GSB# 1991-1470, 1992-3080

UNION# 1991-0530-0005, 1992-0530-0004

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

June 18, 2004.

Decision

In a decision dated June 21, 2004, I determined that Mr. Hyland should be placed in an unfilled position at the Brookside Youth Centre (“Brookside”) and I indicated that reasons would be provided in due course. The reasons for this determination are as follows.

Issues relating to the proper accommodation of Mr. Hyland have been ongoing for a number of years. Mr. Hyland is a Correctional Officer with a home position at the Toronto East Detention Centre (“Toronto East”). He has asthma, with a particular sensitivity to cigarette smoke. During his working time at the Toronto East, and previously at the Toronto Jail, Mr. Hyland was often exposed to cigarette smoke. He often became ill due to these exposures which caused him to miss time from work. His physicians advised the Employer that Mr. Hyland required a smoke free workplace and the Employer did make some efforts to accommodate his handicap. Without detailing all of the issues that have been litigated, I note that in a decision dated May 7, 2002, I determined that the Employer had not properly accommodated Mr. Hyland at the Toronto East to the point of undue hardship and I directed the Employer to renew efforts, in consultation with the Union and Mr. Hyland, to find an appropriate accommodation for Mr. Hyland. In a decision dated November 13, 2002, I concluded that the Employer was unable to provide Mr. Hyland with a smoke free environment at the Toronto East and I directed the Employer to focus its efforts to accommodate him outside of that institution. I was subsequently asked to decide whether the most appropriate placement for Mr. Hyland was at either the Toronto West Detention Centre, the Central East Correctional Centre, located in Lindsay, or at Brookside. In a decision dated December 4, 2004, I determined that the appropriate placement for Mr. Hyland is at Brookside. On the evidence before me I concluded that there is a significantly lower risk of exposure to cigarette smoke at Brookside in comparison to the risk of such exposure at the other two institutions. I also noted that Brookside, and not the other institutions, would likely provide Mr. Hyland with the opportunity to perform a full range of duties and give him access to overtime and promotional opportunities. At Brookside, it is less likely that Mr. Hyland would be identified as an employee in need of accommodation. Counsel advised that the parties would work on the details of placing Mr. Hyland once I decided which placement was appropriate.

The parties were unsuccessful in working out the details of placing Mr. Hyland at Brookside, in large part because there were no vacancies at that institution. At a hearing on June 18, 2004, the Union took the position that recent events had resulted in there being an unfilled position at Brookside and that the Employer should assign Mr. Hyland to this position. Counsel set out the relevant facts, with neither party electing to call evidence.

In 2004, the Employer closed the Toronto Youth Assessment Centre (“TYAC”) and the youth wing of the Quinte Detention Centre (“Quinte”). In connection with these closures, the parties entered into two MERC agreements in which positions were transferred to Brookside, in addition to other institutions. The agreement dated February 9, 2004 concerning Quinte refers to the planned transfer of seven Correctional Officer positions from Quinte to Brookside. Classified Correctional Officers at Quinte were provided with the opportunity to fill the seven positions transferred to Brookside. The agreement dated March 8, 2004 concerning TYAC refers to the planned transfer of seven Correctional Officer positions to Brookside. Classified Correctional Officers at TYAC were provided with the opportunity to fill the seven positions transferred to Brookside.

Thirteen employees, seven from one institution and six from the other, elected to accept one of the fourteen positions transferred to Brookside, leaving one of the transferred positions unfilled. The transfer of these positions and the resolution of a grievance in December 2003 whereby seven unclassified Correctional Officers were converted to classified Correctional Officers resulted in Brookside being in an overage position. In other words, the number of classified Correctional Officers exceeded the Correctional Officer compliment at Brookside.

Although the MERC agreements do not address funding specifically, counsel for the Employer indicated that the seven positions transferred from TYAC to Brookside were to be funded from the TYAC budget and that the seven positions transferred from Quinte to Brookside were to be funded from the Quinte budget. As counsel put it, “the money follows the jobs”. Counsel noted that the unfilled position which the Union claims for Mr. Hyland is not a vacancy because it is not a funded position. Counsel advised that the funding for the existing overage had already been approved and that the Employer’s intention is to manage its overage position through attrition until it returns to its targeted compliment for Brookside. Counsel indicated that the Employer has no need or desire to fill the unfilled position transferred to Brookside and that it wants to eliminate the unfunded position as part of its strategy to reduce the overage at Brookside. In arguing that I not award Mr. Hyland the unfilled position, counsel submitted that the Employer’s duty to accommodate Mr. Hyland does not include an obligation to create a job for him where none really exists. Counsel referred me to the following decisions: Re Sault Area Hospitals v. Service Employees International Union, Local 268 (2001), 2001 CanLII 62080 (ON LA), 96 L.A.C. (4th) 168 (Whitaker); Re Essex Police Services Board and Essex Police Association (2002), 2002 CanLII 79002 (ON LA), 105 L.A.C. (4th) 193 (Goodfellow); and, Re Edgell v. Trail School District No. 11, [1996] B.C.C.H.R.D. No. 47 (Mahil).

Counsel for the Union argued that this is not a case where the Union is requesting that the Employer be directed to create a position for Mr. Hyland, since the position exists at Brookside pursuant to the MERC agreement. Counsel submitted that the issue is one of cost and whether the Employer’s interest in managing the overage at Brookside outweighs its obligation to accommodate Mr. Hyland. Counsel argued that in assessing whether placing Mr. Hyland in the unfilled position at Brookside constitutes undue hardship for this Employer one should consider the size of the Ministry and that overages are common at a number of correctional facilities. In considering the relevant circumstances, counsel submitted that that I should conclude that placing Mr. Hyland at Brookside would not cause the Employer undue hardship. Counsel for the Union referred me to the following decisions: Re Ingersoll (Town) and London Civic Employees, Loc. 107 (2003), L.A.C. (4th) 402 (Williamson); and, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 1999 CanLII 646 (SCC), 181 D.L.R. (4th) 385 (SCC).

Given a previous determination that the appropriate placement for Mr. Hyland is at Brookside, the issue before me was whether the Employer should place him in the unfilled transferred position. After considering the submissions of the parties, I determined that this was not a situation where the Employer was being asked to create a new position simply to accommodate Mr. Hyland. Pursuant to a MERC agreement, the position the parties focused on here had been transferred to Brookside. If a Correctional Officer came with the position, funding would not have been an issue. Presumably the Employer agreed to the transfer of positions to Brookside with the understanding that additional positions could be sustained at that institution, even if it resulted in an overage situation. The Employer’s preference to manage the overage situation by not filling the position might have the effect of saving it some money, but filling the position would not cost it more than it anticipated spending on the transferred positions. Although the Employer preferred to eliminate the unfilled position, it did not argue and it did not establish that placing Mr. Hyland in the position would cause it undue hardship. In weighing the competing interests, and taking into account the number of Correctional Officers in the Ministry and the costs involved, it was my conclusion that placing Mr. Hyland in the unfilled position at Brookside would not cause the Employer undue hardship. Accordingly, the Employer is directed to place Mr. Hyland in the unfilled position at Brookside and to provide him with any necessary training. I will continue to remain seized to resolve any disputes relating to Mr. Hyland’s accommodation.

Dated at Toronto, this 21st day of July, 2004.