HomeMy WebLinkAbout1992-3402.Vassallo.97-05-20ONTARIO
CROWN EMPLOYEES
EMPLOY& DE LA COURONNE
DE L’ONTARK)
-
180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5GlZ8
180, RUE DUNLMS OUEST; BUREAU 2100, TORONTO (ON) MSQ lZ8
TE&EPHONE/Th.iPHONE : (416) 326-1388
FACSIMILE/T&COPIE : (418) 326-1396 ._ -~
GSB--# 3042192, 1447193, 785194, 786194, 787194, 788194, 847194
OPSEU # 93A131, 93F611, 94A999, 94A998, 9419997, 94A996, 943058
IN THE MATTER OF AN ARBITRATION I
BETWEEN
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TRE GRIEVANCE SETTLEMENT BOARD
OPSEU. (Vassallo)
- and - Grievor
The Crown in Right of Ontario (Ministry of the Solicitor General 81 Correctional Services)
BEFORE S. Kaufman P. Klym M. Milich
Employer Vice-Chair Member Member
FOR THE GRIEVOR S. Stamm Counsel Gowling, Strathy & Henderson Barristers f Solicitors
FOR TEE EMPLOYER J. Benedict James F. Benedict Dispute Resolution Services Inc.
HEARING September 5, 6, 1996 _- October 7, 18, 28, 1996 -
--- .- -- -
l-l 3- .
1
DECISION
This decision deals with the merits--of four grievances
of Joseph Vassallo dated October 9, 1992, May 28, 1993, and
two dated May 5, 1994 (GSB files 3042/92, 1447/93; 0787/94
and 0785/94. The grievance dated October 9, 1992 alleges
that the employer had been "conducting and condoning a
poisoned work environment" and that the grievor had not been
treated "fairly, equally" and "in a non-discriminatory
manner". The May 28, 1993 grievance alleges the same, and
alleges harassment. Grievance 0787/94, dated May 5, 1994, I
-repeats the allegations in the October 9, 1992 grievance, and
specifies ",with regard to handicap". Grievance 0785/94,
dated May 5, 1994, alleges that the employer has failed to
comply with the Ontario Human Rights Code, the Workplace
Harassment and Discrimination Policy, and Employment Equity
regarding work assignments and accommodation re disability.
.
Mr. Vassallo,is a Corrections Officer 2 (CO 2) at the
Toronto Jail. He was diagnosed as an insulin-dependent
diabetic in March, 1992. His grievances, which were of a
continuing nature, allegedly arise from the circumstances of
his employment following his disclosure to the employer of
his diagnosis and his various requests for accommodation from
approximately March, 1992 until May 5, 1994. Evidence
pertaining to these grievances was-provided by Mr. Vassallo,
Deputy Superintendent Peter Northcott, CO 2 Bob Christensen,
Dr. Christopher Pinto, OM 16 Leroy Jeffers; Health Care
Coordinator Nancy Ogden,- OM 16 John Street, Maintenance ._
Electrician Aldo De Souza, and former Deputy Superintendent/
Administration Joe DeFranco.
The grievor has been in the employ of the Ministry since
1977 with a brief hiatus of 1 l/2 years from 1988 to 1990.
He commenced employment as a CO in 1977. In 1982 he was an
Acting Supervisor for 6 months, and was thereafter assigned
-.. ..I that acting position periodically as required. In 1983 he
- _- .-.
.- ._.
-’
was successful in a competition for Operation Manager (OM
14), in which he was required, among other duties, to act as
Shift Scheduling Officer and Shift Supervisor, as necessary.
He entered the OM 14 position-in 1984 and continued in it
until April, 1988, when he left the employ of the Ministry..
He returned as a CO 2 in 1990. -In March or April, 1992 he
became Co-Chair of the Health and Safety Committee at the
Jail, and as such was from time to time involved in the
investigation and resolution of various health and safety
issues in the facility.
On March 12, 1992 he learned that.he was an insulin-
dependent diabetic. On March 14, 1992, his first shift
thereafter, he verbally advised his Shift Supervisor (SS) Ms.
Martinsen, of his diagnosis. He also spoke with and verbally
advised Deputy Supt. (DS) Peter Northcott of his diagnosis
and "gave him a rough outline of his needs".
Mr. Vassallo advised that Mr. Northcott tdld him-that he
would assign him to B Landing, that he would enter 'that work
assignment, as well as the fact that he was to have prompt
access to the kitchen and lockers, in a confidential.logbook,
and that they would "take it from there". He advised that
the confidential logbook contained information which was to
be .kept within the supervisory group regarding staff, and \
that.it was kept in the SS's office. All SS's had access to
that logbook, he advised.
On or about March 24, 1992, Mr. Vasallo provided the
employer a letter of that date from his family physician Dr.
Pinto which stated (Ex. 3) '. .
Re: Joseph Vassallo
To Whom It May Concern: _--
- I recommend that the above named patient not work night
shifts due to recently discovered diabetic condition.
.-
Should you require further information, please feel free to
contact this office directly.
-- _. .-.. _ -_
_-.- -__ .~ _-. _I
-. -
On or about April 2, 1992, he provided the employer a -.
letter of that date from Dr. Pinto (Ex. 4) which stated:
Re: Joseph Vassallo -
To Whom It May Concern: _--_ - ~_ _. _
The abdve named patient is diabetic and requires the u&L of .-
syringes and insulin.
-- Should you require further information regarding this
matter, please feel free to contact this office directly.
He advised that the above note was provided to explain to the
employer why he had a syringe and insulin in his locker, and
to inform the employer that the insulin was not a narcotic,
and enable him to obtain ins!ulin and a syringe from the
doctor at the jail if he forgot to bring his own with him, as
well as to assure authorities regarding an up-coming training
session which he was to attend in Hamilton, that his syringe
and insulin was not related to narcotics use. . . .
Dr. Pinto advised that the human body requires insulin
in order to live. In the absence of insulin, sugar does not
get into the body's cells, and they die. Diabetes is a meta-,
bolic condition in which the body produces less insulin. If
the body produces no insulin, the condition is identified as
insulin dependent diabetes. In order to obtain the best out- I
-
come for insulin-dependent diabetic patients, the treatment
goal is to achieve a normal blood sugar level at all times,..
i.e. between 3.8 and 5.5 ml. of blood sugar per litre of
blood, and to avoid high and low blood sugar levels. -If a
diabetic patient experiences high or low blood sugar, i.e.
below 3.8 or-above 11 ml. per litre of ,blood, the condition
may result in. a loss of consciousness. Over time, the diabe-
tic patient may develop kidney disease, peripheral vascular
-disease and/or other conditions. Monitoring and adjusting
blood sugar levels helps to avoid the development of such
conditions. _.
The avoidance of recurrent high and/or low blood sugar
.__- levels is accomplished, in Mr;/Vassallo's case, through .-. _ -. - ::.- _ -- -. -.. _-- _.- _. _~-.-. __
exercise, diet, the consumption of meals and snacks within
certain periods of time each day, administration of the
appropriate level of insulin once a day, verification of
blood sugar level through the use of-a glucometer 4.or more- ._ _-. -. times a day, as required, depending upon his current symp-
toms, and the avoidance of stress. Each of these elements is
enhanced and made more practicable by the avoidance of night
shifts. Working night shifts would require him to make sub-
stantial adaptation to his sleeping, and/or medication level
and schedule, as well as exercise regime, before and/or after
the period in which he was working nights. Those alterations
would place an added burden on his personal time that a non-
diabetic CO would not ordinarily require or experience in
order to work rotating shifts, as well as increase the proba-
bility of more incidences of hypoglycemia or low blood sugar.
Dr. Pinto acknowledged that elimination of the requirement to
rotate into night.shifts would be optimal treatment, and that
if it was not possible for the employer to provide those con-
ditions, adjustments could be made in the management of Mr.
Vassallo's condition.
Dr. Pinto advised that diabetes is a multi-system
disease which may result in problems with the organs supplied -. by blood vessels, e.g. the kidneys. As well, the hormones
epinephrin and norprinephrin increase blood sugar. People
under stress produce those hormones. Surprise and agitation
can produce them. The body has a compensatory mechanism, but
depending upon the insulin levels, a rebound effect can
occur. Consequently, it is preferable for diabetics to avoid ._ circumstances in which they produce epinephrin and norpri-
- nephrin and the'resultant increase to blood sugar.
Dr. Pinto advised that other factors which increase
' blood sugar include the amount of food the diabetic eats,
illness, fever, He-advised that exercise can lower blood
sugar and sudden exercise can cause a sudden dramatic drop in
blood sugar. Reducing the insulin dose can counteract the -_ _.-. _ _. __ - .-effect of sudden heavy work or exercise. The diabetic
-.- -
-
patient needs to keep food available at all times to eat when _ .
'feeling hypoglycaemic, as the ingestion of glucose elevates
the blood sugar level and‘can prevent loss of consciousness.
A person experiencing low blood sugar requires immediate -~--.
access to food, and cannot think properly; the circulation of
blood to the brain-begins to be compromised in this state. A
diabetic experiencing the symptoms of low blood sugar should
ideally check his/her blood sugar, and then take food. If
the glucometer is not available or accessible, s/he should
err on the side of caution and just take food. Cheese and
crackers are preferable to candies or sugar, as although the
latter may offset symptoms, the patient will experience a
peak and a rebound effect, which should be avoided if pos-
sible. A diabetic can lose his/her capacity of full speech
within 5 minutes of a recognized need for food, although the
rate at which this facility is lost will depend on the rate
at which the blood sugar has dropped.
Dr.. Pinto advised that once a patient has taken insulin,
his/her blood sugar level drops. Thereafter in order to
maintain an optimal blood sugar level, s/he must eat meals
and snacks within certain time intervals.
Dr. Pinto recommended that Mr. Vassallo work with a
partner, rather than alone. He cautioned that if he must
work alone, he should be monitored by someone who could
respond immediately-if he became incapacitated, and, at I
minimum, he should have access to food and the glucometer at
. .
all times, and within '5 to 7 minutes of the onset- of symptoms
suggestive of low or high blood sugar. As it is necessary -
for a CO to retain mental and physicalcompetence at all
times, a diabetic CO working alone or unmonitored while
exposed to and responsible for the management of correctional - facility inmates creates a potential risk to both the facili-
ty and the employee, which should be avoided if at all pos-
sible. If a diabetic CO works in an office or in an area
which is not sequestered, this risk is more easily avoided. . _.
If Mr. Vassallo were beinggconstantly monitored on a video I -. I .- ,~. - - .._:---. --- _' . -. .._.. . . .._ . .-. .
. . _ _. ---- _--
6
and someone could respond promptly if he appeared in distress .-.-
or symptomatic, he could work any position, but someone
calling him on a radio and the 24-hour,availability of staff
nurses'would be insufficient monitoring. - . ,_.-: -_- Dr. Pinto advised that in 1996, Mr. Vassallo was an -
"experienced" -diabetic, who, in his experience, had been and
continued to be a reasonably cooperative patient in following
his medical advice. Mr. Vassallo had, as a result of his
training/teaching, learned to recognize the onset of symptoms
and potential difficulties, and to remedy them in order to
limit their impact.
Dr. Pinto acknowledged that insulin dependent diabetes
is a variable condition, depending upon the individual
patient, e.g. with respect to the number of times per day
that blood sugar must be tested, the rate at which the
condition progresses, the level and type of insulin required.
He also agreed that Mr. Vassallo could, as part of an overall
plan to manage his diabetes , plan to have food with him/her -
at all times, and could carry packaged food with him in his
pocket. Because he understood that at times that the grievor.
had experienced sweatiness while at work, he was of the view ,. - that he had become hypoglycaemic while at work, and concluded
that it was therefore possible that he could lose conscious-
ness at work. He observed that relief for Mr. Vassallo,
-- should it-become-necessary, would be more difficult on night
shifts, owing to the lower staffing level on those shifts.
Peter Northcott was Deputy Superintendent of Operations
at-the Toronto Jail in February, 1996. .-He advised he had
been doing the same job functions under similar titles for 6
years, and that it was within his job function to carry out
the accommodation of staff with disabilities. Mr. Northcott
supervises 15 Operational Managers, to,whom 200 line staff,
including Mr. Vassallo,-report.
He advised that an.accommodation procedure was in place
in March of 1992. Short-term, e.g. l-day injuries, could be -.-_.- _ .__. ..~ __- r -. . -.__- _-.__ _ . -. -- _:_. _- -----. _-
handled by the Operations Manager. If the condition was more
complex, the employee was required to meet with him, with a
union representative present, if desired. They would explore
the symptoms that had to be de‘alt with, permission to contact - --_-.
the employee's doctor would be requested' for a prognosis
and/or to learn what is required to facilitate the employee's
recovery and/or attendance, whether the accommodation needs
would change over time, whether the physician understands the
environment in which the employee works. There should be a
partnership between the employee, the employer and the physi-
cian. On occasion, the doctor may be invited to observe the
workplace.
.-. I
Mr. Northcott advised that accommodation is not a matter
of discretion for the employer, and that the employer is
obliged to accommodate the employee's needs "to the point of
saturationn e.g. if 50 employees all required desk work and
there were less than 50.desk jobs. The employer generally
accepts the accommodation a doctor requests at face value. .
. If the employer denied an employee the accommodation the
employee was requesting, on the basis of the employee's
doctor's opinion, the employer would meet with the employee
and offer alternate accommodation or permit him to obtain a
second medical opinion. On rare occasions, e.g. if the
employee's doctor refused to disclose information, the
,employer might require the employee to.see a doctor from its
own list and undergo a.-mandatory medical.
Mr. Northcott advised that accommodation through the
assignment of an employee to only certain areas, is implemen- ._. ted by entering the requirement in the accommodation log,
which is in the General Duty Manager's-Office. The accommo-
dation log has existed since 1991, when he implemented its
use. As well, "there is information sharing" among the mana--
gers. If someone assigned to a particular location on the
daily roster cannot be-moved, the assignment is written in a
different colour, he advised. The employee's illness would
not-be entered. He-stated, as exhmples of entries in the ac- - - -- - .._- .- -. .~ __. .~
I -
I i. .~.
8
commodation log to inform scheduling, "B Landings only-until
X date", "not to do outside escorts", "control only, can't
turn keys until X date" and advised that the Scheduling Offi-
cer (now-called the Staff Relations Officer) has all the in- . _-.-- formation in his/her office, e.g. in the form of a- memo, for
instance, that CO 2 X is not to work in a certain area. The
information from the doctor is kept "in a locked away file",
but the Staff Relations Officer could have a memo from him,
the Deputy Superintendent, as to the medical accommodation
required. The accommodation log from March 1992 to May, 1994
and the "locked away file" and/or the grievor's personnel
file were not produced, and were thought to have been mis-
placed. Since 1992, the system has changed somewhat, but the
basics have not changed. The Staff Relations Officer works
toward the rehabilitation and reintegration of the employee
into the workplace.
Mr. Northcott recalled the grievor having approached him
regarding.accommodation after he was diagnosed. He remember-
ed that the grievor's diabetes was controlled by insulin, and
the importance of keeping his blood sugar under control and
timeliness of meals-. He recalled discussing the need for
food to be available at the grievor's work station. He
recalled having told the grievor that he could have snacks at
his work station, at his desk when he worked on ranges, and
with-him when he worked on control. He understood that the
grievor would not require a snack while working on back
visits, because the assignment was of short,duration, with
block visits of 1 l/2 hours. He understood that he could
have food at his -desk when working on iB Landing and ranges.
Mr. Northcott did not recall having seen Dr. Pinto's
letter dated March 24, 1992 (Ex. 3) or it having been brought
to his attention. He did not recall having seen Dr. Pinto's
letters dated April 2, 1992 (Ex. 4), April 15, 1992 (Ex. 5),
and February 24,. 1993 (Ex. 6). He said that if he had seen
them, he would have called the grievor in and started the
partnership--process.to which he had earlier referred. - He -- ~.. .- L .- -..--‘-. _-.. __- .- - z. ._--.-. -
-. -_
-
,
advised that Mr. Vassallo did not request further accommoda- ._
tion, but rather, said to him that the managers were not get-
ting the information. He advised that the grievor told him
that he felt that he shouldn't have to remind t,he managers
that he could have food at his desk, that he should not be
assigned to a landing on a night shift, and that he--could not
get to food while assigned to an outside escort duty. Mr.
Northcott,said that he told his Managers to be aware of what
was in the accommodation log.
Mr. Northcott indicated he did not remember whether,Mr.
Vassallo needed accommodation by assignment to day and mid-
day shifts only. He stated that requiring him to find some-
one to switch with to cover his night shifts was not parti-
cularly intrusive, but "may not be the best solution". He
said he directed that the grievor be assigned to work~areas
where he could get to food, and did not recall him complain-
ing specifically about the back visits area. He said that if
the grievor wants accommodation, he should start the process
and provide him the information as to his requirements, 'which
may entail a meeting with the Staff Relations people.
Mr. Northcott acknowledged that the accommodation pro-
cess, although in place, was not perfect. He agreed that the
facility does its best to accommodate a whole range of needs,
both short and long-term, and that this is currently carried
.- out by the Staff Relations Officer. The position was created
in April of 1995 and the incumbent reports to him. Prior to
the implementation of that position, the system was more ad
hoc, ‘and is currently firmer. The.Staff Relations Officer
assigns staff to posts, - communicates with the COs and other
managers, and supports a measure of consistency in the accom- _-
modation process. The incumbent has had some training in
Workers' Compensation, Workplace Discrimination and Harass-
ment, and Health and Safety, and is skillful and knowledge-.
able in these areas and in the area of accommodation.'
_ .- _. - _- ..- _. ---. _. - -- ._ - . - -. -- _ . .- -..
t
Mr. Jeffers was Acting Senior.Assistant Supervisor in .-_ ---.
1992 and 1993. He advised that a CO would not necessarily be
required to write out the accommodation he was requesting,
but could do so verbally to a-Senior Assistant Supervisor.
such as him. He would then enter the accommodation in a con-
fidential logbook. Examples of such entries would include
the duties the CO cannot do or is permitted to do for accom-
modation, including specific shifts they should receive or
not be assigned. He advised that all managers have accesq to
the logbook, and agreed that all managers are expected to
know that certain staff require certain accommodation.
Mr. Jeffers advised that the CO is expected to hand
medical notes to the Shift Supervisor, who is expected to
give the information regarding accommodation contained in the
note to Scheduling staff, and that the note should be placed
in the CO's personal file. Mr. Jeffers advised that in 1991
he learned, in casual conversation with Mr. Vassallo, that he
was a diabetic. He said that he did not enter that'informa-
tion in a logbook, and that he did not know who Mr. Vassallo
h&d informed of his diagnosis, who might then have been
expected to make such an entry. He said that he understood
that Mr. Vassallo was not insulin-dependent. If he had seen
Dr. Pinto's letter of March 24, 1992 (Ex. 3), he would have
informed someone else, and would have taken him off night
- .~-. ._ - shifts, if he had been Acting Senior Assistant Supervisor at
the time. j He was a Shift Supervisor in March of 1992 and
became Acting Senior Assistant Supervisor that summer. He
had not seen Dr. Pinto's letters dated April, 1992 (Ex. 4 and
5) but he had seen his letter dated February 24, 1993 (Ex.
6). He did not believe that he had received the letter, and
thought that it went to,
_
or should have gone to the schedul-
er, who should have taken Mr. Vassallo off nights. He.agreed
that once the letter had been received by the scheduler, af-
ter the current g-week schedule had been completed, the grie-
vor's next schedule should not have indicated the assignment
of any.-night shifts. _. ._ .-- -- _ - __..-. 1. _-.-.
..- ---
_’
h
1 1'
The grievor stated that ho was not properly accommodated
in April, 1992,,as his assignments were not confined to B - landing, despite his understanding from his discussion with
Mr. Northcott, and particularly, because he was assigned to -.-- the back visits area. As well, on one- occasion in April,
1992, he was feeling light-headed while his partner was at
lunch. He initially requested SS Jeffers to provide relief,
and made a second request to another manager to provide that
relief after some time had passed and none had arrived, and
he was not given relief to go to his locker in order to do a
blood glucose test, despite two requests. At the time, he
advised, he was also experiencing pain as a result of a re-
cent motor vehicle accident, and wanted to obtain medication
for those symptoms. He said that at the time of each request
he was told that there was insufficient staff to relieve him.
He advised that when his partner returned from lunch, he, Mr.
Vassallo, stopped by Mr. Jeffers' office and attempted to ex-
plain to.him the reason for which he needed relief promptly,
and said that Mr. Jeffers told him that he did not require
any accommodation. Mr. Jeffers denied having made that
statement to him and indicated that the problem was one of
staffing; -
COs are ordinarily scheduled to work rotating day, mid;--
day and night shifts, which result in them being assigned to
several night shifts approximately every 8-9 weeks. cos
without disabilitieswho do not wish to work particular
shifts to which they-have been assigned are permitted to
switch their shifts with those of other COs, provided both
COs have agreed to the change. Mr. Vassallo advised that in
April, 1992, despite Dr. Pinto's letter, he was scheduled to
work night shifts in June, 1992 and was obliged to find a CO
who was willing,to work his night shifts, for him, in exchange -
for him working the other CO's day and mid-day shifts (Ex.
7).. CO Horobetz agreed to such an-exchange. 'Mr. Vassallo
was scheduled-to work several night shifts in August, October
__I and December, 1992,,and February, 1993, and was.again:obliged \ _-_-L ----I- : -- : - - .- -. __--- .-
_..
to find a CO who was willing to exchange day and mid-day
shifts for his night 'shifts (Exi 8, 9, 10). CO Horobetz,
- when asked, agreed to do so. There is little doubt, on the
evidence, that the grievor found it frustrating and annoying
to continue to be scheduled to work night shifts after April,
1992 and to repeatedly be required to find-another CO with
'whom to switch shifts.
Dr.- Pinto supplied another note for Mr. Vassallo, dated
February 24, 1993, which stated:
Re: Joseph Vassallo
To Whom It May Concern:
I recommend that the above named patient not work night
shifts because he is a diabetic.
Should you require further information, please feel free to
contact this office directly.
The evidence did not establish when it was supplied to the
employer, and where it was kept and/or noted.
In March, 1993, Mr. Vassallo was scheduled to work seve-
ral night shifts in April, 1993. At that point, SS Angelidis
was the Scheduling Officer. Apparently he and the grievor
had a conversation in which Mr. Angelidis advised the grievor
that the grievor did not need to find someone with whom to
switch shifts, and that he, Mr. Angelidis, could "do it on
the computer". Mr. Angelidis requested him to submit a memo
to him, "to remind him". In a memo dated March 24, 1993, Mr.
Vassallo requested Mr. Angelidis to change his night shifts
to day shifts, citing-"medical reasons" (Ex. 11). Apparently
SS Angelidis then made the change after Mr. Vassallo had been
assigned several night shifts. In June‘, August, and October,
1993 Mr. Vassallo was scheduled to work several night sh.jfts.
Each time he sent Mr. Angelidis a similar memo requesting him--
to change them to day shifts, citing the same reasons, and
each time Mr. Vassallo's schedule was changed (Ex.. 12, 13 and
14). There is little doubt, on the- evidence, that the grie-
vor continued to find it frustrating and annoying to continue
_ - .--:
- _ .-_ - ~_._. __ .-. -_. -. -. .-
-
-
to be scheduled to-work night shifts in 1993 and to be oblig-
ed to submit memos on each occasion that a new schedule was
issued.
The grievor said that as-a result of Mr. Angelidis-'
changes to his schedule to el-iminate night shifts, on the
week of June 14,' 1993 he worked four 12-hour day shifts
consecutively, although not continuously or back-to-back. He
alleged that in doing so, he "was .being punished by the new
schedule". He later said that two of the four 12-hour shifts
had been scheduled as a result of another earlier change he
had requested, apparently unrelated to his request to be
taken off night shifts.
In August, 1993 Mr. Vassallo spoke to Deputy Supt.
DeFranco and requested that if he was going to be required to
work overtime, that the request be made no later than 5 p.m.,
so that he could make adjustments to his meal schedule and
obtain more food, if necessary, in respect of the overtime
period. He understood that Mr. DeFranco would note his
request on either an occurreBce report, a note in the Head
Shift Supervisor's report, or in an entry in the "accommoda-
tion book" in the Head Shift Supervisor's office.
In October, 1993, the grievor was working on a 7 a.m. to
7 p.m. shift, and had been assigned exercise yard duty. At
about 7:30 a.m. Mr. Street requested him to escort an inmate
to hospital. He learned shortly that the assignment involved
an admission of the inmate to hospital, which could take the
full day, as opposed to an appointment, which would take 2 to
4 hours. He said that he had not brought enough food with
him for the day, and could not obtain sufficient food from
the Jail kitcheuuntil some time between 7:45 and 8:30 a.m.,
when breakfast was .over. He advised Mr. Street that- he
wasn't sufficiently prepared to undertake the duty. Mr,
Street apparently-made it-,clear that he was not pleased with
the grievor,-. but assigned him to another duty.
In December, 1993, a heat'and air,circulation problem in
the back visit area; which had existed-for at le.ast several. . . -1-- -. -- --_. - _.-_
^ -
I 5j ‘r
14
_.
-’ -
months, was addressed by Senior Assistant Superintendent
(Support Services) Terry-Howes in a memo dated December 9,
1992 in which he indicated that the ventilation was expected
--"to improve with the completion of the H.V.A.C. project" and
that if staff requests a change, through the First Floor
Supervisor or Shift Supervisor, Officers assigned to that
area "should be rotated after a reasonable length of time"
(Ex.- 28).
The grievor advised that he had difficulty with assign- , ment to the back visit area, where inmate visits take place.
The CO assigned to that area works alone and is often obliged
to work without relief from 9:30 a.m. to 11:45 a.m., as well
as relieve staff in the control module. He advised that he
cannot leave the back visits area for a snack or medication,
and if he brings a snack with him, there is no bathroom or
wash facility. He advised that on or about November 1, l993,
he was assigned to and was on duty in the back visit area.
It had become very hot and he was having difficulty.breath-
ing. He telephoned Mr. Street, the First Floor Supervisor,
and requested that another CO be sent to relieve him. Mr.
Street told him he would see what he could do, but no'one
relieved him and he. continued at his post until 11:20 a.m.
when the visits were completed. At that point he was not
feeling well, and the officers in the control module agreed
that he could take his lunch before relieving them. Before
the afternoon visits, which take place between 1:30 - 45 p.m.
to 4:30 - 45 p.m.; he saw Mr. Street and asked him to either
substitute another CO in the back visit area in his place
that afternoon, or provide him with relief for part of the
afternoon, and Mr. Street again said he would see what he
could do. No one was substituted for him and no relief was
provided that afternoon. - Between 4:30 p.m. and the-end of
his shift at 7 p.m. he-had-his meal break and relieved
another CO in the-Health Care unit.
The following day, he was again assigned to the back
visit area. He requested Mr. Street to assign-him-elsewhere, _. _.__L. -_ ---.;.x-..T;..- - ~.-.- . _ _. .-_ -- _-
15
and advised him that he was diabetic, and unable to eat in
the area, and that the heat was very uncomfortable. On that
occasion, Mr. Street reassigned him to another area.
The grievor-advised that Mr. Street assigned him to the
back visit area.on December, 31, 1993, and he again explained
to Mr. Street that-he was diabetic, that the assignment to
that location'interferes with him ability to take care of his
needs as a diabetic, and that he was declining the assign-
ment. He advised that it had taken him approximately 5 weeks
to recover from the adverse effects of having worked in that
overheated area without relief in November.
The grievor said that on April 20, 1994 he was working a
7 a.m. to 7 p.m. shift. At about 6:25 p.m. Mr. Street
informed him he was being ordered to work overtime. He said
that he asked Mr. Street if he-knew about his arrangement
regarding overtime, and told him that he was diabetic. He
also told Mr. Street that he had no.way of -getting home, as
his car was in the shop, and he had planned on getting a lift
home at 7 p.m. with another CO, and otherwise had no way to
get home. Mr. Street insisted that he work overtime. The
grievor then spoke to'Evening Head Shift Supervisor Martin-
sen, at which time he placed more emphasis on his diabetic
requirements than on the problem about getting home, and
noted that he had not been ordered to work overtime on short
notice in 9 months. Ms. Martinsen permitted him to leave at
7 p.m. The grievor advised that between about 12:30 and 1:30
while 0n.a Health and Safety inspection he had seen p.m. r
documents in Mr. Street's office which indicated a need for 6 .- staff to work overtime that day from 5 to 9:30 p.m. He
advised that-overtime is assigned from the seniority list on -
the basis of those with least seniority to those-with most
seniority, and that 15 to 18 COs had-less seniority than him.
The grievor advised that the following day he spoke with
Day Head Shift Superv&br Walmsley and told him about the -
arrangement he had made in August of 1993 with Mr. DeFranco
regarding-notice of overtime. Mr._Walmsley investigated and. I -- -:. . -- _.. -- .- _" -_ _ _- -- _.._. -_
I: ‘.
16
told him he could not find any document in his personnel file
of his agreement with Mr. DeFranco. Mr. Walmsley ordered the
grievor to work overtime that dayr well before 5 p.m., and . ~_ L -ordered another'CO,-with whom the grievor planned to obtain a _--
lift home, to work the same overtime hours. The grievor --- _-. advised he did not object to the assignment of overtime in
these circumstances, particularly because he was advised of
the- assignment substantially before 5 p.m.
Mr. Vassallo attended a meeting on May 4, ,1994 meeting
with Union Representative Mr. Hart, Senior Assistant Superin-
tendents Northcott and Howes and General Duty Manager Street,
which was intended to addresss a number of incidents to which
Mr. Vassallo testified, in which he felt he had been subjec-
ted to unreasonable directions, assignments, duties, as a
result of which he had experienced uncomfortable and distres-
sing physical symptoms which were not helpful in his efforts
to maintain his blood sugar within the normal range. There
-was substantial conflict between the grievor's and Mr.
Street's evidence as to what occurred at the meeting. With
the exception of the need for reasonable lead time or notice
of overtime, the importance of the timing of his meal breaks,
and his request for prompt relief and reassignment from the
back visits area, we are unable to reach any conclusions as
to whether Mr. Street in fact was aware on May 4, 1994 of the
grievor's specific needs for and prior requests and arrange-
ments for accommodation, e.g. to Mr. Northcott and Mr.
DeFranco in the absence of any clear and direct oral or writ-
ten evidence as to.precisely what in fact had been communica-
ted to Mr. Street or other management staff about the grie-
vor's condition and as to what, if anything, had been record-
ed in the accommodation log by Mr. Northcott or Mr.- -DeFranco
or others. Mr. Northcott recalled that-Mr. Street admitted
at the meeting that he'd "made some mistakes", but did not
specify them.
The grievor also testified to a number of incidents in
which in his view he'had been assigned certain duties -. _ _.-.- .; r:77-.--. ., ..--- ..~ _ _ ~. .- __ _- - ---.
.
.t
17
unnecessarily and unreasonably, without due regard for his
.condition-as a diabetic, and on some occasions, in his view,
deliberately, and which had impacted upon his condition as 'a
diabetic. In view of our conclusions below, no useful pur-
pose would be served in setting out the evidence regarding - .:
those incidents in detail.
Bob Christensen has been a CO at the Toronto Jail for
over i6 years, and has been a CO 2 for about 15 years.. He
was diagnosed a non-insulin-dependent diabetic in 1990. In .
about September, 1990, after a period of hospitalization to
stabilize his blood sugar following a threat of physical harm
by an inmate, he returned to work and under his doctor's ad-
vice, requested the Scheduling Officer to accommodate him by
scheduling him straight day shifts, 7 a.m. to 7 p.m. At the
request of the Scheduling Officer, he supplied a letter from
his doctor, Dr. Scott, who is now retired. The letter, he
advised, stated briefly that he was a non-insulin-dependent
diabetic and requires.a regular routine, and that the
facility's cooperation would be appreciated if he was given
straight days. He said that the letter that Dr. Scott sup-
plied in 1990 was much the same as the one dated December 14,
1994 (Ex. 37, # 4) by Dr. Janicki. In chief, Mr. Christensen
said that he had- been scheduled straight days since 1990
until December 31, 1995.and assigned generally to 2B Land-
ings, and occasionally to 3B. In cross-examination he ac- '-
knowledged that from 1990 to 1992, he may have been assigned
to night shifts-and required to find another CO willing to
work his night shifts in exchange for 'Mr; Christensen working
his day shifts. He confirmed that from 1992 to 1995, he was
scheduled straight days. He advised-that he had sought no
restriction on his duties or work assignments.- At the begin-
ning of 1996, he understood that the facility would "assist
him to accommodate him" and that his schedule now involves
mostly days, with some mid-day and night (7 p.m. to 7 a.m.)
shifts. He said that he is being assisted not to work any . .._ . .~_--~ -
p‘ .
18
.nights, and that the Scheduling Manager, Mr. Moore, told him . _--. that he would have to find another CO who would work his
night shifts in exchange for him, Mr. Christensen, working
that CO's dayshifts, and that-if he was unsuccessful in
finding such a CO, Mr. Moore would assist him. Thereafter,
he has worked day and mid-day shifts. Mr. Christensen
advised that he ,had not been asked for'any further medical
reports and hadn't given Mr. Moore any medical information,
and that he believed that was attributable to the fact that
he, Mr. Christensen, is a diabetic.
A letter from Dr. Janicki, addressed to Sr. Asst. Supt.
T. Howes dated December 14, 1994 (Ex. 37,. document # 4)‘
which simply stated that Mr. Christensen continued to be'a
non-insulin dependent diabetic and "It is most important that
he maintains a daily routine in order to keep his diabetes
under control", was produced during Mr. Christensen's cross-
examination. Mr. Christensen said that that letter-had been
supplied in response to the employer's request for an up-
dated medical certificate. A memo to Mr. Christensen from
Mr. Howes dated January 12, 1995 (Ex. 37, document # 6),
states that for the following 3 months he will be accommoda-
ted by a change,of his assigned M- and'E- shifts to D-shifts
and that if he requires medical accommodation, he requires
supporting documentation from his physician. Ther,eafter,
correspondence dated May and October 1995 (Ex. 37, documents
# 7 and 9) indicates that Mr. Christensen was asked to submit
a current medical certificate in order to continue the accom-
modation he .was then receiving.
A letter dated October 23, 1995-(Ex. 37, document # 10)
from Dr. Ahmed states
Mr. Christensen is an insulin-dependent diabetic and it is
not expected that his condition will ever improve. It is
most important the (sic) he maintain a daily routine in
order to keep his diabetes under control.
Mr. Christensen confirmed that he remains a, non-insulin-
dependent diabetic:. - J
-
5’ .
19 ‘.
A letter from Mr. Moore, Staff Services Manager, to Mr.
Christensen dated November 6, 1995, (Ex. 37, document # 11)
advises him that Dr. Ahmed's letter indicates no restrictions
to his work location or a medical condition that would
preclude him from working all areas of the institution and '-m
does not state that he is unable to work rotating shifts. It
indicates that he would be assigned rotating shifts, and that
the writer will be happy to help if, he requires "assistance
in arranging mutual shift changes with other staff to.avoid-
the "E" shifts. Mr. Christensen said that he understood in
1995 that there was going to be a new policy regarding accom-
modation which resulted in the communication he was sent. He
agreed that in January, 1995, he was fit to be assigned to
all CO duties. He agreed that he had been sick and had not
worked since February 26, 1996. He said that from November,
1995 to February, 1996 when, he booked off sick, he had not
worked nights, as a result of having asked the Scheduling
Manager, for a change. He said that as well, after November,
1995, he continued to be assigned primarily to B Landings.
The documentary evidence disclosed that from 1989 to
1996 from time to time Mr. Christensen experienced other
medical conditions in addition to diabetes. The evidence did
not establish whether those conditions had any any effect on
the nature of the accommodations he was provided.
Joe DeFranco, Deputy Superintendent/Administration,
was unable to recall whether he had put the grievor's occur-
rence report in August of 1993 into the log. He said that if
he had put it in the log, it would have-gone into the Shift
IC's confidential journal, and that there was no need for a
written agreement as to accommodation., Mr. DeFranco was un-
certain as to whether he had seen--Dr. Pinto's letters dated
Mar 24, 1992 and April 2, 1992 (Ex. 3 and 4). He said that
the letters would have gone to the grievor's immediate super-
visor, which may have been Mr. Jeffers, or Mr. Northcott. He
agreed that the grievor's immediate supervisor would be
__ _ .-.T _- .-
20
required, on receipt of the note(s) to determine whether and
what accommodation the CO required. He agreed that he would
have asked the doctor to provide more information, and added
that alternatively, he might have asked the CO to write a
note. He said that-at the- time, the policy was to provide- 3
.months of temporary accommodation. He said that if a person
could have been accommodated, he would have been and "it
wasn't always the case". He advised he had no knowledge of
what was done in response to Dr. Pinto's letter dated Febru- .-
ary 24, 1993 (Ex. 6). When advised that the grievor was
scheduled nights regularly and had to find someone to change
shifts with him, he replied "that happens frequently". He
advised that a Shift Supervisor would not necessarily,know
that a CO is an insulin-dependent diabetic unless the CO told
him/her. When asked where he would send the information from
a discussion with the grievor as to accommodation he was
requesting, so that the information would be stored or cen-
tralized, his response was unclear. He said that accommoda-
tions are reviewed on a quarterly basis.
Aruument
Bv the Union:
There are two facets to the employer's violation of Art.
A. The grievor has a medical disability, insulin dependent
diabetes, and the employer has policies, procedures, stan-
dards and practices which have an adverse impact on him be-
cause of his condition. Desipite the grievor's request for
help, he rec.eived no accommodation at‘all. As well, the em-'
ployer violated Art. A; the grievor's constant requests for
accommodation resulted in management staff branding him a
"whiner", and in them giving him a harder time than other COs
who were not diabetic, which'constituted harassment, related
to his disability. _
._. _ - -. - _. -.- _- --.- --- ;n7~ --- - --
_.-- .-.. ~.-- _- . _--._
_ ..- - ;.
_.
The'grievor's requests and concerns should have been
resolved within the workplace; this hearing should not have
taken place.
Between 1992 and 1994, the employer had no standards, .
policies and procedures in place to deal with accommodation.
If such were in place, management staff either maliciously or
in bad faith refused to accommodate the grievor, or the
grievor fell through the cracks.
Management witnesses were totally inconsistent regarding
the appropriate procedures for obtaining accommodation. If
the process described by Mr. Northcott had been in place,
these grievances would not have arisen. The process he
described was "the ideal", but it was not in place. No
meeting occurred with the grievor's doctor, as contemplated
by the process Mr. Northcott described, despite Dr. Pinto's *
letters, which invited the employer to contact him'. Mr.
Northcott indicated the process should be carried out in a
manner which preserves the individual's dignity, so that not
all staff need,to know the condition, but some need to know.
what accommodation is required. The entries in the 1995 1
accommodation log (Ex. 37, p. 1) do not indicate the diagno-
sis, simply the accommodation to which the employee is
entitled. The log eliminates the need for.each employee to
tell each manager the details of his condition and,of the
accommodation required. Mr. Jeffers testified that verbal
requests for accommodation were sufficient in 1992. Mr. Jef-
fers said that having seen Dr. Pinto's 1993 letter (Ex. 6),
he would have made the arrangements to, have taken him off -
nights, yet Ex. 31 indicates that he was still being assigned
nights as recently as January, 1995. Mr. Jeffers did not . -. remember writing anything in the log about Mr. Vassallo. Mr. - .
.' Northcott was uncertain in his-recall as to whether he had
written anything in it. Mr. DeFranco- indicated Mr. Jeffers
or Mr. Northcott were responsible for dealing with the grie-
vor's request for accommodation. Mr. Street said he could
not--make the decisions as to accommodation, as they-are made -__. .--. . _. - -.. _. -7. - .-y-<-. - - _-. - -. .- -- - - ___. - .- _. ---li .i - ._ .: _._--. __ - I_^_ _ __ - ---- _. _ .i- __.. -- _ _ --: .-
‘i ‘i
22
higher up. The union agrees with the employer's position, as
expressed by Mr. Northcott, that an employee should.not have
to tell every Ml4 who assigns him'that he is an insulin-
dependent-diabetic, and that this information should be
conveyed to management staff in a manner which protects his
dignity. ___
Mr. Jeffers',and Mr. Christensen's evidence as to the
1. process was consistent. The 1995 accommodation log indicates
that Mr. Christensen.is to be assigned "day shifts only" on
an "ongoing" basis. Mr. Christensen‘testified that the
scheduling officer did not schedule him nights, and that
there were no meetings with lhis doctors. In 1995, things
began to change .around the issue of accommodation, but we are
not asking the panel to deal with that in this case. The
panel is being asked to address the lack of action in March
1992, after the grievor spoke to Mr. Northcott and requested
accommodation, and provided Dr. Pinto's letter dated March
24, 1992, and approximately 20 incidents thereafter which the
grievor ascribes as constituting discrimination, unfair
treatment and harassment.
Dr. Pinto's evidence establishes that the proper way to
treat the grievor's diabetic condition is to provide him with
a regular schedule, predictable levels of exercise, regular
mealtimes, ready access to food and insulin, working with a
partner, but when not partnered, the prompt provision of ,_
relief from his post if required.. His evidence established
that the worst scenario is that the grievor may lose con-
sciousness while in control of prisoners. Dr. Pinto acknow-
ledged that the grievor can work night'"shifts but such a
change in his schedule is difficult-and taxing and would
detract from his ability to enjoy his days off because of the
necessary changes during that period to accommodate the night
shifts. Optimal control.of his blood sugar levels would be
more difficult if the grievor is required to shift from day --
to night shifts. Relief--is more difficult to provide on -. '.
_-_-
_.
night shifts owing to the lower staff.complement on that . - __~ _~_.__. _- y- -._, i- - _- _ ..- _-- _-__ . - .-.___._ .- -~ -.... . :-.. ._ - _..
shift. The long-range view, which seeks to preserve the
employee's day to day health and thereby prevent absenteeism,
is the proper view of the accommodation an employer is
obliged to provide;-
The grievor objects to being assigned to ranges because
although he is partnered on that assignment, one CO is inside
the unit, and the other is outside it., It is difficult for
either CO to get another to relieve them, and particularly
difficult for the inside person.
Assignments to the back visits area result in the
grievor being at a station without a partner, responsible for
many inmates in the same area, and having difficulty obtain-
ing relief.
The grievor can work overtime and outside visits and
admissions, provided-he is givensufficient lead time. He
needs 2 hours advance notice when he 'is ordered to work
overtime on day shifts;
In order to establish discrimination, the union must - ~. show a policy or a procedure was in place which reacts ad-
versely against the grievor. The e,vidence established that
night shifts have an adverse impact on the grievor, both in
terms of changes he must make to his routines on days off, as
well as the impact of the difficulty of his obtaining relief
on those shifts. Assignments to outside visits and overtime,
which may require a CO to skip a meal or defer a mealbreak
for a substantial period of time, do not impact adversely on
non-diabetic staff, but do impact adversely on the grievor.
Once this adverse impact is established, the onus shifts
to the employer. The employer must establish that it agrees
that the grieving employee requires accommodation and that it -
provided that accommodation, or that it cannot accommodate
- him/her without undue hardship.
The evidence established that the grievor told Mri
Street, Mr. Jeffers, Mr. DeFranco, Mr. Northcott and others
repeatedly that he is an insulin-dependent diabetic. Neither . Mr. Jeffers nor Mr-.- Northcott recall--taking responsibility to _ -.L---z. __-_ -. -~ -__ - ._ _ _.. - -.--. -_. -- _s--LT-I - -. _- . . _-.
e'nsure that he-was accommodated. There was no evidence that
any comprehensive structure was in place to ensure that he
was accommodated.
--
Toplin, 2690/92 etc., at-p. 5, indicates that to _.
establish harassment, the union must establish' -- ._ .
1. that the employer engaged in a course of vex%'- tious comment or conduct; _ ._
2. at the relevant times- the complainant was an employee and the respondent was the employer or agent of the employer; 3. that the comment or conduct complained of was known, or ought reasonably to have been known to be unwelcome; and 4. that the comment or conduct complained of was . for the reason that the complainant has or is believed to have a handicap.
The evidence supports a finding of harassment against Mr. \
Jeffers, Ms. Ogden and Mr. Street.
The union seeks a declaration that the grievor has a
disability, that the employer has a duty to accommodate, that
there is no reason the employer cannot provide him that -.
accommodation, and that the grievor has suffered harassment.
It seeks an order directing that the harassment cease and
desist and directing the'employer to stop scheduling the
grievor to night shifts and assigning him to back visits and
ranges, and directing it to notify the grievor by 5 p.m. of
overtime assignments or not order him to do overtime on those
occasions, and to give him a day's notice of assignments to __
hospital admissions and assignments outside the Jail. None
of the relief sought will result in undue hards-hip. Further,
the employer should be ordered--to cease requiring a review of
the grievor's condition every 3 months.'. Diabetes is a
chronic condition; the grievor's condition will not improve. .-
The employer should be directed to pay-a nominal amount,
$3,000.00, to compensate the grievor for the injury to his
-dignity and self-respect, and to recognize the affront to his
human rights.
I . .
. . :
._ --. .,~ _. .
_ -- ,’ . . . -..---
-- _. .._ ._ .-..
___. ~-
cr 5 25
BY the Emnlover:
The board must measure the evidence against-the defini-
tion-.of discrimination in Dewar, 941/94, which cited Andrews -c v. Law Societv of British Columbia,. 56 D.L;R. (4th) (S.C.C,), .- p. 18:
. ..discrimination may be described as a distinction,'whether
intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the
effect of imposing burdens, obligations, or disadvantages on
such individual or group not imposed upon others, or which
withhoids or limits access to opportunities, benefits and
advantages available to other members of society. Distinc-
tions based on personal characteristics attributed to an
individual solely on the basis of association with a group
will rarely escape the charge of discrimination, while those
based on an individual's merits and capacities will rarely
be so classed.
It must weigh the evidence against the elements required
to establish harassment in Toolin, supra.
The Ontario Human Rights Commissions' "Guidelines for
Assessing Accommodation Requirements for Persons with Disa-
bilities" indicates that the employer must determine the es-
sential and non-essential duties of the employee and position
in question. The employer must re-assign the non-essential
duties, and explore accommodation that will enable the person
to perform the essential duties. The employer is cf the view
that working rotating shifts, including night shifts, is an
essential duty.. .-
The essence of accommodation is individualization and
the alleviation of barriers to the person being able to carry
out their essential duties. The employer had to address the
question of hoi-it could accommodate the grievor to work
night shifts, since he must work them. In this case, the
grievor made shift changes, and that avoided the issue of
accommodation regarding essential duties. The need for
accommodation regarding the night .shift has never arisen.
These grievances must be determined based upon the in-
formation that management had at the time of the grievances,
some.of.which were+4 years old when this--hearing commeuced. .- --. -z.z -.= . _ _ L j .- __ - - _ .-. - _- .-- .__ -~_. -_-_ - . i .- ----.. _.- ._
!
The grievor is a diabetic, which the employer acknowledges is '
a "handicap". However, the evidence demonstrated'that he is
.- capable of performing all the essential duties of a CO, that
7 -he is able to work all posts &thout restrictions.-:He is an _ -
experienced CO and kno&‘~all the situat~i=--&hich can arise
at the Jail, e.g. last-minute o&time,-mix-ups in proce-
dures, delays in-getting breaks, and would know that it was
not always possible for management to provide him immediate
relief.
The grievor appears to be seeking a carte 'blanche
exemption from being scheduled to work night shifts because
working them would necessitate putting in place a plan to
deal with his diabetes and would necessitate a change in his
life style. The employer is not required to indulge an em-
ployee's lifestyle preferences. Exemption through accommoda-
tion procedures must be supported by well-informed medical
opinion. Further, altering one's daily routines to accommo-
date one's job is not an unreasonable requirement.
The employer expects a CO to bring to work the medica- .
tion, snacks and food s/he may require for his/her diabetes.
It is unreasonable for an employee to come to work unprepar-
ed, and because s/he forgot to bring the items s/he needs
-. suggest that 'management, by giving him certain assignments,
is harassing him. As in ToDlin, supra, p. 26-27, none of the
actions of management staff complained of by the grievor,'
however "vexing and unwelcome" and inducive of "'negative emoi
tional reactions", emanated from an improper motive. There
is no-evidence that the grievor was ever in any danger as a
result of these alleged incidents of harassment. Further., as'
the grievor took no notes or reports -regarding most of the
incidents, it must be concluded that they were not brought to
-the attention of senior management at the time of those
events.
The evidence has not demonstrated,bad. faith, improper
- motive, or conduct.by management designed to harass- or dis- - ._
-- --- - -criminate.against the grievor.._..-Rather., it-suggested. that.. __
communication between the grievor and his immediate supervi-
sors, and among them and senior management, ought to have
been better. The grievor stated simply that he was.a diabe-
tic, and asked for accommodation. Management was:waiting for -^- the-grievor to provide-specific information regarding his --_
needs for accommodation, but did not ask the grievor for
specifics. ~
Some of the grievor's complaints arise from attitudinal
differences. The grievor has unreasonable expe.ctations
regarding his supervisors' knowledge of diabetes. He failed
to provide clear work restrictions from his doctor, and
expected management to know what his accommodation require-
ments were. This does not translate into harassment and
discrimination.
The grievor's own evidence is that he is able to work
all shifts and perform all CO duties at the Toronto Jail.
Mr. Christensen's evidence throws a wrench into the em-
ployer's case; unlike the grievor, he was not scheduled night
shifts after 1990, and the grievor had to switch shifts with
another CO. The employer has since changed its treatment of
Mr. Christensen (Ex. 37, p. 11). The employer is not in
breach of the collective agreement in accommodating people
with the same disability in different ways. Accommodation
may be accomplished within a range of alternatives. The
grievor's rights flow from the.collectfve agreement, rather
than from the treatment of another employee. The grievor
must demonstrate a'violation of Art. A, which violation must
have occurred without respect to another employee.
An order of the board directing the employer to refrain _.
from assigning the grievor to work in the back visits area,
or any other relief requested on his behalf, would, in view
- of the evidence, constitute nothing but a punishment of the
employer. Nothing in the evidence justifies granting such
relief.
. . .~ .-- . ..__. . --- ---- _ . -_ - -. _.- _-- .---- :- - _,... - _.-.-. ..--.-- _ -. .- . I-T- _-- _- -_-. / - _.. -- .:_ -.- - -- ._ --.L -.
-
- -.-
-
-
28
Conclusions:
The evidence suggests that between March, 1992 and May
4, 1994 the protocol and process of requesting and being
granted accommodation at the !lYoronto Jail was somewhat un- _-- _ -.. clear. There aphears to- have been no firm or written proto-.
co1 regarding the recording, handling and storage of medical
letters requesting -accommodation, and of -verbal-and written
requests by the CO for accommodation. ,There appears to have
been no distinction between the handling of requests for
accommodation arising from diagnoses of chronic, long-term
medical conditions which the employee will likely experience
for the rest of his or her life, unless a cure is found, as
opposed to those of a more short-term nature and which will
require the provision of stable, 'long-term accommodation ar-
rangements. The employer may wish to make a distinction
' regarding the frequency with which it may require up-dated
medical reports pertaining to employees who have long-term
chronic conditions as opposed to short-term conditions. The
evidence strongly suggested that requests for accommodation
could be dealt with both formally and informally, within the
individual discretion of any of the Deputy Superintendent,
the Senior Assistant Superintendents, the Shift Supervisors
and/or the Scheduling Officers, as well as the officers
assigning duties at muster on any given day. It suggested
that consideration should be-given to providing the informa-
tion in the accommodation log to the officers assigning
duties at muster each day.
---The evidence suggested that the process for the communi-
cation of requests for accommodation by the immediate reci-
.-,pient of them e.g. the Shift Supervisor, to the various
Scheduling Officers and other OMs who, for example, assign
COs to particular duties e.g. outside escort duty, overtime,
etc. was not entirely clear or well known. While there was
an expectation that each Scheduling Officer check the accom-
modation log and inform him or herself of the contents, it _
-does not appear to have-been acted- upon-consistently. -_ --- _..- . . . .--. _ . . . . -- __~ - _ i.- _. -. _. __ .-. __~. .._ 1 :--
! --- - ._._- i
I ,. ’
.-
-
The evidence also suggested that at times the grievor<
himself was not clear with management staff as to specific
accommodation he was seeking for diabetes. It occasionally
suggested that the grievor was--not clear with management
staff asto-whether-the acccmmodation he was seeking at
particular times pertained to his requirements as a diabetic,
as opposed to other circumstances and/or medical conditions.
he was experiencing temporarily.
In this context, we conclude that the grievor did indeed
fall between the cracks in the accommodation system then in
place. On all the evidence, we conclude that from March,
1992 to January, 1995
a) the policy with respect to the level of management
to whom COs were to prbvide written medical requests and/or
written or verbal requests for accommodation, and which was
responsible for receiving and processing those requests, and
the procedure and manner of processing.such requests was not
well defined and appears not to have been clearly conununicat-
ed to staff;
b) this.resulted in inconsistent treatment of the
accommodation needs and requests of Mr. Christensen and the
grievor; , ~. -.
Cl from March 1992 to the end of 1993 the employer
inadvertently failed to accommodate the grievor by failing to
schedule him day-and-mid-day shifts only, and by requiring
him, from April until December, 1992, to find another CO
willing to work his night shifts for him in exchange for the
other CO's day and mid-day shifts;
'd) in doing so, perhaps inadverttihtly, it discriminated
against him, on the basis of handicap.;
-. e) this, however inadvertently it may have occurred, - constituted a continuing violation of Art. A..l.l of the -.
Collective Agreement and a violation of s. 5 and 17 of the
Ontario Human Riahts Code.
The-grievor's work takes- place within a secure correc-
_. - --~ tions facility,- an'environment which---requires quasi-military _~~ 111___ ----_ -- -- -- ..--- I _ ~. . _,_ _-. .._ .._-_ _.. .-. ._-.---~ --~ _ _ . . _.. -.-~I-- _. .._. - .._ ..-_ -I- -._ .--.
30
discipline andresponsiveness of the staff, to ensure the
security and protection of the public as well as staff and
inmates, 24 hours a day. It is unlikely that t,he stress
associated with the position of CO-2, and experienced by the
grievor during the approximately 20 incidents he described _- -
could have been avoided. We are of the view that on most of
.. the occasions to which the gri.evor testified, the negative _,
attitudes and escalation of temper which we find the grievor
probably witnessed on the part of various -OMs, resulted as a
consequence of several features then existing:
- the then current lack of a clear poi&y and directives
concerning'the receipt and recording of medical and personal
requests for accommodation;
- unclear, if any, communication by administration of
the grievor's requests for accommodation;
- the grievor's assumption that all managers should know
his requirements as an insulin-dependent diabetic without
explanation.or clarification;
- the grievor's assumption that all his letters and
communications were being recorded in the accommodation log
and shared with the appropriate OMs;'
- the grievor's inadvertent'lack of clarity as to the
accommodation he required until a request was made of him
which exceeded his capacity to accommodate on that particular
occasion.
We find, on balance of probabilities, that on occasion,
in this context of miscommunication, non-communication and/or
poor communication on the subject of accommodation, the
grievor and his managers became verbalLy abusive with one
another.
As a general proposition, management staff at the Jail -.
are expected to and do in fact issue'orders to COs on a sum-
mary basis, in-the context of the quasi-military environment
of the Jail. On most-occasions, they-do so in order to en-
-sure the security of the institution and the public,_and to
-ensure that-the public's as-well as .the- institution's other _ - ___. .<--- . .- _. -__~__ - .:-- -.._ - -
_ . ‘r 31
needs, e.g. good public relations, are served. Undoubtedly,
from-time -to time, this type of order will induce in the
grievor stress and symptoms adverse to his diabetic condi-
tion, particularly when he is-of .the view that the order is
not necessary or justified in the circumstances. It-is hoped _
that-in future, 'management staff will bear this in mind, and
minimize the-frequency of such circumstances for the grievor.
The grievor cannot reasonably expect the employer to be sen-
sitive to his needs at all times in such an environment, nor
can he reasonably expect the environment to be made free of,
stress at all times. We are unable to conclude, on the evi-
dence before us, that the stress and the aggravation and the
physical symptoms the grievor experienced in the incidents he
described were caused intentionally, maliciously or as a re-
sult of indifference or poor judgment on the part of any in-
dividual manager, or were generated unnecessarily in all the
circumstances. We conclude, on all the evidence, that the -_
incidents of which the-grievor complained arose as a conse-
quence of a lack of awareness of and insensitivity of indi-
vidual staff members as to the nature of his condition-and
the effect of stress upon it, and not from any intention to
deliberately harass or incon,venience him. The .incidents
arose in a period of approximately two years from occasional
' instances of poor communication, misunderstanding, over-
-sights,.-delay and confusion among various staff.within the
institution, which were regrettable in respect of,their im-
pact on the grievor, but which were- unrelated to his diabetic
condition.
We accept that the grievor will not bring a 15-hour
supply of meals and snacks with him each shift, in anticipa-
tion of escort duty and/or overtime, although it might be _.-
prudent for him to do so. We expect him to bring sufficient -. ._ ~.
--food and medication and equipment for his scheduled shift,
and to be given sufficient notice of assignments which re-
. . quire him to-make adjust\ments to his snack and meal plan, and
sufficient arrangements for relief, so that,.he can-perform- -.-- _ .__ -- -._ - _. .-_ - -..=----. - -.-- - -7.-- -. -- -. .-. - . -_.. G--.____ _~ .~ ._._. ~__ .-- . . - _--.- .~ __. _- - ..-. .- ._ 2 - _._.-
.
:
i 32
all duties to which he is assigned. We acknowledge the grie-
vor's preference to be temporarily relieved of duty in order
to avail himself of washing facilities when he requires food.
However, we donot find it unreasonable or a security risk _ that-he be-permitted and expected to leave sufficient food at
his-desk or carry it in his pocket to consume at his post if
he experiences symptoms while on duty, if for any reason the
facility is unable to promptly respond to his request for re-
lief. In arriving at accommodation, there must be some give
and take. The grievor must recognize and be prepared for the
possibility that staff shortages may preclude managers from
providing him prompt relief at his work station when he
requests it, except where he makes clear that the matter is
an absolute emergency.
We find it'doubtful, on all the evidence, that certain
of the management staff had and demonstrated as much respect
for the grievor and his requests for accommodation as they
maintained. We conclude that from time to time during the
period in question, the grievor was not relieved of his post
when he reasonably requested that relief, and was asked to
perform certain duties, such as hospital escort duty, over-
time, occurrence reports, and others, without due considera-
tion for his needs as a diabetic and on occasion, without due
consideration for his immediate- physical symptoms. We find
-thatthose instances resulted from a lack of effective commu-
nication to management staff of his condition and the effect
of stress on his condition. Although on a number of occa-
sions over the two years following his diagnosis the grievor
perceived certain assignments, requests.; or orders and the
need'on those occasions to advise those manager that owing to
his diabetes, he could or would not.perform those .duties, -as
unreasonable and aggravating, and that he should not have -
-
been given such assignments in the first place, and should
not have had to repeatedly request special consideration, and '
felt that he-encountered resistance to such requests, we note .-. _ -_ : that%0 instance in-which the grievor objected to management m- -._ .- -.. --. -_- --- . .?% -. -_-. - ----;.----- L.-.. -~ . ._ __ -_ _. -~-
i 5 33
staff of the assignment of a particular duty and declined it - on the basis of his-medical status, his immediate physical - symptoms, or his lack of sufficient notice or preparation,
. .--,_-TTI---resulted in discipline or a written warning. While this ob-
servation does not address the concern that more effective
and-discreet communication within a clearer protocol for
ensuring accommodation would probably have decreased the fre-
quency with which this problem arose, we conclude that once
informed by the ,grievor of his requirements, albeit repeated-
ly, the grievor's managers responses were quite reasonable.
We conclude, on balance of probabilities, that the
changes to the grievor's schedule in May and June of 1992,
regarding the weeks of July 13 and 20, while insensitive, and
.annoying and frustrating to him, arose in the ordinary course
of scheduling, and not out of any deliberate effort to punish
or inconvenience him, as either a fellow employee or as a
diabetic-c
.
In the case of the allegations of harassment by the
Health Care Coordinator, we find, on the evidence, that the
animosity or suspicion which she admitted she harbours toward
the grievor arose from her idiosyncratic beliefs regarding
him, which were unrelated to the grievor's status as a
diabetic and were more probably related to his roie and his
duties as Health and Safety Representative, as well as other '
interaction and poor communication between them/and their
lack of‘ respect for one another. We note that the grievor;
when assigned to the Health Care Unit, is responsible as a CO
2 for security on the unit, whereas the Health Care Coordi-.
nator is responsible for the security of the equipment and
facilities and pharmaceuticals, and the health of the inmates
and. others on the unit. We conclude that.at times this may
have lead to conflict between the grievor and-the Health Care
Coordinator and resulted in her view that he was obstructive
to theltimeliness of her and her staff's performance of their
- duties.' We conclude, on the evidence and on balance of -- _- --..
--_-
probabilities, ._ _ --~_ that on one occasion_in Augustof,l992.,--after .~- -. --_ _i ---.. ..-.- _ - .-. : - . .-- -. - _- .-.. ~
.- z _- --- -. --
_ _.. _...
7-
-
the grievor had left the unit in order to go to his locker
for a few minutes to use his glucometer and eat something, - having told his .partner this reason, his partner did not
-Lfully explain to the Health Care Coordinator why he had left
- the unit. We conclude, on balance of probabilities, that the
Health Care Coordinator, requiring more CO 2s on the unit in
order to accomplish a particular task, paged the grievor more -. than-once in rapid succession on that occasion, and that the
grievor mistakenly assumed that she did so to deliberately
harass him.
Neither the grievor nor his physician initially provided
the employer a detailed written list of the accommodation,
aside from not being assigned night shifts, that he required
medically. The grievor testified that in addition to not
being scheduled nights, his condition required that he not be
assigned to back visits area and ranges, advance notice of
outside assignments-and notice by 5 p.m.' of overtime on day
shifts, and gave evidence as to the circumstancesin which he
verbally requested the latter accommodation. These requests
were not presented to the employer in written form. -We con-
clude that the lack oft a written request by the grievor him-
self may--have contributed in part to the unpleasant and at
times stressful, frustrating and annoying incidents he --
experienced.
Having so observed, we note that the accommodation log
. 3 34
-. for 1992 to 1994 was not produced as part of the employer's
record and was apparently mislaid by the employer at some
undisclosed point. As a result; there is no evidence that..-.
Dr. Pinto's written request in 1992 that the grievor not-be
scheduled to work night shifts was entered in the accommoda- .-
tion log and communicated to the Scheduling Officer(s). We
are therefore unable to conclude that the failure to detail
the grievor's requests for accommodation in writing was the
most direct cause of the difficulties he experienced.
_ _ _. _.__ -I_ -T .- .- _ _ _. -- .II__. .^ -II- - . -._ .- _ _ __ --:.- _.___ _ :-. I -- . -_-___
-.
:.
Remedy:
The board declares that
a) -from March 1992 to the end of 1993 the employer
inadvertently failed to accommodate the grievor by failing to
schedule him day and mid-day shifts only, and by requiring ._.-
him, from April until December, 1992, to find another CO
willing to work'his night shifts for him in exchange for the-
other CO's day and mid-day shifts;
b) in doing so, it inadvertently discriminated against
him, on the basis of handicap;
6) this, however inadvertently it may have occurred,
constituted a continuing violation of Art. A.l.l of the
Collective Agreement and a violation of the Ontario Human
Rights pode.
;The board suggests that the employer ensure that the
policy regarding requests for accommodation is clearly
communicated to all staff at the Toronto Jail, so that
requests like Mr. Vassallo's are handled in a consistent
manner and do not fall through the cracks.
The.grievor's doctor requested and.continues to request
that he not be scheduled to work night shifts. S. 17 of the
Ontario Human Riahts Code obliges the employer to accommodate
an employee with respect to his/her handicap, to the point of
"undue hardship". As no hardship appears to have arisen to
the employer from the provision to Mr. Christensen of a sche-
dule which did not include night shifts, and as the employer
did not argue that such constituted an undue hardship with
respect to the grievor, we therefore also order that the
employer cease scheduling the grievor to work night shifts.
With-,respect to the grievor's requests that he not be
assigned to the back visits area, in the absence of evidence
as to current heat and air circulation in that area and whe-
ther the problem which the grievor stated adversely affected
his condition has been permanently resolved/we decline to
rule.on that issue specifically. We -find that there was l' insufficient evidence._to..suppor~~the.grievor's--position.that __..-~ ; ;;.. +-= ,.; - I _ -- ^
.L -._ - --.
-. -
he not be assigned to ranges. We order the employer to
relieve the grievor from,his post within a reasonable period
of time when he requests it for medical reasons, and to
relieve him expeditiously wheke his medical/physical condi-
tion warrants it.-- We recognize that the latter obliges the
grievor-to disclose his immediate condition to .a member of
management when requesting relief; we do not find this
obligation unreasonable or an infringement of the grievor's
rights in all the circumstances. We note that the employer
has provided the grievor notice on the day before it intends
to post him to an outside assignment and reasonable (2 hours)
notice of overtime required, and we recommend that this
practice continue.
- ---.
I
For all the above reasons, we conclude that the
allegations of harassment and conducting and condoning a
poisoned work environment were not supported by the evidence
and are therefore dismissed. The allegation of failure to
comply with Employment Equity was not addressed, and is
likewise dismissed. In view of all the evidence, we do not
find the circumstances of this case justify an award of
damages to compensate the grievor.
_.
~__ .. - _ _ --_-. .-I. .~
.--
.-. -
-..
Dated at Toronto this 20th day of May, 1997.
Vice-Chair
-
_ .-
._ _____. ---. --- .--
Micheal Milich Employer Nominee
Peter Klym Union Nominee