GSB# 2021-3286

UNION# 2021-0201-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacDonald)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel

HEARING

June 17, August 20 and September 3, 2025

Decision

1This decision determines a grievance dated December 17, 2021, filed by Mr. Christopher MacDonald (“Grievor”) under article 22.16 of the collective agreement.

2The following facts are included in a partial Agreed Statement of Facts. The grievor has been employed as a Fuel and Tobacco Inspector (“Inspector”) in the Inspection Unit of the Compliance Branch of the Ministry of Finance since 2012.

3Several employer policies apply to health and safety and personal protective equipment (“PPE”] of inspectors. These policies require that inspectors be dressed in fire-retardant clothing when performing their duties. When the grievor joined the unit, he was provided PPE that included fire retardant light weight coveralls and a winter jacket.

4In January/February 2020 the employer determined that the fire-retardant clothing issued to its inspectors was aged and needed to be replaced. The Manager Field Operations at the time, Mr. Stephen Wilson, had some discussions with the inspectors about the fire- retardant clothing, and proceeded to create a business case for purchasing fire- retardant clothing to replace the current ones in use and obtained price quotations from suppliers for these.

5However, in March 2021 Mr. Wilson was replaced by Mr. Warren Low as Manager Field Operations. Mr. Low sought approval for the purchase and communicated with the inspectors about sizes. The clothing Mr. Low ordered was not the same as that had been chosen by Mr. Wilson. The rationale provided to the inspectors by Mr. Low for the change was the difference in price and the assertion that the coveralls he had ordered would suffice since the fire-retardant clothing was to be used only as PPE depending on the location being inspected.

6A meeting of the Joint Health and Safety Committee was held on April 21, 2021, but the purchase of the new insulated fire-retardant coveralls was not discussed at this meeting.

7On May 6, 2021, the grievor e-mailed Mr. Low, raising his concern about the comfort and function of the insulated coverall. Mr. Low responded stating that appropriate consultations and approvals had been done and that the fire-retardant clothing is not part of an inspector’s uniform but only required to be worn as necessary to perform work. He stated that “all configurations offered meet the PPE requirements. Once the PPE considerations are met, consideration is given to cost”.

8In August 2021, the grievor was fitted for the larger size he needed, and a coverall was ordered for him. The grievor again identified concerns with the insulated coverall, including that the winter jacket he had previously provided overall “better comfort and functionality”. On August 12, 2021, Mr. Low advised the inspectors that a decision had been made to provide inspectors with a non-insulated and an insulated coverall and that they had the discretion which coverall to wear based on the weather and season. On November 26, 2021, he informed the inspectors that the new fire-resistant PPE ordered had arrived and directed that they return their old clothing. The grievor complied, and filed the instant grievance which reads:

Field operations manager Warren Low has violated inclusively but not exclusively, articles 2, 9.1 and 9.4 of the collective agreement, the respectful workplace policy, OHSA and any other applicable legislation and/or regulation. On November 26, 2021, Field Operations Manager Warren Low sent an email to staff ordering the return of all currently issued fire resistant uniform pieces. This included coveralls, hard hat liner and winter jacket. This was set with a deadline of December 17, 2021. Management has failed to provide a replacement winter fire resistant jacket and instead has provided winter coveralls. Winter coveralls are not the same as a winter jacket by definition and are not suitable for the job function.

9The brief partial Agreed Statement of Fact was supplemented by testimony from the grievor for the union and Mr. Low for the employer.

Union Submissions

10The union asserted that the employer violated the Collective Agreement in three ways in changing the fire-retardant PPE.

(1) Violated article 9.4 of the Collective Agreement. (2) Violated article 9.1. (3) Violated section 25.2(H) and other provisions of the Occupational Health and Safety Act.

Article 9.4 of the Collective Agreement

11It reads:

The current practices relating to the supply and maintenance of apparel for employees shall continue during the term of this unified Collective agreement [sic], subject to any changes which may be entered into between the parties at the local or ministry level.

12Union counsel submitted that it is very clear that the “current practice” with regard to fire-retardant clothing for inspectors was a winter jacket, and not an insulated coverall. Citing dictionary definitions and case law, she submitted that “apparel” includes fire-retardant clothing. Therefore, by changing the current PPE fire-retardant clothing mid-collective agreement, the employer violated article 9.4. She pointed out that the exception set out in the article does not apply since the employer did not lead any evidence that the changes were agreed to between the parties at any level.

Article 9.1

13This article reads:

The employer shall continue to make reasonable precautions for the safety and health of its employees during the hours of their employment. It is agreed that both the employer and the union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

14Union counsel pointed out that the grievor testified about the concerns he had with the new coverall, that it tended to cause over heating and limited his mobility when bending. In the winter he had to change his clothing outside in the snow at terminals he was inspecting.

15Counsel referred to the evidence that in deciding on the clothing Mr. Low considered the cost savings but agreed in cross-examination that the price difference was insignificant. Referring to case law, counsel submitted that the word “reasonable” in article 9.1 must be interpreted broadly, not narrowly or technically. The arbitral law requires a balancing of costs with the safety of the employee. Here, Mr. Wilson had already budgeted to purchase new PPE similar to the ones inspectors had been using and the difference in price was minimal. In the circumstances, in balancing cost vs. safety, the Board should conclude that the employer failed to provide “reasonable precautions as required by article 9.1.

Occupational Health and Safety Act

16Article 25-2(h) reads:

Without limiting the strict duty imposed by subsection (1), an employer shall take every precaution reasonable in the circumstances for the protection of the worker.

17In submitting that the employer violated this provision, union counsel relied on various policies, guidelines and handbooks that pertain to the Ontario Public Service, as well as policy documents created by Federal Agencies. She submitted that the enforcement unit itself has accepted and relied on these in conducting its affairs, including in selecting PPE for its employees.

18Counsel reviewed the grievor’s testimony that while the new coveralls Mr. Low purchased may be suitable in Northern locations, in South Ontario it can get very warm even in the winter. The lightweight clothing he had was very easy to get in and out. Now he has to change out in the cold when it gets too heated. When he wanted to cool off, he had to change outside or inside his truck. This was difficult. Counsel submitted that this does not meet the standard of “every reasonable precaution” in the Act.

19By way of remedy, the union submitted that for the breach of article 9.4 and/or article 9.1, the Board should make a declaration and order that the employer provide the grievor with the fire-retardant clothing consistent with the practice in place prior to the change, or if the Board is not inclined to do so, remit the issue of remedy back to the parties and remain seized.

Employer Submissions

20Employer counsel submitted that the three alleged violations, that is articles 9.1 and article 9.4, and section 25.2 (h), must be dismissed because the evidence does not establish any safety issue in the first place. Article 2, the management rights provision, confers on the employer the right to decide what protective clothing its employees should wear while working. Employer policies require employees to use the PPE provided as set out in those policies.

21The grievance is about one inspector, the grievor, disagreeing with the selection of PPE by the employer and not providing the clothing of his choice. The grievance is not about his health or safety. Counsel pointed out that there is no expert or medical evidence that the clothing provided caused the grievor any health or safety issue. The evidence is only to the effect that the grievor felt that the fire-retardant clothing he had before the change was more comfortable and easier to wear.

22Counsel relied on the Board decision in Re Dabroff (Dissanayake) where it was held that a grievance challenging the employer exercise of article 2 management rights is arbitrable only if there is “a hook” to some substantive right in a provision of the collective agreement. Here the evidence does not establish any such hook to article 9.1 of the collective agreement or the OHSA. Neither of those requires the employer to provide an employee PPE of his choice or preference. In the absence of that evidence those allegations should be dismissed.

23With regard to article 9.4 employer counsel reviewed the evidence that the old fire-retardant clothing was more than five years old and Mr. Wilson the manager decided it was necessary to replace them. He followed the proper procedures by preparing a business case and obtaining price quotations. He received approval for a budget for the purchase of new clothing. Counsel reviewed various OPS policies, guidelines and handbooks and pointed out that there is no evidence that those were not followed.

24Counsel also submitted that the failure to raise the issue of replacing the fire-retardant clothing at the Joint Health and Safety Committee meeting by itself is not a violation of article 9.4. Referring to notes taken at that meeting she noted that the management encouraged employees to raise any health and safety concerns they have directly with their managers.

25When the grievor raised his concerns about the new insulated coverall, even though it was only the grievor’s preference and not a safety issue, Mr. Low still took steps to address the concerns. He arranged with the terminals to allow inspectors to change in the terminal washroom. The grievor did not take advantage of this arrangement. The grievor testified that he did not feel comfortable using the employee washroom in the terminal because it would not be professional. That was his choice.

26Counsel submitted that even though no agreement was made with the union about the change of fire-retardant clothing, the evidence is that the concerns raised by the grievor were addressed by the manager. Counsel pointed out that article 9.1 explicitly requires the union and the employer to “cooperate to the fullest extent possible in the reasonable promotion of safety and health of all employees”. As I understood, employer counsel’s submission was to the effect that even though article 9.4 was not technically complied with, in that there was no consultation/arrangement with the union, no harm was done. The grievor had the opportunity to raise any concerns he had with the new coverall. When he raised his concerns, Mr. Low addressed them. In the circumstances, the union’s pursuit of this grievance is inconsistent with its obligation under article 9.1 to cooperate to the fullest extent possible in promoting safety of employees. The union is demanding fire-retardant clothing preferred by the grievor, instead supporting the employer’s attempt to convince the grievor that he is obliged to use the clothing provided which does not pose any safety or health issues to him. On that reasoning, counsel urged the Board to dismiss the allegation that article 9.4 was violated.

CONCLUSION

27With respect to the allegations that article 9.1 and section 25.2(h) were violated, I reiterate that this grievance is only about the employer’s obligation to provide reasonable precautions for the safety of the grievor at work. It is not about, whether the manager had experience and knowledge about an inspector’s work, whether he visited the work locations, whether or not a proper risk assessment was done, whether the employer raised the grievor’s complaints about the coverall at the Joint Health and Safety Committee, what the cost difference was between the two types of clothing, or whether policies/guidelines/handbooks were complied with. If the union is of the opinion that the employer’s conduct relating to those factors jeopardize the health and safety of its members it is open for it to file a union grievance.

28However, in this individual grievance alleging violations of article 9.1 and s. 25.2(h) of the Act, regardless of the facts relating to those matters, the only issue is whether the employer failed to provide the grievor reasonable protection for his health and safety by providing him the new fire-retardant clothing.

29Based on the evidence, I am driven to the conclusion that the employer did not contravene either article 9.1or s. 25.2(h). The grievor was a very credible witness. When asked in chief, what his concern was about the new coverall he replied that “it was heavier and did not allow the same movement as before” and added that since he was a big man it was “harder to get in and out”. He testified that inspectors had no change rooms, and he had to change outside the terminal. He added that when he raised these concerns, Mr. Low’s response always was about costs, but never addressed his concerns about “comfort and functionality”.

30The grievor testified that after some time, Mr. Low informed him that inspectors would be allowed to change inside the terminal. The grievor testified that this arrangement was not acceptable to him for three reasons. First, that it was “not professional to change in the place you are inspecting”. Second, that “most terminals probably won’t allow us to use their staff change rooms, and we would probably end up changing in the drivers’ washroom”. Third, that changing in the drivers’ washroom “raises hygienic issues”.

31In cross-examination employer counsel asked, “Your concern with the new coverall was comfort and functionality because you are big?” He answered “Yes”. He agreed that once he raised that concern, the employer ordered a larger size for him. The grievor testified that the difficulty in getting in and out of the new overall was because it was one piece “like snow pants”. He agreed, however, that the lightweight coverall was also one piece. He agreed that the new coverall had a zipper down the front, which can be opened partially if too warm, but said that he understood that the health and safety policy required the zipper to be fully closed when working.

32The grievor added that Mr. Low had spent more money for his fire-retardant clothing than was necessary because he did not need the heavy insulation. He pointed out that there were only five inspectors and it was not difficult for Mr. Low to ask each inspector what he or she needs.

33In re-direct, union counsel asked what the difference was in getting in and out, if both the old light weight and the new insulated coverall are one piece with front zipper. The grievor replied that the lighter one “gave me a bit more maneuverability. This has a lot more insulation”. He added that when he had the winter jacket he was able to change inside the truck. With the new coverall in the winter, he had to get off the truck, take off his boots and put the jacket on. He could not do that inside the truck.

34The totality of the evidence clearly establishes that the grievor genuinely found the old lighter clothing more comfortable and easier to put on and off as needed depending on the temperature at any given time. The grievor’s testimony indicates that because of that he was not prepared to accept the heavier and more insulated fire-retardant clothing regardless of what Mr. Low did to address his concerns. Thus, when Mr. Low arranged for him to change inside the terminal, he took the position that this would be “unprofessional” but did not explain why. Then he speculated that most terminals “probably” would not allow him to change in the staff change room, and that he would end up changing in the driver’s washroom. This, he claimed would raise hygienic issues. Again, he did not explain why. He came up with all of these opinions by speculating the worse impacts on his health, without ever trying out changing in the terminals or even inquiring where in the terminals he would have to change.

35All of the evidence adduced by the union, if accepted as true, only establishes that the new fire-retardant clothing was less comfortable and more difficult to use, and that it was open to the employer to purchase the same light weight clothing, without incurring significantly extra costs. However, that is not sufficient to establish that the employer exercised its management rights in a manner that failed to meet the standard of every reasonable precaution for the health and safety of the grievor. Therefore, the grievance is dismissed as it relates to the allegations that article 9.1 and s 25-2(h) of OHSA were violated.

36Turning to article 9.4, this provision is not about the health and safety of the employees per se, although related to it. Rather, it imposes a very specific obligation on the employer to continue current practices relating to apparel during the term of the collective agreement in force at the time. The only qualification to this obligation is that set out in the last part of the article to the effect that if changes are agreed to between the parties, practices may be changed during the term of the collective agreement. The Board has applied this provision and considered it as a distinct employer obligation. Thus, in Re Gillies, GSB 339/82, (Saltman) the Board reviewed the evidence and concluded that the employer had in fact continued the current practice, and therefore the grievance was dismissed.

37In the instant case both parties were in an agreement that the fire-retardant clothing in question was “apparel” within the meaning of article 9.4. Anyway, I find to that effect. Nor did the employer dispute that the employer did not continue the practice regarding the type of apparel required to be worn by the grievor. Mr. Low candidly agreed that he had a different opinion in that regard, than Mr. Wilson, but explained that his decision was rational because his choice of fire-retardant clothing, like the old type, also had Nomax insulation and provides the same protection for the grievor’s safety, and was less costly.

38I have already held that the employer did not breach article 9 or the OHSA by failing to protect he grievor’s health and safety by providing him with the new clothing. However, that is not the issue in article 9.4. To prove a violation of article 9.4 the union does not have to lead evidence that any employee was denied reasonable health and safety protection in violation of the collective agreement or the OHSA. Even if Mr. Low’s selection of clothing provided better health and safety protection to the grievor, the fact is that the change was made contrary to article 9.4 because the evidence was clear that there had been no agreement, or even consultation, between the parties about that change. Therefore, I conclude that the employer contravened article 9.4 and so declare.

39The violation occurred sometime prior to the filing of the instant grievance dated December 17, 2021. The collective agreement in effect at the time has expired. I decline to order the employer to return to the old practice. However, it goes without saying that the employer remains bound by the obligations in article 9.4. I refer the matter of remedy back to the parties and remain seized.