GSB# 2019-1484; 2019-1976; 2020-0596; 2020-0946;

2020-2310; 2020-2878; 2020-2991

UNION# 2019-0582-0009; 2019-0582-0024; 2020-0582-0014; 2020-0582-0071;

2020-0582-0115; 2021-0582-0040; 2021-0582-0056

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rumboldt et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Paul Meier and Erika Montisano Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 6, 2021; November 10, December 16, 2022; February 7 and 8; March 24, 27, 2023; April 15 and 30, May 13, June 27, and July 15, 2024

Decision

1This Award addresses a number of grievances filed by Alex Rimos and Douglas Rumboldt (the “Grievors”), asserting that the Employer breached its duty to accommodate obligations under the collective agreement and the Ontario Human Rights Code (“Code”) by not assigning them to certain overtime opportunities.

The Relevant Provisions of the Collective Agreement

ARTICLE 2 – MANAGEMENT RIGHTS

(FXT, SE, ST, RPT, GO)

2.1 For the purpose of this Collective Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Collective Agreement.

ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY

(FXT, SE, ST, RPT, GO)

3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

ARTICLE COR8 – OVERTIME

COR8.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 ½) times the employee’s basic hourly rate.

COR8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

COR8.2.1.1 Up to March 31, 2019, overtime opportunities will only be offered once the non-overtime regular and non-overtime fixed-term resources have been exhausted, even if part of the shift becomes overtime.

COR8.2.2 Effective April 1, 2019, overtime opportunities will only be offered once the non-overtime regular and non-overtime fixed-term resources have been exhausted.

The Grievors

2The Grievor Rumboldt has been employed as a Corrections Officer (CO) with the Employer since June 1985. His accommodation plan as of October 18, 2020, was as follows:

No direct supervision of inmates. Can only work the following: Control/Driver/Catwalk/Front Doors/Back Doors/Stores assist/Contractor escort on 1^st and 6^th Floor.

3The Grievor Rimos has been employed as a CO with the Employer since October 1990. His Accommodation Plan as of October 18, 2020, was as follows:

No prolonged standing or sitting. No ascending stairs. Can work the following: Unit 1B/Laundry Assist/Control/Maintenance escort/Escort Driver/Housekeeper/A & D Scanner/Programs/Newspapers. Please rotate assignments.

The Grievances

4Grievor Rimos has two grievances that are the subject of this decision.¹ On February 22, 2020, he filed a Grievance asserting he was improperly bypassed for an overtime opportunity on February 22, 2020. On December 10, 2020, he filed a grievance stating that he was improperly bypassed for an overtime shift on December 7, 2020.

5The Grievor Rumboldt has three grievances that are subject to this decision. On May 31, 2019, he filed a grievance asserting he was improperly not offered a number of overtime shifts in May 2019. On July 1, 2019, he filed a grievance asserting he was improperly not offered overtime shifts in June and July 2019. And on April 28, 2020, he filed a grievance asserting he was improperly not offered overtime shifts on certain days in February and April 2020. In total, the grievances pertain to an outstanding claim of a denial of an overtime opportunity with respect to fifteen shifts.

6There are a number of similar overtime grievances involving the Grievors and other COs with restrictions relating to disabilities that are being held in abeyance pending the decision in this matter. Accordingly, there were some broad issues pertaining to the interrelationship of the Employer’s duty to accommodate obligations, and the assignment of overtime opportunities for employees with accommodation needs that the parties sought to address through this decision.

The Toronto East Detention Centre (TEDC)

7The TEDC is a maximum-security provincial jail located in Toronto that houses up to 473 adult males in remanded custody or awaiting sentencing. There are over 280 Correctional Officers employed at the TEDC.

8The institution operates 24 hours per day, 365 days per year. During the day, approximately 70 “posts” are required to be filled.

9During the day, inmates in the institution are generally not locked in their units and are supervised by COs on the facility’s second, third, fourth, and fifth floors. Other day posts include recreational and yard programs, visits (e.g., professional and family), admitting and discharging inmates and processing inmates for court and hospital medical matters.

10At night, the facility’s staffing complement decreases to approximately 14 posts. Inmates are locked in their cells during the night, and daytime activities such as recreational and yard programs, visits, and admitting and discharging inmates do not occur.

11The facility’s Control Module is a secure office area at the front entrance of the facility. During the day, the Control Officer’s duties include answering phone calls, making announcements over the PA system, receiving and signing in visitors, monitoring movement throughout the facility on cameras and unlocking and locking security doors.

12Since 2019, the Control Module’s normal staff complement is four COs between 0700 hours to 1900 hours. From 1900 hours to 2100 hours, the complement goes down to two officers. From 2100 hours to 700 hours the following morning, the Control Module’s normal staff complement is one CO.

13During the night, all the doors of the institution are open, other than the main front door, since the inmates are locked in their cells; accordingly, there is no need for the CO in the Control Module to unlock and lock the interior security doors. Medical Escorts are not scheduled for the night shift. Generally, the duties of the CO in the Control module during the night is operating the front door and potentially addressing emergencies.

14Unit 1B is in the foyer area of the first floor of the institution. The Unit contains interview rooms. During the day, a Unit 1B CO’s duties include retrieving and escorting inmates from the upper floor living units to the interview rooms. The Unit 1B Officer also acts as the point of first contact for professional visitors to the institution. During the day, Unit 1B’s normal staff complement is two officers. At night, after 2100 hours, the unit’s normal staff complement is one CO. At night, the Unit 1B CO provides break relief for the CO in the Control Module, as Unit 1B can be left vacant while break relief coverage is provided.

15The evidence suggests that during the day shift, the Employer, on a fairly frequent basis, may “over-complement” staffing (above the complement that is budgeted for) at the Control Module or Unit 1B posts. Such “over-complementing” may be relied upon for a variety of reasons, including operational demands such as the need for medical escorts or ensuring that an employee with a no-inmate contact accommodation restriction can obtain their 40 hours per week normal hours of work allotment. The populating of such over-complementing scenarios is generally on a straight-time basis. To a lesser degree, the Control Unit on nights is staffed at times on an over-complement basis.

16The Institution’s post assignments are listed on the Daily Roster for both the day and night shifts. The Daily Roster posts are determined by the Ministry in accordance with its operational needs.

17To fill gaps in its staffing complement arising from the absences of regularly scheduled employees, the Employer schedules Fixed Term (FXT) COs as “back fills” on a straight-time basis. FXT COs are “irregular/on-call employees” who work up to 40 hours per week as required and as assigned. In this regard, if a FXT CO does not have “their 40 hours”, they may be called in on short notice to backfill for a scheduled early employee (an employee may have called in sick or taken a vacation day on short notice or may have been assigned to an urgent matter outside of the institution. (i.e., an unplanned medical escort)).

The Distribution of Overtime-The Provincial Overtime Protocol

18The allocation of overtime opportunities occurs in accordance with the provisions of the Provincial Overtime Protocol (POP), which, pursuant to Article COR 8.2.1 of the collective agreement, is a negotiated agreement of the parties.

19The relevant provisions of the Protocol with respect to this dispute are as follows:

MINISTRY OF THE SOLICITOR GENERAL

PROVINCIAL OVERTIME PROTOCOL

Updated – October 29, 2019

INTRODUCTION

At the present time, there are a variety of practices amongst institutions with respect to the distribution of overtime. In order to streamline the assortment of existing practices, the ministry and the union have developed this set of principles, which must be applied in the development of a local overtime distribution system.

As per the collective agreement (Article COR8), a local overtime distribution system must distribute overtime fairly and equitably after having ensured that all operational requirements are met.

PURPOSE

The overtime protocol has been developed with the intent to:

• distribute overtime opportunities in a fair, equitable and consistent manner,

• ensure the process is administratively and operationally feasible, and

• ensure the process is open and transparent.

GUIDING PRINCIPLES

The local worksite overtime protocol must be founded on the following principles:

A Fair and Equitable System

The underlying principle of a fair and equitable system is to attempt to equalize the opportunity for overtime hours over a specific and reasonable period of time. The goal is to distribute the overtime opportunities amongst all eligible employees fairly. The goal is not to ensure that all employees work the same number of hours given that individual choice and circumstance may restrict actual overtime hours worked.

Compliance with the Ontario Human Rights Code

Overtime protocols must comply with the Ontario Human Rights Code, such that they contain provisions that ensure interested employees with disabilities are given opportunities to work overtime to the extent that their medical restrictions allow.

Transparency

The computerized overtime tracking system will guide the overtime hiring process according to the overtime protocol. Whenever the overtime protocol is not followed, a deviation report will be created including the reason for the deviation. To ensure transparency, employees in the same bargaining category at the local level will have access to the following reports.

Decision to Hire Overtime

To the extent possible, overtime opportunities will only be offered once the non-overtime regular (classified) and non-overtime fixed term (unclassified) resources have been exhausted.

OVERTIME PROTOCOL

Once a decision is made to hire overtime, the following overtime procedures shall be followed:

4. Overtime calls will be made on a sequential basis. The first person called will be the most senior person on the overtime list having the least number of overtime opportunity hours.

5. All overtime will accumulate over a consecutive six (6) calendar month period after which the oldest month’s totals will be eliminated. For example, upon entering August, January’s totals will be dropped, and the accumulated totals will be based on February to July.

6. The manager will allow the phone to ring no less than five (5) times before moving to the next employee on the list. If an employee has message capability, the manager will leave a message indicating that an overtime opportunity is available. If the manager is aware that an employee is at work when the overtime offer is made, the manager will page/notify the employee at work rather than calling the contact number.

7. a) Where the manager leaves a message or a page, there will be a three (3) minute “call-back” time allotted prior to moving to the next employee on the list. Overtime hours will be assigned to the employee(s) who responds first.

b) Four (4) hours prior to shift commencing, the requirement to wait three (3) minutes after leaving a message or a page for an available overtime opportunity may be waived. For clarity, the employer must follow all other requirements of the Provincial Overtime Protocol.

8. If another overtime opportunity arises that day, an employee will be called again. If the calls are at least two (2) hours apart and no contact is made, the employee will not be called again for overtime, as part of the protocol, in that calendar day.

9. The manager will indicate the outcome of a phone call as one of the following:

• Employee accepted

• Employee declined

• Message left

• Telephone busy

• No answer

10. Once a person has accepted or declined an overtime opportunity, no further overtime opportunities will be offered in that calendar day, under the protocol.

ACCOMMODATIONS

The following shall be applied to equalize the opportunities available to employees on accommodation:

1. Employees on accommodation who have indicated availability will be offered overtime opportunities in the same manner as all other employees on the roster.

2. When a person who is on accommodation can only perform specific duties, work specific hours, work specific days or work at specific posts, the employer may switch assignments between employees, if operationally feasible, in order to offer those on accommodation an opportunity to work overtime. Where an overtime opportunity cannot be offered or accepted for the above-mentioned accommodation reasons, the hours will not be credited.

FIXED TERM EMPLOYEES

1. Fixed term employees shall only be offered overtime opportunities after all regular employees who have signed the overtime roster have been exhausted.

2. When a fixed term employee, who has been prescheduled for forty hours in a week, is offered an overtime opportunity as per (1) above, this will not result in the cancellation of a subsequent prescheduled shift.

20The administration of the POP takes place pursuant to a software program HPRO, by which employees can set out their availability; HPRO also records the selection process for available overtime and the outcome of calls made to employees regarding overtime opportunities.

21Generally, overtime calls to employees regarding overtime opportunities are made by the Shift in Charge (Shift I/C). The calls are to be made on a sequential basis, with the first person called being the most senior employee on the overtime list who has indicated availability for the shift in question and who has the least number of overtime opportunity hours (“HOT hours”).

22The Shift I/C will record one of the following with respect to a call to an employee regarding an overtime opportunity: (1) employee accepted; (2) employee declined; (3) message left; (4) telephone busy; or (5) no answer.

23The Scheduling Manager, who at the relevant time was Sergeant Paul Mederios, monitors the overtime distribution at the Institution in coordination with the Correctional Officer Bargaining Unit Scheduling Assistant (the “COBUSA”).

24In accordance with the provisions of the POP, in certain circumstances, an employee with the least number of HOT hours may not be automatically called (i.e., bypassed). In particular, if during the course of the day, an employee fails to respond to the first call made by the Shift I/C, and another overtime opportunity arises, the employee will be called again. However, pursuant to the provisions of the POP, if the calls were at “least two hours apart and no contact is made, the employee will not be called again for overtime as part of the protocol in that calendar day”.

25Another scenario, where an employee may be automatically bypassed is if in assigning the employee the overtime opportunity, it would result in the employee working in excess of 16 hours in a 24-hour period, which is contrary to the provisions of the Employment Standards Act, 2000. The Scheduling Manager will note on HPRO the reason for an employee being by-passed, which can be reviewed by the COBUSA.

26The Employer’s evidence through the “Will Say” Statement of Sergeant Medeiros as to the decision-making process a Shift I/C should follow if an employee with an accommodation has the least number of HOT hours such that the employee would otherwise be eligible for the overtime opportunity was as follows:

If an employee with an accommodation had signed up for overtime and was eligible for the work assignment per the POP’s “HOT hours” sequencing, then the manager would assess whether the work assignment’s requirements (e.g., the work of the vacant post on that given shift) could be performed within the accommodated employee’s medical restrictions and limitations (based on the employee’s accommodation details on HPRO, visible only to the hiring manager);

If the employee’s restrictions and limitations precluded the work assignment, then the manager would determine whether they could switch assignments with a non-accommodated employee and place the accommodated employee in the post that met their restrictions and limitations, where operationally feasible; and

If an accommodated employee could not perform the work assignment and there was no operationally feasible assignment switch to another post that fell within their medical restrictions and limitations, then the COBUSA would record the name of the manager who made that determination and enter “bypass” with a reason: e.g., “due to accommodation” as had I instructed. This creates a transparent record of the work assignment process that had been undertaken.

27Sergeant Medeiros further testified that if an employee was bypassed for an overtime opportunity because of an accommodation issue, the Shift I/C should record the employee as being “RSVP” in a separate entry. As a result, that employee would be the first employee called that day if another overtime opportunity became available if it fit within the employee’s restrictions.

The Deputy Superintendent Tony Hill Memo

28It was the evidence of Grievor Rumboldt that up until December 2018, he received a fair bit of overtime on the night shift. It was claimed that during a night shift close to the end of December 2020, Sergeant Christopher Daley called him into his office and after stating, “Don’t shoot the messenger,” showed him an email from Tony Hill, Deputy Superintendent of Security and Compliance, that Grievor Rumboldt claimed specifically stipulated that he and Theresa Shipticki, another CO who was on an accommodation plan, were not to be called in for overtime. He further claimed that Sergeant Daley showed the email to another CO the following day. Ms. Shipticki (a CO who initially was also a Grievor in this proceeding; however, the parties ultimately reached a settlement regarding her grievances during the course of the proceeding) testified in her examination-in-chief, regarding a memorandum from Deputy Superintendent Hill to Sergeant Daley expressly outlining that Grievor Rumboldt, herself, and another employee who had restrictions due to a disability, were not to be hired for overtime duties.

29Related to this claim that Deputy Superintendent Hill had “singled out” Grievor Rumboldt and other employees who should not be offered overtime, there was a series of emails amongst members of the management team at TEDC during that time period touching upon employees with accommodation needs being assigned overtime.

30Just after midnight on December 28, 2018, Lisa Caswell, a Sergeant at TEDC, sent the following email to members of the management team including Mr. Hill:

From: Caswell, Lisa (MCSCS)

Hello,

Officer Rumboldt is currently accommodated due to an injury. Now that the front door project is complete, I assigned him to control this evening. He advised me that after 2100 hours he cannot be alone due to his injury and must be the second officer. Are we to still hire him for overtime?

31Deputy Superintendent Hill later that morning responded to Ms. Caswell and the other managers copied on her original email with the following direction:

From: Hill, Anthony (MCSCS)

If there is a post for him to work in keeping with his accommodation and he is next in line on HPro then yes we hire him for overtime.

If there is no post for him to work based on what is listed on HPro then he would be bypassed for overtime and the next person in line would get the shift.

Overtime is not a right, and we can’t be hiring a person (manager or staff) to sit around and do nothing if all of the posts that they can work are filled; especially by people who are also on an accommodation.

If there is a non-accommodated person in a particular post and there is room for them to work elsewhere to free up that position for the accommodated person then that can be done. However if that person routinely works that post then we don’t have to move them to make room for an accommodated person on overtime.

32Mr. Chad Darrah, a Human Resources Advisor for the Employer, followed up later that morning with this email response to Superintendent Hill and the others on the email chain with the following:

From: Darrah, Chad (MGCS)

You’ve hit the nail on the head Tony.

Overtime is not a “right” and we don’t have to move people around to accommodate someone for an OT Shift.

33Sergeant Daley testified he never showed Grievor Rumboldt or any other CO a memo from Superintendent Hill that stated Grievor Rumboldt and Ms. Shipticki were not to be hired for overtime. He did suggest, however, that he may have had a discussion with Mr. Rumboldt regarding the overall direction of Deputy Superintendent Hill’s December 28, 2018, memo.

34The Employer, through the evidence of Sergeant Medeiros, classified Grievors Rumboldt and Rimos as prolific grievors, asserting that they often grieved a denial of overtime regardless of the actual circumstances. In this regard, Sergeant Medeiros testified that both Grievors Rimos and Rumboldt received numerous overtime opportunities on nights. It was also claimed that both of the grievors had accumulated very substantial “HOT hours”, which belied their claim that they had consistently been denied overtime.

Submissions of the Union

35The Union asserted that the decision in this matter had broader implications than the individual circumstances associated with the grievances filed by Mr. Rimos and Mr. Rumboldt. There were significant issues regarding the Employer’s practice of bypassing employees with restrictions in relation to the application of the POP that needed to be addressed.

36Mr. Holmes, on behalf of the Union, asserted that there is no dispute that the Grievors respectively had disabilities for the purposes of the Code that gave rise to the Employer’s duty to accommodate obligations. Related to this point, it was noted that the Employer’s Staff Services Department had approved the stipulated restrictions, and the associated accommodation plans for the Grievors. Furthermore, those accommodation plans were placed on HPRO by Staff Services and were thus binding upon the manager doing scheduling with respect to the administration of the POP and in relation to available overtime opportunities that the Grievors may have been eligible for.

37The following underlying principles of the POP were identified as being particularly relevant to the issues in dispute:

• The Protocol is to provide a fair and equitable system to equalize employee overtime opportunities.

• Compliance with the Ontario Human Rights Code must be achieved such that the Protocol contains provisions “that ensure interested employees with disabilities are given opportunities to work overtime to the extent that their medical restrictions allow.”

• Employees in need of accommodation who have indicated availability will be offered overtime opportunities in the same manner as other employees on the roster.

• If an employee in need of accommodation can only perform specific duties, work specific hours, work specific days or work at specific posts, the employer may switch assignments between employees, if operationally feasible, in order to offer those on accommodation an opportunity to work overtime.

• Fixed Term Employees (FXTs) shall only be offered an overtime opportunity “after all regular employees who have signed on to the overtime roster be exhausted”.

38The Union asserted that there was a lack of consistency and commitment by the Employer regarding the application of the provisions of the POP to COs with accommodation needs, especially with respect to those COs working nights. For the Union, the true nature of the Employer’s attitude towards its obligation to accommodate the Grievors was revealed in the December 28, 2018, email of Deputy Superintendent Hill and the reply email of Human Resources Advisor, Mr. Darrah. Mr. Holmes submitted that the wording and tone of Deputy Superintendent Hill’s email was offensive. Reference was made to the statement that employees should not be hired for overtime to do nothing “especially by people who are already on accommodation”. It was further suggested that the assertion that an employee who routinely works a post does not have to be moved “to make room for an accommodated person on overtime” was blatantly contrary to the provisions of the POP and the Code. It was submitted that the evidence establishes that Sergeant Daley and Sergeant Caswell had internally expressed concern about the COs on nights with accommodation needs being bypassed for overtime opportunities, while those with such needs working days were not being bypassed.

39The Union did not focus on the specifics of the Employer’s application of the Protocol with respect to a particular overtime opportunity in dispute, as in, the Union did not focus on a circumstance wherein the Employer failed to switch out a CO from a post that was compatible with the Grievors’ respective restrictions. Rather, the Union asserted that the Employer was obligated to meet the accommodated needs of the Grievors by expanding the nature of the work that would constitute an overtime assignment for the Grievors and similarly-situated employees. Related to this point, it was submitted that COs with accommodation needs on nights, such as the Grievors, were not afforded the same overtime opportunities as COs with accommodation needs working days.

40For the Union, one way the Employer should have addressed the accommodation needs of the Grievors was to provide overtime opportunities to them on an “over-complement” basis. Mr. Holmes asserted that it is recognized in the jurisprudence that an employer, in certain circumstances, may be obligated to utilize an employee on an over-complement basis to meet its duty to accommodate obligations. Further to this point, particular reliance was placed on the decision in Ontario English Catholic Teachers’ Association and Hamilton Wentworth Catholic District School Board 2018 CanLII 90730 (ON LA) (Steinberg). It was opined that Arbitrator Steinberg in that case outlined the following principles: (1) the determination as to whether the duty to accommodate requires an employer to utilize an employee on an over-complement basis is a fact-based question. That is, is it a question of fact, not law; (2) the onus is on an employer to demonstrate that such an over-complement scenario would constitute undue hardship; (3) a history of an employer utilizing employees on an over-complement basis may make it difficult for an employer to assert that in the particular circumstances of the individual asserting a need for accommodation that the over-complement scenario at issue constitutes undue hardship; and (4) it is not sufficient for an employer to merely claim undue hardship; supporting concrete evidence must be submitted demonstrating that the Employer will have difficulty absorbing the costs associated with the accommodation measures being considered.

41Overall, it was asserted that the Ontario English Catholic Teachers’ Association, supra, case stands for the proposition that in cases where there is an existing practice of an employer utilizing employees in an over-complement capacity, it will be difficult for the employer to suggest that utilizing an employee in need of accommodation in an over-complement capacity constitutes undue hardship. Further to this point, Mr. Holmes submitted that in the case at hand, there was a clear established practice at the TEDC of over-complementing, especially in relation to the Control and Unit 1B posts. Reference was made to a record kept by Ms. Shipticki regarding the Employer repeatedly staffing the Control post above-complement on the day shift for the period of January to June 2019. Moreover, Ms. Shipticki's records also confirm that, in fact, there was a high frequency of over-complementing with respect to the Control and Unit 1B posts during nights. Reference was also made to the records kept by Grievor Rimos, which set out examples of over-complementing of the Control and Unit 1B posts during the days and nights of 2020 and 2021. Rhetorically, it was asked if there is a clear practice of the Employer hiring a third CO during the day for the Unit 1B post above the normal complement of two COs, why could Grievor Rumboldt not be assigned as a second CO above the normal complement of one CO on Unit 1B for nights?

42For the Union, it was irrelevant whether such over-complementing related to employees doing so on a straight time or an overtime rate basis as the existence of either practice fundamentally defeated any undue hardship claim of the Employer.

43A second limb of the Union’s argument was the proposition that jurisprudence pertaining to the duty to accommodate establishes that an employer ought to consider a “bundling of duties” approach, focusing on the duties that the employee with restrictions may be able to perform. It was asserted that in the case at hand, there was a clear bundle of duties that the Grievors could have performed to constitute a viable overtime assignment. In fact, it was asserted that with respect to Grievor Rumboldt, up until the December 2018 email of Deputy Superintendent Hill, the Employer had been bundling duties to allow for Mr. Rumboldt to work shifts on an overtime assignment.

44Mr. Holmes noted that Grievor Rumboldt's accommodation plan lists duties and assignments that he could perform that in themselves do not constitute the full duties of any post. It was submitted amongst the duties on nights that Grievor Rumboldt could perform that could comprise a full shift of overtime, included being a second CO assigned to the Unit 1B post, covering the relief break of those employees assigned to Control and Unit 1B, vehicle preparation, screening of mail, and grilled door duties. It was argued that he should have been given an opportunity to perform those duties as an overtime assignment rather than the Employer relying on FXT employees in certain circumstances.

45With respect to the bundling of duties argument, the Union placed reliance on the following authorities: Mount Sinai Hospital and Ontario Nurses’ Association (1996) 54 L.A.C. (4^th) (R. M. Brown); Mount Sinai Hospital and Ontario Nurses’ Association (1997) 1997 CanLII 26795 (ON LA), 66 L.A.C. (4^th) 221 (Emrich); Ontario Liquor Board Employees’ Union (Fenech); and The Crown in Right of Ontario 2002 CanLII 45765 (ON GSB) (Marszewski).

46It was further asserted that there was a complete lack of evidence proffered by the Employer regarding its claim of undue hardship. All that was advanced was the blanket statement that accommodating the Grievors by hiring them for overtime work would be costly. It was suggested that such a claim without any supporting evidence was rejected by Arbitrator Steinberg in the Ontario English Catholic Teachers’ Association, supra, case.

47Mr. Holmes submitted that the Employer's failure to take appropriate steps to ensure that the Grievor was offered overtime opportunities in a non-discriminatory manner must be seen in the context of the June 3, 2021, Memorandum to all OPS staff from the Secretary of the Cabinet and Deputy Ministers pertaining to the release of the Third Party Review of Inclusive Workplace Policies and Programs in the OPS. It was emphasized that the Memorandum noted that the Third-Party Review found that systematic racism and discrimination in employment barriers continue to harm the well-being and careers of OPS employees, including employees with disabilities. It was noted that the Memorandum then set out an apology from the Provincial Government regarding the failure to ensure that such employees were not necessarily afforded respectful and equitable treatment.

Submissions of the Employer

48For the Employer, the issues in dispute must be assessed in light of certain fundamental labour relations principles. The first such principle is that no management right is more fundamental than the right to assign work. The Employer exercises its discretion to assign work on a shift-by-shift basis depending on its operational needs. Further to this point, Mr. Meier, on behalf of the Employer, noted that the evidence establishes that the TEDC, from a staffing perspective, is a dynamic institution, such that the operational requirements fluctuate daily depending on a variety of factors, including emergencies, scheduled vacations, absences and inmate levels.

49It was noted that given the differing operational requirements, the relevant staffing requirements for the institution dramatically differ during the day in comparison to those relevant at night. During the day, inmates are not typically locked in their units, and there are ongoing activities, including recreational/yard programs, medical parades, admitting and discharging inmates, processing inmates for court, and escorts for hospital and medical runs. As such, there are more than 70 posts that need to be filled with respect to the operations of the institution during the day. The night shift was characterized as a totally different situation, with inmates generally locked in their units and there being very limited activity. Accordingly, there was only approximately 14 posts on nights.

50Mr. Meier submitted that another key principle that should guide the result in this matter is that absent express wording in the collective agreement to the contrary, an employee does not have a right to overtime. Further to this point, it was noted that neither Article COR8, nor any other provision of the collective agreement, addresses or circumscribes management’s discretion regarding its decision to assign work as overtime. Specific reference was made to Article COR8.2.2, which provides that overtime opportunities will only be offered once “non-overtime regular and non-overtime fixed-term resources have been exhausted”. Accordingly, it was asserted that not only does the Employer have the sole discretion to decide whether overtime work is necessary, but it must also first exhaust all “non-overtime resources” before assigning overtime.

51A further principle advanced by the Employer was that the duty to accommodate does not obligate an employer to pay for work that it does not need to have performed, and an employer is definitely not obligated to pay an overtime rate of pay for work it does need to have performed. Furthermore, the decision as to whether an overtime work assignment is of value is a decision of the Employer and not the decision of the Union or an employee with accommodation needs. Related to this point, it was asserted the subjective viewpoint of the Union or an employee that there is additional work that could be performed is entirely irrelevant. It is up to the Employer, based on its assessment of its operational needs, as to whether it is appropriate to hire personnel to perform work.

52Mr. Meier opined that the parties, through the POP, have agreed to reasonable and bona fide provisions in relation to overtime opportunities for employees with accommodation needs. The POP, it was noted, expressly provides that employees on accommodation will be offered overtime opportunities in the same manner as other employees. Significantly, it was suggested that the POP goes on to impose an obligation on a Manager doing scheduling to assess if it is operationally feasible to switch an employee to another post so that an employee with accommodation needs who could perform the duties of the switched-out post has the opportunity to work overtime. The Employer suggested that it was noteworthy that the Union has never filed a policy grievance asserting that the POP was not compliant in some manner with the Code.

53With respect to the application of the POP in the case at hand, it was noted that of the 19 shifts that Grievor Rumboldt initially asserted he should have been awarded, a straightforward application of the provisions of the POP suggests only one such claim had merit. With respect to the two overtime opportunities that remained outstanding regarding Grievor Rimos, it was argued that the facts unequivocally establish that there was no breach of the POP with respect to either impugned shift.

54Mr. Meier submitted all four authorities relied upon by the Union were factually distinguishable as all those cases related to a totally different scenario pertaining to the reintegration of a disabled employee back into the workforce after being off work for a period of time.

55The Employer took issue with any assertion that there is support in the jurisprudence that the duty to accommodate requires an employer to offer “make work” overtime assignments by bundling assorted tasks or duties that, in the Employer’s view, need not be done, especially at a premium rate of pay. Factually, it was asserted that the evidence of Sergeant Daley provided a complete answer to the Union’s suggestion that there was in Grievor Rumboldt’s accommodation plan a list of duties that could have been bundled for him to perform on nights that would comprise a viable overtime shift. In this regard, vehicle preparation was not a duty assigned to COs working nights and especially not to employees hired on an overtime basis. With respect to covering for relief breaks on nights for the Control and 1B posts, the Employer noted that whether it is straight time or on an overtime basis, it has never assigned anyone to perform that duty, as employees on nights can cover each other’s breaks. As to the task of escorting cleaners, it was noted that during the relevant period of time of Grievor Rumboldt’s claim of missed overtime opportunities, the Employer did not assign any employee the task of escorting cleaners on nights, as it was only as of October 1, 2019, that there was a specific assignment of escorting cleaners, and that was for just a two-hour window.

56Regarding the “over-complement” argument of the Union, Mr. Meier noted that the issue in the Ontario English Catholic Teachers’ Union, supra, decision that the Union placed considerable reliance upon, related to providing a position to an employee who had been off work for over eight years due to a disability. It was asserted that the Employer did not seek, nor was it obligated, to assign the Grievors on an above-complement basis to Control or Unit 1B posts at overtime rates of pay. It was acknowledged that Grievor Rumboldt had in the past performed overtime work on nights with respect to assigned front door duties, which effectively created a second Control post on nights; however, those shifts related to a temporary scenario regarding the front door project that ended in December 2018.

57As to the records of Ms. Shipticki that were entered into evidence, it was asserted that those records failed to establish that there was a long-standing practice of the Employer assigning employees to work above-complement on either the day or night shifts or that such over-complementing assignments pertained to overtime shifts. It was also submitted that the shifts referenced by Ms. Shipticki represented a mere fraction of the scheduled shifts at the institution. With respect to the alleged over-complementing in the Control and 1B Unit posts on nights, reference was made to the evidence of Sergeant Medeiros that on certain nights, the reason that there may be two COs assigned to the Control post related to overlapping employee schedules to ensure the COs assigned to that post receive 40 hours of work per week as provided for under the collective agreement. It was further noted that the one day that Grievor Rimos cited there being four COs in Control, all four COs were on accommodation, and none were working overtime. Mr. Meier suggested that the Employer should not be criticized for endeavouring to give these employees work to ensure they receive 40 hours of work per week. It was also claimed that the records of Ms. Shipticki and those of Grievor Rimos failed to provide a single incident of the Employer paying a CO at the overtime rate in relation to a post being above-complement.

58Mr. Meier asserted that at the end of the day, the submitted evidence suggests that the position of the Union and the Grievors is ostensibly a “me too” argument. That is— it was being claimed that since employees with accommodation needs working days are not being bypassed for overtime opportunities with the same frequency as the Grievors working nights are being bypassed, the Grievors claim they should be entitled to the same number of overtime opportunities. It was asserted that the difference or distinction that the Grievors and the Union complain about is not related to the Grievors’ disabilities, but to the fact that during the day shift, there are more opportunities to switch employees out to allow an employee with accommodation needs to work overtime.

59As to the December 28, 2018, email of Deputy Superintendent Hill, it was asserted that his email must be viewed in light of the facts at play. Grievor Rumboldt had been receiving overtime opportunities associated with the ongoing front-door project. By December 2018, however, that project was completed; therefore, there ceased to be the need for a second CO to be assigned to the Control post. In light of that development, Sergeant Caswell emailed members of the management team and inquired, given that Grievor Rumboldt's restrictions at the time included not being assigned in the Control post alone, was the Employer obligated to continue to hire him on an overtime basis? Mr. Meier asserted that the response of Deputy Superintendent Hill was entirely appropriate, as he quite rightly indicated that overtime was not a right. It was noted that Deputy Superintendent Hill, however, went on to advise, consistent with the provisions of the POP, that if there was a post occupied by a CO who was not being accommodated, and that CO could be moved to another post, then the CO should be switched out from the post to allow the CO with accommodation needs to work the overtime.

60The Employer additionally asserted that Sergeant Daley's evidence that he never showed any email from Deputy Superintendent Hill to Grievor Rumboldt or any other employee suggesting that CO Rumboldt and CO Shipticki should not be assigned overtime should be accepted. The better view, it was suggested, is that no such email ever existed.

61In support of its submissions, the Employer relied upon the following authorities NGF Canada Ltd. v. Workers United Ontario Council, (2010) 194 L.A.C. (4th) 264 (Surdykowski); Ontario Public Service Employees Union (Conry) v. Ontario (Community Safety and Correctional Services), 2018 CanLII 55863 (ON GSB) (Williamson); Ontario Public Service Employees Union (Pratt) v. Ontario (Community Safety and Correctional Services) 2010 CanLII 15643 (ON GSB) (Briggs); Brown & Beatty, Canadian Labour Arbitration, 5th Edition § 5:44; University of Guelph and USW, Local 4120 (Myers), (2014) 242 L.A.C. (4th) (Picher); Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services) 2013 CanLII 50485 (ON GSB) (Briggs); Charlton v. The Crown in Right of Ontario (Ministry of the Solicitor General) (31 March 2020) PSGB# P-2018-3883 (Tremayne); Chadwick v. Norfolk (County), 2013 HRTO 2101; Ontario Public Service Employees Union (Rizzo) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services) (May 31, 2024) GSB# 2015-1711 et al. (Dissanayake); Ontario Public Service Employees Union (Anthony et al.) v. The Crown in Right of Ontario (Ministry of Labour) (April 28, 2004), GSB No. 1999-1977 et al. (Abramsky); F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Ozog v. Caldwell Partners International, 2010 HRTO 1986 (Sheehan), para. 26; Mann v. Dimplex North America Limited, 2013 HRTO 606 (Price); Faryna v. Chorny, 1951 CanLII 252 (BC CA); R. v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514; City of Stratford and Canadian Union of Public Employees, Local 1385 [2008] O.L.A.A. No. 544 (Sheehan).

Decision

62It is noted at the outset that this matter proceeded on the basis that the grievances being adjudicated would represent “test cases” that would potentially address some significant issues regarding the relationship between the Employer’s obligation to accommodate the Grievors in light of their disabilities and the distribution of overtime through the POP.

63There is no fundamental dispute that Grievors Rumboldt and Rimos were bypassed for certain overtime opportunities because of the restrictions associated with their disabilities. Those restrictions, which were not a point of contention, resulted in both Grievors not being considered with respect to overtime opportunities that they would otherwise have been eligible for on account of their respective HOT hours under the POP.

64The POP represents an agreement between the parties in furtherance of the understanding reached at Article COR8.2.1 of the collective agreement providing for methods of “distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met”.

65There are important guiding principles associated with the application of the provisions of the POP that are particularly relevant to this dispute. The first such principle is that the Protocol was designed to be a fair and equitable system to equalize the opportunity for overtime hours with the goal of distributing “overtime opportunities amongst all eligible employees fairly”. That goal is qualified by the stipulation that the POP is not designed necessarily to ensure that all employees work the same number of hours and that circumstances may restrict actual equitable distribution.

66Significantly, the next identifying guiding principle is the requirement that the Protocol must comply with the Code “such that they contain provisions that ensure interested employees with disabilities are given opportunities to work overtime to the extent that their medical restrictions allow”. The Protocol has an Accommodations subsection which has two components: The first is that employees on accommodation “will be offered overtime opportunities in the same manner as all other employees on the roster”. The second component could be identified as “the switching of assignments” accommodation. Specifically, it provides that “if an employee on accommodation can only perform specific duties, work specific hours, work specific days or work at specific posts, the employer may switch assignments between employees if operationally feasible, in order to offer those on accommodation an opportunity to work overtime”. The Protocol, therefore, at a minimum, contemplates an accommodation measure whereby an employee whose restrictions dictate that he/she can only work certain posts, that the Employer should consider, if operationally feasible, to move an employee originally assigned to work one of those posts that the accommodated employee could work to a different post, so that the accommodated employee can work the overtime opportunity.

67There is merit, in my view, to the Employer’s argument that that “the switching of assignments” provision should be seen as establishing that the Employer has significantly addressed its duty to accommodate obligations by providing a reasonable accommodation measure that potentially opens the door for a CO with accommodation needs to be considered for a number of overtime opportunities that the CO would not otherwise be eligible for due to his/her restrictions. On this point, reference is made to the proposition set out by the Supreme Court of Canada in Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 275 (SCC) that an employee in need of an accommodation is not entitled to a perfect solution but only entitled to measures that are reasonable in nature. Related to this point, it is noted, as pointed out by the Employer, that the Union has not in the context of this proceeding or through filing a policy grievance asserted that accommodation measures set out in the POP are not in compliance with the Code. That being said, it is not accepted that the Employer’s compliance with the “switching of assignments” measure is necessarily a complete answer such that it closes the door on a claim that the Employer, depending on individual circumstances, may be obligated to adopt further or different measures in terms of satisfying its duty to accommodate obligations with respect to entitlement to overtime opportunities for an employee with accommodation needs.

68Further to the discussion regarding the application of the POP, the Union ostensibly did not challenge the Employer’s evidence detailing how the relevant provisions of the POP were applied with respect to the individual claims of both Grievors. In this regard, the Employer’s evidence set out in Exhibit 14 - Analysis of the Grievor’s Impugned Shifts pertaining to Grievor Rumboldt is accepted and adopted. Likewise, the Employer’s evidence set out in Exhibit 20 - Addressing CO Rimos’ Challenges is accepted and adopted. That evidence affirms that the Employer properly applied the provisions of the POP with the disputed overtime opportunities, save and except for one instance (an April 27, 2020, E23 Shift), with respect to Grievor Rumboldt.

69As suggested, the focus of the Union’s case was not necessarily to establish that the Employer failed to consider and/or apply “the switching of assignments” requirement as is set out in the Protocol as it pertained to a particular overtime opportunity in dispute, or that the Employer otherwise misapplied the provisions of the POP; rather, the thrust of the Union’s argument relates to a broader issue pertaining to the allegation that the Employer breached its duty to accommodate obligations by not considering other options that would have allowed the Grievors to be assigned the overtime opportunities that were sought. In particular, the Union asserted that short of establishing undue hardship, the Employer should be obligated to consider certain options to allow for more opportunities for the Grievors and other similarly-situated employees to work overtime. Those options were outlined as: (1) providing opportunities on an “over-complement” basis; and (2) allowing for a bundling of duties to create a shift of work that the Grievors could have performed on an overtime basis.

70Both the Union’s over-complement and bundling of duties arguments have to be seen in the context that absent collective agreement language to the contrary, an employer has a right to direct its operations, including a decision as to the manner in which the work is to be performed. As Arbitrator Surdykowski observed in NGF Canada Ltd. supra:

There is no management right that is more fundamental than the right to organize and direct the workforce, and more specifically to assign work to the employees. Indeed, unions generally spend much collective bargaining time and effort trying to negotiate collective agreement provisions which do just that. Clear collective agreement language is required to fetter and employer's right to assign work.

Under the parties’ collective agreement, there is no provision that fetters or restricts the Employer’s managerial prerogative to decide whether work should be performed at all or that work should be performed as overtime. As to the POP, it expressly provides that it is only applicable “once a decision is made to hire overtime…”.

71Further to the accepted labour relations principle that the decision as to whether work should be assigned as overtime is generally the inherent right of an employer to decide based on operational needs, reference is made to the University of Guelph, supra, case. That case involved a decision by the employer to utilize non-bargaining unit part-time employees to perform required work over the Christmas/New Year holiday season as opposed to offering the work as overtime to full-time employees. In rejecting the union’s argument that the employer had an obligation to offer the work as overtime, Arbitrator Pamela Picher noted:

Similarly, in Falconbridge Nickel Mines Ltd. v. Sudbury Mine, Mill & Smelter Workers' Union, Local 598 (1981), 1981 CanLII 4485 (ON LA), 1 L.A.C. (3d) 309 (Ont. Arb.) (H.D. Brown), the arbitrator confirmed that there is nothing inappropriate in an employer scheduling its employees in a manner that avoids the additional labour costs associated with the scheduling of overtime. At pages 313-314, the arbitrator stated the following:

... there is nothing to prevent the company through its supervision to cancel that work assignment and to rearrange by rescheduling other employees to perform the work during their regular shift so as to avoid the payment of overtime. There is nothing inherently wrong for an employer to try to avoid extra labour costs for the economic and efficient operation of the business, which is recognized in art. 4.01 of this collective agreement, which includes the direction of the working forces in that manner. Where, however, the company has determined that overtime is necessary, it must abide by the distribution of such overtime as provided by art. 11.03. The pre-condition for the operation of that article, however, is that overtime is required by the company. It is for the company to determine whether work is to be performed and whether overtime is required and an employee cannot simply claim certain work assignments as overtime for the purposes of his group, even though he would normally perform that work during the regular schedule.

[emphasis added]

…. Moreover, these principles are summarized, as follows in Canadian Labour Arbitration, third edition, 2005, Donald Brown and David Beatty (Canada Law Book, Inc.) at paragraph 5:3220:

... It is generally agreed that unless there are specific provisions in the agreement to the contrary ... employees do not have any right to have overtime work assigned to them ... Rather, overtime is perceived as simply one manner in which management may have its work performed. Thus, unless the agreement provides otherwise, it is assumed that management is free to have such work performed by reallocating it, or by rescheduling operations, recalling employees, or by instituting temporary transfers or promotions of personnel. Indeed, there appears to be a general consensus that management's ability to assign the work in such ways, rather than have it performed on an overtime basis, is not restricted by a provision in the agreement requiring it to distribute overtime equitably amongst the employees who normally perform the work. Arbitrators have insisted, however, that the reorganization of work not be carried out arbitrarily or in bad faith. ...

[emphasis added]

Regarding the collective agreement between the parties, the management rights clause, article 4.01(a), expressly entitles the University to "maintain ... efficiency". It also, in subsection (d), expressly acknowledges management's right "to determine ... schedules of work and all other matter[s] concerning the operation of the University ..." Accordingly, and consistent with the jurisprudence referred to above, the Arbitrator is satisfied that the University acted entirely within its rights by scheduling its work in a manner that would promote the efficiency of its operation through the minimization of premium labour costs associated with the scheduling of overtime for regular full-time employees. As stated in Falconbridge Nickel Mines Ltd. v. Sudbury Mine, Mill & Smelter Workers' Union, Local 598, "There is nothing inherently wrong for an employer to try to avoid extra labour costs for the economic and efficient operation of the business…

72Arguably of more significance to this dispute, similar reasoning was employed by Arbitrator Williamson in Ontario Public Service Employees Union (Conry), supra, a case involving these parties. That was a termination case wherein Arbitrator Williamson rescinded the termination of a CO and directed that the grievor be reinstated to a “substantially equivalent position”. The Union argued that the position that the grievor was placed in by the Employer was not substantially equivalent to his previous CO position since he had earned considerably less income as overtime than he had been earning as a CO prior to his termination. In rejecting that argument, Arbitrator Williamson observed:

Whether to extend overtime work to employees, and if so how much, falls inside the rights of management in the instant collective agreement. Thus an employee does not have any right or entitlement to overtime work. As noted in the 1988 Decision of Re Adolfo Cruz, supra, at page 5:

As the Board has found in a number of cases, among them Pehlke, 791/85, there is no employee right to overtime work. The employer has the exclusive managerial right to schedule such work.

As such, Mr. Conry does not possess any right to overtime work and, by extension, has no right to any set amount of overtime work in the future. Absent entitlement to overtime, there can be no entitlement to any particular quantum of overtime…. Further, to suggest that, against a background of changing staffing levels and operational needs, the Employer would offer the same quantum of overtime in the future as in the past must be seen to be conjectural and speculative.

73The fundamental obstacle the Union’s position had to overcome was that it asserted that the Employer was obligated to offer overtime opportunities with respect to work that in the Employer’s view did not have to be performed and definitely did not need to have performed as overtime. While the duty to accommodate may, in certain circumstances, impinge or fetter the Employer’s general right to assign work and its workforce, as, for example, mandating a reassignment of duties between employees so that an employee with accommodation needs is able to provide productive work; it does not, in my view, extend to requiring the Employer having work performed that is unproductive or otherwise not required.

74The Union’s over-complement argument placed significant reliance on the Ontario English Catholic Teachers’ Association, supra, decision. It would be an understatement to state that the facts of that case are far removed from those in the case at hand. That case involved the failure of the employer to allow an employee, who had been out of the workforce for over eight years due to a disability to return to work in a full-time position as a secondary school teacher. It would seem a rather straightforward observation that an employer may have to consider more significant and costly measures to accommodate an employee in a return-to-work scenario than with respect to an issue pertaining to the distribution of overtime. On this point, reference is made to the Mount Sinai, supra, decision of Arbitrator Brown, which the Union relied upon to buttress its bundling of duties argument. That case involved a nurse who had injured her back at work. To satisfy its duty of accommodation obligations, the employer placed her in a clerical coordinator position outside the bargaining unit. The union asserted that pursuant to the duty to accommodate, the employee should have remained employed in a nursing capacity. As part of his analysis, Arbitrator Brown adopted a proportionality principle that suggests that the cost the employer may have to bear in terms of undue hardship relates directly to the benefit flowing to the employee if the accommodation measures being considered were adopted. Specifically, he noted:

In a disability case, this balancing exercise should be conducted by comparing the cost of accommodation with the benefit resulting from it in the particular circumstances. Consider a disabled employee who is at a very large disadvantage caused by his or her handicap, and assume all of the employment-related burdens of this person's disability could be eliminated at very little cost to the employer. In this scenario, the hardship imposed by accommodation would not be undue because the benefit greatly exceeds the cost. Compare the foregoing example with another where the disadvantage removed by accommodating an employee would be very small in relation to the cost of eliminating it. In this context, the hardship of accommodation would be undue because the cost far exceeds the benefit. We believe the latter example is the type of case addressed by the following remarks about the duty to accommodate made by Sopinka J. in Renaud, supra (p. 593):

The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all of the circumstances is turned down, the employer's duty is discharged.

The general principle of proportionality which emerges from the foregoing analysis is that the burden which an employer should be required to bear varies inversely with the consequential relief flowing to a disabled employee. One corollary of this principle is that more should be done to provide work to someone who otherwise would remain outside the active workforce, without any of the rewards of employment, than to place a person in one job rather than another. By the same token, if a handicapped employee wishes to perform the type of work done before being disabled, more should be done to achieve this result in cases where the alternative job is very inferior than in cases where this alternate assignment is only slightly less advantageous to the individual.

With respect to the issue of proportionality as to the measures the Employer was obligated to undertake in the case at hand to satisfy its duty to accommodate the Grievors, it is also significant that the Grievors received a significant amount of overtime through the application of the POP. This is not a scenario wherein the employees involved were not assigned overtime on a fairly regular basis or completely precluded from being assigned overtime because of their disabilities.

75It is also noteworthy that Arbitrator Steinberg, in listing the duty to accommodate principles that “were well established in the jurisprudence and which apply in every case where the duty to accommodate is engaged”, included, “the employer is not required to create a job for the sole purpose of accommodating a disabled employee nor is it required to create a nonproductive above-complement position or incur the cost of providing unproductive work”. It is also noted in the Ontario English Catholic Teachers’ Association, supra, case, there was no suggestion that the work performed for the school board on an above-complement basis was unproductive or work that was not required as there is in the case at hand.

76As to the Union’s claim that there was an Employer practice of over-complementing the Control and Unit 1B posts both on days and nights, the evidence suggests that additional COs being assigned to those posts related to such issues as the specific operational demands that needed to be addressed, the overlapping scheduling parameters applicable to certain employees associated with the hours of work provisions of the collective agreement, or, or in a similar vein, ensuring that employees in need of accommodation achieved the necessary hours of work they were otherwise entitled to. There certainly was not a practice, as was the case in the Ontario English Catholic Teachers’ Association, supra, case of placing employees in an above-complement position to address their accommodation needs.

77In terms of the “bundling of duties” argument advanced by the Union, again, the applicability of such an argument would hinge on there being sufficient productive duties to form a job of work. As was noted in Chadwick v. Norfolk (County), supra:

In Vanegas v. Liverton Hotels International Inc., 2011 HRTO 715, the Tribunal discussed the development of the jurisprudence regarding whether an employer is required to “bundle” duties together to create a new job to accommodate a disabled employee. In Vanegas, the Tribunal concluded that the duty to accommodate may, in appropriate circumstances, require an employer to “bundle” or take tasks from existing positions to essential create a new position within the restrictions of employees requiring accommodation, unless such “bundling” results in undue hardship to the employer. The Tribunal noted, however, that ultimately an employee must be able to perform a useful and productive job for the employer. See also Saucier v. Smart Lazer Grafix, 2009 HRTO 1053 at paragraph 19, where the Tribunal confirmed that the accommodation process does not require an employer to provide “make work” or to create a job that is not productive or that, in the employer’s view, does not need to be done.

(emphasis added)

78Factually, in terms of its bundling of duties argument, recognizing there needed to be sufficient work to constitute a viable shift of work on nights, the Union focused on the hours associated with potentially providing coverage for relief breaks of those employees working the Control and Unit 1B posts. The only problem with that argument is that the Employer had always been able to get by using the staff on duty to cover each other's breaks. Similarly, it was claimed that another potential work assignment relevant to its bundling of duties argument was vehicle preparation, which would be preparing the vehicles that were to be used for escorts (which takes place during days). The Employer, however, employs an institutional driver on days who is responsible for maintaining the Institution's vehicles.

79It is also important to note that at the heart of the Union’s and, more particularly, the Grievors’ claims is that it was unfair and a contravention of the Code that employees on days with accommodation needs were not being bypassed for overtime opportunities at the same scale as employees with accommodation needs on nights. The dramatically different nature of operations at TEDC during the day in comparison to nights invariably leads to the likelihood that there will be more overtime opportunities, including those arising pursuant to the switching out assignments provisions of the POP, during the day in comparison to nights for employees with accommodation needs. That fact or reality, in my view, does not constitute discriminatory treatment under the Code. The differential treatment that the Grievors relied upon is not tied to their disabilities but to the different set of circumstances with respect to the Employer's operations on days in comparison to those operations at night. On this point, see Mann v. Dimplex North America Limited, supra.

80In summation, neither the “over-complement” or “bundling of duties” arguments of the Union have been found to be convincing either in terms of establishing a breach of the POP or the Code. Even if it was accepted that those arguments were theoretically applicable with respect to the assignments of the overtime in dispute, the Union in both cases could not overcome the obstacle that the work proffered in support of both arguments was work that the Employer had not sought to have performed and definitely did not seek to have performed as overtime. And there was no basis to suggest that the Employer in not seeking to have the work performed or assigned in the manner suggested by the Union was a decision made arbitrarily or in bad faith.

81The final aspect of the case that needs to be addressed is the allegation that Deputy Superintendent Hill forwarded an email to the management team, including Sergeant Daley, expressly dictating that Grievor Rumboldt and CO Shipticki were not to be called for overtime opportunities if a position needed to be filled. Upon reviewing all the relevant evidence, it is my view that there was no such email from Deputy Superintendent Hill specifically suggesting any particular employee with accommodation needs was not to receive overtime. By the same token, it is clear that through his December 28, 2018, email, Deputy Superintendent Hill forcibly indicated that overtime was not a right and that employees should not be hired to sit around and do nothing if all the relevant posts were filled. Sergeant Daley, in my view, in some manner communicated to Grievor Rumboldt the directions set out by Deputy Superintendent Hill in the December 28, 2018, email, which left the impression with Grievor Rumboldt that going forward, the Employer would be restricting the overtime opportunities for COs with accommodation needs that worked nights, which Grievor Rumboldt then passed on to those employees.

82The Union's position with respect to the December 28, 2018, email of Deputy Superintendent Hill and the follow-up response of Human Resources Advisor Mr. Darrah is entirely understandable. Attention is paid to the last line of Deputy Superintendent Hill’s email that stipulates when referring to switching out a CO without restrictions from a post: “However if that person routinely works that post then we don’t have to move them to make room for accommodated person on overtime”. That is followed up by Mr. Darrah's response declaring that Deputy Superintendent Hill was right and that “Overtime is not a ‘right’ and we don’t have to move people around to accommodate someone for an OT shift”. Those statements are blatantly not in accord with the accommodation provisions set out in the POP, which, as has been previously discussed, expressly obligate the Employer to consider switching out a CO from a post to allow an employee with accommodation needs to work an overtime opportunity.

83Those comments of Deputy Superintendent Hill and Human Resources Advisor Darrah, in my view, are counterbalanced, however, by the other statements of Deputy Superintendent Hill and other members of the Employer’s management team. In his December 28, 2018, email, Deputy Superintendent Hill, before his comment about a CO who routinely works a post, specifically sets out the POP switching-out requirement: “If there is a non-accommodated person in a particular post and there is room for them to work elsewhere to free up that position for the accommodated person then that can be done”. Reference is also made to an email exchange between Sergeant Lisa Raposo and Deputy Superintendent Hill on April 6, 2019, wherein Sergeant Raposo raised an inquiry about bypassing COs with accommodation needs. Deputy Superintendent Hill’s reply to Sergeant Raposo stated: “Be sure that there are not any moves that can be done to free up spots where they can work”. In a similar vein, on June 6, 2019, Sergeant Daley sent an email to the TEDC managers seeking direction so that all managers were on the same page regarding bypassing staff with accommodated needs for overtime. In the email, Sergeant Daley raised a concern that staff on accommodation working nights were being bypassed, leading to grievances being filed, while he was of the view COs on days with accommodation needs were apparently not being bypassed with the same frequency. Sergeant Mederios sent out a response the same day indicating that if an employee with accommodation was being bypassed, it had to be recorded that there “was not a post or staff who could be moved”. Finally, in relation to this point, Ajmal Maiwand, Deputy Superintendent Operations at TEDC, on May 10, 2021, sent out a memo identified as being of High Importance to all managers indicating that in light of the Employer incurring “unnecessary payoffs of thousands of dollars” as a result of grievances, it was imperative that there be compliance with the switching of assignment obligations under the POP.

84Additionally, as has been previously noted, with respect to the context of the disputed shifts raised by the Grievors that are the subject of this proceeding, aside from the cited one instance, the Employer, in the appropriate manner, followed the mandated approach of considering whether a switching of assignments could have been applied.²

85In conclusion, it has been determined that the Employer, aside from the one conceded instance, did not breach the POP or the Code with respect to the cited overtime opportunities involving Grievors Rumboldt and Rimos that have been the subject of this proceeding. Accordingly, the grievances are, hereby, dismissed.

Footnotes

1. 1During the proceeding, the Employer conceded two grievances regarding Grievor Rimos – Grv. No. 2021-0583-0056 (T7 Shift February 12, 2021) and Grv. No. 2021-0582-0056 (T7 Shift-March 7, 2021)
2. 2If it has already not happened, Grievor Rumboldt is to be made whole with respect to the one cited missed overtime opportunity (April 27, 2020, E23 Shift). I remain seized with respect to any dispute on this particular matter.