GSB# 2019-2132

UNION# 2019-0410-0039

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Courtney)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

In writing

DECISION

1The Board is seized with a grievance dated October 16, 2019, alleging violation of articles 2 (management rights), 3 (No discrimination/harassment) and 9 (health and safety), filed by Mr. Courtney, who was employed as a Patrol Maintenance worker with the employer. The essence of the allegation is that the employer failed to maintain a smoke free environment in the workplace in compliance with the Smoke Free Ontario Act, thereby exposing him to second-hand smoke.

2When the Board convened on April 20, 2021, the parties agreed to settle the grievance through mediation. While settlement discussions were productive, no final settlement was achieved that day.

3On September 9, 2021, the Board was advised that the parties had subsequently agreed on terms for disposition of the grievance and requested that those terms be issued as an order of the Board. The Board agrees to the joint request of the parties.

4The Employer agrees the Grievor has been exposed to residual smoke in the garage and the Ministry fleet vehicles, which is an area where smoking is prohibited, and possibly also as a result of smoking in Ministry vehicles. The Employer acknowledges that it could have done more to provide a process or forum for employees to comfortably and/or anonymously bring concerns such as this forward to the appropriate manager, and to investigate who the perpetrators are and that greater efforts could have been made to try and catch the perpetrators in the act of smoking in the prohibited areas described above.

5While the Supervisor indicates that he did not observe anyone actually smoking in his presence, and the grievor insists he did, it is not necessary for me to make a finding in that regard for purposes of this order.

6Having regard to the agreement of the parties I uphold the grievance. By way of remedy, based on the Board’s jurisprudence and Mr. Courtney’s outstanding claim before the Workplace Safety Insurance Board, I am limited to providing declaratory relief. I hereby declare that the employer breached article 9 of the collective agreement.