GSB# 2002-0161

UNION# 2002-0530-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

John Brewin

Ryder Wright Blair & Holmes LLP

Barristers and Solicitors

FOR THE EMPLOYER

David Strang

Deputy Director, Labour Practice Group

Management Board Secretariat

HEARING

November 27, 2002; April 22 and 25, May 6, June 2, 3 and 5, and September 17, 2003; January 14, May 3, 7, 19, 20, 2004.

Decision

1The union filed this grievance in July 2001, alleging that the Employer had violated Article 9.1 of the Collective Agreement because staff shortages and inmate overcrowding at the Toronto Jail had made it a “hazardous workplace.” Article 9.1 of the collective agreement provides that

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

The relief sought in the grievance was that staff levels be restored to full compliment, which was alleged to be 141 classified correctional officers (“COs”) and approximately 40 casual COs, and that staff be paid compensation “for the additional stress and hazards encountered.”

2The first hearing date in this matter was November 27, 2002. On that day there was agreement that the union would provide particulars of its grievance and that the employer would produce certain documents. There was also agreement that the parties would meet in an attempt to address the ongoing concerns that had led to the filing of the grievance. Those (and subsequent) discussions did not result in a settlement of this grievance. The union then engaged Dr. Wayne Lewchuk, who did a study of the Toronto Jail on which he reported in April 2003. The union delivered particulars that referred to and relied on that study. A core theme of the particulars was that overcrowding and understaffing had led to excessive overtime that had, in turn, created health hazards. The hearing of evidence began in April 2003, almost two years after the grievance was filed. By August 2003, inmate overcrowding at the Toronto Jail had been eliminated and by December 2003 the staff vacancies, if any then remained, were no longer causing any significant resort to overtime. The hearings ended in late May 2004.

The Issues

3The union delivered the following particulars of this grievance in April 2003:

1. This grievance is against the failure of the Employer to make reasonable provisions for the health and safety of its employees, contrary to its obligation as set out in Article 9.1 of the Collective Agreement.

2. Specifically, the Union will show that, at the Toronto Jail, the Employer is managing the Jail in a way that unnecessarily imposes high levels of job strain, effort/reward imbalance and/or stress on the employees working at the Jail, particularly on the front-line correctional officers. Poor air quality and lighting also contribute to unreasonable health risks.

3. The details of the Union’s position are set out in the attached report by Dr. Wayne Lewchuk. The Union will lead evidence from Dr. Lewchuk as set out in his report. We will also lead evidence to prove the factual elements on which Dr. Lewchuk’s opinions are based.

4. The way in which the Employer has managed the workplace also has significantly increased risks to security. The details of this are described in Dr. Lewchuk’s report.

5. There are a number of reasonable steps the Employer could take to reduce the job strain and/or stress levels and the risks to security, including assigning more staff, filling vacancies, reducing the number of inmates and/or restoring inmate programs.

6. Since 1996 the number of inmates at the Jail has increased from about 525 on a daily basis to between 625 and 700 daily. Most ranges even with double bunking are designed to house a maximum of 79 inmates. Recent counts are running at 99 inmates on each range with frequent triple bunking. Eight inmates are in segregation units designed to hold a maximum of five.

7. At the same time the Employer has failed to fill vacancies. No jobs have been posted at the Toronto Jail for many months. The staff complement is now short 29 full-time staff and eleven casuals or unclassified staff.

8. As a result many staff are working excessive overtime, some reaching 16 hours a day for seven days a week. The details are in the material provided by the Employer and are set out in Dr. Lewchuk’s report. Staff are exhausted, falling asleep at their posts, during lunch breaks, indeed at every available opportunity. Mental fatigue is taking its toll in mistakes, increased sick time and heightened tensions on and off the job.

9. The Employer is in breach of the provisions of the Employment Standards Act respecting hours of work (Section 18). These provisions do not directly apply to the Employer (the Crown), but, we will submit, establish reasonable public policy standards for the application of Article 9.1 of the Collective Agreement.

10. As well, the Employer has cut programs in an effort to free staff to cover the units. Inmates are getting less exercise, for example, because there isn’t the staff to supervise them. Noise levels have increased. Because of a lack of staff, the Employer has often had to lock down inmates in their cells. All of this has seriously eroded conditions at the jail for the inmates, adding in turn to tension amongst the inmates and potential and experienced difficulties for the staff.

11. The Local Union has frequently raised this with the Employer, but so far no action has been taken. In fact the situation has gotten worse over the past number of months.

12. The Union seeks a declaration from the Board that the Employer is in breach of Article 9 and an order directing the Employer to take remedial action within specified time limits. The Union also seeks compensation for the staff for the increased risks and damage to their health and security.

4The employer does not dispute that the Toronto Jail had staff vacancies and high inmate counts at the time this grievance was filed, and afterwards. The jail’s management responded to the staffing needs that those and other circumstances created by offering a substantial amount of additional work to the jail’s staff COs on an overtime basis. When there were insufficient volunteers for overtime, it took measures that temporarily reduced the numbers of correctional officers needed, by cancelling inmate programs or locking down parts of the jail, for example. Occasionally it ordered staff to perform overtime.

5The employer denies that any of this created an increased risk to the safety or health of the jail’s employees or, if it did, that there was any reasonable provision it could have made that would have reduced that risk. It denies that correctional officers who performed overtime fell asleep at their posts or otherwise created security risks, and says that in any event no such problems were ever reported to it by the union or by any employee. It also denies that there was any reasonable provision that it had failed to make in relation to air quality or lighting or the impact of either on the health and safety of employees of the Toronto Jail.

6From the outset, and until the very last day of the hearing, the union took the position that the employer’s alleged breaches of Article 9.1 had caused health problems actually experienced by employees at the Toronto Jail. It will not be necessary for me to review the evidence offered in support of this allegation, nor to comment in any detail on the cogency of that evidence as proof of the allegation. At the end of the hearing, during argument, the union abandoned its claim for compensation for any injury or loss allegedly experienced by any employee of the Toronto Jail up to that point in time. I was not asked to find that the ill health of any employee of the Toronto Jail was caused, in whole or in part, by any of the matters complained of in these proceedings.

7The union continued to maintain, however, that COs employed at the Toronto Jail had been exposed to an increased risk of adverse health outcomes as a result of the employer’s alleged breaches of Article 9.1, and that the employer should compensate those employees for their having been exposed to that increased risk. In addition to a declaration that the employer had breached Article 9.1 and an award of compensation for exposure to risk, the union asked that I direct the parties to put in place measures to ensure that the sort of conditions that led to this grievance are ameliorated quickly and appropriately if and when they arise again, and that the impact of the conditions to which employees were exposed be studied over the rest of the employees’ lives so that something is learned that is of value in future, all at the expense of the employer and under the supervision of this Board by way of my remaining seised with any issue that might arise concerning the implementation of those directions.

Evidence

8The union called six witnesses. Dr. Wayne Lewchuk testified during the union’s case in chief and in reply. Dr. Wayne Lewchuk is a Professor in the Department of Economics and the Labour Studies Programme at McMaster University. He has been the Director of the Labour Studies Programme since 1998. He has been involved in studying the link between work organization and health outcomes. His report refers to the literature on that subject, offers a description of the workplace and of the results of interviews of several correctional officers, describes the nature and results of a survey of correctional officers that he conducted and sets out his conclusions. Union counsel acknowledged at the outset that the report’s recital of statements by COs about matters in dispute could not serve as proof of the truth of those statements in this proceeding.

9The union also called Chris Croisier, Barry Scanlon and three of the COs who had been interviewed by Dr. Lewchuk. Mr. Croisier is the President of the union local at the Toronto Jail. Mr. Scanlon is the union Co-Chair of the Corrections Ministry’s Employee Relations Committee (“MERC”). The other three employee witnesses will be referred to here, as they were in Dr. Lewchuk’s report, as officer #1, officer #6 and officer #10.

10The employer called Dr. William Gnam to respond to Dr. Lewchuk’s report. Dr. Gnam is a psychiatrist who also has a graduate degree in clinical epidemiology and health care research. He is a Staff Psychiatrist and Scientist at the Centre for Addiction and Mental Health and a staff Scientist at The Institute For Work & Health in Toronto. He is also a Ph. D. candidate in health economics at Harvard University.

11The employer also called the current Superintendent of the Toronto Jail, Anna Gulbinski, as well as the jail’s acting maintenance coordinator. Ms. Gulbinski became Superintendent in October 2002. Prior to that she had been Deputy Regional Director for Central Region, which includes the Toronto Jail, since September 2001. She was Deputy Superintendent, Administration at the Toronto Jail from August 2000 to June 2001, and also worked at the jail during the period of the 2002 strike. She was a Staff Relations officer in the Ministry for 10 years prior to August 2000.

The Toronto Jail

12The Toronto Jail, sometimes referred to in the evidence as the Don Jail, was built in the 1958 to replace the nearby and much older Don Jail. All but a small percentage of the inmates incarcerated at the Toronto Jail are individuals awaiting trial or being tried in Toronto courts. The jail has 504 general population beds and 57 special needs beds. Each of the jail’s general population ranges has 36 cells with two beds each, and a common area containing tables, television sets, telephones and a shower area. The common area of a range is enclosed by bars. COs posted to the range are ordinarily stationed outside the bars. It was the union’s unchallenged evidence that, by comparison with other correctional institutions in the province, the Toronto Jail is a particularly noisy, smelly, dreary and otherwise unpleasant place to work, even when it is not overcrowded or understaffed.

13The core functions of correctional officers involve care and custody of inmates. Most work as general duty staff on ranges, in segregation areas or in A & D (admitting and discharge); some work in the control room or as drivers or laundry supervision. The ranges (A & C ranges) and segregation areas (B landings) are where the inmates are housed, fed and spend most of their time. One range (5A) is a medical range where inmates with special medical needs are housed and where inmates needing medical treatment can be attended to by a doctor or nurse before returning to the regular ranges. There is also a special needs unit that houses inmates with mental health problems.

14A post audit conducted at some time in the late 1990s determined that the jail needed a staff of 141 full time, classified correctional officers. In addition, the jail has casual, unclassified correctional officers to backfill permanent positions when the incumbents are absent due to illness, injury, vacation and so on. It is no evidence that the post audit or any other Ministry or local management rule specifies that the Toronto Jail should have any particular number of unclassified COs on contract at any time.

15The number of full time positions provided for in the post audit complement is a function of the “budgeted” needs of the institution. Some needs are not “budgeted.” For example, when an inmate has to go to a hospital, he must be escorted by two specially trained COs. That need is not budgeted. When it arises, it can only be filled by diverting COs from budgeted needs – by cancelling yard time or inmate programs for which CO supervision would otherwise be necessary, for example – or by having the work performed on overtime by staff members who would otherwise be off duty.

16The post audit contemplated that two COs would be assigned to each 36 cell range during the day, when inmates are out of their cells, and one CO when the inmates are locked in their cells at night. Once the population of a range exceeds 72, some inmates have to be housed three to a cell, with one of the three sleeping on a mattress on the floor. The jail’s practice is that when the inmate population in a range exceeds 79, an additional CO is assigned to that range both day and night, and that no more than 99 inmates are housed in a range. It is the union’s belief that this practice is a result of an agreement reached during negotiations in late 1989 or early 1990. Mr. Scanlon testified that those negotiations followed protests about overcrowding at that time at the Toronto Jail and at other correctional institutions. (I note that reference to those protests appears at page 4 of the Board’s decision in Union Grievance, 582/90 (Kennedy), to which employer counsel referred in argument for other reasons.) Neither party could locate any documentary evidence of such an agreement, however.

17Whatever its origin may be, the jail’s practice creates a need for additional posts when inmate counts rise above the threshold. While there is no evidence of how those posts were being filled when the grievance was filled in 2001, it seems reasonable to assume that the approach to staffing then was the same is it was later, after Ms. Gulbinski became Superintendent. She testified that the need for those additional posts was not “budgeted,” and that the posts were filled by paying existing CO staff to do the work on overtime. She noted that casuals are there to backfill for regular posts. She stated in cross-examination that while “technically” she could hire casuals on straight time to fill these additional posts, “that is not contemplated.” No elaboration or explanation of that statement was sought or offered.

The Infrastructure Renewal Project

18In 1996 the then Minister announced that a number of the smaller or older correctional institutions in the province would be closed and their capacity replaced with new construction. This was the Ministry’s Infrastructure Renewal Project. The new construction was to include a major expansion of the Maplehurst facility at Milton and two new “super jails”, one to the east and one to the west of the Greater Toronto Area at locations that had not yet been determined. The Toronto Jail was identified in the announcement as one of the institutions that would be closed. Although no specific closing date was announced for the Toronto Jail, Mr. Scanlon testified that the time frame the union was given at the time of the announcement was 36 to 48 months.

19At the time of that 1996 announcement and afterwards, the union agreed that older facilities should be closed and replaced with new construction, but questioned the strategy of replacing them with superjails, particularly superjails located at a distance from the Toronto area. Mr. Scanlon testified that the Ministry’s plan was described to the union as a “bed neutral exercise” in which the total number of inmate beds in the province would not change. This would necessarily result in a net decrease in the number of beds within easy driving distance of Toronto courts. For that and other reasons, the union’s view was that more beds would be needed in the Toronto area than the government planned to have. While sentenced inmates could be housed anywhere, remanded inmates generally had to be housed within a reasonable driving distance from the courts in which they were scheduled to appear. Most of the population at the Toronto Jail were remanded inmates. Beds located well outside the Toronto area were not going to reduce the demand for remand beds within the Toronto area. The union’s view was that even if the remand population did not increase, the employer could not close the Toronto Jail without replacing it with new beds in the Toronto area.

20The Ministry’s plan gave rise to concerns about the redeployment rights of staff at institutions scheduled to close. That became the subject of negotiations between union and employer representatives at the Ministry Employment Relations Committee (“MERC”). Those negotiations led to several complex agreements, one of which provided, among other things, that staff at institutions with announced closing dates would have the opportunity to transfer to vacant positions at institutions that were not closing or, in the case of the Toronto jail, not yet scheduled to close.

Understaffing

21The 1996 announcement created job security concerns for COs who worked at institutions identified for closure, including those at the Toronto Jail. Some officers at the Toronto Jail obtained employment elsewhere, transferred to other institutions, quit, retired, or took a leave of absence without pay to keep their options open while pursuing employment outside the Ontario Public Service. Mr. Croisier testified that “quite a few” left, and that (as of June 2003) there had not been a full staff complement at the jail since 1997. When this grievance was filed in July 2001 there were 11 acknowledged vacancies in the jail’s complement of classified COs. In addition, some of the incumbents of positions not considered vacant were on leaves of one kind or another or had work restrictions that the employer was accommodating.

22Employer counsel put it to Mr. Scanlon in cross-examination that the MERC agreements had affected the ability of the Toronto Jail to post and fill vacancies. Mr. Scanlon acknowledged that the first MERC agreement made vacancies available first to staff at closing institutions on a lateral transfer basis. That agreement was fully implemented by the end of June 2001, he said, and was not an impediment to the filling of vacancies thereafter. That evidence was not contradicted. No more than one of the 11 vacancies at the Toronto Jail was filled pursuant to that agreement. The evidence before me is that the number of unfilled vacancies increased thereafter. In his testimony Mr. Crozier noted without challenge that at one point after July 2001 there had been 36 vacancies in the complement.

23Mr. Croisier described the Ministry’s policy on filling vacancies as a “mysterious subject.” Apart from vacancies, some permanent COs had been on LTIP, or short term sickness, or other forms of leave, and the jail’s management had also drawn on the CO complement to fill acting positions in the first level of management, all of which had reduced the number of COs available to perform work in the jail. He also testified that the number of casuals available to the Toronto Jail had dwindled when they could see no path to long term employment at the institution, that institutions not destined to close were more attractive to new recruits. He believed that new recruits had been actively discouraged from going to institutions destined to close, but the union presented no direct evidence of this.

Inmate Overcrowding

24Ms. Gulbinski was a member of the committee that had developed the Infrastructure Renewal Project in the mid 1990s. She testified that the committee and its advisors did not predict or anticipate that the remanded inmate population would increase thereafter, nor that voluntary exit options would be taken by as many correctional staff as actually did so following the 1996 announcement. I am not called upon to assess whether those expectations were reasonable having regard to the information available to the committee at the time.

25In fact, the number of remanded inmates being tried in Toronto area courts rose steadily after 1996. Ms. Gulbinski testified that it seemed to Ministry officials, at least in retrospect, that the causes of the increased numbers of remanded inmates included increases in the time taken to process bail applications and complete trials, and government policies limiting prosecutorial discretion to consent to bail for persons accused of certain crimes, which had the foreseeable effect of increasing the number of remanded accuseds who were incarcerated pending trial. The increased amount of jail time per remanded inmate increased the number of such inmates in the jail at any one time. Because judges tend to give credit for time served when imposing sentences, the increased pre-trial time served led to decreased periods of post-conviction incarceration, further increasing the ratio of remanded inmates to sentenced inmates and adding to the pressure on institutions like the Toronto Jail that acted primarily as detention centres for remanded or unsentenced inmates.

26By the end of 2000, the inmate population at the Toronto Jail had reached about 575. In early 2001 it increased rapidly to between 630 and 640. By the time this grievance was filed it had reached 650. The other two detention centres in the Toronto area (Toronto East Detention Centre and Toronto West Detention Centre) had also had population increases, and could not relieve the overcrowding at the Toronto Jail.

27The steady increase in inmate population at detention centres, particularly in the Toronto Region, was documented by the Statistical Services branch of the Ministry’s Correctional Services Division in October 2002 in a report entitled “Adult Correctional Institutions Court Activity Related to Remands 1995/96 ­­– 2001/02.” In particular, it noted that from 1995/95 to 2001/2002, the average remand population at the Toronto Jail had increased 35.6 percent, the average length of time on remand had increased 14.7 percent, and the utilization rate had increased from 106.8 percent to 127.5 percent. From the yearly figures shown in that report, the fallacy of its 1996 assumption that the province’s remanded inmate population would not increase thereafter must have been apparent to the Ministry well before 2001.

28As a result of the planned construction at Maplehurst, by April or May of 2001 there were more beds at that facility than were needed for its existing inmate population. The Ministry’s original plan had been that once those extra beds were available at Maplehurst it would close the Cambridge-Waterloo Detention Centre and the Wellington Detention Centre and transfer the inmates in those institutions to Maplehurst. Mr. Scanlon testified that in early 2001 the union proposed to the employer that it delay the closure of the Waterloo and Wellington facilities, and use the additional Maplehurst beds to deal with the overcrowding at the three detention centres in Toronto. The information that the union had been given by the employer at the time was that the Wellington Detention Centre was in good condition, and that the only mechanical or structural issue at the Cambridge-Waterloo Detention Centre was an HVAC problem that could be repaired for $10,000. The employer did not do as the union suggested, however. It closed the Cambridge-Waterloo Detention Centre and the Wellington Detention Centre and transfer the inmates there to Maplehurst. And the inmate population at the understaffed Toronto Jail continued to rise.

29It was put to Mr. Scanlon in cross-examination that the staff of the Wellington and Waterloo institutions was needed at Maplehurst in order to staff the new beds there. Mr. Scanlon responded that while the Cambridge-Waterloo Detention Centre and the Wellington Detention Centre were both closed in July 2001, almost none of the staff at those institutions actually started at Maplehurst until the following May. During the intervening 10 months they were deployed to other institutions in the Western Region. He said that during that 10 month period Maplehurst was operated using the staff it had had before the additional beds were available there. His testimony in that regard was uncontradicted.

30Responding to Ms. Gulbinski’s testimony that the overcrowding and understaffing at the Toronto Jail in 2001 had not been something the Ministry had anticipated before 1996 when it announced its plan, union counsel put it to her in cross-examination that “you could have changed the plan.” She answered “I’m not at that level.” No one from “that level” testified in this proceeding. There is no evidence before me to explain why the government failed to adjust the implementation of the Infrastructure Renewal Project when it became apparent that central assumptions of the original plan were incorrect and that this was creating adverse consequences for the Toronto Jail, including very substantial overtime usage at premium rates.

The Sabotage Report

31In April 2001 the union published a report entitled “Sabotage: How Harris government policies have increased the use of sick time by Ontario correctional officers.” The report was a response to statements by the then Minister that the use of sick time by correctional officers was “too high”, and that if sick time was not reduced the government would take corrective action, such as privatization of prisons. In late February 2001 CBC Radio had asked the Minister what he thought was causing the high sick time use, and he had replied that he did not know. With reference to the question that the Minister had been asked, the union’s Sabotage report said that

This report provides the answer. Following Sterling’s comments, the Ontario Public Service Employees Union surveyed union locals in 44 Ontario correctional facilities (see Appendix). Survey results confirm that sick time use is directly linked to policy decisions of the Ministry of Corrections:

• Chronic overcrowding: 61 per cent of institutions surveyed were operating over capacity, i.e., with more inmates than beds, on a “regular” or “daily” basis.

• Overcrowding has led to increased tension behind bars, resulting in increased threats and violence to staff. 86 per cent of facilities reported an increase in threats to staff by inmates; 80 per cent reported an increase in assaults on staff by inmates. Active inmate gangs were reported in 39 per cent of facilities.

• 77 per cent reported an increase in the number of contraband items being found in searches. 64 per cent reported finding knives and shivs; 89 per cent reported fmding drugs.

• Deteriorating hygiene as a result of cuts to cleaning and maintenance poses a serious health hazard in the institutions. 45 per cent of union locals rated hygiene at their institutions as either “poor” or “very poor.”

• Dirty, overcrowded conditions mean many staff have been hit by infectious diseases running rampant in the institutions. 65 per cent reported outbreaks of communicable diseases such as tuberculosis, hepatitis, meningitis, and scabies. Staff have been infected through contact with inmates in 44 per cent of institutions.

• Cuts to health and social programs in the community have resulted in an increased number of “high maintenance” inmates such as those with psychiatric problems or developmental disabilities. 100 per cent of institutions reported an increase in the number of these inmates being incarcerated. Only 23 per cent of institutions have a special needs unit for housing these inmates.

• Training standards for new (contract) employees are in disarray. 61 per cent of facilities said new correctional officers are never evaluated after their orientation period.

• 95 per cent of institutions reported increased levels of psychological distress among staff, resulting in frequent illness, depression, family and marital problems, substance abuse, anger, panic attacks, and, as a result, increased absence from work.

The inexcusable conditions found in Ontario correctional facilities are the direct result of policy decisions of the Ministry of Corrections. Staff do not cause the overcrowding that leads to increased tension. Staff are not responsible for the program cuts inside the facilities. Nor are they responsible for program cuts in the community that put more “high maintenance” individuals behind bars. Staff did not cut cleaning and maintenance of the institutions. Staff have not reduced officer training standards.

Staff do, however, have to bear the consequences of these dangerous policies. The information summarized here draws a grim picture of the life of an Ontario correctional officer. It tells the truth about the awful decisions that have systematically driven up sick time use in correctional facilities.

In cross-examination, Mr. Scanlon acknowledged that the Sabotage report did not identify correctional officers’ working large numbers of overtime hour as a health problem.

Local Health and Safety Complaints

32A Ministry of Labour document dated February 21, 2001 refers to a work refusal by someone at the Toronto Jail relating in some way to “air quality.” The document is marked as being the first of three pages. Neither of the parties was able to locate the other two pages. The document records that “The air quality issue in the institution” was to be addressed as a concern by the institution’s Joint Health and Safety Committee (“JHSC”).

33In late April 2001, Mr. Croisier contacted the Occupational Health and Safety Branch of the Ministry of Labour concerning management’s response to earlier complaints and requests for documentation that he had made. The contemporaneous notes of Dan Stevens, the jail’s Deputy Superintendent, describe those complaints as “relating to staff shortages, excessive overtime and overcrowding and their effect on health and safety.” A document issued April 26, 2001 by Mr. McNamara, the health and safety officer who investigated the matter, recorded that at that point Mr. Croisier was concerned about management’s failure to provide him with “reports or information on staffing and inmate population and agreements” and that “this issue” “was the cause of a recent work refusal.” Apparently the employer’s initial response to Mr. Croisier’s requests for information had been that while the information would be made available to the JHSC, Mr. Croisier would have to file a Freedom of Information request to obtain it. Mr. McNamara’s document stated that management had apparently been unaware that Mr. Croisier was a member of the JHSC, and when this was verified management had agreed to provide the requested information, and to include “information on issues of overtime which may contribute to potential fatigue situations.” The document stated that in addressing the staffing issues the parties should address certain questions, including whether a supposed written agreement dated November 27, 1989 remained in effect.

34Deputy Superintendent Stevens responded as follows by letter dated May 23, 2001:

Dear Mr. McNamara

I am writing in response to your report issued on the 26 of April 2001 concerning staffing issues at the Toronto Jail.

In your report, you have stated,

“In addressing the staffing issues the parties shall address additional items such as;

A) Are the Employer’s best practices being currently met

B) Complimenting task’s through the Employer’s Policy and Procedures

C) Has the ratio of guards to inmate population changed recently or significantly

D) Vacant staff positions that remain unfilled.

E) Discussed the correspondence dated November 27, 1998 [sic] in which staffing concerns are to be addressed internally. Please confirm if this written agreement remains in effect or not”.

After having consulted with Mr. Croisier on the issues of the report, I offer the following as the Employer’s response to each;

A) Yes, the employer’s best practices are currently being met to every extent possible.

B) Management continues to evaluate the extent to which they can offer programs based on staffing levels and to ensure to the extent possible its policies and procedures are being maintained and enforced.

C) The Ministry does not staff its Institutions based on ratio of inmates to correctional officers. The Institutions complement is determined through Ministry approved post allocations.

D) Management recognizes and continues to address the staffing needs of the institution in accordance with the Ministry’s staffing policies and procedures. The Employer and the Union, through the Ministry ERC (MERC), have negotiated an agreement, which currently precludes the institution from filling its vacancies. (see attached) Staff has been kept appraised of issues related to this area of concern. (see attached).

E) You have identified through your own sources a document dated November 27, 1989, which the employer does not have in its possession. A letter dated May 8, 2001 was forwarded to Mr. J. Goverde, Union Co-Chair on the Joint Health & Safety Committee, requesting production of the said document. (see attached) To date, none has been forthcoming.

In the absence of the November 27, 1989 document that you have made reference to, the employer confirms that the past practice of having an additional staff member assigned to the living units whenever the inmate unit count goes beyond a count of seventy-nine (79) will continue.

35A Ministry of Labour document dated May 29, 2001 refers to a work refusal by Mr. Croisier concerning fire fighting equipment, temperature control and ventilation problems. Concerns identified in the health and safety officer’s report include the condition of two fire extinguishers, fluctuating temperatures, and an allegation that the ventilation system had not been maintained to provide a safe, clean or adequate supply of air “for the overcrowding condition.” Mr. Croisier had apparently alleged that the ducting was partially plugged and was “inadequate for the building because of overcrowding.” Management was asked to provide documentation on the maintenance of the system and have it inspected “for signs of excessive build-up, plugging or mold.”

36Minutes of the June 21, 2001 meeting of JHSC record the following:

Review of Work Refusals

Review of work refusals dated April 2, 3, 6, 21, May 9, 25 and June 19, 2001.

Issues of concern: Air Quality, TB, and Staffing levels.

As the air handling system is currently being worked on, it was agreed that upon the completion of the repairs, a report would be requested to identify the status of the Air Handling System. In the interim, Maintenance will be addressing the cleaning of the vents (surface) throughout the Institution. The cleaning of the complete air handling system was completed (December 1999) within the recommended three (3) year period.

Current Ministry Policy addresses the issue of Inmates who are suspected of being a carrier of a communicable disease, the Committee recommends that the Health Care Staff continue to identify the potential inmates at risk and follow the established guidelines. It is further recommended, that a member of the Health Care Team, provide a session to staff on communicable diseases during CPR and First Aid Courses.

Management recognizes and continues to address the staffing needs of the institution in accordance with the Ministry’s staffing policies and procedures. The Employer and the Union, through the Ministry ERC (MERC), have negotiated an agreement, which currently precludes the institution from filling its vacancies. We will continue to appraise staff on issues related to this area of concern.

37A subsequent Ministry of Labour report dated July 25, 2001 deals with management’s alleged failure to do as the report of April 26, 2001 had contemplated. The employer was formally ordered to have a qualified hygienist conduct an air quality assessment of the facilities’ ventilation system to determine whether it “is adequate for the current population and visitors therein,” and provide that report to the Ministry of Labour by September 2001. The required testing was done by a third party consultant in August 2001. The consultant’s report was delivered to the Ministry of Labour in early September, under cover of a letter indicating that it was management’s intention to comply with the recommendations in the report.

38The consultant’s report noted minor deficiencies and issues that needed addressing, but overall concluded that the ventilation system was generally in good condition and was supplying adequate ventilation for the then current level of occupancy. The report made these findings:

While the quantity of air supplied to a work area is vital for diluting odours and other contaminants, IAQ complaints may be related to comfort rather than contaminant levels. Temperature and relative humidity can play a role in how people perceive their environment. Thermal comfort, as defined earlier, is a function of temperature, humidity, and air motion.

Overall, temperature readings were measured to be primarily within the ASHRAE-recommended comfort range of 22.5 to 26.0°C for summer months. Relative humidity was also measured to be within recommended comfort limits. Under these conditions, the majority of building occupants should feel comfortable.

The determination of CO₂ levels serves as a useful index of the degree of exchange of outside air with building air. Although the TWAEV for CO₂ is 5,000 ppm and the ALTER for CO₂ is ≤ 3,500 ppm, it has been suggested that indoor air having CO₂ concentrations above 800 ppm can lead to occupant discomfort (such as the onset of headaches or fatigue), especially at elevated temperatures. When the indoor environmental concentration reaches 800-1,000 ppm, complaints may escalate. As the carbon dioxide levels increase further, the number of complaints will increase significantly.

Carbon dioxide concentrations were noted to slightly exceed recommended ASHRAE guidelines in only a few Cells Areas and Guard Stations during peak usage times. Most of the areas which had readings exceeding 800 ppm of CO₂ were located in the basement and on the second floor of the building. In all other areas tested, CO₂ concentrations remained below 800 ppm for most of the time samples were taken.

Thus, our sampling results suggested that the HVAC systems serving the office, public, and general areas were supplying adequate amounts of fresh air to majority of areas tested given current occupancy conditions (i.e., to satisfy a minimum of 20 CFM/person of fresh outside air).

In the Cells areas where CO₂ concentrations exceeded 800 ppm and Guard Stations which had CO₂ concentrations above 1,000 ppm, a thorough review and inspection of the HVAC distribution system should be performed and re-balancing may be required in these areas to ensure that enough fresh air is actually reaching these areas during maximum/peak occupancy requirements/conditions.

Although some areas were noted to exceed ASHRAE guidelines during peak occupancy periods, CO₂ concentrations remained well below Health Canada’s recommended ALTER of ≤ 3,500 ppm. Thus, it should be emphasized that the CO₂ concentrations measured in these areas may represent a comfort concern and are not a direct indication of potential health concerns.

Air flow measurements appeared to indicate that the main AHUs are performing close to their intended design. Measurements also indicate that given current capacity, there should be ample quantities of outdoor air supplied to all the occupied spaces. Thus, any area where slightly elevated CO₂ concentrations were detected, may require some modifications an/or maintenance to the HVAC systems to ensure that there are no blocked, leaking or damaged supply ducts, improper supply air balancing, or short circuiting.

Mr. Croisier testified that the employer had done what the order required. He complained that although the ducts were cleaned at that time, they had not been cleaned since. He acknowledged that at the time of his testimony there was no outstanding order requiring that the employer do that, “yet.”

39Minutes of the September 25, 2001 meeting of the JHSC record as follows:

The meeting was called to discuss a number of issues brought forward by Mr. Chris Croisier during a work refusal on Saturday September 22, 2001.

2. High Count of inmates in the Toronto Jail, as identified in the Fire Safety Plan, Crisis Management plan and the Correctional Facility Profile,

3. Staffing shortages, including managers,

It was agreed that the committee would discuss each point separately. The following are the responses to each point.

2. High counts, Employee’s position is that three separate identified counts for the Toronto Jail. The first is found in the Fire Safety Plan, which identifies the count as approximately 640, the Crisis Management Plan, which states within the description of the building an operational capacity of 561 and the Correctional Facility Profile has the count as 560.

The committees do not agree on this issue, referred to the Provincial Health & Safety Committee.

3. Staffing shortages including managers is not the responsibility of the Joint Health & Safety Committee. The operational manager in consultation the [sic] On-call Administrator will determine based on staffing the extent to which we can offer any programs. This in no way prohibits staff from exercising their rites [sic] under the Health & Safety Act.

There is no evidence about the outcome (if any) of the referral of item 2 to the Provincial Health and Safety Committee.

Overtime Work

40Overtime opportunities at the Toronto Jail are allocated in accordance with a protocol agreed upon by the union and the employer. Officers sign a sheet indicating the shifts when they will be available to perform overtime during the following month. When an overtime opportunity arises and more than one officer has signed as available for that shift, the opportunity is offered to the available classified CO with the lowest number of overtime hours worked that month, or to the most senior of such officers when two or more have the same number of overtime hours worked in the month. If the offer is declined, the opportunity is then offered to the next of the available classified officers in accordance with this least hours/seniority test. If none of the available classified officers agrees to work the overtime, it is then offered to any casual COs who have indicated that they would be available.

41If there is still overtime work to be assigned after this protocol is exhausted, the employer canvasses COs who have not indicated that they would be available. The employer has the right to require officers to work overtime if there are insufficient volunteers, but that right was seldom exercised, either before or after the grievance was filed, and never after Ms. Gulbinski became Superintendent. When the number of COs available on regular hours or voluntary overtime was not enough to staff all the required posts, the jail’s management preferred to adjust the operation of the jail to reduce the number of staff required.

42Mr. Croisier testified that when the employer could not fill posts in the day shift, it would first cancel the two yard officers and the program officer who transport inmates to the yard or to programs (education, Alcoholics and Narcotics Anonymous, John Howard, Salvation Army, church and clergy groups, and so on) in the fifth floor programs area. Without officers for those posts, the inmates’ yard time and programs would be cancelled. If there were still not enough officers to fill the remaining positions, the employer would start locking down ranges ­– locking inmates in their cells and putting the range into “night” mode, which eliminated the need for one officer on each locked down range. If some of the needed overtime work involved hospital escort duties, arrangements were made to hand over custodial responsibility for the escorted inmates to off-duty Toronto police officers (paid by the Ministry) at the hospital.

43The jail has always had overtime work and a group of officers who were eager to perform it. Mr. Croisier testified that there was a core group of about ten officers who worked most of the available overtime in the 1990s. As the number of available overtime hours increased, more classified staff began working substantial numbers of overtime hours. Officers were working 70 or 80 hours per week in some cases. In 2001, four or five officers at the Toronto Jail earned over $100,000 dollars each as a result of their performing substantial amounts of overtime. In 2002, eight officers earned over $100,000 despite being off work for several weeks as a result of the strike that year. In Mr. Croisier’s view, some officers could handle that amount of work well, but most could not.

44Some correctional officers at the Toronto Jail worked no overtime. Mr. Croisier testified that “the half” who worked no overtime had to work with those who did. He said that those who did work overtime were often lazy, lethargic, and tired at work, complained of aches and pains and headaches, and would sleep during their breaks and take breaks of up to two hours. Some staff would come in for a 12 hour shift and arrange with their partners to alternately work two hours and take two hours off. Supervisors were glad to have staff come in, so those being asked to work overtime could pick where, when and how long they worked. Mr. Croisier said that supervisors and scheduling officers also used “guilt trips” to induce reluctant officers to work overtime: for example, they would tell an officer that “the guy you work with today won’t get breaks tomorrow” unless the officer volunteered to work overtime. In cross-examination he acknowledged that the two individuals who generally arranged for overtime were employees in the bargaining unit doing what would otherwise be a management job.

45Mr. Croisier testified that staff members were frustrated by their partners’ sleeping. Verbal altercations between officers were a regular occurrence. He had even witnessed a physical altercation among staff in the staff lounge over a staff member’s failure to respond to a code.

46Mr. Croisier said his own experience was that when he worked overtime he was tired, did not get enough fresh air, did not eat well and started letting things go. This led to security lapses, he said: leaving doors open when they should have been closed, for example. He said he did not know why he had accepted so much overtime; he later said that loss of income during the strike was part of it. His belief was that the motives of other officers for working overtime were complex, and included “greed.” He doubted that the officers who worked a lot of overtime worried about the health consequences. He felt that those who worked overtime were jeopardizing the security of the institution, and stated that there were security lapses daily. Apart from the references to doors being left open, he gave no examples of this. Nor was there any evidence that he had reported any of these alleged breaches of security to management.

47Mr. Croisier testified that in the period prior to the filing of the grievance and afterwards he had felt frustrated by management’s inaction concerning vacancies and overcrowding, and frustrated by management’s failure to take his concerns seriously. He said staff had not felt supported in their jobs by management. He observed that as of June 2003, when he testified, things had greatly improved in terms of support at the level of the institution as a result of Ms. Gulbinski’s appointment as Superintendent, but remained unimproved at higher levels in the Ministry.

48Officer #10 has been a correctional officer since February 1989. She had not sought or worked overtime. She had been asked to work overtime, and had sometimes been told by a Captain or the general duty manager “your partner will be working alone” if she did not work overtime. Still, she had not worked overtime. She said that during the 2000 – 2001 period she was often working alone or with a partner who was “too tired” from working overtime. The partner would want to work at the desk while she did the “running around.” She found her work more exhausting as a result. She testified that on more than one occasion her partner had fallen asleep sitting beside her for “maybe just a few minutes,” and she had had to nudge him awake. In cross-examination she could not give specific dates for these falling asleep incidents. She said that the last occasion was in the previous two weeks and that it had not caused any particular problem. She stated that she found this embarrassing when it occurred in the presence of other, non-custodial jail staff. She added that she also “felt unsafe.” She complained that supervisors were not doing as many tours of the floors as they used to do, were not supervising, were not dealing with COs who took breaks of more than an hour. She thought that supervisors are aware of what was going on, and felt that it should not be her job to tell co-workers that what they were doing was wrong. She acknowledged that she had not reported any of her concerns to management, and could not recall any occasion when a supervisor had seen her partner asleep at his or her post.

49Officer #10 testified that the institution was dirtier and noisier than it had been when she started. Those who worked overtime were generally irritable, she said, and it was hard to get the work done when there is fighting over who will do what. She acknowledged having said the things attributed to “#10” in the Lewchuk report. These included a description of an incident in which she was asked by a manager to deal with a lawyer visit and she responded that she was alone. There are supposed to be two officers present when an inmate is out of the cells. She said the manager offered to come and sit with her in a few minutes if she would handle the visit, and then had never shown up. Officer #10 did not claim that this or any other alleged transgression by a supervisor had been the subject of complaint to management.

50Officer #10 referred to officers “cutting corners” and supervisors ignoring the fact. She acknowledged that officers had discretion as to how they did their work, as long as they “followed the rules” or stayed “within parameter.” She did not expressly claim to have seen a co-worker fail to follow the rules or stay within the parameters, nor that she had reported to a supervisor or seen a supervisor ignore a co-worker’s having done so. She answered “yes” to the question whether managers had overlooked her doing things she was not supposed to do, things outside her normal discretion. She was not asked to elaborate on those answers, however, and it is not apparent that these incidents, whatever they were, involved security breaches or resulted in some way from understaffing, overcrowding or reliance on overtime.

51Officer #1 has been a correctional officer for 14 years. He did not work overtime. As Mr. Croisier and Officer #10 had done, he testified about officers’ sleeping in the guard room or staff lounge and taking long breaks. When it was put to him in cross-examination that he had not reported to a supervisor that someone had “deserted his post” by taking a break that was too long, he replied that he had done so. He said that the supervisor’s response to his report was “your partner fucked you over.” He did not know whether the supervisor had spoken to his partner as a result, but answered “yes” when asked whether his partner seemed aware that the witness had spoken to the supervisor about him. Officer #1 also referred to an incident in which his backup “fell asleep on his feet” while the witness was supervising showers. He acknowledged that he did not know how much overtime, if any, that CO had been working in the period prior to the incident, but he assumed that he had been working overtime. He did not claim to have reported this or any other similar incident to management.

52Officer #1 testified that he had said the things attributed to him in the Lewchuk report, including this observation:

In the current climate everybody is needed, so if you are casual and you don't want to work or you just want to screw around all day long well you can get away with it. Because they have no means of dealing with it now.

He also testified that he had observed co-workers paying no attention to temporary supervisors from the bargaining unit who (in his view) would not know how to impose discipline and, if they did, would be chastised for doing so when they returned to the bargaining unit. He observed that the level of conflict between officers had gone up as the amount of overtime worked went up. He said that verbal confrontations between officers were a regular occurrence and that he had had to step in between officers to prevent a physical altercation. He did not elaborate on the apparent causes of the confrontations, or suggest that they had been witnessed by or reported to management.

53Officer #6 is one of the small number of classified COs who have always worked considerable amounts of overtime. When he started as a part-time CO he worked two jobs. After he became a full-time CO in 1994 he worked an extra shift of 10 to 12 hours weekly. As time went on this increased to two or three overtime shifts a week, even before there was any overcrowding or significant staff shortage. His regular work schedule is a combination of 8 and 12 hour shifts. In addition to working shifts on his scheduled days off, he has also worked “doubles” – 16 hours at a time: a regularly scheduled 8 hour shift immediately followed or proceeded by and 8 hour overtime shift. This officer testified that he had often worked three to five doubles in a row, and had once worked 18 doubles in a row. He said he worked at least 60 hours a week every week. He explained that he was doing it for money; because the jail was closing he might not have a job later, so he felt he had to make money now. He also mentioned that sometimes he decided whether to stay based on how badly they need him at the jail, that he felt an obligation to coworkers. In cross-examination, Officer #6 acknowledged that when he completes the forms for the overtime protocol he shows that he is available for every shift for which he is not already scheduled, and he rarely refuses an opportunity to work overtime. He too testified that those working overtime were tired, sleepy and confrontational.

54Mr. Croisier and officers #1 and #6 all testified that by 2000 or so the working of overtime had become competitive among certain officers, that they compared the number of hours worked and the figures income reported annually for civil servants earning over $100,000 dollars and tried to outdo one another in numbers of hours worked and amounts of income earned.

55Mr. Scanlon agreed in cross-examination that nearly all correctional institutions have a protocol with respect to the allocation of overtime opportunities. He conceded that a CO who was not offered an overtime opportunity to which he or she was entitled under the applicable protocol would have the right to grieve, and that there are quite a few grievances about allocation of overtime across the system. When asked whether the union would object if an officer was refused an overtime opportunity because the employer thought s/he had already worked too many hours, he replied that it would depend on the individual circumstances, including whether there had been complaints that the person was not functioning. He agreed that management would have to point to evidence that the person was not capable of performing the job. He noted that he had made a health and safety complaint and had someone sent home who was scheduled to work 32 hours in a 36 hour period. He said that there is a practice that someone should not work more than 16 hours at a stretch, with 8 hour breaks before and after.

56The jail keeps records of the numbers of hours of overtime paid for correctional and custodial overtime and the reasons that the overtime was needed. In July 2001, the month in which this grievance was filed, the jail paid for 6386 hours of overtime. Of those hours, 2128 were said to relate to additional posts, 1098 to vacancies, 558 to hospital and other escorts and 271 to training. Illness, holiday lieu time, vacation, accommodation, WSIB, secondments, temporary assignments, maternity leave and other forms of leave accounted for all but 98 hours of the balance. The total overtime hours worked in each of the previous six months (January through June 2001) ranged between 5947 and 6529 hours.

57The following annual figures show the trends in pertinent categories of overtime use:

Fiscal year

Total overtime hours

Hours referable to

additional posts

vacancies

hospital and other escorts

Apr 1999 – Mar 2000

50,946

9018

2724

18,505

Apr 2000 – Mar 2001

71,045

16977

10554

9,926

Apr 2001 – Mar 2002

72,718

25,730

12,183

6,592

Apr 2002 – Mar 2003

81,493

29,188

23,050

6,355

Apr 2003 – Mar 2004

80,049

11,986

7,811

13,267

58There was a substantial change in the overtime picture in 2003. In and after August 2003, there were almost no hours of overtime attributable to additional posts. Inmate overcrowding had been eliminated by then, as a result of the Adult Male Remand Population Project announced in mid-May 2003. That project involved the reallocation of inmates among Toronto institutions and from Toronto institutions to Maplehurst and from Maplehurst to other more distant institutions. Although the evidence before me does not reveal how it came about, the overtime data also shows that the hours of overtime attributed to vacancies fell below 200 per month in and after December 2003.

59Despite the elimination of overcrowding and vacancies as causes for overtime, the monthly overtime figures continued to range between 5448 and 7260 hours per month in the period from August 2003 to April 2004. As Ms. Gulbinski testified, it appears from the data that this was largely the result of increased use of correctional officer overtime for escort work. Earlier, when more correctional officer overtime had been needed in the institution, most escort work had been performed by off-duty Toronto police officers. When the need for officers to cover additional posts and vacancies on overtime decreased, more escort work was offered on overtime and accepted on a voluntary basis by correctional officers at the Toronto jail. As employer counsel noted, there was no supposed adverse consequence to others if officers declined this work, yet it was accepted in almost the same volume as overtime work within the institution had been accepted earlier – illustrating, in his submission, that the earlier work was truly voluntary.

The Issue of Air Quality and Lighting

60The employee witnesses, particularly Mr. Croisier, commented on the absence of outside light within the institution. That characteristic of the institution contributes to its dreary interior appearance, but despite the bald assertions of the union and Dr. Lewchuk in this regard there is no actual evidence before me that the building’s lighting creates a risk to health or safety.

61The building’s HVAC system was retrofitted in the period 1996-98. The building went “smoke free” in 2000/2001. All witnesses with whom that change was raised conceded that air quality seemed better thereafter. Mr. Croisier testified about seeing dust in the vents, and that there were complaints about variations in temperature. Officer #10 claimed to have seen both dust and mold in the vents, but it is not clear when or where. The consultant’s report referred to earlier at paragraph [38] contains the only quantitative assessment of air quality issues in the evidence before me.

62Maurice Anderson has been the institution’s maintenance coordinator since September of 2002, and in that capacity has access to maintenance records for earlier periods. Those records show that maintenance was regularly performed, including replacement of vent filters and pressure testing. He noted that there are complaints about temperature from time to time, but he has had the experience of having one staff member saying that a particular area is too hot when another complains that the same area at the same time is too cold.

The Lewchuk Study

63Professor Lewchuk’s formal post-secondary education was in economics. His graduate work was in economic history. In the course of that work he became interested in the evolution of work organization in the auto industry. His doctoral thesis focused on the introduction of the Ford assembly line into the British auto industry. Since then he has continued to study work organization issues in the auto industry and other workplaces. This work brought him into contact with medical researchers Peter Schnall and Paul Landsbergis, who were studying the impact of psycho-social aspects of work organization on workers’ health outcomes and particularly the incidence of cardiovascular disease. They formed a research team to explore links between work organization and health outcomes in Ontario auto plants. Dr. Lewchuk has also collaborated with researchers at York University studying the link between work organization and health outcomes of those engaged in part-time, temporary and self-employed contract work. He describes his specialty as drawing out from workers their experience of the work process.

64The nature of the study undertaken by Dr. Lewchuk in this matter is described in the Introduction to his April 2003 report:

This assessment was prepared for the Ontario Public Service Employees Union. It examines the conditions of work at the Don Jail. I was asked by the Union to assess whether under-staffing and the resulting levels of overtime represented a health risk and to offer recommendations, if any, arising out of my assessment. The assessment provides evidence in support of the union’s claim that long hours of work represent a potential health risk to the staff of the Don Jail.

The assessment is based on:

• A review of the key literature on long hours of work and health and the literature on work organization and health.

• Documents provided by management on staff shortages and the prevalence of overtime worked at Jail during 2001 & 2002.

• Eleven interviews with correctional officers at the Don Jail conducted by the author during February of 2003. The sample was constructed to represent the three main areas of the Jail, the ranges, admissions & discharges, and medical. It also represented officers working different levels of overtime. Four of the eleven worked fewer than 12 hours of overtime each week. The remainder worked 12 or more hours.

• Two interviews with the local union president and a phone interview with the person responsible for scheduling at the Jail.

• A short survey distributed to all permanent corrections officers with their February pay cheques. The survey included the 14 question Karasek Job Content Questionnaire (JCQ) and the 17 questions that make up the effort-reward imbalance scale developed by Siegrist (See appendix one). Ninety surveys were distributed and 52 were returned for a response rate of 58%.

The eleven interviewees were selected for Dr. Lewchuk by the union. The survey referred to in the last bullet point also contained questions about current health status. Karasek and Siegrist are the principal authors of studies concerning the measurement of psychosocial job characteristics and assessment of (among other things) the relationship between chronic workplace stressors and adverse health outcomes such as heart disease.

65In a section of his report entitled “Long Hours and Health”, Dr. Lewchuk stated that

Long hours may affect health outcomes in two different ways. Long hours or work may itself be stressful, leading to maladaptive behaviors such as smoking, over-eating, lack of exercise and drug use. Working long hours may also extend the duration of exposure to other work related health risks including ergonomic risks, chemical toxins, work related fatigue, job strain, effort-reward imbalance, and other stressor [sic] resulting from the organization of work.

He cited a study that found a relationship between hours of work and reduction in subjective quality of life, increases in weight, body mass index and waist circumference, increases in smoking, alcohol consumption and depression. He also cited a study that found that overtime increased blood pressure and heart rate, and studies that found a relationship between hours worked and incidence of acute myocardial infarction. He noted that one study found that long hours had no effect on blood pressure.

66In a section called “Work Organization and Health Outcomes”, Dr. Lewchuk described the concepts of “job strain” and “effort-reward imbalance” as having arisen out of attempts to explain observed differences in the rates of death and illness of people in different jobs when those differences in rates of death and illness cannot be explained by differences in the degrees of risk arising from dangerous substances or biomechanical hazards:

Karasek and Theorell … developed what is known as the Job Demand-Control (JD-C) model. They pointed to “job strain”, defined as the combination of high psychological workload demands and low decision latitude or control as a key health risk. Psychological demands are measured by questions asking; Is work excessive? Are there conflicting demands? Is there time for work? Is it too fast or too hard? Decision latitude is measured by questions asking; Can employees make their own decisions? Can they choose how to do their job? Do they have a say on the job? Do they take part in decisions? Researchers using the JD-C model have shown that a variety of health problems, including high blood pressure and cardiovascular disease, are more common where employees are exposed to “job strain”. For instance, heart disease is more common amongst overworked cashiers and line workers than amongst overworked executives.

Siegrist argues that an imbalance between costs and gains at work (i.e. high effort/low reward condition) results in a state of emotional distress with special propensity to autonomic arousal and associated strain reactions. The ERI model does not abandon the earlier focus on control at work or workload. Rather it places control and workload in the context of a broader and deeper set of social forces and it introduces rewards as a key factor determining levels of stress. In the ERI model, effort at work is viewed as part of a socially organized exchange with workers receiving rewards from society. Those rewards include money, esteem and status control. When effort and rewards are imbalanced, the individual is stressed and in the long-run is more likely to experience negative health outcomes.

… In the original study using this model, Siegrist (1996) showed that the risk of acute myocardial infarction, sudden cardiac death, and coronary heart disease was most elevated in those with at least one indicator of high effort and at least one indicator of low reward (p. 34). More recently, the Whitehall II study has uncovered a significant relationship between effort-reward imbalance and increased risk of alcohol dependence, psychiatric disorder, long spells of sickness absence and poor health functioning.

67Following his literature survey, Dr. Lewchuk’s report provided a description of the workplace and of the issues that emerged from his interviews of correctional officers, illustrated by quotes from the interviews. As I noted earlier, the union agreed that the quotes were not evidence of the truth of their contents in respect of any matters in dispute.

68Dr. Lewchuk prepared and administered a survey that described in his report as follows:

The survey included the 14 questions from the JCQ questionaire used by Karasek to calculate job strain. It included 17 questions used by Siegrist to calculate effort-reward imbalance. A number of health questions were added including the self-rated health question used in the National Population Health Survey and questions on hypertension, exhaustion, pain and sleep problems.

69The survey document itself began with this explanation:

This survey is being done by researchers at McMaster University at the request of your union OPSEU. We are looking at working conditions and health at the Don Jail. All responses will be treated confidentially. Surveys will be coded and analyzed at McMaster. Reports will be based on summary data, not individual data. If you choose to complete this survey you are consenting to the use of your responses in any reports. Participation is voluntary.

Participants were asked to write in their job title, age, sex and number of years worked at the jail. They were not asked about the number of hours they had worked. In a section entitled “Workload and control”, participants were asked whether they “strongly agree”, “agree”, “disagree” or “strongly disagree” with each of the following questions:

1. My job requires that I learn new things.

2. My job involves a lot of repetitive work.

3. My job requires me to be creative.

4. My job allows me to make a lot of decisions on my own.

5. My job requires a high level of skill.

6. On my job, I have very little freedom to decide how I do my work.

7. I get to do a variety of different things on my job.

8. I have a lot of say about what happens on my job.

9. I have an opportunity to develop my own special abilities.

10. My job requires working very fast.

11. My job requires working very hard.

12. I am not asked to do an excessive amount of work.

13. I have enough time to get the job done.

14. I am free from conflicting demands others make.

The next section of the survey, entitled “Effort and Rewards,” contained two sets of questions with which the participant was asked to agree or disagree. When they answered “disagree” in answer to any of the first seven questions or “agree” in answer to any of the last ten, they were also asked indicate whether they were “not at all distressed”, “somewhat distressed”, “distressed” or “very distressed” by the situation:

1. I receive the respect I deserve from my superiors.

2. I receive the respect I deserve from my colleagues.

3. I experience adequate support in difficult situations.

4. My current occupational position adequately reflects my education and training.

5. Considering all my efforts and achievements, I receive the respect and prestige I deserve at work.

6. Considering all my efforts and achievements, my work prospects are adequate.

7. Considering all my efforts and achievements, my salary/income is adequate.

8. I have constant time pressure due to a heavy work load.

9. I have many interruptions and disturbances in my job.

10. I have a lot of responsibility in my job.

11. I am often pressured to work overtime.

12. My job is physically demanding.

13. Over the past few years, my job has become more and more demanding.

14. I am treated fairly at work.

15. I have experienced or I expect to experience an undesirable change in my work situation..

16. My job promotion prospects are poor.

17. My job security is poor.

The answers to these questions were used to calculate JCQ control and workload figures and ERI ratio in accordance with formulas apparently devised by the original authors of the survey questions.

70Dr. Lewchuk’s report said this about the survey and its results:

Job strain, derived from the Karasek Job Demand-Control model was introduced in Section One. Job strain is used extensively to predict the health effects of work organization. The core prediction is that as control falls and workload increases, health risks increase. Responses to a series of questions are used to calculate a workload index and a control index. These are then used to divide the sample into four quadrants. A high strain quadrant where workload is above average and control below average, an active quadrant where both workload and control are above average, a low strain quadrant where control is above average and workload below average and a passive quadrant where both workload and control are below average. Following a number of other studies, we use the median values from the Cornell Hypertension study as our cut points for above and below average scores on the two indices.

The highest health risks are predicted in the “High Strain” quadrant where control is low and workload is high. There is some debate about which quadrant has the least risks. Those in the “Active” quadrant benefit from a positive work experience and active learning, while those in the “Low Strain” quadrant enjoy a relaxed work environment. Both enjoy below average health risks. Those in the “Passive” quadrant suffer from a gradual atrophying of learned skills and abilities and a lack of motivation. Health risks are likely to be average.

Figure Two presents results from the survey responses at the Don Jail for correctional officers and compares them with job strain measures from a number of other work sites, including a large public sector office setting and a large manufacturing setting. Correctional officers (CO2) were located in the high strain quadrant of the figure. They enjoyed about the same level of control as public sector workers in an office setting, less than skilled trades and technical, office and professional workers in a manufacturing setting and more than assemblers in a manufacturing setting. Their workload was higher than all of the job classifications in the manufacturing setting and less than public sector office workers.

These results suggest that correctional officers are exposed to job strain with the associated increased risk of various stress related illnesses.

71The Lewchuk report arrived the following conclusions and recommendations:

Having examined the interviews, analyzed the survey data and again reviewed the literature, including my own studies in the field, I have concluded the following:

• Correctional officers report below average health status and high levels of hypertension and sleep disorders.

• The average correctional officer is working over 60 hours a week. Work weeks of 80 hours per week and more are common.

• There is a high probability that the reliance on overtime at this workplace is affecting the health of correctional officers.

• Long hours of work are affecting the health of those who work long hours as well as those who continue to work normal hours.

• The physical conditions of the job, air quality, and lighting are not conducive good health.

• The organization of work has led to both job strain and effort-reward imbalance.

• The culture at this workplace is such that it cannot be left to the staff to refuse working long hours. This will only be done by the employer increasing staff that all posts in the jail can be filled without recourse to overtime.

Accordingly, I recommend that the employer:

• Increase staffing levels so that the Don Jail is in compliance with the Ontario Employment Standards Act.

• In particular, the employer should increase staffing levels to be in compliance with sections 18(1), 18(3) and 18(4) of the act as follows:

• 18(1): An employee must have at least 11 consecutive hours free from performing work in each day.

• 18(3): An employee must also have at least eight consecutive hours free from performing work in between shifts.

• 18(4): An employee must also receive at least 24 consecutive hours off work in each work week, or 48 consecutive hours off work in every two consecutive work weeks.

• As staffing levels increase, job strain will fall and fewer staff will face effort-reward imbalance. To speed this process, the employer should create a join labour management committee to evaluate managerial practices at the Jail with the objective of ensuring that existing standard orders are followed and that steps are taken to ensure staff are supported in their relations with inmates.

• Steps should be taken to improve air, lighting, and noise levels at the jail. Special emphasis should be given to limiting inmates’ direct access to corrections officers.

Dr. Gnam’s Critique of the Lewchuk Report

72As noted earlier in paragraph [10], Dr. William Gnam is a psychiatrist and clinical epidemiologist. The employer engaged Dr. Gnam to evaluate Dr. Lewchuk’s report. Dr. Gnam provided a written evaluation, which he explained in his testimony. He agreed that

The Karasek model, the effort-reward imbalance model, and their respective measures (the JCQ, and the ERI questionnaire) represent established and validated models in research settings for measuring characteristics of work organization which are risk factors for (associated with) a variety of adverse health outcomes.

(emphasis added) He noted, however, that the association most clearly established in the literature was between the control dimension of the JCQ and risk of cardiovascular disease; fewer than 40% of studies had found association between cardiovascular disease and the job demand dimension, and associations between JCQ and other health risks were also less clearly demonstrated. He noted that the ERI had been employed in fewer studies, and that the Whitehall II study had found that the increased risks associated with ERI were relatively small. He felt it was also important to note that job strain was only one of several factors known to influence the risk of cardiovascular disease.

73As for long hours of work, Dr. Gnam’s opinion was that “Dr. Lewchuk’s report overstates the strength of the scientific evidence demonstrating an association (or causal relationship) between long work hours and adverse health outcomes.” Dr. Gnam noted that the existing studies in this area suffered from methodological limitations of one sort or another that affected the reliability of their results, and that apart from methodological limitations, the published evidence in this area does not consistently demonstrate a relationship between long work hours and adverse health outcomes, as Dr. Lewchuk’s report acknowledged. He had this to say about Dr. Lewchuk’s attempt to link long hours of work and work organization:

Dr. Lewchuk concludes: “Their work alerts us to the need to consider both hours of work and the context under which those hours are worked to understand work related health.” While this statement appears to imply that (long) work hours and work organization may be related in some manner, the report does not develop this argument further. Dr. Lewchuk does not, for instance, assert that long work hours may have greater adverse health effects if they occur in the context of job strain or ERI. The report provides no evidence that meaningfully associates work hours with work organization measures; for example, no data are presented which establish that workers who reported job strain or ERI tended to have longer work hours. To my knowledge, there are no published studies which measure work hours in conjunction with job strain and/or ERI, and demonstrate a relationship between these factors and health outcomes.

This critique of existing studies does not imply that there is no evidence relating long work hours to ill health. What it does establish is that the strength of evidence relating long work hours to ill health is much weaker than that relating work organization to adverse health outcomes. In addition, the intensity and duration of long work hours necessary to cause ill health has not been established scientifically.

While not accepting Dr. Lewchuk’s view of the matter, Dr. Gnam did state in his report and in his testimony that

… it is also my opinion (based predominantly on clinical judgment and experience) that extreme work hours (defined as working 80 hours or more per week on a consistent basis over several months) would likely result in decreases in health status, such as reduced sleep hours and daytime somnolence. However, these health status changes would be reversible upon the resumption of normal (or near-normal) work hours.

74Dr. Gnam was critical of the methodology by which Dr. Lewchuk came to his conclusions, particularly the conclusion that health problems reported by correctional officers at the Toronto Jail were the result of their working there:

The most important flaw in Dr. Lewchuk’s methods is that he only considers occupational exposures as a potential determinant of correctional officers’ health. This represents a form of reductionism that almost no clinician or health researcher would accept. Health status is determined by numerous factors including genetic endowment, perinatal and childhood exposures, lifestyle habits, social networks, family, neighborhood and community factors, and health service utilization. … Occupational exposures represent only one category of many health determinants. In order to demonstrate that health problems suffered by correctional officers are caused by or materially related to workplace exposures, Dr. Lewchuk would have to explicitly consider and control for the effects of other health determinants. In his report, however, there is no effort to do so.

… The most relevant question for Dr. Lewchuk to address related to the correctional officers’ health status is the following: what was the health status of correctional officers at the Don Jail who had certain occupational exposures (long work hours and alleged ERI and job strain), compared to the health status the officers would have had without such exposures? … However, in order to isolate the (causal) effect of occupational exposures, it would clearly have been necessary to identify and control for other determinants of health.

There are many feasible methods by which an investigator can attempt to control for multiple health determinants while isolating and measuring the effect of the exposure (in this case, the occupational exposure) of interest. Almost all such methods use a control or comparison group. For example, in studying the relationship between occupational exposures and health status, Dr. Lewchuk could have compared the health status of correctional officers at Don Jail to a comparable group of correctional officers at another work site …

Dr. Gnam also noted that

… persons may have risks for adverse health outcomes, but never experience such outcomes. For Dr. Lewchuk’s study, the direct implication is that in order to demonstrate that adverse health outcomes related to job strain and ERI occurred, it is not sufficient to show that job strain and ERI prevailed among correctional officers.

75As I noted earlier, at the very end of the hearing the union abandoned the claim that health problems actually experienced by correctional officers at the Toronto Jail had resulted from their working there. I will say no more about Dr. Gnam’s criticisms of Dr. Lewchuk’s methodology and conclusions in that regard, except when they also bear on the union’s remaining claim that correctional officers at the Toronto Jail were exposed to health risks. I will say, however, that the existence of the deficiencies that Dr. Gnam identified in his analysis of the Lewchuk report’s support for the now abandoned claim casts doubt on the rigorousness of the approach Dr. Lewchuk took in arriving at all of the conclusions in his report.

76Dr. Gnam’s observations about reporting bias and selection bias are of particular importance in assessing Dr. Lewchuk’s conclusion that the survey results showed that the correctional officer population at the Toronto Jail were exposed to job strain and effort-reward imbalance:

Potential reporting bias

Another important limitation in the method used by Dr. Lewchuk is that both the JCQ and the ERI questionnaires were employed in a setting that differed from typical research settings in important respects. A key feature of many health research studies (and particularly of those involving subjective self-report measures such as the JCQ and ERI) is that study participants are believed to provide answers which are unbiased and accurate, based upon the premise that their responses are confidential and will not have material effects on their lives. In other words, in most formal research studies there is an absence of incentives which might bias the answers provided by respondents.

In my opinion there are no grounds to assume that the circumstances at the Don Jail during the time that Dr. Lewchuk was administering the JCQ and ERI resembled those of a formal research study in this respect. Union members may have felt that they had an interest in the outcome of the study, which may have biased some or all of their answers. This represents a serious problem when a measurement tool developed for research settings is applied outside of that context. While Dr. Lewchuk does not provide any description of the knowledge that Union members might have had about the potential uses or importance of the survey, it is reasonable to assume that at least some Union members were aware that it was in their interest to report adverse health, low job control, high strain, and ERI.

The potential for reporting bias is taken seriously in many areas of health measurement. For example, some health measurement scales have explicit components which are intended to detect and measure biased reporting. The Minnesota Multiphasic Personality Inventory (MM PI), a self-administered measure of personality and psychiatric symptoms, incorporates validity scales that are intended to detect over and under-reporting of symptoms. The JCQ and ERI were not developed to be employed outside of research settings, and have no validity components.

The low survey response rate

Another threat to the accuracy and validity of Dr. Lewchuk’s findings is the low survey response rate of 58%. (Out of 90 questionnaires which Dr. Lewchuk distributed, apparently only 52 were completed and returned.) The low response rate would not be a problem if the 58% that did respond were representative of the entire population of correctional officers. However, there is no reason to believe that this was the case. Response rates this low raise serious concerns that the results reported are not truly representative of the entire population of correctional officers. When survey respondents differ from the non-respondents in ways that affect the phenomena measured, selection bias occurs, which in turn biases the results. For example, one reasonable hypothesis is that correctional officers with worse health status (or higher perceived personal gain from participating in the study and reporting high degrees of adverse working conditions or poor health status) preferentially responded to the survey, leading to an over-representation of officers with worse health status. Selection bias can seriously distort the statistics reported, and the conclusions drawn related to the entire population of correctional officers. There are methods by which Dr. Lewchuk could have provided insight into the likelihood that selection bias had occurred. For example, the report could have conducted statistical tests comparing respondents and non-respondents on certain characteristics that were known or observed for both groups (such as age, and possibly work hours) from other data sources. Upon this issue, however, Dr. Lewchuk’s report is silent.

Union counsel challenged Dr. Gram’s testimony that the response rate was a concern by confronting him with a volume of studies said to reflect or support Dr. Lewchuk’s view that drawing conclusions about a population based on the responses of 58 percent of that population was an accepted scientific approach. After spending only a few minutes reviewing those studies, Dr. Gram was able to demonstrate convincingly that they did not support Dr. Lewchuk’s view.

77Dr. Gnam also commented on Dr. Lewchuk’s conclusions about the voluntariness of the overtime performed at the jail:

Section 3 of Dr. Lewchuk’s report provides information, based upon narratives from interviews with correctional officers, suggesting that some correctional officers felt compelled to work overtime. The narratives suggest that correctional officers felt obligated to offer overtime in order to reduce the risk that coworkers would face adverse working conditions (such as under-staffed shifts) which could have resulted in injury. I agree with Dr. Lewchuk’s assertion that understanding the psychology and motivations underlying correctional officers’ work hours is complicated. In this respect, I find the discussion within the report to be incomplete. The report notes but does not consider the fact that some correctional officers either did not work overtime hours, or worked fewer overtime hours. If workers felt compelled to work overtime hours, why did not all officers do so? This discrepancy suggests that the explanation of the motivations and pressures for long work hours is incomplete. To more fully understand the motives of the officers, it would have been helpful to interview and include the narratives of correctional officers who did not work overtime hours. In addition, it is possible that the report understates the incentive effects of higher overtime wages (and increased incomes) on the decisions of officers to take overtime hours.

78At the end of his evaluation, Dr. Gnam commented on each of the conclusions expressed in the Lewchuk report. In so far as the conclusions on which he commented were concerned with the existence of risks to health as opposed to causes of existing health problems, Dr. Gnam’s comments were as follows:

The physical conditions of the job, air quality, and lighting are not conducive to good health. This assertion is not supported by any systematic evidence provided in the report, beyond opinions expressed in the narratives. No objective measures of air and lighting quality were included. While the absence of walls separating officers from prisoners could represent a safety risk, no evidence was presented to suggest that, compared to other facilities, the rates of injury to officers caused by prisoners was higher.

The organization of work has led to both job strain and effort-reward imbalance. I find no evidence to suggest that the JCQ and the ERI were not correctly administered and reported. However, the low response rates, the absence of information on selection bias, and the potential for respondent bias (based upon the presence of incentives for reporting in a certain manner) are serious weaknesses in the work organization data analyzed by Dr. Lewchuk. A further limitation in the work organization data is that the duration of exposure to potential ERI and job strain is unknown, because the JCQ and ERI scales were administered on only one occasion. Based upon these weaknesses, it is my opinion that Dr. Lewchuk has failed to establish that correctional officers worked under conditions of ERI and job strain. Even if one assumes that Dr. Lewchuk’s assertion is correct, the finding would support an increased risk of adverse health outcomes, without demonstrating that in fact such outcomes had occurred. If workplace changes later led to a reduction in job strain and effort-reward imbalance, the available empirical evidence suggests that the increases in health risks revert rapidly to normal – certainly in no more than three years.

Argument

79In his closing argument, union counsel acknowledged that Article 9.1 is not a guarantee of health and safety but, rather, an obligation to make reasonable provisions for health and safety. He observed that in cases alleging breach of that obligation the Board has required that the union objectively demonstrate a risk to the health of the employee that is real and significant, and that the degree of risk will be balanced against the employer’s operational obligations and requirements in determining whether reasonable provision has been made. He noted that the union does not have to show that actual harm, illness or damage has been suffered: it is sufficient for the union to show a serious risk, and the onus then shifts to the employer to demonstrate that the risk is necessary. Reference was made to the decisions in Baron et al., 2968/91 (Kaplan), Ferrill et al., 1665/90 (Kaplan), Taylor-Baptiste, 469/88 (Dissanayake), Stewart et al., 1916/93 (Kaplan), Watts/King, 1367/90 (Kaplan), Union Grievance, 1190/89 (Stewart), Bain et al., 1102/87 (Ratushny), Sim, 256/88 (Watters), Ethier, 959/87 (Wright) and Wilson, 2855/91 (Gray).

80Union counsel described Dr. Lewchuk’s analysis as being that if a workplace exhibits job strain, effort/reward imbalance, lack of control and high job demand including high overtime, then negative health outcomes would follow. He submitted that Dr. Gnam had agreed with this in his report, and that Dr. Gnam’s only challenge was to the methodology of the survey and whether the case was proven.

81Union counsel submitted that the Toronto Jail is a notoriously bad place to work or be incarcerated, and that the evidence connects the conditions there with serious risks to the health of employees. He asserted that judges and others had commented on the inappropriateness of imposing those conditions on inmates. He argued that the overcrowding at the Toronto Jail was a result of gross negligence of the Government of Ontario in permitting the overcrowding to occur. Right from the beginning there had been a major miscalculation by the government in the design of the Infrastructure Renewal Project, he said, a miscalculation with which the union had taken issue early on. He noted that there had been no evidence from the employer of any steps taken to deal with this miscalculation until recently, and that its approach had simply been to continue with the 1996 plan until its completion eventually eased the situation. He observed that the need for overtime at the Toronto Jail was not the result of an emergency, it was an ongoing situation to which the employer had chosen not to respond by ensuring that adequate numbers of staff were available. He submitted that the motives of the staff for working overtime were irrelevant to the question I have to decide. The excessive overtime had created health risks, he submitted, and was contrary to the standard set in the Employment Standards Act which, although not legally applicable to this workplace, nevertheless reflected a standard which he suggested was based on health and safety considerations.

82As for the concern about air quality, union counsel argued that the concerns expressed by employees in their interviews with Dr. Lewchuk had not been contradicted, and there was no evidence that anything was done about air quality concerns prior to the summer of 2001 when the grievance was filed. He acknowledged that the subjective concerns expressed by the employees and by the union concerning air quality was not evidence that there was a problem, but submitted that it was nevertheless “supporting evidence” that there was a problem, and that in the absence of evidence to the contrary I could therefore accept that there were problems of air quality.

83Employer counsel noted that the union had based its case on allegations that there is effort/reward imbalance and job strain in the workplace and people working long hours and that these conditions caused health problems or risks of health problems. He submitted that the union was obliged not only to prove that these conditions existed and that they created a significant risk but also that there was a reasonable precaution that was not taken with respect to that risk. He argued that none of those things had been proven. He noted that Dr. Lewchuk could not identify what it was that caused the job strain and effort-reward imbalance that his survey purported to demonstrate. Indeed, Dr. Lewchuk had acknowledged that he could not say that long hours of work increased effort-reward imbalance, and that it could have had the opposite effect. Accordingly, the union had not demonstrated any significant risk that any reasonable measure could have substantially reduced.

84As for the proposition that the working of long hours alone created a risk to health, employer counsel invited me to accept Dr. Gnam’s opinion that the current literature an insufficient basis for such a conclusion. He submitted that the provisions of the Employment Standards Act to which union counsel referred in argument establish quality of life standards, not health and safety standards. He observed that the Occupational Health and Safety Act addresses conditions, like hazardous substances, that create health risks for those exposed to them, and that that Act does not set a standard for maximum hours of work.

85Employer counsel submitted that the collective agreement makes express provision for the working of overtime and sets the negotiated compensation to be paid to those who work overtime. The local protocol negotiated between the employer and the union determines the allocation of overtime. A cap on the amount of overtime allocated to any one employee was a matter for negotiation, he submitted, and the absence of such a limit in overtime protocol amounted to agreement that long hours were not a violation of the health and safety provisions of the collective agreement. He submitted that the evidence shows that the working of overtime was voluntary. In that regard there was the evidence that classified officers as a group worked more overtime (as a percentage of regular hours) that unclassified officers, something one would not have expected to result from the operation of the overtime protocol if the classified officers did not want to work overtime. There was also the evidence that after the overcrowding issue had been dealt with, the level of overtime worked remained high as officers took over the hospital escort work that would otherwise have been contracted out to police officers.

86Employer counsel submitted that if correctional officers had been falling asleep on duty, there was no evidence that this had ever been brought to the attention of operational managers by any adversely affected employee or that management had otherwise been aware of it. He argued that the union cannot rely on its own or its members’ failures to bring such matters to the attention of management in support of a claim that the employer had breached article 9.1. He cited the decision in Union Grievance, 1929/91 (Barrett), where the Board stated that correctional officers have a duty to report a failure by another officer to properly provide backup, and observed (at p. 10) that:

Article 18.1 of the collective agreement requires the employer and the union to co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Unreported violations of standing orders would appear to contravene the union’s obligation in this regard. In saying this, we make the assumption that if these occasional violations of standing orders had been reported to management, management would have taken steps to ensure there would be no recurrence.

87As regards air quality, employer counsel noted that air quality had improved as a result of the no smoking policy introduced in 2000, that there were no outstanding orders, and that deficiencies were fixed as they were identified.

Analysis

88When this grievance was filed the Toronto Jail’s needs for correctional officers’ work were well in excess of the regular hours of work available from correctional officers then on staff. There were at least three major reasons for this. One was that the institution was chronically overcrowded: it had more inmates than it was intended to accommodate. That created a need for additional correctional officer posts on the ranges, posts that were not provided for in the regular, budgeted complement. Another major reason for the need for overtime was that the jail was understaffed, a term used in this proceeding to describe the fact that there were vacancies in the “post audit” complement of permanent positions for which the institution was budgeted. A third reason for the need for overtime was that needs that could and did arise regularly, like hospital escort duty and training time for example, were also not covered by the post audit complement. Even if there had been a full complement of correctional officers (either classified incumbents or unclassified officers backfilling absent incumbents) and no additional need arising from overcrowding, when these other unbudgeted needs arose they could only have been met by temporarily removing officers from budgeted posts, when that was possible, or by having the work performed on overtime.

89The excess work was offered as overtime opportunities to existing staff in accordance with the local overtime protocol. There was a lot of overtime work. As a result, a lot of the staff worked a lot of overtime for premium pay. Nearly all of this was “voluntary,” in the sense that officers were seldom actually ordered to work overtime. The work was not evenly distributed among the correctional officer population. Some classified officers regularly worked as many as 80 hours a week, and occasionally more, while other officers worked little or no overtime. Whatever the distribution of work may have been, there is a clear sense from the testimony of those who worked at the jail at that there were two distinct groups of officers: those that worked a lot of overtime and those worked little or no overtime.

90Dr. Lewchuk’s view was that this overtime was not truly voluntary, that employees were under pressure to agree to work overtime and that “[t]he culture at this workplace is such that it cannot be left to the staff to refuse working long hours.” As Dr. Gnam observed, however, the fact that some officers worked no overtime is inconsistent with the notion that officers were compelled, in effect, to work overtime. All of the witnesses, including Dr. Lewchuk, acknowledged that the motivation of those who worked overtime was complex, and that the additional compensation they received for working overtime was likely to be at least one of the reasons why employees chose to do so. The economic benefit was clearly the prime motivator for the one employee witness who had worked substantial overtime hours. No employee testified that s/he had felt compelled to work overtime.

91Those who worked substantial overtime tended to be tired, cranky and irritable at work. Those who did not work much (or any) overtime generally had to work with others who did. The two witnesses who did not work overtime testified that when they were partnered with officers who had been working overtime, their partners tended to ask for the more sedentary tasks, leaving them to do the “running around.” They said that these tired partners tended to take overly long breaks, fell asleep while on break and even fell asleep while at their posts, and that the condition of their partners led them to be concerned about whether they would provided proper back-up. All this is uncontradicted. These officers clearly resented that they had to carry and cover for partners who might be earning as much as two and a half times what they earned. It is probably that they were not the only employees who had these experiences or felt as they did about the situation.

92The circumstances created by overcrowding and understaffing were bound to breed employee conflict: conflict with other employees and conflict with supervision. There was increased verbal aggression and even some physical aggression between officers, sparked by such concerns as the failure of an officer to respond to a code. It is not at all surprising that the local union felt these conditions were not in the interests of its membership, notwithstanding that they resulted in increased earnings for some members. Nor is it surprising that the union saw a return to full complement and elimination of overcrowding as a means of advancing the interests of its membership by eliminating or reducing some of the causes of conflict.

93On the uncontradicted evidence of Mr. Scanlon, the employer could have alleviated overcrowding at this jail in 2001 by keeping some other institutions open longer than originally planned. Instead, the employer simply stuck to a five year old plan that had been based on expectations that experience had since proven to be wrong. While a MERC agreement reserved the jail’s eleven acknowledged vacancies for possible transfers from (other) closing institutions until the end of June 2001, the failure to fill the vacancies that remained or arose thereafter was left entirely unexplained in this proceeding. In the course of his argument, employer counsel asserted that the employer’s problem had been that it could not get trained officers. There was no evidence of that, however. There was no testimony to explain why the employer made the choices that led to and continued the sustained overcrowding and understaffing at the Toronto Jail.

94The issue before me is not whether the local union or its membership had a legitimate interest in the filing of vacancies and elimination of overcrowding, however. Nor is it whether the employer’s response to those issues was unwise from a labour relations (or any other) perspective. The issue before me is only whether the employer failed to discharge its obligations under Article 9.1 and, if so, whether the remedy (which in other respects would first be a matter for resolution by the parties) should include compensation for past exposure to the risks to which the union alleged that they had been exposed.

Article 9.1

95Again, Article 9.1 of the collective agreement provides that

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

This language has appeared in the parties’ collective agreement for a number of years, and its application to correctional institutions and correctional officers has been the subject of numerous decisions of this Board.

96It is well settled that the obligation to make “reasonable provisions” for the safety and health of employees does not require the elimination of all possible risks to health or safety. Some risks may be necessarily inherent in the work or the workplace. In Union Grievance 69/84 (Samuels) the Board observed (at pp. 6-8) that:

Article 18.1 speaks of reasonable provisions for the safety and health of the employees. And this is echoed in section 14(2)(g) of the Occupational Health and Safety Act, which imposes a duty on an employer to “take every precaution reasonable in the circumstances for the protection of a worker … There is no obligation to guarantee an employees safety against every possible risk, no matter how remote the possibility that it will occur. The collective agreement and the legislation contemplate “reasonable” precaution ... It is necessary to balance the safety of the employees against the need for care and custody of the inmates and the purposes of the institution. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks.

97Article 9.1 requires that the employer not expose a correctional officer to “unnecessary,” “unreasonable” or “excessive” risks: Stockwell, 1764/87 (Wilson), at p. 14, Watts/King, 1367/90 (Kaplan), at p. 27, Stewart et al., 1916/93, (Kaplan) at pp. 25-26, Taylor-Baptiste, 469/88 (Dissanayake), at p. 20. In Bain et al., 1102/87, (Ratushny), the grievors alleged that the way in which their shifts were scheduled had a detrimental effect on their health and therefore violated what is now Article 9.1. In that context, the Board observed (at p. 9) that

… where there is a factor or where there are factors which generate the anticipation of risk to the health and safety of employees, the employer must act reasonably, in all of the circumstances, to reduce such risk. That clearly does not mean that all risk must be eliminated. In the grievances before us, the evidence clearly established that all shift work almost inevitably has an adverse effect on sleep patterns and that health problems may occur as a result. Obviously, this does not mean that shift work must be abolished. On the other hand, where there is a clearly identifiable factor which, on balance, increases the risk to health by more than a marginal degree, the Employer should be required to take steps to eliminate or neutralize that factor provided that it is reasonable to do so.

(emphasis added) On the evidence before it in that case, the Board found that the union had not discharged the onus on it to establish on a balance of probabilities that the work schedule in question there had “increased the risk to health by a significant degree.”

98In Ferrill et al., 1665/90 (Kaplan), the Board observed (at p. 22) that the provisions of the collective agreement are among the matters to be weighed in balancing the interests of employees and employer when determining whether work arrangements create unreasonable risk. In that case the union sought the elimination of standby shifts for ambulance officers, arguing that the combination of their regular hours of work with the standby shifts that followed them had an adverse impact on their sleep and thence on their health. The employer revised the work schedule, conceding that a schedule that might require an officer to be either on duty or on standby for 32 consecutive hours was inappropriate. What remained in issue thereafter was the union’s challenge to the revised schedule, in which an officer would at times be at work for an eight hour shift followed by an eight hour standby shift during which s/he might also be required to work, followed by a duty free period of at least eight hours. The union’s position was that an officer should not be required to work more than twelve hours and should have a duty free period of at least 12 hours between shifts. In that context the Board made the following observations at pp. 22-25:

Obviously, the fact that no employees have been injured or have submitted compensable claims is not determinative of this case. It is a factor that can be considered, but the absence of injury is not probative of anything other than that particular fact. The evidence in the instant case is uncontradicted that the grievors feel less alert while on standby duty, and that the risks of the job increase at night and on weekends. Materials from the Canadian Centre for Occupational Health and Safety indicate that night-time work can have negative effects on workers. There is really no question about any of this, for it is a matter of common sense that an employee called out of bed in the middle of the night to respond within minutes to a serious medical emergency will not be as alert and able to perform his or her duties as an employee working a regular shift. However, the question that must be asked is whether this evidence, simply stated, is sufficient to maintain the grievances alleging a health and safety violation and to support an order directing this employer to eliminate these longstanding standby shifts. Our answer to this question is both yes and no.

We find that the work schedules in effect at the time the grievances were filed violates [sic] the health and safety provisions of the Collective Agreement. The extended work periods of those schedules more than satisfied the union’s burden of proof. No expert evidence was necessary to establish that a shift of 32 hours raised the real possibility of occupational harm. Accordingly, the grievance is granted in part and we declare that the health and safety provision was, prior to the hearing of this matter, infringed. That situation, however, changed on the first day of hearing and the old schedule is no longer in effect. It remains for us to determine whether or riot the revised schedules constitute a violation of the Collective Agreement.

While we find the grievors’ evidence about fatigue and levels of alertness credible and relevant, we do not find that the new schedule places the grievors in a position of risk requiring elimination of standby duties. Given the frequency and duration of standby service, as indicated in the evidence and discussed in this award, it cannot be said, as it could be with respect to the 32-hour shift, that the health and safety of the grievors have been placed in unnecessary risk, some risk being-part and parcel of ambulance officer positions. We are not satisfied that the standby shifts are “more likely than not” to lead to an increased assumption of unnecessary risk.

Our conclusion in this matter is buttressed by the terms and conditions of the Collective Agreement. That document clearly sets out the agreement of this employer and this union, that members of the bargaining unit will work standby shifts. In agreeing to standby shifts, the union agreed to some adverse impact on sleep patterns. That being so, has the employer discharged its obligation to take reasonable precautions for the health and safety of its employees? We find in this case that the employer is now discharging its obligation to its employees as a result of it having revised the work schedule. The revised schedule significantly limits the length of time that an employee may be required to work, as well as ensures at least eight hours of rest, and generally twelve, between shifts. Moreover, appropriate facilities are provided for the employees.

… We also agree with union counsel that just because the Collective Agreement states that the employer “will continue” to provide healthy and safe working conditions does not mean that conditions, such as work schedules, in effect at the time the Agreement was entered into are “frozen” and cannot be subject to challenge under Article 23.01. … Nevertheless, it is our view that this Agreement explicitly contemplates that standby shifts will be worked, and for grievances calling for the elimination of those shifts to succeed, given this explicit provision and given the fact that the schedule has now been significantly revised, the union must persuasively demonstrate that the schedule and working conditions will more likely than not result in the possibility of unnecessary risk to the health and safety of its members. It must also show that the employer has not taken reasonable precautions. This evidence need not be given by “experts”, but what evidence is brought forward must be compelling, particularly where the union has, as it has in this case, agreed in the Collective Agreement to the performance of the subsequently contested work.

99Thus, the question whether provisions that would reduce a risk to health or safety are “reasonable provisions” within the meaning of Article 9.1 must be assessed in the collective agreement context in which the question arises. By way of example: if workers who consider themselves underpaid and overworked are statistically more likely to suffer adverse health outcomes than those who do not feel that way, it does not follow that Article 9.1 requires that the employer increase the pay of workers who consider themselves underpaid and overworked. The adequacy of compensation and propriety of workload are to be measured first against what the parties have agreed about those matters at the bargaining table. The focus of Article 9.1 is on whether there are risks to health and safety that are not necessary or reasonable having regard to the nature of the employment. The bargain struck at the bargaining table is an important measure of the nature of the employment. The collective agreement in force when this grievance was filed provided a premium rate of pay for overtime hours worked. That premium rate must be presumed to reflect what the parties considered appropriate compensation for the additional exposure to the inherent or necessary risks of correctional officers’ work that their performance of overtime entailed.

Job Strain and Effort/Reward Imbalance

100The union contends that correctional officers at the Toronto Jail suffered from job strain and effort/reward imbalance and were therefore at greater risk of certain adverse health outcomes. There are several problems with this part of the union’s case. One is that the evidence of job strain and effort/reward imbalance is insufficiently reliable. Another is that the evidence does not establish that there was any reasonable measure that the employer could have taken to reduce job strain and effort/reward imbalance. In particular, the evidence does not establish that job strain and effort/reward imbalance would have been reduced by reducing the number of inmates in the institution or by increasing the number of correctional officers available to work in the institution or by otherwise reducing the amount of overtime worked by correctional officers.

101The two expert witnesses agreed that, to use Dr. Gram’s words,

The Karasek model, the effort-reward imbalance model, and their respective measures (the JCQ, and the ERI questionnaire) represent established and validated models in research settings for measuring characteristics of work organization which are risk factors for (associated with) a variety of adverse health outcomes.

The expert witnesses disagreed, however, about whether the results of Dr. Lewchuk’s survey reliably demonstrated that this workplace had characteristics that created an elevated risk of adverse health outcomes for correctional officers.

102The reliability of the results of Dr. Lewchuk’s survey is adversely affected by the possibilities of selection bias and reporting bias. These methodological weaknesses are described in passages quoted from Dr. Gram’s report in paragraph [76] above. The possibility of selection bias arises from the fact that less than 60 percent of the correctional officers who were asked to do so actually completed and returned the survey. Something pertinent to the outcome may have affected whether an officer responded, so that those who chose to respond may not have been representative of the entire population of correctional officers at the Toronto Jail.

103The purpose for which their answers were sought might also have affected how respondents answered the survey questions. This possibility of reporting bias arises from the fact that this survey was conducted for the purpose of establishing, among other things, the survey respondents’ entitlement to compensation. That fact may have inclined those who did respond to answer differently, more negatively, than they might have done in a research setting in which they had no reason to suppose that they could be advantaged by answering in a particular way.

104The concern about selection bias was not adequately addressed by Dr. Lewchuk. Nothing was done to compare those who responded with those who did not, assess whether officers who chose to respond were representative in material respects of Toronto Jail correctional officers generally. I find that there is a real possibility here that differences in the perceptions and concerns of correctional officers about issues addressed by the survey affected whether they chose to complete and return it, and that therefore its results may not reflect the perceptions of the correctional officer population in question.

105As for reporting bias, Dr. Lewchuk testified that he believed that the survey respondents were trustworthy. Because the officers he had interviewed held a range of views about the union’s opposition to overtime, he thought that effects of the respondent’s biases for and against the union’s position were likely to have cancelled out. Dr. Lewchuk interviewees were selected for him by the union. While they may have had a range of views, there is no reason to believe that the range and distribution of views in that sample was representative of the range and distribution of views of all correctional officers at the Toronto Jail. Accordingly, the interviews seem an inadequate basis for a belief that reporting biases would have a net neutral effect. Moreover, it is apparent from his testimony that in forming his beliefs in this regard Dr. Lewchuk did not take into account the fact that it was not just the availability of overtime that was at stake: the relief claimed in the union’s grievance included compensation for all employees for their having been exposed to the alleged adverse health outcomes and risks of such outcomes for which the survey was meant to test.

106There is no suggestion that the grievance’s existence or the claims being made in it or its connection with the survey were kept secret, and no evidence about what employees at the Toronto Jail were told in that regard. In the absence of evidence to the contrary, it is reasonable to suppose that at least some of those employees were aware of the grievance and the claims being made therein, and would have recognized the possible connection between the grievance and the survey to which they were asked to respond. The survey’s job demand/control and effort/reward imbalance questions were recited earlier in paragraph [69] of this decision. It would not have been difficult for a survey respondent to guess which answers to those questions would be most supportive of the claim for compensation being made by the union on his or her behalf.

107For these reasons I am not persuaded that the survey results are a reliable and representative measure of “job strain” and “effort/reward imbalance” (as those terms have been defined in the literature) experienced by correctional officers at the Toronto Jail.

108Even if the survey results were a reliable and representative measure of “job strain” and “effort/reward imbalance” in this workplace, however, that would not be enough to establish that the employer had breached Article 9.1. Those results purport to show no more than that correctional officers at the Toronto Jail have a higher risk of adverse health outcomes than other workers in other occupations. It is not at all clear from the results and the supporting literature whether the difference in risk is small or large. In any event, the issue under Article 9.1 is not whether employment as a correctional officer at the Toronto Jail carries with it greater risks than does employment in other occupations. The issue is whether correctional officers at the Toronto Jail were exposed to risks that were unnecessary or unreasonable having regard to the nature of their employment as correctional officers or, to put it another way, whether there were reasonable provisions that would have reduced the risk in question by more than a marginal degree.

109The union argues that overcrowding and understaffing created unnecessary risks to health because they resulted in excessive overtime work, that the excessive overtime work created unnecessary health risks and that reducing overtime worked by reducing overcrowding and understaffing would, in turn, have reduced the health risk associated with the excessive overtime.

110Even if they are reliable, the results of the “job strain” and “effort/reward imbalance” components of Dr. Lewchuk’s questionnaire do not establish that excessive overtime created any health risk not otherwise inherent in working as a correctional officer. There is no evidence of how an otherwise similar population of correctional officers who were working significantly less overtime would have responded to the same survey, particularly a survey likewise administered in aid of a grievance that sought compensation on their behalf on the basis of their having been exposed to working conditions alleged to be stressful. Without evidence of the baseline “job strain” and “effort/reward imbalance” scores inherent in the work of a correctional officer, the survey results cannot support a conclusion that a reduction in overtime worked would have led to a significant reduction in “job strain” and “effort/reward imbalance” reported by the affected officers. There is therefore no empirical basis here for concluding that reducing overtime would have reduced the risk associated with those conditions by more than a marginal degree.

111Furthermore, it is not at all obvious that either “job strain” or “effort-reward imbalance” scores would be increased by the working of substantial amounts of overtime in the circumstances revealed by the evidence. Dr. Lewchuk conceded that working overtime increased the reward as well as the effort, and that he could not say what the net effect would be on “effort-reward imbalance.” Job strain focuses on work demands and control. While inmate overcrowding may have created a sense of decreased control over inmates and working overtime increased job demands, the evidence is that working overtime also increased the officers’ control over the times when they worked and the assignments at which they worked, at least for the officers who volunteered to work overtime. Indeed, it was the thrust of the employees’ testimony that management was so desperate to have people at work that officers were also allowed to get away with substandard work effort. It is not at all clear that the net effect of these factors would have been to increase the overall “job strain” score of the correctional officers who worked overtime.

112One of Dr. Lewchuk’s arguments or hypotheses was that the more overtime an officer worked the longer s/he was exposed to the conditions that cause “job strain” and “effort-reward imbalance,” and that this longer exposure increased the likelihood that s/he would experience the sort of adverse health outcomes that are statistically associated with “job strain” and “effort-reward imbalance.” In support of this he said that the literature shows that job strain has a dose effect: that the risk of adverse health outcomes increases the longer (in calendar terms) the employee has been exposed to job strain. However correct this may be, the question remains whether the risk in question is anything more than an inherent risk of employment as a correctional officer, whether there is a “reasonable provision” that would reduce it. The evidence does not establish that the incremental risk of an hour’s exposure to “job strain” or “effort-reward imbalance” is any greater during overtime hours than during a regular hours. Accordingly, there does not seem to be any particular reason to treat overtime hours differently from regular hours in assessing whether there is a reasonable provision that would reduce the risks associated with supposed job strain or effort-reward imbalance.

Long hours of work as a health risk

113I accept Dr. Gnam’s opinion that the literature on which Dr. Lewchuk relies does not support a finding that there is a causal relationship between long work hours and adverse health outcomes. I accept that those who make unhealthy choices about their diet, exercise and sleep are more likely to suffer adverse health outcomes than those who do not. If there is a statistical association between working long hours and making unhealthy choices about diet, exercise and sleep, that does not prove that the effects of the latter are caused by the former in any sense pertinent to the issue before me. In any event, even if working overtime were shown to be a per se health risk there would still be the question whether there is a reasonable provision that the employer was obliged to make in the circumstances, beyond having made the overtime voluntary.

114Whatever may have been said to Dr. Lewchuk during his interviews, no employee has testified before me that s/he worked overtime because s/he felt compelled to do so. This is not a case like Ferrill et al., supra, where employees were being compelled to work a combination of regular and standby shifts that might result in their being at work for 32 consecutive hours. Nor is it like Sim, supra, where an employee complained that being scheduled to work two successive night shifts would adversely affect her health when she also had to attend an arbitration hearing during the daytime hours between the two shifts. In Sim, the employer had told the employee that it would grant a vacation day or lieu day for the first of the two shifts, thus removing the compulsion to work that shift. The Board found that removing the compulsion and granting a requested lieu day was a sufficient response to the grievor’s reasonable concerns for her health.

115During his cross-examination Dr. Lewchuk argued that it did not matter whether the overtime work was voluntary. He suggested that preventing workers from working excessive overtime was like putting guards on dangerous machines to reduce the risk of injury to the operators of the machines. He noted that even if removing such a guard might increase the operator’s productivity and, so, give him an economic incentive to assume the increased risk, we nevertheless require that dangerous machinery be quarded without regard to whether the operator volunteers to operate without the guard. I am not persuaded that this analogy is apt. It is true that when all the costs and benefits are considered, the risks of some activities are so out of proportion to the benefits of assuming them that public policy requires that workers not engage in those activities, even if they volunteer. The evidence before me does not establish that working overtime is an activity of that sort.

116It is not apparent that, as union counsel argues, section 18 of the Employment Standards Act embodies or reflects a public policy standard with respect to health and safety. Apart from the Act itself and certain of the regulations thereunder, there is nothing before me with respect to the motivation of the legislature in enacting that provision.

117Dr. Gnam testified that in his opinion working 80 hours or more per week over a period of several months would probably result in adverse health outcomes. If the evidence had established that officers were claiming entitlement to and consistently working 80 hours or more per week over extended periods pursuant to the existing overtime protocol and that the employer had rejected a union proposal to amend the protocol to so as to preclude such outcomes, then on the basis of Dr. Gnam’s testimony I would have been inclined to find such a refusal to be a breach of Article 9.1. As it is, there is no evidence that the union made any “with prejudice” proposal to amend the protocol in that way, and it is not at all clear that officers were performing overtime to that extent. Officer #6 said he worked 60 hours or more each week. If he could have described himself as working 80 or more hours each week, I believe that he would have done so. I infer that he was not in a position to say that. If he could not say that, then on the evidence before me it seems unlikely that anyone else at the jail could do so.

Long Work Hours and Safety or Security Risks

118One of the union’s contentions is that the effects of overtime work on the correctional officers who performed it, and particularly their resulting fatigue, created safety and security risks for all employees, and that the employer should therefore have taken steps to reduce the amount of overtime worked by reducing its need for overtime work.

119I have no difficulty accepting as a general proposition that a correctional officer who is tired may not perform as well as one who is not, and may be less effective at preventing or responding to security and safety problems. This is so whether the officer’s fatigue results from working overtime hours or from his/her activities away from the workplace. The employer can require that a correctional officer meet a reasonable standard of performance with respect to preventing or responding to security and safety problems. I accept that the employer should enforce such a standard in the interest both of the correctional officer whose performance is in issue and of those who work with her or him. Employees have a concomitant obligation to report unsafe conditions, including the apparent inability or unwillingness of a fellow employee to perform to the required safety standard.

120These propositions are easily stated in the abstract. The difficulty is in the details: what is a reasonable standard and how does one determine in advance whether an officer will be able to perform to that standard? An employee who has never before failed to meet the standard might justly complain if denied scheduled or overtime work to which s/he is otherwise entitled merely because s/he seems tired or is likely to be tired because of his/her recent activities at or away from the workplace. While a fellow employee may be understandably reluctant to challenge the competence of a correctional officer except in a clear case, the same may be said of management, who may fairly expect any such action to the subject of a grievance.

121The employees’ evidence that those who worked overtime were tired comports with common sense, and is entirely credible. I also accept their evidence that officers were sleeping in the staff lounge during their breaks, and were taking longer breaks that was ordinarily permitted. An officer’s sleeping while legitimately on break may raise a concern about his/her fatigue level, but is not itself a safety issue. An officer’s being absent from his/her post on break for longer than the allotted break time raises a performance issue and may also create a workload problem for his/her colleagues. It does not raise a safety issue, however, unless an officer with whom the absent officer was supposed to be working is required by management to perform tasks that would be unsafe without backup from the absent officer.

122Although officer #10 spoke in general terms of believing that officers had to cut corners to get their work done and that supervisors would turn a blind eye if they did, the evidence did not establish to my satisfaction that this belief had an objective basis grounded in the actual behaviour of management. There was no evidence of a supervisor’s having witnessed and failed to deal properly with a breach of standing orders with respect to backup or otherwise. There was no evidence of an officer having been disciplined or threatened with discipline for refusing to perform work that required backup and for which no backup was available or for refusing to perform work that was otherwise unsafe by reason of another officer’s absence or incapacity. Officer #10 did testify that on occasion her partner had nodded off and had to be nudged awake. She testified that this had been seen by other non-custodial staff, but did not claim that it was seen by or reported to any supervisor. Officer #1 testified that on one occasion his partner fell asleep while serving as his backup. He did not testify that this was witnessed by or reported to a supervisor, however, a fact made more significant by his testimony that he had complained to a supervisor when his partner had stayed on break too long.

123The possibility that a correctional officer or officers will fail to perform to a reasonable standard as regards safety and security is ordinarily a problem to be addressed by the employer on a case by case basis as the occasion arises. The evidence does not persuade me that the employer was unable or unwilling to do that, nor that its standing ready and willing to do that was an insufficient response to the possibility that overtime assignments would be sought and accepted by employees who were too tired to properly perform the required duties.

Air Quality

124The fact that employees complained about air quality in the institution is not evidence that the institution’s air handling equipment created a health or safety problem. The consultant’s report in August 2001 identified problems that should be addressed, but characterized them as comfort issues rather than health issues. The report was entered into evidence without challenge. Union counsel did not argue that I should accept the report’s conclusion that there were problems, but reject its conclusion that the problems were not serious enough to be characterized as health issues. Whether the report is accepted or rejected as evidence of the truth of its contents, the evidence before me does not support a conclusion that in matters of air quality the employer failed to make reasonable provision for the health and safety of employees.

Decision

125I have no difficulty understanding why that the union was so concerned about the conditions at the Toronto Jail that it filed this grievance in July 2001. For the reasons I have set out in this decision, however, I am not persuaded that the employer failed to make reasonable provisions for the health and safety of employees at that institution. This finding should not be taken as approval or endorsement of the Ministry’s having allowed the overcrowding to continue or of its having chosen to have so much work performed on an overtime basis by existing staff willing to perform it for premium rates, rather than engage additional staff to perform such work on a straight time basis. My conclusion that this grievance must be dismissed reflects only my recognition that, on the evidence before me, those choices were not precluded by Article 9.1 of the collective agreement.