GSB#2011-1071, 2011-1125, 2011-3196, 2011-3197, 2011-3748, 2012-0203, 2012-0204, 2012-1291, 2012-1295, 2012-1296, 2012-2955, 2012-2956, 2013-0742, 2013-1158, 2013-1159, 2013-1160, 2013-3189, 2013-3190, 2013-3191, 2013-3392, 2013-3585, 2013-3586, 2013-3587, 2013-3588

UNION#2011-0368-0091, 2011-0368-0101, 2011-0368-0211, 2011-0368-0212, 2012-0368-0019, 2012-0368-0031, 2012-0368-0032, 2012-0368-0081, 2012-0368-0086, 2012-0368-0087, 2012-0368-0160, 2012-0368-0161, 2013-0368-0058, 2013-0368-0080, 2013-0368-0081, 2013-0368-0082, 2013-0368-0166, 2013-0368-0167, 2013-0368-0168, 2013-0368-0183, 2011-0368-0252, 2011-0368-0253, 2011-0368-0254, 2011-0368-0255

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 Barristers and Solicitors Counsel

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Legal Services Branch Counsel

HEARING

May 21, 2014

Decision

1The outstanding issue arising from Mr. Hyland’s accommodation grievances and the decision I issued dated January 15, 2014, is Mr. Hyland’s placement at the Central East Detention Centre (“CECC”). This issue has been addressed in accordance with the mediation/arbitration procedure as contained in article 22.16 of the Collective Agreement.

2After participating in a lengthy conference call with counsel on May 15, 2014, during which I entertained their submissions on the nature of the placement issues and how they should be addressed, I directed in a decision dated May 16, 2014, that the hearing of the placement issues shall proceed as follows:

1. The hearing will commence at the CECC at 11:00 a.m. on May 21, 2014, with a tour of the areas of the institution where the disputed posts are located.

2. Given that Mr. Hyland has selected the Video Conferencing post and the GDO post as his preferred assignments, and given that Mr. Hyland would be entitled to be placed in these positions based on his seniority, but for issues as to whether these posts satisfy his accommodation needs, the parties shall first address whether or not Mr. Hyland can be appropriately accommodated in the Video Conferencing and GDO posts before considering whether or not Mr. Hyland should be assigned to the posts identified by the Employer as appropriate, namely Central Control, Radio Room and Unit 12 sub-control.

3. With respect to the Video Conferencing post, there is a factual dispute between the parties as to the level of risk of exposure to smoke that Mr. Hyland will experience if assigned to that post. There is also a dispute as to whether or not the hours of work of that post can be adapted without cost or hardship in order to accommodate Mr. Hyland’s hours of work restrictions. I am satisfied that this latter issue can be resolved based on documentary evidence without the need to hear viva voce evidence. Since a determination of the hours of work issue may affect the need to deal with the issue of the risk of exposure to smoke in the Video Conferencing post, I will first hear argument on the hours of work issue before determining whether I need to address the risk of exposure to smoke issue. I will hear argument on the hours of work issue on May 21, 2014, at the CECC.

4. With respect to the GDO post, there is a dispute between the parties as to whether or not Mr. Hyland can perform a sufficient number of duties related to that post to make it a full and useful assignment, and in particular whether Mr. Hyland could be accommodated by only escorting inmates to and from the “slider” entrance doors to a particular unit, as opposed to escorting inmates all the way into or from the living areas on the unit. I will hear evidence and argument from the parties on the GDO post issues on May 22, 2014, at Toronto.

5. Having heard from the parties on these issues, I will then issue a decision as to whether or not I need to hear from the parties on the risk of exposure to smoke in the Video Conferencing post, or on the appropriateness of Unit 12 sub-control, Central Control or the Radio Room posts.

6. There appear to be no substantial factual issues between the parties as to the appropriateness of Unit 12 sub-control, Central Control or the Radio Room posts. Therefore, if I need to hear from the parties on these issues, I anticipate that they can be resolved on the basis of submissions only. As such, I have determined that if I do have deal with the risk of exposure to smoke in the Video Conferencing post, and/or if I need to hear submissions from counsel on the appropriateness of Unit 12 sub-control, Central Control or the Radio Room posts, these matters can all be dealt with on one day of hearing and that day will be May 28, 2014. Accordingly, the hearing scheduled for May 27, 2014, is hereby cancelled.

3As I had directed, the hearing at the CECC on May 21, 2014, began with a tour of the areas of the institution where the disputed posts are located. Counsel then proceeded to address whether the hours of work of the Video Conferencing post could be adapted without cost or hardship in order to accommodate Mr. Hyland’s hours of work restrictions. Mr. Hyland is medically restricted from working past 5:00 p.m. and on weekends. The employees who occupy the two Video Conferencing positions are scheduled to work some hours after 5:00 p.m. and to work Saturday and Sunday, every second weekend.

4Counsel placed before me some documentary evidence containing the relevant facts on the hours of work issue and then made their submissions. Union counsel argued that the scheduled hours of the Video Conferencing position could be adapted to meet Mr. Hyland’s hours of work restrictions without causing the Employer undue hardship. Employer counsel argued that just the opposite is the case and requested that I find that the Video Conferencing position is not suitable for Mr. Hyland in the circumstances. Union counsel referred me to OPSEU (Hyland) and Ministry of Community Safety and Correctional Services (January 15, 2014), GSB No. 2009-2699 et al. (Petryshen) and Re National Automobile, Aerospace, Transportation and General Workers Union of Canada, (C.A.W.), Local 1941 and Siemens VDO Automotive Inc. (2006), 154 L.A.C. (4th) 372 (Watters). Employer counsel relied on the following decisions: OPSEU (Balog) v. Ministry of Community, Family and Children’s Services, [2004] O.G.S.B.A. No. 73 (Abramsky); OPSEU (Hyland) v. Ministry of Public Safety and Security, [2004] O.G.S.B.A. No. 1 (Petryshen); OPSEU (Hyland) and Ministry of Community Safety and Correctional Services (April 7, 2014), GSB No. 2011-1071 (Petryshen); Re Ottawa- Carleton District School Board and The Ontario Secondary School Teachers’ Federation, District 25, an unreported decision dated March 24, 2007 (Albertyn); and, OPSEU (Hart-Day) v. Ontario (Ministry of Community Safety and Correctional Services), [2011] O.G.S.B.A. No. 107 (Dissanayake).

5After considering the factual context and the submissions, I am satisfied that altering the hours of work of the Video Conferencing position as suggested by the Union to accommodate Mr. Hyland’s hours of work restrictions would constitute undue hardship for the Employer in the circumstances. Although I agree generally that an employer may be required to alter hours of work to accommodate an employee, the proposed alteration to the schedules and the extra cost the Employer would incur over the long term would amount to not simply some hardship, but to undue hardship as that term is understood in the jurisprudence. Accordingly, I find that the Video Conferencing post is not an appropriate post for Mr. Hyland. Having reached this conclusion, it is unnecessary to resolve the dispute about whether the level of risk of exposure to smoke would also affect the question of whether it would be appropriate to place Mr. Hyland in the Video Conferencing post.

6Counsel advised me at the hearing on May 21, 2014, that the parties had reached an agreement on how the General Duty Officer position, Mr. Hyland’s second choice, can be altered to meet Mr. Hyland’s restrictions and therefore provide him with an appropriate placement. Having regard to the agreement of the parties and Mr. Hyland, I direct the Employer to place Mr. Hyland in the General Duty Officer position as modified by the agreement of the parties. Counsel requested that I incorporate the agreement of the parties on the placement issue in a decision. I directed counsel to commit the details of their agreement on how Mr. Hyland will be accommodated in the General Duty Officer position into a written statement. Once I receive this written statement, I will issue a decision incorporating the agreement of the parties.

7Since the placement issue has been addressed and no outstanding issues remain, the hearing date of May 28, 2014, is no longer required and is hereby cancelled. I will continue to remain seized of Mr. Hyland’s grievances should any issues arise regarding implementation of the decision dated January 15, 2014.