GSB#2007-1117, 2010-0635, 2010-1785, 2010-1787, 2010-1788, 2010-1789, 2010-1790,
2010-1791, 2010-1792, 2011-0643
UNION#2007-0234-0116, 2010-0234-0123, 2010-0234-0219, 2010-0234-0221,
2010-0234-0222, 2010-0234-0223, 2010-0234-0225, 2010-0234-0226, 2010-0234-0227,
2011-0234-0052
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Hart-Day)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Jodi Martin Paliare Roland Rosenberg Rothstein LLP Barristers and Solicitors
FOR THE EMPLOYER
Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel
HEARING
July 5 and 6, 2011.
Decision
1The instant grievance, no. 2010-1792, is one of many grievances filed by the grievor, Ms. Nancy Hart-Day (“grievor”). The parties agreed to put to the Board a specific issue with respect to the grievance which reads:
I grieve violation of article 2, 3, 9 of the CA and any other related article relating to the Ontario Human Rights Code and the duty to accommodate, whereas the employer made an “offer” that defies the accommodating process causing a great deal of stress affecting my personal health and well being.
2The material facts, presented by way of an Agreed Statement of Facts and viva voce evidence, are not in dispute in a substantial way. The Agreed Statement of Facts is as follows:
Overview
On July 5 and 6, 2011, the parties have agreed to put a preliminary question to the Board:
Does the Employer’s offer of an accommodation at Maplehurst Correctional Complex discharge the Employer’s duty to accommodate?
The parties agree that the answer to this question will dispose of Grievance #2010-1792 (OPSEU #2010-0234-0227), attached as Exhibit 1.
The following are some of the underlying facts that the parties have agreed on for the purpose of the Board’s determination of the preliminary question.
Facts
Nancy Hart-Day is a Correctional Officer 2 (“CO”) with the Ministry of Community Safety and Correctional Services at the Vanier Centre For Women (“VCFW”).
Ms. Hart-Day has been an employee of the Ministry of Community Safety and Correctional Services (“MCSCS”) since 1994; she has been employed at the VCFW since 2003.
One of the many job functions of a CO is to conduct strip searches of inmates where required by MCSCS policy. The current MCSCS Policies on “Searches” and on “Strip Searching Transgender Inmates” are attached as Exhibits 2 and 3, respectively.
The Policy on “Searches” requires that a minimum of two employees must be present for the conduct of a strip search: the primary searching officer and the back-up/witness. The Policy also requires that female inmates be strip-searched by CO’s of the same-sex.
On April 25, 2007 Ms. Hart-Day filed a grievance alleging that the requirement for her to strip search same-sex offenders constituted discrimination on the basis of sexual orientation as it placed her in a compromising position. Grievance #2007-1117 (OPSEU #2007-0234-0116) is attached as Exhibit 4.
This grievance was denied by letter dated June 25, 2007, and subsequently referred to arbitration. Attached as Exhibit 5 is a copy of the letter dated June 25, 2007 from D.M. Olver to Nancy Hart-Day.
Between April 2007 and April 2009, Ms. Hart-Day was assigned to Unit 2 at the VCFW, which is the Maximum Security Wing.
On April 27, 2009, Ms. Hart-Day at her own request was placed on a temporary assignment at Maplehurst Correctional Complex (“Maplehurst”). The Temporary Assignment Agreement is attached as Exhibit 6.
The secondment at Maplehurst was scheduled to continue until October 27, 2009. However, commencing in September 2009, Ms. Hart-Day accepted a position working in the Union Office of OPSEU Local 234.
Ms. Hart-Day remained in the Union Office until March, 2010 at which time she returned to her position at the VCFW.
Upon her return to VCFW in March, 2010, Ms. Hart-Day was assigned to Central Control.
Between April 2007 and August 2010, including the roughly 28 months that Ms. Hart-Day was at VCFW, the grievor claims she did not perform the duties and functions of a primary strip search officer.
On August 10, 2010 Operational Manager Deb Bell informed Ms. Hart-Day that a colleague had complained that she was not performing the duties of a primary strip search officer.
Ms. Hart-Day advised Ms. Bell that she was requesting an accommodation on the basis of her sexual orientation - that she not be put in the position to have to be primary strip search officer.
The Employer advised Ms. Hart-Day to submit her request for accommodation in writing, which she did on August 13, 2010.
The request was denied by e-mail dated August 19, 2010. Attached as Exhibit 7 is a copy of the email exchange between Ms. Hart-Day and Marianne Muller concerning the accommodation request.
Ms. Hart-Day filed a grievance dated August 23, 2010 alleging that the Employer had violated the Collective Agreement and the Human Rights Code by failing to accommodate her. Grievance 2010-1787 (OPSEU #2010-0234-0221) is attached as Exhibit 8.
Accommodation in MCSCS is governed by the Ontario Public Services Policy “Employment Accommodation and Return to Work Operating Policy”, a copy of which is attached as Exhibit 9.
Interactions between Ms. Hart-Day and the Employer concerning her ability to engage in the function of a primary strip-search officer resulted in three grievances in early September, 2010: Grievance #2010-1788 (OPSEU #2010-0234-0222), Grievance #2010-1789 (OPSEU #2010-0234-0223), and Grievance #2010-1790 (OPSEU #2010-0234-0225), attached as Exhibit 10, 11, and 12 respectively.
On September 9, 2010 Deputy Superintendent of Administration Pam Elliott contacted Ms. Hart-Day by telephone and advised her that the Employer was prepared to make an offer of temporary accommodation at Maplehurst while her grievance was outstanding.
By e-mail dated September 9, 2010, Ms. Hart-Day declined this offer. Attached as Exhibit 13 is an email dated September 9, 2010 from Ms. Hart-Day to Pam Elliott. Attached as Exhibit 14, is an email dated September 10, 2010 from Pam Elliott to Marianne Muller and Nancy Hart-Day confirming the offer of temporary accommodation.
Ms. Hart-Day was off work sick on September 11, 12, 13, and 14, 2010.
On September 14, 2010, Ms. Hart-Day submitted a medical note, dated September 9, advising that she was to be off work due to stress until further assessment. Attached as Exhibit 15 is an email dated September 14, 2010 from Nancy Hart-Day to Marianne Muller with the attached medical note.
A further medical note was forwarded to the Employer by Ms. Hart-Day on October 15, 2010 advising that Ms. Hart-Day continued to require medical leave due to stress. Attached as Exhibit 16 is an email dated October 15, 2010 from Nancy Hart-Day to Marianne Muller attaching the medical note.
The parties agreed to meet on October 20, 2010 to discuss Ms. Hart-Day’s accommodation request. Attached as Exhibit 17 is an email dated October 19, 2010 from Nancy Hart-Day to Marianne Muller discussing arrangements for the meeting.
Following the meeting, by letter dated October 26, 2010 the Employer again advised Ms. Hart-Day that they were unable to support her request for a workplace accommodation, but that they would be willing to offer her a temporary assignment to Maplehurst. Attached as Exhibit 18 is a copy of the letter from Patrick Franklin, Deputy Superintendent to Nancy Hart-Day.
On November 2, 2010 Ms. Hart-Day provided the Employer with a medical note advising that she suffered from stress and anxiety, and that she required an accommodation with “the restriction that she not be required to perform primary strip searches.” Attached as Exhibit 19 is a copy of the November 2, 2010 e-mail from Nancy Hart-Day to Patrick Franklin, and the attached medical note.
Subsequent medical notes outlining the same medical restrictions were submitted on December 6, 2010 and January 11, 2011, and they are attached as Exhibit 20 and 21 respectively.
On January 12, 2011 the Employer offered Ms. Hart-Day a temporary assignment to Maplehurst. By e-mail dated January 16, 2011 Ms. Hart-Day responded that she was willing to discuss an accommodation at VCFW, her home institution. These emails are attached as Exhibits 22 and 23, respectively.
On January 25, 2011 the Employer wrote to Ms. Hart-Day’s physician requesting further clarification concerning her medical restrictions and limitations. The letter, and Dr. Abrishami’s response, is attached as Exhibit 24.
In addition to the 6 grievances outlined in this Agreed Statement of Facts, the parties agree that there are currently four additional grievances before the Board: Grievance #2010-0635 (OPSEU #2010-0234-0123), Grievance #2010-1791 (OPSEU #2010-0234-0226), Grievance #2010-1786 (OPSEU #2010-0234-0219), and OPSEU Grievance #2011-0234-0052. These grievances are attached as Exhibits 25, 26, 26 and 28 respectively.
3In addition, Ms. Annabelle Mezzera (Operational Manager) and Ms. Pam Elliot (Deputy Superintendent Administration) testified for the employer, and the grievor testified for the union.
4Ms. Mezzera’s testimony pertained to the purpose and the importance of strip searches, a description of what a strip search entails, and the frequency of strip searches in different areas of the Vanier Centre for Women (“Vanier”). Ms. Mezzera explained the differences in the policy as it applied to strip searching of male offenders and female offenders. A strip search always involves two COs, one in the role of primary search officer, and the other as secondary search officer. The offender is required to remove all clothing in full view of the primary officer, and to follow that officer’s instructions to raise arms, bend down, turn around etc. The policy is designed to respect the dignity of the offender as much as possible. For a strip search of a female offender, the primary officer must be a female. The secondary officer may be male or female. If the secondary officer is male, he is positioned such that he is out of view of the offender, but is able to observe the primary officer. This ensures that a male C.O. does not view the female offender during the strip search except that if there is an emergency during the strip search, such as the offender getting violent or attempting to harm herself, the secondary officer, male or female, may have to get involved.
5Where the offender is male, a female CO may commence the strip search process as primary officer. However, once the male offender is stripped down to his boxer shorts, a male CO must take over as primary officer. A male or female CO may act as secondary officer during the strip search of a male offender and his or her role is the same as that of a secondary officer during a strip search of a female offender.
6Ms. Mezzera agreed with union counsel that generally COs do not like to carry out strip searches. She agreed that COs assigned to the central control module are rarely called upon to conduct a strip search. However, she stated that performing strip searches is a regular duty of all COs and part of the CO position description.
7Ms. Elliot testified that on September 9, 2010 she called the grievor to offer a temporary accommodation at the Maplehurst Correctional Complex (“Maplehurst”), only because Ms. Marianne Muller, Staff Services Manager, who normally handles accommodation requests, was away. She agreed under cross-examination that prior to making that offer she had not met with the grievor to discuss accommodation options. Nor was she aware that any other manager did so.
8Ms. Elliot agreed that during the telephone conversation on September 9, 2010, the grievor asked why she could not be accommodated at Vanier. She testified that her response was to the effect that since the grievor would be able to do all of the duties of a female CO at Maplehurst within her medical restrictions, it was seen as a suitable accommodation. When asked why she did not answer the question as to why the grievor could not be accommodated at Vanier, Ms. Elliot replied that the instructions she had from the Superintendent, Ms. Donna Keating, was only to present the offer of a temporary accommodation at Maplehurst. Once she received an e-mail from the grievor declining the offer, she conveyed that information to Ms. Keating, and she had no further involvement.
9On August 13, 2010 the grievor made a request for “an accommodation based on my sexual orientation, to not be put in a position to strip search female offenders until my grievance regarding this issue as been dealt with and completed.” On August 19, 2010 the employer responded that her request was not approved because “it does not meet the Ministry’s requirements for accommodation.” However, without accepting that it had a legal duty to do so, on September 9, 2010, the employer offered to the grievor a temporary accommodation at Maplehurst. The grievor declined the offer and also went off work on the basis of a medical note from her family physician dated the same day to the effect that she “has been advised to stay off work from September 9, 2010 until further assessment due to stress”. On October 20, 2010 a meeting was held “to further discuss any appropriate follow up as a result of this declination”. At the meeting, the grievor, with union representation, pressed for an accommodation at Vanier. The employer continued to take the position that its offer was reasonable. On October 26, 2010, Mr. Patrick J. Franklin, Deputy Superintendent, Administration, wrote to the grievor, again reiterating that it had no duty to accommodate her on the basis of her sexual orientation, but confirming that the employer “will consider a temporary assignment to Maplehurst Correctional Complex where you can perform all the duties of a Correctional Officer”. On November 2, 2010, the grievor wrote to Mr. Franklin taking the position that the ministry policy on search procedures was outdated, and creates a systemic barrier to gays and lesbians. She expressed her hope that the employer would reconsider her request and attached the following letter dated November 2, 2010 from her physician:
Please be advised that I am the physician for the above named patient. Ms. Hart-Day suffers from stress and anxiety. Ms. Hart-Day requires an accommodation with the restriction that she not be required to perform primary strip searches. With this accommodation she is able to return to work for full duties. Should you require further information, please feel free to contact me.
10The evidence is that the employer did not respond to the grievor’s letter. On December 6, 2010, the grievor wrote again to the employer stating that she had not received any reply, and reiterating her concern that the ministry policy on strip searches results in systemic barriers which had impacted her physical and mental health, and again requesting that the employer reconsider its decision to deny an accommodation at Vanier. A medical note dated December 3, 2010 from her physician, stating that with “an accommodation with the restriction that she not be required to perform primary strip searches”, the grievor is able to return to full duties.
11On January 11, 2011, the grievor wrote to the employer, again pointing out that she had not had a reply to her previous letters. She made further submissions critical of her employer’s position and reiterated her request that the employer reconsider its position. She concluded her letter stating, “If this administration is not going to consider my request for an accommodation at the Vanier Centre for Women, I would like to know why?” This elicited a letter dated January 12, 2011, from Ms. Elliot, in which she acknowledged receipt of medical note, advised that the accommodation at Maplehurst was still available, and informed that she would be happy to meet with the grievor to discuss that offer.
12On January 16, 2011, the grievor wrote to the employer, again voicing her concern that the ministry policy creates barriers that impact on her and that the employer should be willing to “discuss options rather than giving ultimatums”. She concluded this letter with the following:
In keeping with the Employment Accommodation and Return to Work Operating Policy, I’d be happy to discuss a temporary assignment at the VCFW my home institution for the last 7 years. If the Employer can not respect my human rights, dignity and self worth, as a diverse employee from the LGBT community I believe I have the right to ask “why” and understand how this creates any type of “undue hardship” for the employer both locally and for the Ministry.
I look forward to hearing from you, and booking an appointment with my Union Representative to discuss these issues.
13Also filed in evidence is a medical report dated June 22, 2011 from the grievor’s physician, provided in response to a request from union counsel. It includes the following:
The role of a primary strip-search officer would definitely exacerbate Ms. Hart-Day’s medical condition and perhaps compromise her ability to function as required. In terms of acting as a secondary strip-search officer, Ms. Hart-Day has discussed the use of force with me and states that this situation does not occur on a regular basis and would only be required in an emergency situation at the Vanier Centre for Women. Engaging in physical contact with an inmate due to an emergency situation has minimal impact due to the severity of the occurrence at the time and her readiness to respond in a professional capacity as required as a correctional officer. It is important to note that days and months can occur without the use of force being required in an emergency situation
14The evidence is that the employer did not at any time answer the question posed by the grievor as to why she could not be accommodated at Vanier. Instead, the employer’s consistent response was that the accommodation offered at Maplehurst was a suitable accommodation in that it allows her to work within the medical restriction imposed by her physician, while at the same time carrying out all of the duties of a CO. There is no evidence that the employer turned its mind to consider whether or not the grievor could be accommodated within her restriction at Vanier, without undue hardship. At the hearing also the employer did not assert undue hardship.
15The grievor filed her first grievance relating to the requirement for strip searching female offenders in April 25, 2007. She worked at Vanier until February 2011. She testified that in that period she participated in strip searches of female offenders but never as the primary officer. Whenever she was scheduled as primary officer she was able to switch duties with another CO, with the approval of her Operations Manager. She testified that no manager or colleague raised it as a problem, and that it was common knowledge that she did not do primary strip searches.
16In April 2009, the grievor obtained a temporary assignment to Maplehurst due to personal reasons, and did not return to Vanier until October 2009. While at Maplehurst, she did not act as primary officer, because the offenders there were male, and policy did not permit female COs to be primary officer. The grievor testified that she did not like working at Maplehurst because “it was a different community and a different culture”. Unlike at Vanier, she was working mostly with male colleagues and exclusively with male offenders. It seemed to her that, despite her 17 years of experience as a CO, she had to start all over and prove herself at Maplehurst.
17The grievor testified that zero to 10 strip searches could be carried out in a day at Central Control. However, she did not do any strip searches as primary officer while at Central Control, because she openly told her colleagues that she did not wish to do that duty, and they willingly agreed to switch duties with her. The grievor testified that while at Central Control a male CO had complained about her not doing primary strip searches. Another male CO told her that if he had to do one or two primary strip searches because of her refusal to do that duty, it would be “OK”, but that he would complain if he had to do ten. The only time the grievor could recall management raising an issue about her not doing primary strip searches was in August 2010 when an Operations Manager informed her that a complaint had been made by a CO.
18Union counsel asked the grievor whether there were any circumstances in which she would be prepared to do a primary strip search. She replied that she would do so in an emergency where there is an imminent threat to life. She stated that she would also be willing to get involved should an emergency occur during a strip search, when she is in the role of secondary officer.
19The grievor testified that she was very upset by the employer’s offer because the decision was made with no meeting to discuss her request that she be accommodated at Vanier. When Ms. Elliot put the offer to her during the telephone conversation, she was stunned. Her blood pressure elevated and she felt chest pain and symptoms of a panic attack. When she asked “where is this coming from?”, Ms. Elliot merely repeated the offer and instructed her to consult with her union representative and get back with an answer.
20When asked why she declined the employer’s offer, the grievor replied “Because we hadn’t gone through the process. We had not discussed why I could not be accommodated at Vanier. The policy says that the employer and employee must meet and discuss. As a CO you are expected to follow policy, but the employer does not follow policy”.
21The grievor testified that her concern had to do with “my dignity and respect as a lesbian officer”. She explained that in addition to her job as a CO, she was involved in other activity at Vanier. She was acting Vice-President, secretary and a steward of the local union. She was a member of the Joint Health and Safety Committee, the Wellness Committee, the Standing Orders Committee and the Pride in Corrections Steering Committee. She was the only CO at Vanier designated as Pride Safe Space Champion, a resource person who educates and provides information. In addition she was accepted into the Ontario Public Service Speakers Bureau. She was the Corrections Region 2 representative for the Aboriginal Circle, and the Equity and Allied Committee. She testified that she was particularly passionate about her role as a member of the Transgender Unit Committee at Vanier, because that committee was involved in the planned establishment of a transgender unit at Vanier, which would be the first such facility in the Ontario correctional system.
22The grievor testified that if she relocated to Maplehurst she would not be able to continue her roles as acting local union vice-president or as steward. Nor would she be able to continue on the Wellness Committee at Vanier, although she may be able to serve on the Wellness Committee at Maplehurst. She could not be on the Vanier Joint Health and Safety Committee or Standing Orders Committee, but could apply to the Maplehurst committees when a vacancy occurs. She believed that if she relocated, she would lose her role in the Transgender Unit Committee, although she had not made any inquiry whether she could continue on it.
23She testified that while she may be able to serve on some corresponding committees at Maplehurst, that was not appropriate because her colleagues and offenders at Vanier would still lose her experience, services and input. She testified that after working at Vanier for seven years, she was very familiar with “the people at Vanier and the issues they face.” The employees were comfortable discussing concerns and problems with her, and she had become a mentor for them, particularly on women’s issues. She stated that she was very passionate about human rights issues and wants to help, teach and be a resource person, particularly to women. Young staff at Vanier particularly looked upon her as a resource, whether they wanted to self-identify as gay, to talk about their aboriginal history or what it means to be working in corrections. All of this would be lost if she is no longer at Vanier.
24In cross-examination, the grievor agreed that all of her union and committee activity was either volunteered by her or arranged through the union. The employer had not required her to engage in any of that activity as part of her job. She confirmed that she would be willing to do a strip search as primary officer only in an emergency which involved an imminent challenge to life. Counsel asked, given that stance, whether she would refuse to do a primary strip search in a situation where there was a reasonable suspicion that an offender was in possession of contraband. She replied that she would arrange for someone else to serve as primary officer, and she would serve as the secondary officer. When counsel suggested that while arrangements are made to switch duties the contraband may disappear, for example the offender may swallow the contraband, the grievor replied “I guess I’ll have to take the risk that what is swallowed comes out the other way”. When counsel suggested that the offender may die as a result of swallowing contraband, the grievor replied “I guess so”.
25Counsel pointed out to the grievor that the latest medical report from her physician states that there will be “minimal impact”, resulting from her having to be involved in a strip search during an emergency while serving as secondary officer, and suggested that it means there will be some impact on her health. She agreed, but stated that such emergencies are rare and that since 2007 she had not seen such an emergency occur. However, she agreed with counsel that emergencies can happen.
26Submissions of the parties
The union submitted that the issue put before the Board raises two distinct considerations. First, the scope of the employer’s duty to accommodate under the collective agreement and the Human Rights Code. Secondly, whether or not the offer of accommodation at Maplehurst was reasonable in all of the circumstances.
27The union submits that the duty involves more than the provision of an accommodation that is reasonable given an employee’s restrictions. There is a procedural component which employers must adhere to. This obliges the employer to involve the employee and undertake an investigation to collect all relevant information, before deciding how best the employee could be accommodated. The process resorted to and the decision arrived at must respect the employee’s dignity and self-esteem, and must suit both the employer and the employee. Reference was made to the following passages in ADGA Group Consultants V. Lane and others, Ontario Superior Court of Justice, judgement dated August 8, 2008, on judicial review of a decision of the Ontario Human Rights Tribunal:
[103] Employers have procedural and substantive duties to accommodate employees with disabilities up to the point of undue hardship. The onus is on the employer to establish that it has met these duties.
[106] The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.
28Counsel submitted that the evidence establishes that accommodation at Vanier was possible without causing undue hardship to the employer. The grievor had, over a significant period of time avoided the role of primary search officer, by switching duties with her colleagues. This was done with the approval of her operational managers and despite the fact that the employer had not at the time formally acknowledged a duty to accommodate. Only two “minor grumblings” were made by her colleagues about her avoiding that duty. No manager had raised a concern that her not doing that duty caused any operational problems.
29Counsel submitted that despite the employer’s knowledge of the informal arrangement the grievor had made, there was no consultation by the employer with the grievor about the possibility of continuing that arrangement as a formal accommodation following the employer’s recognition that it had a duty to accommodate due to a medical restriction. There is no evidence that the employer seriously considered whether the grievor could be accommodated in her home position at Vanier. Instead, as a first step in the accommodation process, the grievor was required to relocate to a different institution, and this was done without ever providing the grievor an explanation as to why her request to be accommodated at Vanier could not be granted. Counsel submitted that the telephone calls, e-mails and the meeting on October 20, 2010 did not amount to any meaningful consultation with the grievor, in that in all of those the employer did nothing more than re-offer the accommodation the grievor had declined. There was no willingness to discus any other options with the grievor.
30Union counsel submitted that as part of the duty to respect the grievor’s dignity and self respect, the duty to accommodate encompasses more than her job itself. Reference was made to the following provisions in the employer’s “Employment Accommodation and Return to Work Operating Policy”.
Employment accommodation and return to work must be implemented in a way that respects the employee’s dignity, which includes:
the employee being fully included as a participant in the accommodation and return-to-work planning process;
. support of the employee’s full participation in the workplace and his/her independence, self-esteem and reputation;
. respect for the employee’s accommodation and return-to-work needs and the confidentiality of the employee’s health information. (p.2)
. Accommodation efforts normally follow the following sequence (See flowchart in Appendix 1.):
Accommodate within the employee’s own job first. (p. 3)
31Counsel submitted that the employer did not follow its own policy in that it did not consider the grievor’s own job first. Instead, it decided upon an accommodation in a different institute as a first step. Moreover, it did not include the grievor “as a participant in the accommodation”.
32It was argued further that the employer did not support the employee’s “full participation in the workplace and her independence, self esteem and reputation”, which its own policy recognizes to be part of respecting the employee’s dignity. Counsel argued that “full participation in the workplace” for the grievor included her union and committee activity. Counsel acknowledged that the grievor may be able to continue many of those roles at Maplehurst. However, she had for years helped employees at Vanier through her various roles. She was very proud of the services she provided at Vanier. While she may be able to be engaged in similar activities at Maplehurst, Vanier would lose her services and experience. The loss of the ability to continue the service she had provided at Vanier for 7 years, contended counsel, results in injury to the grievor’s dignity, self-esteem and reputation.
33Counsel drew the Board’s attention to Re Kerna, 2002-0944; 2002-2343 (Briggs), as standing for the proposition that the employer is required to first attempt to accommodate an employee in his/her own position to the point of hardship, before exploring other accommodations. There the grievor was employed as Investigations Officer. The employer first accommodated the grievor in her own position with a reduced productivity standard. When the grievor could not perform even at the reduced standard, she was accommodated in a lower ranked position of Intake Officer, albeit her wages were continued at the rate applicable to her home position. At p. 34 Vice-Chair Briggs wrote:
As stated by Union counsel, there can be no doubt that the jurisprudence on the matter of accommodation is complex and evolving. It is trite but true to note that in accommodation cases decisions are driven by the specific facts. Certainly the facts in the matter at hand are unique. The jurisprudence has established that employers are required to undertake a four-step proves with respect to accommodation efforts. First, it is to determine whether the disabled employee can perform her job as it exists. If that is not possible then the Employer is to assess whether the employee’s existing job can be modified in such as way so as to be suitable. If that is still not achievable the employer is to then determine whether another job within the workplace is suitable. Finally, if the disabled employee cannot perform the essential duties and responsibilities of a different existing position, can that different job be modified? In each of these steps the Employer’s efforts must be genuine and not perfunctory.
And at p. 37:
It has also been recognized that a person’s employment is integral to one’s sense of self-worth and emotional well-being. Work provides us not only with a necessary income but with a feeling of having actively participated as productive members of society. It is for these reasons that the conditions of work are very important factors contributing to a person’s dignity and self-respect.
After much consideration, I cannot find that the Employer failed to respect the grievor’s dignity either with respect to the form of accommodation or in the manner that it arrived at the accommodation. Indeed, I am of the view that the facts reveal a genuine effort was made, particularly by Mr. Dorion, to preserve Ms. Kerna’s dignity. While I understand that the grievor felt as if she had been demoted, the evidence indicated that care was taken to keep many working conditions unchanged such as maintenance of her same office, same phone number and continued participation in departmental meetings. Further, the maintenance of the grievor’s salary, notwithstanding a ten thousand dollars a year pay differential, must be seen to be a genuine effort on the Employer’s part to dispel any perception of a demotion.
At p. 36 Vice-Chair Briggs wrote:
I accept the proposition as put forward by the Employer that there are instances when appropriate accommodation can be determined without consideration of undue hardship. However, in the circumstances of this case, I am of the view that in the exercise of determining whether the Employer complied with its obligations under the collective agreement and the Human Rights Code, consideration must be given to whether Ms. Kerna could perform the essential duties of her own position to the point of undue hardship.
34In dismissing the grievances, the Board at p. 32 wrote:
After much consideration, I am of the view that the grievances must fail. However, in doing so I must expressly disagree with the Employer’s assertion that I can determine this matter without consideration of undue hardship. In my view, any determination of whether the grievor’s temporary assignment to the position of Intake Officer was appropriate must include a consideration of whether the grievor could perform the essential duties of her own position to the point of undue hardship. Indeed, the Commission’s own policy of “Most Appropriate Accommodation” states that “the most appropriate accommodation be determined and then be undertaken, short of undue hardship” (emphasis mine). The Employer noted that the policy states that “whether an accommodation is ‘appropriate’ is a determination completely distinct and separate from whether the accommodation would result in ‘undue hardship’”. I accept that the determination as to whether an accommodation is “appropriate” is a separate exercise from deciding whether there is “undue hardship”. However, that is not to say that a determination as to what constitutes an “appropriate accommodation” can always be made in the absence of any consideration regarding “undue hardship”.
At p. 32 she went on to observe:
My findings might well be different if the Employer did not first accommodate the grievor in her own position with a reduced case closing standard. Indeed, it was through this initial accommodation that the Employer had the opportunity of assessing the grievor’s abilities. The facts adduced regarding that accommodation period were sufficient for my determination that Ms. Kerna could not perform the essential duties of her position to the point of undue hardship.
35Union counsel also relied on Re Di Caro, 2003-3162 (Dissanayake). At p. 50-51,
the Board wrote:
I agree that the starting point for an employer is to attempt to accommodate the disabled employee by enabling him, with modifications as necessary, to perform his own job. If he cannot do that, the employer is obligated to consider whether the employee can be allowed to perform parts of his job, with or without modification, avoiding those tasks which are beyond his restrictions. If this option is not available, the employer is required to consider other positions, first within the grievor’s own division or silo, and if that is not possible, in other areas with the bargaining unit gradually expanding the area of search. It will be only as a last resort that the employer will be called upon to look for accommodation outside the bargaining unit. This is in accord with what I have called the employer’s duty to incrementally broaden the scope of its search for accommodation.
36Counsel for the employer emphasized that the only concern the grievor had raised was her need to be exempted from primary search duties. Initially the employer took the position that it had no legal obligation to accommodate her, but nevertheless offered her a temporary accommodation at Maplehurst, an institution located directly adjacent to Vanier. The employer made that offer because such accommodation guaranteed that the grievor would not have to perform the duty she objected to, but would still allow her to perform full duties of a CO like other female COs at Maplehurst. When the grievor produced evidence of medical restrictions in November 2010, the employer accepted that it had a legal duty to accommodate. The medical restrictions imposed by the grievor’s physician also related only to her inability to be primary officer in strip searches. Therefore, the employer continued to be of the view, for the same reasons as before, that the offer of accommodation at Maplehurst was reasonable. The grievor to date has continued to decline that offer, insisting that she be accommodated in her own CO position at Vanier, without the need to perform a regular duty performed by COs there. Counsel argued that the employer’s offer of accommodation which fully meets her medical restrictions and also allows her to perform full CO duties is reasonable.
37Counsel argued that the employer’s offer allows the grievor full participation in the workplace as contemplated in the case law and the employer’s policy. Maplehurst employs many female COs. The grievor would be able to do all of the duties as other female COs. In contrast, any accommodation at Vanier would result in less than full participation, because she would not be performing a duty – that of primary officer – which all other female COs at Vanier regularly perform.
38Counsel submitted that an employer is entitled to look at various options in a search for an accommodation. However, when an accommodation which meets the employee’s restrictions is readily identified, it has no obligation to look for a better or the best accommodation. Counsel submitted that in any event, the accommodation offered at Maplehurst is the better alternative in that it absolutely guarantees that the grievor would not do a strip search as primary officer. At Vanier, even in the role of secondary officer, she may have to be involved in cases of emergency. Although emergencies during strip searches are not common the grievor conceded that it can happen. The latest medical evidence confirms that if that occurs, it will have some impact – albeit “minimal impact” – on the grievor’s health. Counsel submitted that while an employee may be willing to risk her health in order to do a preferred job, the employer is entitled to refuse and offer an available accommodation which eliminates all risk to health. Counsel argued that contraband includes illicit drugs and weapons. Upon reasonable suspicion, a strip search may have to be carried out immediately. Delaying a strip search in order to enable the grievor to arrange a switch of duties with a colleague could pose a threat to the well being of the offender, other offenders, staff and the public. The employer should not be required to take that risk when an accommodation of the grievor’s restrictions which does not in any way comprise operational efficiency is readily available.
39Counsel acknowledged that the service provided by the grievor at Vanier through her union and committee activity is commendable. The evidence indicates that she could continue to provide many of those services following a relocation to Maplehurst. While she may not be able to continue some of that activity, such as the Transgender Unit Committee, such activity is not a barrier to the employer’s duty to accommodate. None of that activity was required by the employer. They were undertaken by the grievor voluntarily. He argued that the employer’s duty is to accommodate her job as a CO, not union and other extra-curricular activity she had voluntarily assumed outside her job. Regardless of the value of the services she provided through such outside activity, they are not factors which could affect any assessment of whether or not a particular accommodation is reasonable. He pointed out that these are not work duties, while performing strip searches as primary officer is a regular duty of her position at Vanier as a CO. The duty to accord a reasonable accommodation does not require the employer to exempt the grievor from performing job duties, in order to permit her to be engaged in activity unrelated to her job.
40Counsel disagreed that Re Kerna (supra) or Re Di Caro (supra), stand for the proposition that the employer must first attempt to accommodate an employee in her own position to the point of undue hardship, before searching for other accommodations. He relied on Re Balog, 1998-1972 etc. (Abramsky) and the Supreme Court of Canada judgement in Board of School Trustees, School District No. 23 (Central Okanagan) et al v. Renaud et al, (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 (S.C.C.) as explicitly rejecting such a notion. The jurisprudence, submits counsel, does not require the employer to offer the accommodation preferred by the employee, or the most appropriate accommodation. The duty is to provide a reasonable accommodation.
41On the allegation of failure to follow process, counsel submitted that based on communication of concerns by the grievor and submission of medical evidence, the employer identified and offered an accommodation which it felt was reasonable. It consistently explained to the grievor why that accommodation was deemed by the employer to be reasonable. That is, it fully accommodated her restrictions and at the same time allowed her to perform full duties of a CO. The grievor was repeatedly invited to meet and discuss the employer’s offer and on October 20, 1010 a meeting in fact took place. Counsel took the position that once the employer had identified and offered a reasonable accommodation, it had no duty to discuss with the grievor other possible accommodations or to explain why the employer did not offer the grievor’s preferred accommodation. He pointed out that the grievor was not seeking a meeting or consultation to discuss any concerns she had with the employer’s offer. Her sole focus was on obtaining her preferred accommodation at Vanier and seeking an explanation from the employer as to why it did not agree to that accommodation.
CONCLUSION
42I first turn to the union’s allegation that the employer breached a procedural duty by failing to consult with the grievor before deciding on an accommodation. In Re Balog (supra) the Board was faced with a similar argument. At pp.102-103, Vice-Chair Abramsky wrote:
The evidence shows that the parties have very different views about an employee’s participation in the process, as it relates to a health reassignment. Mr. Balog expected to be included in discussions about possible alternative positions and potential accommodations. Instead, the decision about Control was made without personally consulting him. The Employer, in contrast, expected to determine the appropriate assignment and then discuss it with the employee and develop a return-to-work/accommodation plan. As Director Elliott testified, the employee may express his or her views and objections, but it is the employer’s decision to make. Debra Metrakos testified that the employee participates in the accommodation process by providing information and participating in the accommodation plan as well as advising the Employer regarding how the plan is functioning.
The only case directly on point was Re Saint Paul’s Hospital and Hospital Employees’ Union (2001), 2001 CanLII 61990 (BC LA), 96 L.A.C. (4th) 129 (Jackson), cited by the Employer. In that case, the employer, after receiving a letter from the grievor’s doctor, determined the accommodation and advised the grievor and the Union of that by letter, which also advised the grievor that if he failed to report to work as scheduled, he would be terminated. No meeting was arranged to discuss the accommodation. When the grievor declined the accommodation, he was terminated.
The arbitrator ruled that there was no “general obligation on the Employer to involve the Union in its search for accommodation” unless it is a potential party to the discrimination either because it participated in formulating the work rule or practice that discriminates, or because the Union’s cooperation is necessary to find a reasonable accommodation. (96 L.A.C. (4th) at 145). He added that “as a practical matter it makes sense to involve the Union and the affected employee” but “the effect of a failure to do so when it is not legally required must depend on the particular circumstances of the case at hand.” The arbitrator noted that the Employer acknowledged “that it would have been preferable for the Employer to have discussed its accommodation proposal with the Union and the grievor”, but he agreed with the Employer that “such a meeting would not have changed what happened.” In the arbitrator’s view, the grievor failed to accept the Employer’s reasonable accommodation proposal, and consequently the Employer’s duty to accommodate was discharged.
Upon consideration, it is my view that the Employer’s approach is consistent with the policy guidelines and the Supreme Court of Canada’s decision in Renaud, supra. In Renaud, the Court found that “[w]hile the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business.” The employer has the responsibility to “initiate the process” while the employee has “an obligation to accept reasonable accommodation.” The decision seems to indicate that the proposal for accommodation may come from the employer without first directly consulting the employee about various options.
Likewise, the guidelines require employee participation and state that an employee must “participate in discussions regarding possible accommodation solutions.” But they do not require the employer to hold such discussions. Of course the employer may do so, and perhaps should do so, but the employer may also, based on the medical information provided, determine the appropriate accommodation and then discuss it with the employee without violating the duty to accommodate.
43I agree. In the absence of a specific provision to that effect in the legislation or collective agreement, there is no requirement that employers must, in every case, meet with the employee and discuss options before deciding on a reasonable accommodation. As stated in the excerpts above, it is advisable for employers to do so. This is because there may be situations where an accommodation may appear to be within an employee’s restrictions, but, in fact may not found to be so once information which the employer was not aware of comes to light. That is the risk an employer takes when making decisions without consultation with the employee and/or her treating physicians. This is analogous to a situation where an employer is contemplating disciplining an employee. In the absence of a requirement in the collective agreement, an employer has no duty to meet with the employee before imposition of discipline. Based on information it possesses, an employer may decide that it has just cause for a particular level of discipline and proceed to impose it. However, in doing so, the employer runs the risk that there may be circumstances which it is not aware of, for example a medical affliction the employee was under at the time or provocation by a co-worker, which may make a difference. While the best practice for an employer is to obtain the employee’s side of the story before deciding on discipline, ultimately the issue is whether the employer made the correct decision on just cause. As long as the employer got it right, the fact that it did not meet with the employee by itself cannot lead to finding that the discipline was not just.
44The same reasoning applies with regard to the employer’s duty to accommodate. As long as the accommodation it comes up with is found to be reasonable, the absence of discussion of options with the employee by itself does not result in a breach of the duty to accommodate. In other words, there is no independent procedural duty to meet. The employer policy sets out the best practices designed only as an aid to finding a reasonable accommodation. The level of complexity of the issues facing the employer searching for an accommodation in a given case would dictate whether extensive or minimal discussion would be needed to assist the employer in identifying a reasonable accommodation. In some situations, the employer may have the confidence that it can identify a reasonable accommodation based on an employee’s request and the supporting medical evidence, without the need for any meeting to discuss possible options with the employee. Whether the employer complied with its duty to accommodate in each case ultimately depends on whether the accommodation decided upon by the employer was reasonable. Therefore, I find that the employer did not breach they duty to accommodate the grievor as a result of an insufficient or deficient process.
45This brings me to the crux of the issue – was the accommodation offered by the employer at Maplehurst reasonable in all of the circumstances? The first dispute between the parties in this regard is whether the employer was obligated to first attempt to accommodate the grievor in her own position at Vanier to the point of undue hardship before turning to a consideration of alternate accommodations. Re Di Caro (supra) does not stand for that proposition. There the employee in need of accommodation was a Customer Service Representative (“CSR”) employed in the LCBO store system. Relying on the principle that under the law a disabled employee is entitled only to equal treatment and not better treatment, the employer argued that the duty did not require the employer look for an accommodation outside the CSR job. Thus, the employer argued that “an employer can legally discriminate against an employee such as the grievor, who cannot perform the essential duties of the job he was hired for, even with modifications” (p. 32) and that “considering the way the LCBO is structured, the duty to accommodate does not oblige the employer look beyond the CSR job” (p. 33). The Board viewed that position as “a very limited scope for the duty to accommodate” and rejected it. It was to illustrate that the duty was a broad one which required the employer to “incrementally broaden the search” and that the search cannot be limited to the employee’s own job, that the Board set out the “steps” for the broadening of the scope of the search. The thrust of that decision is that the employer may start the search with the employee’s own job, but if no accommodation is found there short of undue hardship, the employer cannot stop the search. It has to continue the search outside the employee’s own job, gradually broadening the search. The decision does not stand for the proposition that the employer is legally obligated to accommodate the employee in his own job to the point of undue hardship before searching for alternatives.
46In Re Kerna (supra), the Board does state that the employer is “required to” undertake a four-step process with respect to accommodation efforts, and that the first step is to attempt to accommodate the employee in his own job. In that case the Board dismissed the grievances, but observed at p. 33 that its findings “might well be different if the Employer did not first accommodate the grievor in her own position” with modifications. However, those comments were made in a situation where the employee’s own job was Investigation Officer, and was accommodated in the position of Intake Officer, which was a lower rated position with a wage rate $10,000 per annum less, and also involved completely different skills and duties. While the employee’s salary was maintained as part of the accommodation, the Board notes that “a person’s employment is integral to one’s sense of self-wroth and emotional well-being. Work provides us not only with a necessary income but with a feeling of having actively participated as productive members of society. It is for these reasons that the conditions of work are very important facts contributing to a person’s dignity and self-respect”. The Board notes that despite the wage maintenance, the employee viewed the move as a demotion. In this context, the Board was of the opinion that the employer had an obligation to first attempt to accommodate the employee in his own job of Investigation Officer to the point of undue hardship, before accommodating him in a lower rated position. The Board at p. 36 (reproduced at para. 33 supra) recognizes that appropriate accommodation can be determined without consideration of undue hardship, but that in the particular circumstances before her “consideration must be given to whether Ms. Kerna could perform the essential duties of her own potion to the point of undue hardship”. The particular circumstances that caused the Board to consider undue hardship there was the evidence that the grievor was accommodated in a different job which was lower ranked and had completely different duties. The comments of the Board go to the issue of the reasonableness of the offer of an accommodation at a lower rated position, not to a mandatory process that must be followed. That decision stands for the proposition that where the employer is able to accommodate an employee in his or her own job short of undue hardship, an accommodation in a lower rated position which involves completely different duties and skills, may not constitute a reasonable accommodation. Of course, whether that is so would depend on all of the facts of a particular case.
47Finally I turn to consider the significance of the grievor’s union and committee activity at Vanier in determining the reasonableness of the employer’s offer of accommodation at Maplehurst. Without getting into details of each type of activity, I shall proceed on the assumption that upon relocation, the grievor would have been unable to continue many of the activities which were important to her, and which provided a valuable service to staff and/or offenders at Vanier. That, however, is not in my view, something that factors into an assessment of the reasonableness of the employer’s offer of accommodation. Like employer counsel did, the Board recognizes the value of the services rendered by the grievor through her union and committee activities. However, the employer’s legal obligation is to accommodate an employee’s work and related working conditions. An assessment of whether or not an employee’s self-esteem and dignity had been respected in the accommodation process must be made by reference to her job and working conditions. Thus in Re Kerna (supra) the Board states that a person’s employment is integral to one’s sense of self-worth and emotional well-being, that work provides us … with a feeling of having actively participated as productive members of society, and that conditions of work are very important factors contributing to a person’s dignity and self-respect. There is no doubt that particular individuals may consider workplace activities unrelated to the job to be important in providing a fulfilling and enjoyable work environment. However, an employer’s duty to accommodate does not extend to such activity. It pertains to an individual’s work and working conditions. There is no suggestion that in making its decision the employer was in any way motivated by a desire to keep the grievor away from her union and committee activity. It is clear that none of the activities in question was required by the employer. They did not form any part of the grievor’s position as CO. Those activities were undertaken by the grievor on her own volition. The employer is not under a legal obligation to accommodate such activity.
48The grievor’s desire to continue this activity clearly is the driving force behind her insistence that she be accommodated at Vanier. Even if it is assumed that Vanier is the most appropriate accommodation, (which the employer took issue with), the law does not entitle her to her preferred accommodation, or the most appropriate accommodation. She is only entitled to a reasonable accommodation. When the employer provides a reasonable accommodation, its duty is discharged.
49Thus in Re Balog (supra) at pp. 109-111 the decision states:
In Renaud, supra, the Supreme Court of Canada stated that the complainant cannot expect a “perfect solution. If a proposal that would be reasonable in all of the circumstances is turned down, the employer’s duty is discharged.” This seems to reject the “most appropriate accommodation” requirement.
The decision in CANPAR and United Steelworkers of America, Local 1976, supra, a decision under the Canadian Human Rights Act, clearly rejects the “most appropriate accommodation” requirement. In that case, to accommodate an employee’s need, for religious reasons, not to work on late Friday afternoons, the employer assigned the grievor to a more centrally located route which allowed for the substitution of other drivers on Friday afternoons, without difficulty. A number of other alternatives were suggested, but not the one that the grievor favored – retention of his former route, with relief on late Friday afternoons. The Company argued that it was under no obligation to suffer hardship itself by being compelled to hire an additional employee, or to adjust the grievor’s former route in ways that were not operationally feasible.
The arbitrator ruled that “it is incumbent upon the employee concerned to contribute positively to the process, and to accept an offer of reasonable accommodation, even though it might not be the specific accommodation which the employee would prefer.” (93 L.A.C. (4th) at 212) Even if the new route were less desirable, he ruled that “it would not be unreasonable to expect the grievor to contribute to the process by accepting the adjustment.” The arbitrator concluded, at p. 214:
While it may be arguable that different formulas of accommodation might be fashioned, some of which could be more appealing to [the grievor], it is not the obligation of the Company under the Canadian Human Rights Act to necessarily offer an employee seeking accommodation the precise accommodated assignment that he or she might demand.
In contrast, the case cited by the Union, Quesnel v. London Educational Health Centre, supra, does state, at para. 16, that “[w]hat is appropriate in a given situation will vary from person to person, but the analysis must recognize that, short of undue hardship, the highest point in the continuum of accommodation must be achieved.” In that case, however, the “highest point” in the accommodation continuum, the construction of an elevator, was found to be “impractical and the cost prohibitive.” Accordingly, a lesser form of accommodation, a ramp, was ordered.
In my view, an employee in a health reassignment situation is not entitled to the “most appropriate accommodation.” An employee is entitled to a “reasonable accommodation”, short of undue hardship, considering all of the circumstances. Consequently, the issue is whether the Control position is a reasonable accommodation in all of the circumstances, regardless of whether there might be other possibly more appropriate accommodations short of undue hardship.
This view was endorsed by the Ontario Court of Appeal in Re Queen in Right of Ontario (Ministry of Community and Social Services v. Grievance Settlement Board (2000), 2000 CanLII 16854 (ON CA), 50 O.R. (3d) 560 (Ont. C.A.). The Court held that where an employer can fulfil the duty of accommodation by offering appropriate scheduling changes, it need not demonstrate that an alternative form of accommodation, such as a leave of absence with pay, would necessarily result in undue hardship.(50 O.R. (3d) at 574). For this reason, the failure of the Employer to consider alternatives to the Control position does not, by itself, violate the Employer’s duty to accommodate.
Relying on the Court of Appeals decision, the Federal Court of Appeal in Hutchinson v. Canada (Minister of the Environment) 2003 FCA 133, [2003] F.C.J. No. 439, reached the same conclusion. In that case, the complainant, who had chemical sensitivities, argued that the employer’s rejection of her preferred accommodation (her own office in a nearby building) showed a refusal to accommodate to the point of undue hardship. The Court held that the complainant had no right to hold out for her preferred option. It concluded that the “complainant cannot refuse a reasonable solution on the ground that the alternative which they favour will not cause the employer undue hardship.” (par. 77) The same conclusion applies in this case.
50In Re Campar, 1976 (2000), 2000 CanLII 50210 (CA LA), 93 L.A.C.(4th) 208 (Picher) the Arbitrator, in holding that employees must accept a reasonable offer by the employer, specifically stated at p. 214:
…it is not the obligation of the company under the Canadian Human Rights Act to necessarily offer an employee seeking accommodation the precise accommodated assignment that he or she might demand. If the employer offers to the employee a work opportunity involving substantially similar working conditions and earning opportunities…in a manner that does not involve any significant adversity to the employee, it has fulfilled its obligation of reasonable accommodation.
51Therefore notwithstanding reference in the employer policy to “the most appropriate accommodation”, and observations in that regard in Re Kerna (supra), the overwhelming authority in the jurisprudence, including judicial authority, is that the employer is not required to provide the most appropriate accommodation. The Supreme Court of Canada in Renaud has clearly pronounced that the employer’s duty is discharged by an offer of a reasonable accommodation. Therefore, the issue is whether the employer’s offer of accommodation at Maplehurst was reasonable. The accommodation offered by the employer cannot involve any real or perceived concern about a demotion or loss of dignity as it relates to either income, the duties or working conditions. The grievor would continue duties of a CO at Maplehurst under the same position description she worked under at Vanier. Significantly, she would be able to perform all CO duties at Maplehurst as other female COs. Her working conditions did not change. The move does not require her to commute any further, or to move her residence because Maplehurst is located adjacent to Vanier. She would continue to be represented by the same local union as a member of the same bargaining unit. While evidence was led that the two institutions have their own administrations and standing orders, there is no evidence as to how that would adversely impact upon the grievor. Indeed, the union did not lead any evidence to the effect, and did not argue, that the move to Maplehurst would adversely impact on the grievor’s work or working conditions. The concern was about why she could not be accommodated at Vanier. She testified that she enjoyed working at Vanier, a female institution, because she was able to assist women and be a resource person to them. She did not like working at Maplehurst, a male institution, which she said was a different community with a different culture. However, where she likes to work or what work she enjoys is a matter of preference. The law is clear that an employee is not entitled to the preferred accommodation.
52From all of the foregoing, I conclude that the temporary accommodation offered to the grievor at Maplehurst was reasonable. Having determined the issue put before me, I remain seized with the instant grievance, as well as all of the other grievances of the grievor before me. The hearing will continue on the scheduled dates.
Dated at Toronto this 26th day of July 2011.