GSB# 1991-1470, 1992-3080

UNION# 1991-0530-0005 [91E069], 1992-0530-0004 [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 5 & 6, 2004.

Decision

In grievances dating back to at least the early 1990s, Mr. Hyland has raised issues about the manner in which the Employer has accommodated his disability. Mr. Hyland has asthma and he has a particular sensitivity to cigarette smoke. I issued the first decision relating to Mr. Hyland’s accommodation in March 2002, after many days of hearing. Since then there have been a number of decisions addressing various issues relating to Mr. Hyland’s accommodation. In a recent decision dated December 4, 2003, I determined that the appropriate placement for Mr. Hyland is at the Brookside Youth Centre (“Brookside”). The parties are currently attempting to explore ways to facilitate Mr.Hyland’s placement at that institution.

Since at least December 1993, Mr. Hyland has been assigned a steady day shift, Monday to Friday. The Employer has been provided with a number of medical notes from Mr. Hyland’s family physicians recommending that he be accommodated on steady days for various reasons relating to his asthmatic condition. Those reasons include the need for regular exercise and that shift work could have an adverse effect on his asthma. During the course of this proceeding, the Employer raised the issue of whether it was necessary to continue to provide Mr. Hyland with steady day shifts. The parties addressed this issue at a hearing on April 5 and 6, 2004.

The Employer called Dr. D. Wong to testify in support of its position that there is no reason why Mr. Hyland should not at least try shift work. The Union did not dispute that Dr. Wong is an expert. The Union did not call a witness to testify on the issue and it relied on the medical notes and reports which had been provided to the Employer. The Union indicated that it had been unable to locate the authors of some of the medical notes and reports, Dr. Sekhon and Dr. Berger, Mr. Hyland’s family physicians. The Union understands that they are no longer practicing medicine in the Toronto area.

I do not propose to review Dr. Wong’s testimony in detail. Dr. Wong assessed Mr. Hyland on November 29, 2000. In considering whether Mr. Hyland could work shifts, Dr. Wong reviewed the medical notes and reports prepared by Mr. Hyland’s physicians. He researched the issue and relied on his experience with his asthma patients. He also considered the shift schedule at Brookside. Dr. Wong indicated that exercise was beneficial for asthmatics, but that there is no evidence to suggest that the timing of the exercise is significant. He noted that circadian rhythm can be affected by shift work and that from 40% to 66% of asthmatics felt worse at night during shift work. Dr. Wong noted that there is no data which suggests that shift work will have an impact on the effectiveness of the medication Mr. Hyland is taking. Dr. Wong testified that the only way to know for sure whether Mr. Hyland can tolerate shift work is to have him try it. He did not indicate that he was aware of any factors which would suggest that Mr. Hyland would be affected adversely by shift work.

The Union argued that the status quo should be maintained, given that Mr. Hyland has been on steady days for many years, based on advice from his doctors. The Union referred to the medical documentation from Mr. Hyland’s physicians and Dr. Wong’s testimony and submitted that shift work posed a considerable risk for asthmatics, a risk that Mr. Hyland should not have to assume in the circumstances.

Even if it was appropriate to give weight to the medical documentation provided by Mr.Hyland’s physicians, given the inability of the Union to make at least one of them available for cross-examination, there is no clear indication from this material that Mr. Hyland is unable to tolerate appropriate shift work. I do not have testimony from Mr. Hyland which would indicate that his asthmatic symptoms are exacerbated by shift work. The best medical opinion before me is that some individuals with asthma have problems with shift work, while others do not, and that the only way to determine if Mr. Hyland can tolerate shift work is to have him try it. In the face of this unchallenged medical opinion, I am inclined to accept Dr. Wong’s opinion. Dr. Wong certainly did not indicate that Mr. Hyland would be at considerable risk if he tried shift work, as the Union argued. The fact that he has not experienced shift work for over ten years and that he hopefully will be in a smoke free environment may mean that appropriate shift work will not be problematic for him. If working shift work impacts adversely on his asthmatic condition, and this is substantiated with medical evidence, the Employer and the Union can revisit this issue.

Therefore, based on the evidence before me, it is my conclusion that the Employer has established that Mr. Hyland should try shift work. This determination is made on the assumption that Mr. Hyland would be assigned shift work of the sort at Brookside that Dr. Wong described as appropriate.

Dated at Toronto, this 22^nd day of April, 2004.