an equal risk of exposure to cigarette smoke at all three of the institutions. Although it did not argue that the cost of youth offender training Mr. Hyland would need if he were assigned to Brookside resulted in undue hardship, the Employer submitted that this was a factor which tipped the balance against Brookside if the risk of exposure was equal at the three institutions. The Employer argued that its offer of a position at the Toronto West constituted an appropriate placement for Mr. Hyland and that Mr. Hyland should have tried it out in order to determine if the post offered at that location would accommodate his handicap.

After considering the evidence, I concluded that that there is a significantly lower risk of exposure to cigarette smoke at Brookside in comparison to the risk of exposure at the Toronto West and at the Central East. The presence of cigarette smoke or evidence of smoking, caused by visitors and staff, is greater at the Toronto West and at the Central East than at Brookside. Mr. Scanlon’s theory as to why Mr. Hyland’s exposure to cigarette smoke would be less at a youth offender facility than at an adult institution is based on the fact that youth offender facilities have had a smoke free policy for in excess of ten years, and as a result, the staff at these institutions are more accepting of the policy. Since the non-smoking policy for adult institutions in the Toronto area only became effective near the end of 2000, it appears that the attitude of staff at these institutions, including management, will require more time to adjust to the non-smoking obligation.

The different physical structure at Brookside, with its spread out cottages rather than one or two large buildings, contributes to reduce the risk of exposure. It also appears that a large percentage of the work of a correctional officer at Brookside is outdoors and that the Superintendent at Brookside is committed to enforcing the no smoking policy at least within the buildings of the institution. The evidence of some cigarette butts outside of buildings and the possibility of contraband suggest that there is still some risk of exposure to cigarette smoke at Brookside. Even with the Employer’s best efforts, youth offenders and staff may not always adhere to a smoking ban. The endeavour in the case at hand has been to place Mr. Hyland at an institution where the level of risk of exposure to cigarette smoke is acceptable and the lowest possible. That objective is best met by assigning Mr. Hyland to Brookside.

In addition to providing an environment where the risk of exposure is lower,

Brookside offers other elements which are not insignificant when considering an assignment for accommodation reasons. Rather than being limited to a particular post at an institution, which would be the situation with the Employer’s offer of a position at the Toronto West, Mr. Hyland will more likely be able to perform a full range of duties at Brookside. He will also likely have access to overtime and promotional opportunities at Brookside, which certainly have been limited to a degree at his previous institutions. As a result, it will be less likely that Mr. Hyland will be viewed differently at Brookside because of his need for accommodation.

It was for the foregoing reasons that I concluded that the appropriate placement for Mr. Hyland in the circumstances is at Brookside. As I indicated in the December 4, 2003 decision, I will remain seized to resolve any disputes relating to Mr. Hyland’s placement at Brookside or other unresolved issues relating to the accommodation of Mr. Hyland or arising from his grievances.

The Union’s mileage claim is based on the fact that the Employer was unable to satisfy its obligation to accommodate Mr. Hyland at the Toronto East with the result that he will now have to travel a greater distance to Brookside than the distance he traveled to the Toronto East. The Union took the position that it was appropriate for the Employer to bear the burden of the extra cost of travel incurred by Mr. Hyland’s assignment to Brookside.

The case law indicates that employees have some responsibilities in accommodation situations and that they are obliged to cooperate reasonably with efforts to meet their accommodation needs. See 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) and the cases referred to therein. The additional distance and expense Mr. Hyland will experience by travelling to Brookside, in my view, is not significant in the circumstances. His assumption of this obligation is consistent with the contribution to be expected from an employee being accommodated.

Dated at Toronto, this 2nd day of January, 2004.