GSB#2011-1071
UNION#2011-0368-0091
Additional Files listed in Appendix “A”
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 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
Legal Services Branch
Counsel
HEARING
January 27, 30 and March 26, 2014
Decision
1Mr. Hyland is a Correctional Officer employed at the Central East Correctional Centre (“CECC”). The grievances now before me are those filed by Mr. Hyland covering the period from July 15, 2011 to January 25, 2014. These grievances essentially claim that the Employer failed to properly accommodate him. Mr. Hyland has asthma and a sensitivity to cigarette smoke. One feature of his medical restrictions is that he requires a smoke free workplace.
2In a recent decision dated January 15, 2014, I found that the Employer had failed in its duty in a number of respects to accommodate Mr. Hyland at the CECC from the time he started at that institution in September of 2009 until the agreed cut-off date of July 14, 2011. I summarized my findings at paragraph 37 of the decision as follows:
To summarize my conclusions on those matters which were highlighted by the Union, I find and so declare that the Employer failed to reasonably accommodate Mr. Hyland, thereby breaching articles 3 and 9 of the Collective Agreement and the Ontario Human Rights Code, between September 2009 and July 14, 2011, when it engaged in the following conduct:
When it denied Mr. Hyland access to the secure part of the CECC for about three months once it assigned him to his first post.
When it restricted its search for an initial post for Mr. Hyland to three posts without considering placing him at a post within the secure part of the CECC that would have allowed him to perform a broader range of CO duties.
When it failed to consider modifying the A&D schedule in order to permit Mr. Hyland to work in that area.
When it failed to make reasonable efforts to police and enforce the smoking policy.
3One of the remedies the Union requested in that proceeding was an order directing the parties to find a proper placement for Mr. Hyland within the Ontario Public Service (“OPS”), but not at the CECC, while Mr. Hyland received full pay without the requirement to attend work at the CECC until a proper placement was found. I declined to make such a direction for the following reasons set out at paragraph 39:
…To make such a direction I would have be satisfied that Mr. Hyland could not be properly accommodated at the CECC. The evidence does not suggest that there is a basis for reaching such a conclusion. By mid-July 2011, Mr. Hyland had been actually at work at CECC for a little over 15 months. He has worked at two posts that have at least satisfied the smoke free restriction. He has had fewer exposures at CECC when compared to his experiences at other adult institutions. Taking into account these factors along with the nature of the Employer’s failure to accommodate him, I am not convinced that the CECC should be written off as a work location for Mr. Hyland or that it is necessary or appropriate to direct that he be excused from work and paid while the parties search for a placement for him.
4The Union has indicated that it intends to establish in this proceeding that the Employer has continued its discriminatory conduct against Mr. Hyland for the 2½ years following the period covered by the January 15, 2014 decision. Union counsel advised that, among other remedies, the Union will renew its request that I direct the parties to find a placement for Mr. Hyland outside of the CECC. Given the significance of this issue in the context of this proceeding, the parties agreed to address it at the front end of the case. To this end, the Union filed particulars of its allegations which for purposes of this decision are accepted as true and provable. Counsel then made submissions on the question of whether on these facts the Board