GSB#2005-3765
UNION#2005-0517-0074
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Warling, Terry)
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
Val Patrick Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Ryan Conacher (October 14 and 21, 2008) and Felix Lau (April 6 and May 11, 2009) Ministry of Government Services Counsel
HEARING
October 14 and 21, 2008 April 6 and May 11, 2009.
DECISION
1The grievor is a correctional officer at the Metropolitan Toronto West Detention Centre (hereafter, “the institution”). In March 2005, he was reassigned from a property officer post to another post in the institution in order to accommodate his family responsibilities. Eight months later he asked to be reassigned to the property officer post. Instead, the employer assigned him to another post. He says that was a breach of a local Post Rotation Protocol, and that it amounted to discrimination on the basis of family status, contrary to the Ontario Human Rights Code and Article 3 of the collective agreement. He also says that the employer’s actions created a Poisoned Work Environment and resulted in his being ridiculed by his fellow officers, which caused him stress. He further alleges that he was deprived of opportunities to work overtime as a result of having had to ask for accommodation when his request to return to the property officer post was denied. He seeks compensation for lost overtime opportunities and punitive damages for the alleged breach of his human rights.
2The union called one witness: the grievor. The employer called two: Dave Marsh and Marlene McKee. Mr. Marsh was Deputy Superintendent Operations at the institution from roughly June 2004 to June 2006. Marlene McKee is an Operational Manager at the institution. Between April 2004 and April 2006 she was a Staff Services Manager, whose duties included assisting employees with accommodations and dealing with attendance and attendance management issues, WSIB claims and facilitating returns to work.
3The grievor’s wife was struck by an automobile in July 2004, while she was still on parental leave from her own job as a correctional officer. Her injuries left her almost totally unable to care for their then eight month old baby and two other young children. Consequently, the grievor was needed at home, but still needed to work to provide income for his family.
4The grievor had been assigned to one of two property officer posts in the west wing of the institution at some time in early 2004.1 Officers assigned to those posts normally worked five 8 hour morning or afternoon shifts per week, Monday through Friday. Shift hours were described in evidence as being 5:30 a.m. to 1:30 p.m. and 1:30 p.m. to 9:30 p.m. at first, and 6 a.m. to 2 p.m. and 2 p.m. to 10 p.m. at some later point in time. There is no night or weekend work in the property officer posts. Special training is required for those who serve in those posts, and day to day continuity in the identity of those serving in the posts is very important. If one of the two officers assigned to these property officer posts is absent from his scheduled shift for any reason, the other property officer is the first to be offered the opportunity to work the shift on overtime.
5After his wife was injured, the grievor asked for accommodation of his increased family responsibilities. The first such accommodation was made in October 2004. With the cooperation of the other west wing property officer, the grievor was assigned to work as property officer on both 8 hour shifts on Mondays and Wednesdays (that is, 16 hours’ work on each of those two days), and a single 8 hour day shift on Fridays. This arrangement continued (except during the grievor’s various absences) until March 2005. By that time management had concluded that the arrangement was problematic and unsatisfactory from a continuity point of view, both because of difficulties in filling the property officer shifts that the grievor was not scheduled to work, and because the grievor was frequently absent from his scheduled shifts due to his problems at home.
6Mr. Marsh and the two operational managers in west wing A & D (of which the property officer post was a part) discussed this with the grievor at a meeting in March 2005. In light of their concerns, the grievor agreed to being assigned to another post (presumably one for which regular attendance was less critical than it was in the property officer post) with work hours that accommodated his family responsibilities. Management “left the schedule to me,” as the grievor put it in his examination in chief.
7The union takes the position that there was agreement at this meeting that the grievor would be returned to the property officer post when he no longer required accommodation. This claim is disputed, and the evidence in support of it is unclear.
8The grievor was asked in chief if he was “replaced” in the property officer post at that point. He answered that John Moore, a classified officer who had once been assigned to the post, would take his place “until I was ready to come back.” He testified that “this was confirmed with Moore by myself.” At later points in his testimony he spoke as though there had been an agreement that he could return to the property officer post when he no longer needed accommodation, but he never expressly stated that it was management who had agreed to this (rather than, or in addition to, Moore). The union’s representative subsequently put it to Mr. Marsh in his cross-examination that “if needs be Terry would testify” that he was told in the March meeting that he could go back to the property officer post when he no longer needed accommodation. Mr. Marsh denied this. Mr. Marsh answered that he would not have ruled out a return to property, but would not have promised that the grievor could return. The grievor was not recalled to testify in reply.2
9In May 18, 2005, the grievor’s wife had a major operation on her leg. The grievor requested a special and compassionate paid leave under Article 25.1 of the collective agreement, in order to care for his wife and their children during her recovery. He was accommodated with paid leave from May 19, 2005, for a period that was apparently supposed to end at the end of June 2005.
10The grievor returned to work July 18, 2005 after Ms. McKee received this email message of July 14, 2005 from him:
I am prepared to return to work on Monday July 18. If it is possible, I need to return on a modified schedule. We have retained a student to help with Nicole and the children during the day Mon to Thurs until 1700 Hrs. Would it be possible to work 6 - 4 on those days. This would be for about 4 months.
Ms. McKee responded that he would be put on the work schedule commencing July 18, 2005, with the work schedule he had requested. His paid leave was subsequently extended, retroactively, to cover his extra two weeks’ absence in July.
11On November 15, 2005, the grievor submitted the following Occurrence Report to the institution’s Superintendent, Mr. Greer:
Subject: Schedule (Property Officer)
Sir, on June 16, 2004 I was assigned to Property in West Wing A&D, Metro West Detention Centre. At this time I was required to take a leave of absence to tend to a family emergency. Once I returned to work I required accommodations for my work schedule. It was understood that once I no longer required the accommodation I would return to the position of Property Officer as soon as possible. I have made a verbal request to return to my position and I have been informed that it would not be possible. I would now like to make a written request to return to the position of Property Office as soon as possible. If this is not possible please give a response in writing.
I would like to add that at no time have I received a re-assignment letter indicating I am no longer assigned to Property Officer.
The grievor did not testify about the “verbal request” to which this document refers.
12Thereafter, the grievor received the following memorandum of December 1, 2005 from Mr. Marsh:
Mr. Warling I am in receipt of your occurrence report in which you state you did not receive a reassignment letter when you left property. You in fact did; because you are on an accommodated schedule your reassignment was done with the Staff Services Manager to provide you with an accommodation.
If you have any questions about this do not hesitate to contact me.
The grievor does not claim to have asked Mr. Marsh any questions about this.
13On December 6, 2005, the grievor sent this message by email to Ms. McKee:
Hi Marlene, just to let you know I have submitted an occurence [sic] report to Mr Marsh requesting my Property Position back. If you recall I had to leave the position to go on an accomodated [sic] schedule to assist at home. FYI.
She responded
Hey
I remember you going on the special schedule-but I wasn't aware you longer need it?
Please advise when/if the accommodation plan is changing
He replied
Marlene, I Informed Mr Marsh on Nov 15, 2005. I have asked to return to the schedule prior to my accommodation.
She answered (on December 7, 2005)
Ok- I wasn’t aware of that until now
14It appears that that exchange was copied to Mr. Marsh, because it was quoted in a message he sent to Ms. McKee on December 7, 2005, in which he said
That is what I thought.
She responded
So what are you gonna do with him-we will need to done [sic] something as the holidays are past [sic] approaching for Ber
He replied
Marlene what is your process for staff coming off accommodation & the area they left has already been filled?
She answered (still on December 7)
I don't know -have never taken anyone out that way- he was not medical -he was family -so he can come off the accommodation any time he wants
15Thereafter, the grievor received the following memorandum from Mr. Marsh dated December 8, 2005:
Mr. Warling I am in receipt of your occurrence report dated November 15, 2005 in which you say you have completed your accommodation. Effective Monday January 9, 2005 you will be assigned to the East Wing General Duty/Segregation schedule.
Please see Ms. E. Berezowsky Scheduling Manager for your schedule.
If you have any questions about this do not hesitate to contact me.
16Mr. Marsh was asked, both in chief and in cross-examination, why he made this assignment rather than the assignment that the grievor had requested. He had no current recollection, more than three years after the event, of what he had considered at the time. He answered by describing what he would have considered. He said he would have looked at where there were openings and what would be suitable. As for the grievor’s preference to return to the property officer post, he said that preference would have been taken into consideration but that would not mean he would get it. In that regard he noted that the grievor had already done a stint in property. The person who replaced him would not have been in the post long, he said, and would have been entitled to an opportunity and was not “due to come out.” He could not remember which officer was in the post at the time, nor whether that officer was an unclassified employee. The grievor’s testimony on that point was that the officer then assigned to the property officer post in question was an unclassified officer, someone other than Mr. Moore.
17On December 15, 2005 the grievor filed the grievance now before me. The “Statement of Grievance” is:
I grieve that the employer, the Ministry of Community Safety and Correctional Services, has violated Article 2 but not limited to, the current collective agreement as it relates to internal reassignments.
The space on the grievance form under “Settlement Desired” is blank.
18A month after Mr. Marsh told him of his assignment to East Wing General Duty/Segregation, the grievor sought another accommodative work schedule in an email message dated January 9, 2006, to Ms. McKee:
Hi Marlene, Yesterday I recieved [sic] a new schedule from Ms Berezowsky, it appears I have been moved from Male Admitting property and put onto the East Wing General Duties/Seg schedule. I never asked for this particular schedule and wish to remain on the west wing. However, I require a new accomodated [sic] schedule for family responsibilities. I need to work 6-2 Mon to Fri starting jan 9 then afternoons 2-10 the week of the 16. After that I need to alternate days to afternoons each week.
The schedule I have been given currently has me working 7-3 Mon to Fri starting on the 9th. Sorry for the short notice but as I said I got my schedule yesterday.
Ms. McKee responded that his accommodation had begun in July 2005 and that she did not have the authority to extend an accommodation beyond 6 months, so he would have to “prepare a case to Mr. Greer requesting an extension of your accommodation.”
19On January 12, 2006, the grievor sent Ms. McKee an email message containing the following:
Mr. Paul Greer Jan 12, 2006 Superintendent Metro Toronto west Detention Center
As per my conversation with Ms. McKee, I have been asked to supply further information pertaining to my need for accommodation under the Ministry's Family responsibilities Policy.
I require an accommodated schedule to assist at home with the daily parental responsibilities regarding my three children under the age of 6, and to assist my wife who is currently receiving disability insurance due to a car accident in July 18, 2004. My wife and I have no assistance available to us and cannot afford to hire any help due to the financial restrictions we face. Since her accident in 2004 she has been at a reduced salary and I have been on an accommodated schedule not able to perform any overtime or work any statutory holidays.
The schedule I require is straight 8 hour shifts that would allow me to help with the various family responsibilities such as taking my children to or from the bus stop, and several other extra curricular activities they are involved in. Before my wife's accident I was assigned as Property Officer working alternate weeks of 6 -2 and 2 - 10. I have been informed that the position has been filled, however, it still remains the best suited schedule for our current needs. The schedule I require works with the daily operational needs of the institution and allows me to assist with the many needs at home.
20The employer also received a letter dated January 16, 2006 from the grievor’s wife’s physician, captioned “Regarding: Warling, Terry.” In it, the doctor briefly described Ms. Warling’s injuries and consequent inability to fully care for her three children and her need for assistance in some of her daily activities. Significantly, the letter stated that
It would be my recommendation that her husband only work eight-hour shifts and no more than 40 hours a week so that he would be able to help his wife and still support his family.
There is no suggestion that the grievor was unaware of the doctor’s letter or its contents, or uninvolved in causing it to be sent. It clearly formed part of the request for extended accommodation that the Superintendent subsequently granted.
21When it was put to the grievor that the doctor had recommended that he only work 8 hours per day, 40 hours per week, he first answered that this was her “attempt to provide medical information to get me back to the property officer position; the property officer position is 40 hours per week.” When it was again put to him that the letter had recommended that he work “no more than forty hours per week” his answer was simply “no.”
22In argument, in answer to the obvious difficulty this letter creates for the grievor’s claim that he could have worked overtime, the union’s representative suggested that this letter had been a well-meaning but inaccurate description by the doctor of the accommodation that the grievor was seeking. Be that as it may, there was no evidence or suggestion that the grievor ever advised the employer that the letter from the doctor was inaccurate or did not reflect the accommodation that he was then seeking.
23Thereafter Mr. Marsh assigned the grievor to west wing Admitting & Discharge. He was given the work hours he asked for, but not in the property officer post.
24On February 28, 2006, the grievor wrote another Occurrence Report to Superintendent Greer:
Subject: Stage 2
Sir, this report will serve to inform you that I have not had a stage 2 meeting pertaining to my grievance dated December 15, 2005. I would like to meet with you to discuss how the Poisoned Work Environment I am being exposed to is affecting my overtime and loss of Statutory Holidays. This officer finds it difficult to work under conditions management has created and hope to meet with you to discuss them as per stage 2 of the Collective Agreement.
No stage 2 meeting was held with respect to this grievance prior to its being referred to arbitration. The grievor did not file a grievance about the alleged “Poisoned Work Environment” or its alleged effects on overtime or “loss of Statutory Holidays.”
25The grievor testified that overtime was an “inherent part of the job” of a property officer, and that there had been three officers in the property officer post since he left it who had made over $100,000.00 per year. While it is reasonable to assume that an officer who earned that much income must have worked overtime, no evidence was led to identify the posts in which those overtime assignments had been performed by those three officers, nor the hours of the day or days of the week when they worked those assignments.
26Mr. Marsh was asked how much overtime would have been available to a property officer. He observed that property officer work would not be needed outside the regular work hours of the property officers, so the availability to a property officer of overtime work in property would be limited to the times when his partner booked off. He noted that property officers are eligible for overtime generally, just as other officers are, and that the opportunities for overtime were “huge” if the opportunities in the rest of the institution were factored in. There is no evidence before me about who would have been in the other west wing property officer post if the grievor had been assigned to one of those posts at the relevant time, nor about how often, if at all, that officer had “booked off” thereafter.
27The relevant overtime protocol required that any officer seeking overtime signify in writing, in advance, the times when he or she was available to perform overtime. The grievor did not do that respect of the period for which he now claims compensation for alleged lost overtime opportunities. He testified that he did not do so because he was “told” that he was not allowed to work any overtime at all if he was on an accommodative schedule. He said that from November 2005 on he had a baby sitter arranged for up to 16 hours every weekday, so in addition to the eight hour morning or afternoon shift for which he would have been scheduled in the property officer post he could have performed overtime during the other eight hour shift each weekday. There is no evidence that he told the employer of these babysitting arrangements nor, as I have noted, that he advised the employer that he was available to work during hours other than the specific hours for which he asked to be scheduled.
28As for how or by whom he was “told” that he was “not allowed” to work overtime, the grievor first testified in chief that “it clearly states on the accommodation agreement that I had to sign that you are not allowed to work overtime if you are on an accommodated schedule.”
29If there was a written agreement or plan with respect to the accommodation that the grievor received in response to the request in January 2006, it was not entered into evidence. There are only two such documents in evidence. One is the accommodation plan made in October 2004. It says nothing about overtime. The other is an accommodation plan that provided for “a modified work schedule” for the grievor for a period beginning January 1, 2007, about a year after the accommodation plan to which the grievor referred. The 2007 plan contained the following notation:
THIS ACCOMMODATION WILL AFFECT YOUR ABILITY TO WORK OVERTIME, IF YOU REQUIRE SPECIFIC DAYS OFF AS PART OF YOUR ACCOMMMODATION, YOU ARE NOT ELIGLBLE [sic] TO WORK OVERTIME ON THOSE SPECIFIC DAYS OFF. IF YOUR ACCOMMODATION SPECIFIES THAT YOU CAN ONLY WORK A CERTAIN SHIFT YOU ARE NOT ELIGIBLE TO WORK OVERTIME ON ANY OTHER SHIFT.
As I note later, this clearly does not say what the grievor claims he was told.
30At another point in his testimony the grievor said that Ms. McKee had told him he was not allowed to work overtime. During her testimony Ms. McKee was asked whether she had told the grievor anything about not working overtime. She said she could not remember doing so, but might have said the sort of thing that was later incorporated into the standard accommodation plan form – referring to the January 2007 plan from which I have quoted the pertinent passage in the previous paragraph.
31The grievor introduced into evidence a written record of an interview he had on January 22, 2007 under the Attendance Support Program. The record is signed by the grievor and the manager who interviewed him (Ms. McKee’s successor). The following appears under “Employee Comments”:
Mr. Warling claims that his sick time is attributed to the stress that he is under caring for his wife who is recovering from several operations.
Under “Assistance Requested/Provided/Referred” the record states:
Mr Warling is currently on a [sic] accommodation for his schedule. Mr Warling has had several accommodations to adjust his schedule to help him be at home on a regular basis to help care for his wife and young children. Due to Mr Warling's accommodations he has been limited in the amount of overtime he can work.
Mr. Warling testified that the last sentence “clearly reflects” that he “could not work” any overtime while on an accommodative work schedule.
32The words “could not work” are ambiguous in the circumstances. They could mean either “not able to work” or “not permitted to work.” The grievor now uses them in the later sense. There is no indication that he told the employer he was using them that way in any of his communications about his limited overtime work. The words quoted in paragraph [29] above, which are the words Ms. McKee says she might have used, did not say that an employee’s receiving any accommodation whatsoever would result in the employee’s being ineligible to work any overtime at all. The meaning of those words is clear: if you say that accommodation of your needs requires that you not be scheduled to work during specific hours of the day or on specific days of the week or for more than a certain number of hours per week, and you are accommodated on that basis, you will not be treated as eligible to work overtime during those same hours of the day or days of the week, nor if the overtime would result in your working more than that number of hours per week. In other words, ineligibility to work overtime may be logical consequence of the representations on which a request for an accommodative work schedule is based and approved, but is not an arbitrary precondition to receiving any accommodation whatsoever.
33In the context of the grievor’s request for accommodation in January 2006, particularly the doctor’s letter sent in support of it and the grievor’s requests for very specific work hours, the employer would have understood that the needs for which the grievor sought accommodation required that he not work more than the hours he specifically asked for. Consequently, when he told the employer he had been limited in the amount of overtime he could work while being accommodated, that would have been understood to mean that the needs for which he had sought accommodation also precluded him from working overtime. There would have been no reason for the employer to suppose that the grievor suffered from the misconception that emerged in his testimony.
34The grievor testified that his attendance in early 2006 was “very poor” because of the stress of working in a “poisoned work environment.” When asked what he meant by “poisoned work environment,” he testified that management had not returned him to Property and had given the post to a casual employee. He added that he had been embarrassed, and ridiculed by his co-workers, because the employer would not return him to that post. When asked in cross-examination for the names of those who had ridiculed him, he answered that there were “so many I can’t recall.” He said the ridicule consisted of their laughing behind his back, saying that it must be that a better man got the job, things like that. Asked if he had seen his doctor about the stress he claimed this had caused, he said he had. Asked if he had submitted medical reports to the employer about this, he answered that he had not been asked for any – from which I take it that the answer to the question asked is “no.”
35The grievor agreed in cross examination that he had been off work “sick” for 106 days in 2006, and nearly as many days in 2005, but was quick to add that “a majority of those days” were “documented” with “medical reports.” When this is considered together with his answer that he had not submitted any medical reports concerning the effects on him of the alleged ridicule by co-workers, the natural conclusion is that in 2006 he had a great many absences from his scheduled work that were due simply to the impact on him of his family situation. Indeed, he testified that his absences were due to the fact that he had been “mentally incapable” of performing his duties at work “due to what was going on at home.” He acknowledged that the original reason that he had been moved out of the property officer post was concern about the impact on continuity of his missing a lot of scheduled shifts due to his family responsibilities.
36It is common ground that the “Post Assignment Protocol” on which the union relies was signed by the then Superintendent and then local union president on February 21, 2001. It reads as follows:
POST ASSIGNMENT PROTOCOL
STATEMENT:
The "post assignment protocol" is a process to ensure fair staff rotation within a compressed work week schedule. The overlying principle was agreed upon in the general terms of the compressed work week outline. Negotiation of the protocol occurs separately, in order that it may be adjusted as appropriately and when mutually agreed by both parties.
Rational: [sic] During the schedule negotiations, it became apparent that some schedules encountered midnight shifts and "C" shifts more often than others. It was agreed by all parties that some sort of process of rotation should exist in order to provide an acceptable level of fairness.
Governing Principles:
Two years was agreed upon as a reasonable work assignment period before the posting can be reassigned to another employee. This date will be called a "trigger date".
In a binder divided by areas, a sheet for each employee is to be kept with the date that their assignment began,
Note: Individual sheets may contain information regarding accommodation, etceteras, in which case there may not be a "trigger date". The sheets should be kept in ascending order, by trigger date. (That means a new employee to the area would have their sheet placed at the bottom).
Areas of Division
Female Control
Male Control/Lobby
General Duties / Segregation
General Duties
6/7 Floor, 4C
Seg/Health Care Unit
Female A & D
Male A & D
Female Property
Male Property
Special Needs
South Wing
East Wing Cleaner
West Wing Cleaner
Laundry
When an internal post-assignment request is received, the area Deputy Superintendent will check the binder for the person who has exceeded their trigger date. If not [sic] one has reached that date the request will be stored until the trigger date has been exceeded. The requests for reassignment will be kept separate from the sheets of individuals already assigned to the area.
Those who have never been assigned to the area before will be given greater consideration.
Next weight given to first come, first serve application.
Rational: [sic] Fairness to ensure that waiting applications eventually lead to results, once trigger periods are reached, and that no new applications can "jump the que". [sic]
If the "weights" described above are equal, seniority to be the next qualifier. It is not the intention of this protocol that the low senior people be lumped into undesirable areas, nor for the highly senior people to be lumped into desirable areas.
After a trigger date is reached, and a change made, old sheets will be removed and forwarded to the personnel file.
It is recognized that the accommodation of employees takes priority over assignment, and may lengthen trigger dates for some.
It is recognized that it may not be suitable for some assignments to take place. It may be necessary for gender to be considered to ensure the appropriate number of same-sex staff for offenders and in some cases, the assignment may be deferred by management and an explanation will be provided to the employee concerned.
An employee currently assigned to an area may not put a request in for the same area once their trigger period passes. They are available for transfer and will not use this process in an attempt to guarantee their current position.
The trigger date will include any accumulated time already spent in a given area when this protocol is implemented.
The request for reassignment may be employee or management initiated.
37While the employer conceded at the outset that the signatures on this document were those of the individuals who would have had the authority to enter into an agreement of this sort, it did not concede that the agreement was enforceable as of November 2005, when the union says it was breached. In that regard, Mr. Marsh testified that he had made between 50 and 100 post assignments during the period June 2004 to June 2006, but had never seen or heard about this protocol. No one had ever suggested to him that it governed the assignments he made. Some of the officers affected by his assignments decisions had been unhappy with them, he said, but none had raised this protocol with him. Indeed, none of them had grieved.
38It was put to Mr. Marsh in cross examination that people can remain in a post for years. He agreed that that would be so if no one else applied for the post and the incumbent agreed to stay. In practice, he said, the limit was two to three years.
Analysis
39“Property officer” is not a position, it is a work assignment or “post.” The grievor’s position was correctional officer. He remained in that position throughout. Article 2 of the collective agreement acknowledges the employer’s rights to, among other things, “assign and direct employees,” subject only to the provisions of the collective agreement. In the context of correctional officer work assignments, the Board has said it has no jurisdiction to review the exercise of that exclusive management right unless the assignment cloaks discipline or is arbitrary or discriminatory: Kreider, 1986-1202 (Barrett), McKinnon, 1989-1496 (Stewart). The exercise of that right is also reviewable, of course, to determine whether it is consistent with the requirements of the Ontario Human Rights Code and Article 3 of the collective agreement.
40When an employee’s limitations can be accommodated in more than one way, the employee is not necessarily entitled to the solution he or she prefers. It is enough that the accommodation offered by the employer is reasonable, having regard to legitimate operational considerations as well as the consequences for the employee of the accommodation offered. An employee who needs accommodation cannot always expect a perfect solution: Hyland, 1991-1470 (Petryshen).
41Without disputing that “property officer” is a post, not a position, the union argues that the grievor had a right to return to that post when he asked to do so in November 2005. It says that right arose either from the promise it alleges that management made to him in March 2005, or from the provisions of the 2001 Post Assignment Protocol. It also argues that when the grievor was first assigned to the property officer post in 2004 he had an expectation of remaining in it for at least two years, an expectation that arose either under the protocol or pursuant to the practice to which Mr. Marsh referred in his testimony. In that context, it says, the failure to return him to that post in November 2005 was a breach of his rights under Article 3 and the Ontario Human Rights Code, because but for his having earlier required accommodation of his family responsibilities he would still have been in the post in accordance with that expectation.
42The employer asks me to find that management did not promise in March 2005 that the grievor would be returned to the property officer post when he no longer required accommodation. It says the union was estopped from enforcing the 2001 Post Assignment Protocol by its failure to ever raise the protocol with Mr. Marsh during his tenure as Deputy Superintendent Operations and, further, that the protocol did not afford the grievor the right claimed in any event. It submits that the grievor’s reassignment in November was reasonable in the circumstances, that there was nothing accommodative about the duties of the property officer post, as opposed to its hours of work, and that the grievor’s family responsibilities were fully and reasonably accommodated throughout. Accordingly, it says, it did not breach the collective agreement by deciding not to assign the grievor to the property officer post in November 2005. It argues in the alternative that if there was a breach, the breach caused the grievor no economic loss, and in particular caused no loss of overtime opportunities, so any remedy for the breach should be limited to a declaration.
43I am not persuaded that the employer made any promise to the grievor in March 2005 that he would inevitably return to the property office post when he no longer needed accommodation.
44The grievor’s own evidence about the alleged promise is unclear, as I have already noted in paragraph [7]. Moreover, it is evident that the grievor’s perception of past events is strongly affected by self interest. The best example of this was his denial that the January 2006 letter to the Superintendent from his wife’s doctor recommended that he work no more than 40 hours per week, as it very clearly did. There is also his misimpression that words like those quoted in paragraph [29] meant that no one who was being accommodated in any way could ever work any overtime at all, rather than that someone whose accommodation purportedly required that he not work certain hours could not logically be eligible to work those same hours at overtime rates.
45Mr. Marsh said that he would not have made such a promise. His inability to recall details of his dealings with Mr. Warling more than three years later is not surprising. He candidly acknowledged that inability, when feigned recollection might have seemed more in his employer’s interest. It is inherently unlikely that a manager would make the sort of open-ended, unqualified promise that the union says the grievor was given at the March 2005 meeting. I accept the testimony of Mr. Marsh that while he would he would not have ruled out a return to property, he would not have promised that the grievor could return.
46The employer conceded that those who signed the Post Assignment Protocol in 2001 were authorized to enter into such a local agreement. There was no suggestion that this agreement had been brought to an end (or not renewed when the parties’ collective agreement was renewed) either by agreement of the parties or by operation of law, before Mr. Marsh made the decision in question here.
47The employer argues that by the time Mr. Marsh made that decision, the union had become estopped from enforcing the 2001 protocol. It says this estoppel arose from the union’s failure to raise the protocol with Mr. Marsh between June 2004 and December 2005, despite the many reassignment decisions he made in that period. The difficulty with this argument is that there is no suggestion that any of those decisions could have been perceived as inconsistent with the terms of the protocol. Consequently, there is no evidence that the union ought to have known that Mr. Marsh was disregarding the protocol, or had any reason to care whether he was or not. In short, there was no reason for the union to have raised the protocol with Mr. Marsh, so its having not done so cannot be treated as a representation by conduct that it would not enforce the protocol. Absent such a representation, there could be no estoppel.
48I am not persuaded, however, that the provisions of the protocol themselves gave the grievor a right to return to the property officer post in November 2005.
49The express purpose of the protocol is to ensure that officers are fairly rotated among the post assignments, because some assignments involve more night and weekend work than others. It is an undertaking by the employer to balance the competing interests of employees who are capable of performing the assignments. The protocol says how long it would ordinarily be fair for someone to remain in a post, notwithstanding the interest of others in being assigned to it. It describes the factors to be considered in resolving competing claims for assignment to a post that has come due for reassignment. Accommodation is identified as a consideration that might lead to an officer’s remaining in a post longer than usual, but the protocol itself says nothing about whether the beneficiary of an accommodative reassignment can later have the reassignment reversed, despite the competing interests of other employees, particularly those of whomever the employer may have assigned to the post in the meantime.
50The union argues that even if the terms of the protocol alone did not afford the grievor the right to return to the property officer post, the expectation it creates is the foundation for an argument based on human rights considerations: but for the grievor’s need for accommodation of his family responsibilities he could have expected to remain in the property officer post beyond March 2005, so when the accommodation that took him out of the property officer post at that time later became unnecessary, the employer was obliged to restore him to that post. This obligation is said to arise from the prohibition in the Ontario Human Rights Code (“the Code”), and in Article 3 of the parties’ collective agreement, of discrimination because of “family status.”
51Since this assumes that the grievor has no need for accommodation when the employer becomes obliged to assign him to the property officer post, it seems to be an argument that when the employer accommodated the grievor’s inability to properly attend to the duties of the post in March 2005, by assigning him to another post in which uncertain attendance would be less problematic, the accommodation should have included an undertaking that he would be returned to the post if and when he no longer required accommodation.
52The extent to which human rights legislation obliges employers to accommodate their employees’ family responsibilities is not well settled, as appears from a decision cited by the union in argument: Johnstone v. Canada (Attorney General), 2007 FC 36 (appeal dismissed sub. nom. Canada (Attorney General) v. Johnstone, 2008 FCA 101). It was central to the union’s position in this matter that the difficulties that the employer undertook to accommodate for the grievor under its own policies were difficulties that it had been obliged by the Ontario Human Rights Code to accommodate. Although the employer disagreed with the union about whether its accommodations had been inadequate or unreasonable, it did not separately challenge the premise that the grievor’s circumstances had given rise to an obligation to accommodate under the Code. In what follows I have assumed that that premise is true, without having had to decide whether it is.
53The union’s representative put it to Mr. Marsh in cross-examination that the grievor had “announced” in his November 15, 2005 Occurrence Report that he “no longer needed accommodation.” Mr. Marsh accepted that that was so. The subsequent cross-examination of Mr. Marsh about his decision proceeded in that light. I therefore begin by assessing the union’s accommodation argument in that light.
54Mr. Marsh testified that in considering whether to assign the grievor to the property officer post again he would have considered the interests of the person then in the post, and particularly the fact that they had not been in it long enough to be “due to come out.” It is apparent from one of the messages Mr. Marsh sent to Ms. McKee on December 7, 2005 that he was concerned at the time that the “area” had been filled. It is also apparent from the grievor’s subsequent request for accommodation that in discussions about his request for assignment to the post he had been told that the property officer post had been filled. Accordingly, I accept that Mr. Marsh did consider that factor.
55Giving weight to the shortness of time that the then incumbent had been in the post was entirely consistent with the apparent purpose of the Post Assignment Protocol by which the union says Mr. Marsh should have been governed. It was also consistent with the practice Mr. Marsh says he followed of generally allowing officers to remain in their posts for a period of time. As for that incumbent’s having been a casual officer (that is, an unclassified employee), Mr. Marsh testified that there was a practice in the institution of assigning such officers to “online positions” on a full-time basis. While he agreed in cross-examination that casuals would not be permitted to bump classified officers, he disagreed (correctly, in my view) with the suggestion that leaving the casual in the post amounted to bumping a classified officer.3
56While the union argues that Mr. Marsh’s assignment was substantially disadvantageous to the grievor, I am not persuaded that it would have been so for an officer who no longer needed accommodation.
57There is no indication that the grievor’s hourly rate or regular pay would have been any less in the assignment he was given than in an assignment to the property officer post. I am not persuaded that someone who needed no accommodation in his hours of work would have had any fewer opportunities to work additional hours on overtime than he would have had in the post he wanted. The assigned post had some night and weekend work as part of the regular hours, while the property officer post did not. That would make the latter more attractive for most people, but that is why posts are rotated. Between the property officer post and his subsequent accommodative schedule, the grievor had had no night or weekend work for nearly two years. For an officer with that scheduling history who now required no accommodation, having to spend time in an assignment with night and weekend hours was simply part of the job, and could hardly be described as disadvantageous in any sense pertinent to the issues here.
58Viewed in the light cast on it by the union’s own characterization of the grievor’s request in November 2005, I cannot say that Mr. Marsh’s response to that request was arbitrary or discriminatory. Viewed in that light and in the context of all the accommodations the employer had made for the grievor up to that point, I do not agree that either the absence of an unqualified promise in March 2005 to return him to the property officer post later, or the employer’s subsequent decision not to put the grievor in that post when he apparently no longer needed any accommodation, was itself a failure to reasonably accommodate the grievor’s previous family responsibilities.
59As it happens, and despite his announcement to the contrary, the grievor did still need accommodation. He acknowledges that. Indeed, that is why he says the assignment he was given in December 2005 was disadvantageous to him: it involved night and weekend work, and he felt he still could not be absent from home during those hours due to his family responsibilities. He claims he was not really saying that he had no need for accommodation, but only that he would not need accommodation in his scheduled hours of work if he were reassigned to the property officer post. That may be what the grievor thought, but it is not what the employer quite properly understood him to have said in November 2005.
60The employer heard what the union’s representative put to Mr. Marsh that he had heard: an announcement that the grievor needed no further accommodation. That interpretation was reasonable, and supported by the surrounding circumstances. In that regard it is noteworthy that the grievor did not make his request for reassignment to Ms. McKee, the person with whom he was expected to have dealings about accommodative schedules. When she asked if there was to be a change to his accommodation plan, he essentially ignored the question and told her he was dealing with Mr. Marsh. All this was known to Mr. Marsh when he made his decision. It is only when the grievor did not get the property officer post back without claiming further accommodation that he revealed his ongoing need for accommodation.
61Had the grievor actually said in November 2005 what he claims he meant, if he had said that he still had problems at home and could do no night or weekend work, but was capable of working either or both of the property hour shifts each day, then the outcome would undoubtedly have been different. When he did ask for accommodation he got it, not by reassignment to the property officer post but by assignment to another post with the hours he asked for.
62It is noteworthy that even when he asked for accommodation in January 2006 he did not say that on any given day he could work either or both of the shifts that property officers worked. He led the employer to believe that he could only work one or other of those shifts on weekdays, and only for 40 hours per week in total. He was given a schedule that fit those requirements, albeit in a post other than the property officer post. Again, this was a reasonable response to what he said he needed. There was nothing accommodative about the duties of the property officer post. As his own submission to the Superintendent said, it was the post’s work schedule that made it suitable for his needs.
63Had the grievor claimed at that point both that he still needed accommodative hours of work and that something other than that need entitled him to the property officer post, the employer might have sought assurance that his ongoing difficulties at home did not also require ongoing accommodation of absenteeism of the sort that had had led to his removal from that post in March 2005.
64As subsequent events proved, he did. He was given the work hours he asked for in 2006, and he was still repeatedly absent during those hours due to “illness.” Accepting for purposes of this analysis that those were genuine illnesses that resulted from his family responsibilities, as he claims, it follows nevertheless that the accommodation that he actually required by reason of the impact of his family responsibilities was not just assignment of particular hours of work but also tolerance of substantial absenteeism during those hours. As the grievor himself accepted in March 2005, substantial absenteeism could not be tolerated in the property officer post. Had he been reassigned to that post when he asked, his subsequent absenteeism would most likely have brought that second assignment to that post to an early end.
65In this regard there was a faint attempt to blame the grievor’s absenteeism in 2006 on the employer’s failure to make the requested assignment, by linking that failure to alleged ridicule by co-workers and the stress that ridicule allegedly caused him. That claim is undermined by the grievor’s apparent inability to name those who had so harassed him, and by the absence of any evidence that he brought the alleged harassment to the employer’s attention so it could put a stop to it. The employer can hardly be liable for the consequences of co-worker harassment if it knows nothing about it and the alleged victim fails to report it, and that is so notwithstanding the employer’s troubling and short sighted failure to conduct a stage two meeting with respect to the December 2005 grievance. In any event, I am not persuaded that the alleged harassment can be strongly linked to the grievor’s very substantial absenteeism in 2006, in view of the testimony to which I have referred in paragraphs [34] and [35] above.
66If the grievor was in fact willing and able to work overtime, he denied himself those overtime opportunities. He did so in one or both of two ways: by misunderstanding the connection that the employer had made between accommodation and overtime limitations and/or by seeking and obtaining accommodation on a basis inconsistent with his having been willing and able to perform those overtime opportunities. His misunderstanding was not caused by the employer, nor would it have been apparent to the employer, so it could not be liable for any adverse consequence that the grievor’s misunderstanding caused him. Similarly, the employer cannot be liable for the consequences to the grievor of his having induced or permitted it to think that he was more restricted in his availability for work than he now claims he was.
67For those and other reasons, if I had concluded that the employer had somehow breached the collective agreement by not returning grievor to the property officer post in November 2005, I would not have awarded any monetary compensation but might have gone beyond a declaration and considered an “in kind” remedy that would give him a few more months in a property officer post when one of those posts was next due to be reassigned. As it is, I am not persuaded that the grievor was entitled to return to the post in November 2005 or thereafter.
68For the foregoing reasons, this grievance is dismissed.
69I have made several references in this decision to what the union’s representative did or did not do or say during evidence and argument. These observations should not be construed as criticism of the representation that the union has provided the grievor in this matter. The grievor’s own acts and omissions, both during the period in question and during his testimony at the hearing, created obstacles and pitfalls around which the union’s representative navigated as well and as imaginatively as could reasonably be expected in the circumstances. The grievor sees injustice in events that he experienced in the context of a terrible family tragedy, a tragedy for which neither he nor his family nor the employer was to blame. That subjective sense of injustice, however genuine, is not congruent with an objective, dispassionate assessment of the factual and legal issues raised by this grievance.
Dated at Toronto this 29th day of May, 2009.
Footnotes
- The date that the grievor started the property officer assignment is not entirely clear. During his opening statement the union’s representative said it was late spring 2004. An answer the grievor gave to a question about overtime opportunities in the property officer post seemed to suggest that he had been in the post as early as January 2004.
- This observation should not be taken to suggest that it would have been proper in reply to introduce the testimony that the union’s representative had told Mr. Marsh the grievor would give on this point.
- During his opening statement, the union’s representative made reference to a 2001 local agreement about “Casuals Online Conditions.” It was marked as an exhibit for identification, but no further reference was made to it during the hearing. In particular, it was not put to Mr. Marsh that his having treated the unclassified incumbent’s interest as a proper concern was inconsistent with the terms of that agreement. I have given that agreement no weight in assessing the bona fides or reasonableness of Mr. Marsh’s decision.