GSB#2008-2682

UNION#2008-0337-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hyland)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services/ Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Counsel

HEARING

August 31, 2009.

Decision

1The style of cause is amended by adding the Ministry of Community Safety and Correctional Services.

2In a grievance filed in October of 2008, Mr. B. Hyland claims that the Employer contravened the Collective Agreement when it did not allow him to transfer to the Central East Correctional Centre (“CECC”) at Lindsay, but instead transferred a junior employee to that institution. Mr. Hyland’s grievance raises the issue of his entitlement to a lateral transfer from the Brookside Youth Centre (“Brookside”) to the CECC in the face of a December 4, 2003 decision in which I determined that the appropriate placement for Mr. Hyland was at Brookside, given his need for an accommodation. The circumstances giving rise to this grievance were not in dispute and neither party elected to call viva voce evidence. Counsel made relatively brief submissions and noted that they were unaware of any decisions that addressed the issues in dispute. There was no challenge to my jurisdiction to hear and determine this grievance.

3Since August of 2004, Mr. Hyland has been employed as a Youth Services Officer at Brookside, a facility within the Ministry of Children and Youth Services (“MCYS”). Prior to locating at Brookside, Mr. Hyland had worked at correctional institutions within what is now called the Ministry of Community Safety and Correctional Services (“MCSCS”). It was shortly before Mr. Hyland moved to Brookside that the provincial youth detention facilities were transferred from the MCSCS to the MCYS. I was advised that the parties agreed that employees affected by this transfer would have the right to transfer back to the MCSCS if an employee placed his or her name on a transfer list by a certain time. Mr. Hyland placed his name on the list and indicated a desire to transfer to the CECC. Vacancies arose at the CECC and in the normal course Mr. Hyland would have been entitled to exercise his right to transfer and fill one of those vacancies, given his seniority. However, the Employer advised Mr. Hyland that he was not eligible to be on the transfer list and could not transfer to the CECC because of the December 3, 2003 arbitration decision placing him at Brookside. The Union takes the position that the Employer’s basis for denying the transfer is not valid.

4Before reviewing the decision that placed Mr. Hyland at Brookside (”the placement decision”), it is useful to briefly review some of Mr. Hyland’s history while employed at correctional facilities in order to appreciate the context within which the decision to place him at Brookside was made.

5Mr. Hyland has asthma, with a sensitivity to cigarette smoke. He requires an accommodation for this disability. Mr. Hyland has filed many grievances since 1986 in which he claimed that he had not been properly accommodated because he was exposed to cigarette smoke while at work, became ill and missed work as a result of these exposures. He filed such grievances while working as a Correctional Officer at the Toronto Jail from September of 1986 until February of 1995 and while he was working in the same capacity at the Toronto East Detention Centre (“TEDC”) from February of 1995 until August of 2004. I have heard many of these grievances over many years, issuing at least ten decisions. It is unnecessary for our purposes in the instant case to review all of these decisions. I did find that the Employer did not adequately accommodate Mr. Hyland’s disability when he was working at the Toronto Jail and when he was employed at the TEDC.

6At one point during this history, the Union established that the Employer was unable to accommodate Mr. Hyland at the TEDC. In a decision dated November 13, 2002, I directed the Employer to focus its efforts on accommodating Mr. Hyland at another institution. Approximately three months later, the Employer offered to place Mr. Hyland in a position at the central control module and front desk module at the Toronto West Detention Centre (“TWDC”). Mr. Hyland rejected this offer. At a subsequent hearing, the parties put before me the question of whether Mr. Hyland should be placed at the TWDC, the CECC or Brookside. The Employer took the position then that its offer of a position at the TWDC was appropriate and that the risk of exposure to cigarette smoke was the same at the three institutions. The Employer did not call any witnesses. The Union called three witnesses in support of its position that Brookside was the best option for Mr. Hyland because the risk of exposure to cigarette smoke was lower there than at the other two institutions.

7In the bottom line decision dated December 4, 2003, I determined that Mr. Hyland should be placed at Brookside and provided the reasons for that determination in a decision dated January 2, 2004. The primary reasons for selecting Brookside over the other two institutions are set out at page 4 as follows:

The different physical structure at Brookside, with its spread out cottages rather than one or two large buildings, contributes to reduce the risk of exposure. It also appears that a large percentage of the work of a correctional officer at Brookside is outdoors and that the Superintendent at Brookside is committed to enforcing the no smoking policy at least within the buildings of the institution. The evidence of some cigarette butts outside of buildings and the possibility of contraband suggest that there is still some risk of exposure to cigarette smoke at Brookside. Even with the Employer’s best efforts, youth offenders and staff may not always adhere to a smoking ban. The endeavour in the case at hand has been to place Mr. Hyland in an institution where the level of risk of exposure to cigarette smoke is acceptable and the lowest possible. That objective is best met by assigning Mr. Hyland to Brookside.

8For completeness I note that the story did not have a happy ending once Mr. Hyland arrived at Brookside. He continued to have exposures to cigarette smoke and he continued to file grievances claiming a failure on the part of the Employer to adequately accommodate him. In a decision dated September 5, 2007, covering a period up to May of 2005, I found that the Employer had failed to take reasonable steps to accommodate Mr. Hyland to the point of undue hardship.

9Union counsel indicated during his submissions that the Union would establish if it had to that the situation for Mr. Hyland has deteriorated at Brookside and that changes have occurred at the CECC which make it a better work location given Mr. Hyland’s particular need for accommodation. He argued however that whether or not there have been changes at both institutions is an irrelevant consideration in the instant case and that this matter can be resolved on the basis of what he described as a straightforward legal issue. Counsel