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 Community Safety and 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
April 6, 2004.
Decision
In a decision dated December 4, 2003, I determined that the appropriate placement for Mr. Hyland, one which best meets his accommodation needs as an asthmatic with a sensitivity to cigarette smoke, is at the Brookside Youth Centre (“Brookside”), given the options before me at the time. The reasons for this determination are set out in a decision dated January 2, 2004. I remained seized to resolve any disputes relating to Mr. Hyland’s placement at Brookside.
At a hearing on April 6, 2004, I entertained a motion from the Union concerning the placement of Mr. Hyland at Brookside. There are no vacancies currently at that institution. As a result of the impending closures of the Toronto Youth Assessment Centre and a youth offender unit at an adult facility, fourteen employees, seven from each location, will have the option of electing to transfer to Brookside in the near future. The Union requests that I direct the Employer to ask those employees who elect to transfer to Brookside whether they would have an interest in a classified correctional officer position at the Toronto East Detention Centre, the location of Mr. Hyland’s home position. The Union also requests that the Employer canvass the appropriate classification of employees currently at Brookside to ascertain whether anyone has an interest in transferring to the Toronto East Detention Centre. In the Union’s view, a positive response might assist in the placement of Mr. Hyland at Brookside and could avoid a more disruptive remedial response. The Employer took the position that it should not have to make such inquiries, since it already is faced with the cost of training Mr. Hyland to work at Brookside and, in its view, there were still other institutions where Mr. Hyland could work. These inquiries, the Employer argues, constitutes an unreasonable burden in these circumstances.
After considering the submissions on the motion, I ruled orally at the hearing in favour of the Union. In my view, the Union’s request is not unreasonable, does not place a significant burden on the Employer and may result in a resolution of this matter without further litigation. Making this kind of effort is consistent with an employer’s obligation to accommodate an employee with a disability. Accordingly, the Employer is directed to ask the employees affected by the closures referred to above who elect to transfer to Brookside, as soon as reasonably possible after they make such election, whether they would have an interest in a transfer to a classified correctional officer position at the Toronto East Detention Centre and to report the results to counsel for the Union. I also direct the Employer to canvass the employees in the appropriate classification at Brookside to determine whether anyone has an interest in transferring to a classified correctional officer position at the Toronto East Detention Centre and to report the results to counsel for the Union.
Dated at Toronto, this 13th day of April, 2004.