GSB# 2017-2972

UNION# 2017-0368-0521

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Quade)

Union

• and -

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

Employer

BEFORE

Brian Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

David Marincola Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

April 12, 2018

Decision

1The Employer and the Union at the Central East Correctional Centre (CECC) agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The grievor is a long service Correctional Officer employed at the CECC.

3There is no dispute that the grievor has a permanent disability related to a neck injury for which there are certain workplace accommodation measures in place; including not being assigned to work in particular areas of the correctional facility.

4The grievor asserted that the scheduling manager, Sergeant Michael Fraser, has repeatedly failed to respect his need for accommodation by endeavouring to schedule him in work areas that are outside his accommodation plan. It is further asserted that Sergeant Fraser complained to the grievor about the need to adjust schedules, in light of his accommodation needs. Moreover, it is claimed that Sergeant Fraser violated the grievor’s right to privacy by discussing the grievor’s need for accommodation “publicly” in the presence of others.

5It is a trite, but important, observation that an employer should generally respect the accommodation needs of an employee with a disability. In this regard, it would be indisputably inappropriate for a supervisor to intentionally disregard the specific provisions of an accommodation plan stipulating that an employee should not be assigned to certain work and/or work areas. It would be additionally inappropriate for a supervisor to be critical of the accommodation needs of a disabled employee. Specifically, it would be improper for a supervisor to belittle an employee with a disability by complaining that the employee’s accommodation needs were causing the employer scheduling “difficulties”. Finally, an employer, through its supervisors, generally ought to respect the privacy interests of an employee with a disability; such that, there is not any unwarranted disclosure of the employee’s disability or his/her specific accommodation needs.

6Turning to the case at hand, few particulars were provided to substantiate the grievor’s claim of mistreatment. With respect to the allegations that were referenced, there was the assertion that on two separate occasions the grievor was potentially going to be assigned to Segregation Unit 2, notwithstanding the fact that Sergeant Fraser was aware that the grievor should not be scheduled to work on that Unit; and that, the grievor was then forced to correct the potential improper assignment. Sergeant Fraser could not recall the details of either incident and rejects any claim that he failed to respect the grievor’s accommodation needs with respect to the scheduling of the grievor’s shifts.

7The assertion that Sergeant Fraser purposely disregarded the accommodation plan applicable to the grievor is a serious allegation of wrongdoing; with the onus being on the Union and the grievor to provide a clear factual foundation for such an assertion. In this regard, while not questioning the sincerity of the grievor’s views that his accommodation needs were not respected, the facts, even if the grievor’s version of the events is accepted with respect to the two cited incidents, would fall well short of establishing that Sergeant Fraser purposely sought to disrespect the accommodation needs of the grievor.

8The other cited incident related to a conversation Sergeant Fraser had with the grievor’s partner (who also works at the CECC). The grievor’s partner suggested that the conversation took place “publicly”, in the presence of other employees; and that, Sergeant Fraser was inquiring when the grievor was next scheduled to work, because the scheduling office needed to speak to him regarding the adjusting of his schedule in light of his accommodation needs. Sergeant Fraser disputes whether the conservation in question took place within earshot of others, and suggested he was simply inquiring about the grievor’s availability for a particular overtime shift. Again, regardless of which version of events is accepted, there would be an insufficient basis for a finding that there had been an improper breach of the grievor’s “privacy rights”. In this regard, even if the grievor’s partner’s recounting of the conversation is accepted, the only personal fact regarding the grievor that was disclosed by Sergeant Fraser was that the grievor was being accommodated. Further to this point, it is far from clear on the facts whether, in fact, the other individuals present were not already aware that the grievor was being accommodated. Of more significance, there was no disclosure on the part of Sergeant Fraser as to the nature of the grievor’s disability or, for that matter, the specific details of his accommodation needs. Accordingly, the claim that the grievor’s “privacy rights” in these circumstances were infringed upon, in my view, has been overstated; and definitively, does not warrant any sort of sanction against the Employer.

9In light of the above reasoning, the grievance is, hereby, dismissed.