PSGB#P-2015-2909

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Strong

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

David Strong

FOR THE EMPLOYER

Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 5, 2017

Decision

1This application alleges that the Crown, represented by the Ministry of Children and Youth Services (the “Ministry” or the “employer”) failed to accommodate the complainant in early January 2016. The complainant is a Youth Services Manager (“YSM”) employed at the Roy McMurtry Youth Centre (“RMYC”), a youth detention and custody centre.

2There was no dispute that the complainant suffers from a disability that triggers the employer’s duty to accommodate under the terms of the Ontario Human Rights Code (the “Code”). The parties also agreed that the complainant was, at the relevant time, subject to workplace restrictions based on that medical need. Those restrictions are identified in a Fitness for Work Report completed by the complainant’s attending physician on February 27, 2015. Those same restrictions are also contained in an Employee Return-To-Work and Employment Accommodation Plan signed by the complainant on March 31, 2016. The Fitness for Work Report confirms that the complainant’s disability is a permanent condition and the continuing of the restrictions over the period in issue confirms that fact.

3The complainant’s restrictions required that he:

1. not work night shifts

2. not work days of 14 hours or longer on a consistent basis

3. must have 8-10 hours away from the facility nightly

4The OPSEU bargaining unit, representing staff who work in the youth facilities operated by the Ministry, had been in negotiations with the employer for some time concerning the renewal of its collective agreement. In early January 2016 the employer anticipated that bargaining unit members might soon engage in strike action, which would result in significant staffing disruptions across its facilities. The employer was engaged in contingency planning to ensure sufficient staffing for the continued safe and secure care and detention of the youth housed at the facility should a strike occur.

5On January 7, 2016 the complainant was asked to meet with Santo Lisi, Deputy Youth Centre Administrator at RMYC, and Kevin O’Brien, Youth Centre Administrator. They advised the complainant that his medical restrictions could not be accommodated without undue hardship during the anticipated strike. A script from the meeting was provided:

Should there be a labour disruption, managers working in a facility will be required to work 12 hour shifts, 7 days per week, and remain on-site and on standby during the remaining 12 hours in each day. As confirmed in your most recent medical dated February 27, 2015 your medical restrictions prohibit you from working the required hours and days.

A labour disruption is an exceptional circumstance, where operationally we are not able to accommodate your restrictions. It is only because of these medical restrictions which will prevent you from working that you would be eligible to use your short term sick credits to cover the duration of the labour disruption. However, we will not force you to do so; if you would prefer a leave of absence without pay or to use credits (vacation and/or compensating time) or some combination, please advise me by Friday, January 8, 2016.

Please know that should there be a significant change in the operational requirements, whereby we are able to accommodate your restrictions, we will certainly advise you.

6In the result, the complainant was not placed on the assignment roster that issued that day setting out the staffing coverage for RMYC in the event of a strike. Following the meeting the complainant reported for work and testified that he felt embarrassed and humiliated when asked by colleagues why his name was not on the roster.

7The complainant acknowledged that in the meeting he indicated to the employer that he was prepared to work longer hours in excess of his restrictions. The complainant also acknowledged that the employer advised him that it would not allow him to work beyond his medical restrictions. He further acknowledged that Mr. O’Brien may have said that medical documentation would be required in order to do so.

8As it happened, there was a settlement of the relevant OPSEU collective agreement and no strike occurred. The complainant’s next regularly scheduled shift was January 9, 2016. He reported for duty without incident.

9The complainant testified that at the first meeting to discuss his complaint he was told that because there was no strike, there was no discrimination, a matter he also relied on for purposes of this application.

10The complainant acknowledged that the existence of a picket line can impede entry and exit from a facility. When asked in cross-examination, the complainant testified that the employer was not responsible for adhering to his medical restrictions so long as he was outside the facility and on the street. He acknowledged that in the meeting the employer indicated that it would advise him if there was a change in operational requirements. However the complainant stated that the employer told him he could not be in the building and no one would know for how long. The complainant testified that he was willing to breach his medical restrictions but provided no updated medical supporting any change to his existing restrictions.

11Mr. Lisi was also the strike contingency plan lead for the facility. He had also been involved in responding to prior strikes as a manager both in 1996 and in 2002.

12In responding to the 2002 strike by bargaining unit staff, managers were required to be on site 24/7 and were only allowed to leave for emergencies. Mr. Lisi worked an average of 18 hours a day during the 2002 strike. Picket line activity would delay the arrival and departure of staff and although there were protocols for allowing access and egress, that timing was not always followed. In addition, managers experienced difficulty in crossing the picket line and were negatively affected by the nature of comments made by fellow employees who were on the picket line.

13Mr. Lisi described this round of bargaining as more difficult in that no essential service agreements had been negotiated, leaving the facility to be staffed entirely by managers during the period of any strike. Those managers would be drawn from other Ministries and often have little or no experience in operating a youth detention facility. In prior strikes, essential service agreements between the Crown and OPSEU had provided that some bargaining unit staff would continue working in order to operate the facility during the strike. The employer was also concerned that, in the absence of essential service agreements, there would also be larger numbers of bargaining unit staff on the picket lines with potential for more disruption and greater risk of incident.

14In the event of a strike, the employer expected RMYC managers to remain on site in order to work the specialized areas in the facility and provide escorts. The work schedule was expected to be 7 days a week, with a minimum expectation of 12 hours of work a day and generally more.

15Mr. Lisi acknowledged that the complainant would have been an asset to the facility. The issue for the employer was the inability of the complainant to remain on site, leading to concerns about providing for his safe entry and exit from the facility. Mr. Lisi testified that within the first few days of any strike action the employer anticipated being in a better position to be able to gauge the tactics. Nor was the employer prepared to alter the complainant’s accommodation plan without further medical documentation. Mr. Lisi testified that the employer’s main concern was ensuring the complainant’s safety.

16Mr. Lisi described the “organized chaos” in the few days leading up to the anticipated strike. Arrangements were being made for the delivery of refrigerated tractor trailers to house food during the strike and beds and kits were being bought and assembled so as to allow managers to remain in the facility for the period of any strike. Computers were also being set up with software so as to enable managers to communicate with their families during the period.

17The complainant’s regular duties can only be performed within the facility. Mr. Lisi testified that the only other area where the complainant could have worked would have been in a Probation Office. Arrangements had been made to close half of those offices in the event of a strike and operate the remaining half using the pool of managers. To Mr. Lisi’s knowledge no Probation Office managers were being redeployed to detention facilities. While Mr. Lisi acknowledged that a YSM would be qualified to perform some basic duties, he noted that they are not trained to perform the duties of a probation manager. There was no evidence that the complainant was qualified to perform Probation Office work.

18The complainant argued that the employer was required to accommodate his disability and asserted that the employer was unwilling to do so. He argued that the discrimination occurred prior to any anticipated strike when the employer informed him that he would not be allowed to work during the strike and would be required to use sick leave or other credits instead, and that he was not thereby included on the assignment roster. The complainant referred me to a number of excerpts from various employer communications, including an excerpt from the Ministry of Labour website issued March 2010 concerning the application of the Code and a memo dated March 23, 2016 from Kevin O’Brien, Youth Centre Administrator, to all managers and staff concerning the employer’s stated zero tolerance for sexual harassment which states that all “OPS employees are responsible for respecting the dignity and rights of their co-workers and the clients they serve”. He also provided a further memo dated February 24, 2016 from Steve Orsini, Secretary of the Cabinet Office, to all OPS staff announcing that the OPS had been recognized as one of Canada’s “Best Diversity Employers” for 2016. That memo highlights the employer’s initiative, among others, in launching a Disability Accommodation Policy establishing “principles and mandatory regulations for how the OPS provides timely and effective employment accommodation and accessibility for employees with disabilities, enabling them to participate equally in the workplace”.

19By way of remedy the complainant asked for an order that managers be provided with sensitivity training, that the managers responsible be recorded on the WDHP database, and 1.25 million dollars in damages.

20The employer accepted that it had a duty to accommodate the complainant to the point of undue hardship. It argued however that any such accommodation had to honour the complainant’s restrictions and his safety. Providing an accommodation that discounted or ignored the medical restrictions would be inappropriate, argued the employer, and would amount to undue hardship. In that regard the employer referred to the decision in OPSEU (Slack) v. Ontario (Min. of Solicitor General and Correctional Services), [1998] O.O.H.S.A.D. No. 1(Muir).

21The employer argued that the decision to remove the complainant from the schedule was an interim measure taken so that the employer could assess the unique pressures of the strike and in turn, its ability to accommodate the complainant. The employer argued that its interim solution ought not to be held to a standard of perfection. While the employer acknowledged that this could have led to a delay in accommodation, it argued that any such delay was necessary in order to ensure safe and appropriate accommodation based on the complainant’s medical restrictions. In that regard the employer referred to the decisions in Ontario (MOR) and OPSEU (Alviani), GSB #2007-3700 decision dated January 21, 2011; Ontario (MOL) and OPSEU (Fenech), GSB #2006-1704 et al., decision dated July 17, 2012;

22The employer argued that it could not ignore medical restrictions or its obligations under the Occupational Health and Safety Act (“OSHA”). Rather, it argued, the employer was entitled and required to take into account those obligations under the OSHA and assess the risk to the complainant in assessing various accommodation options, referring to the decisions in Slack, supra, and OPSEU v. Ontario (MOL), [1996] O.O.H.S.A.D. No. 18 (Blair); and U.F.C.W. Local 175 v. Cargill Canada, [2008] 176 L.A.C. (4th) 306 (Jesin). It was reasonable for the employer to conclude that, given his particular restrictions, the complainant was at greater risk of injury if he was unable to cross the picket line, and/or unable to cross it safely, argued the employer.

23The employer also referred to the decisions in Greyhound Canada Transportation Corp. v. A.T.U. Local 1415, (2011) 207 L.A.C. (4th) 192 (Levinson); Brant (County) v. OPSEU, Local 256, [2012] O.L.A.A. No. 117 (Marcotte); and Automodular Corp. v. CAW-Canada, Local 1256, [2011] O.L.A.A. No. 189 (Chauvin). It noted that the decision in Automodular recognized that the duty to accommodate was ongoing yet it was found that, for the time being, the employer had met its duty to accommodate. Similarly, the employer argued, if the risks associated with any strike changed, the complainant could have been brought back to work under safe circumstances that also met his restrictions.

24In reply the complainant noted that the employer had talked only about crossing the picket line and had not talked of him actually doing his job. He noted that he is always at risk in the facility and that he was not refusing to work.

25The employer did not dispute that, pursuant to the terms of the Ontario Human Rights Code, it had a duty to accommodate the complainant to the point of undue hardship. The complainant suffers from a disability and requires accommodation in his employment. Under usual circumstances, the complainant was being accommodated in accordance with his restrictions. The issue was whether the complainant’s medical restrictions could be accommodated at the outset of strike action. As cited in Brant (County), supra, at paragraph 51, appropriate accommodation to the point of undue hardship “will depend upon the particular circumstances of the particular situation”.

26The fact that the complainant may be exposed to risk in the exercise of his job functions is not relevant. Apparently the complainant is medically able to perform his normal job duties with any associated risk, subject to the medical restrictions set out in paragraph 3 above. Those medical restrictions were not in dispute and one of those restrictions required that he be away from the facility for at least 8-10 hours nightly. While the employer may have been able to accommodate the complainant’s restriction of not working days of 14 hours or longer on a consistent basis during the strike had he been able to remain in the facility, that third restriction raised the issue of how the complainant was to be given safe access to and egress from the facility in circumstances where it was anticipated that a picket line would be established at the facility and where the employer had advised managers that, in the event of a strike, they were going to have to remain in the building on a 24/7 basis in order to reasonably ensure their safety.

27The employer was anticipating that, if there was a strike, it might well be a difficult one. As part of its planning for the strike, whereby it would be required to maintain sufficient staff in the facility to safely attend to the youth in detention, the employer had arranged for refrigerated tractor trailers, stocked with food, to be on site, reflecting one example of its efforts to reduce the number of occasions whereby anyone would have to cross a picket line, thereby reducing the risk of picket line incidents.

28In order to meet the complainant’s restrictions, the employer would be required to take all reasonable steps to ensure a safe means whereby the complainant could come and go from the facility for each shift. Prior to the strike the employer had no reasonable means of ensuring that it could do so safely in the absence of better information concerning picket line activity. The employer has obligations to the employee under the Code and under the OSHA. See, for example, the decision in OPSEU v. Ontario (Ministry of Labour), supra. The employer is required to consider whether it can safely accommodate an employee when seeking to meet the employee’s stated restrictions. While the complainant suggests that the employer ignores safety issues in other contexts, were the complainant to have suffered injury while accessing or leaving the facility during a strike, I have no doubt that he would have held the employer responsible for an asserted safety failure.

29An employer also cannot ignore an employee’s medical restrictions when assessing an appropriate accommodation of a disability. To the contrary. An employer is required to provide an accommodation that meets those restrictions subject to undue hardship. Nor can an employer rely on an assertion by an employee that he is prepared to work beyond his restrictions in the absence of medical documentation supporting a change to those restrictions. See, for example, the decision in OPSEU v. Ontario (Ministry of Solicitor General & Correctional Services (Slack), supra. The employer was required to assess the accommodation having regard to the complainant’s identified medical restrictions.

30There was no evidence reasonably supporting a conclusion that the complainant could have been accommodated performing work outside the facility. The evidence did not establish that the complainant was qualified to perform Probation Office work. The employer also properly noted that, should circumstances change, it would re-visit the accommodation issue. That is, if strike activity allowed for the safe access to and egress from the facility, the employer was prepared to accommodate the complainant in those circumstances. It readily acknowledged that, had the complainant been able to attend work, such would have been to its benefit. However, the employer was simply waiting in order to assess the nature of any picket line activity and the associated risks. As noted at paragraph 243 of the decision in OPSEU v. Ontario (MOL)(Fenech), supra, “reasonableness of the time taken to accommodate cannot be judged solely by the length of time”. That assessment also depends on the totality of the circumstances in each case.

31Thus, for the employer to conclude that it could not accommodate the complainant at the outset of any strike due to the fact that the complainant would be required to cross a picket line in order to attend and leave work was not unreasonable in all of the circumstances.

32As it happened, the bargaining was resolved without a strike and the complainant did not lose any time from work.

33The assertion that, at a meeting to discuss the complaint, the employer took the position that there had been no discrimination because there had been no strike, is not evidence of discrimination. It was a statement of the employer’s position in respect of events that had already occurred and about which the complaint had been filed.

34Having regard to all of the above, this application is hereby dismissed.