HomeMy WebLinkAbout1988-0256.Sim.90-02-07 ONTARIO EMPLOYES OE 1..4 COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETFLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8. SUITE2100 TEI. EPHONE/TEL~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5¢3 17.8 - BUREAU 2100 (418) 598-0688
256/88
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EHPLOYEE$ COLLECTIVE BARGAINING ACT
BefOre
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU, (P. Sim)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before: M.V. Watters Vice-Chairperson T. Browes-Bugden Member
D. Wallace Member
For the Grievor: N. Roland Counsel
Cornish & Associates
Barristers & Solicitors
For the Employer: J. Benedict Manager
Staff Relations and Compensation
Ministry of Correctional Services
Hearings: December 2, 1988
November 3, 1989
DECISION
This proceeding arises from the grievance of Ms. Patri~ia
Sim dated February 8, 1988. The grievor claimed therein that she
"was denied full access to Article 27.6.1 with respect to Article
18.1 as per past practice and policy. By way of remedy, she
requested "1 lieu day, 8 hours paid at the overtime rate and the
return to past practice re: Article 27.6.1" Notwithstanding the
wording of %he grievance, no evidence was presented as %0 a past
practice which might have been related to'the issue now Defcre
the Board. As is apparent Delow, the claim was asserted on other
grounds.
The facts giving rise to the grievance are relatively
straight forward and may be stated as follows:
(i) The grievor is a Correctional Officer 2 at the
Maplehurst Correctional Centre, which is a medium security
institution for adult male offenders sentenced to incarceration
for a period of less than two (2) years.
(ii) Generally, Correctional Officers at the institution may'
be asked to perform the following duties:
a) Supervise an inmate living unit holding up to 104
inmates;
b) cope with tense and stressful inmate confrontations;
c) search cells, inmate(s) and other areas;
d) fight fires if necessary;
e) conduct security escort(z) of inmate(s) into t~e
community;
i
f) ensure the custody, safety and security of Jnmates;
g) subdue inmate(s) and apply restraint e~uipment;
h) work all three (3) shifts on a rotating days off basis,
sometimes for seven (7) consecutive shifts;
i) carry out all requirements of fire drills, riot control
and other emergency procedures;
j) wear a M.S.A. Demand Air Mask, Carry a twenty pound
tank on the back and remove, carry or drag ~nmate(s)
and staff member(s) from smoke filled areas;
k) endure prolonged periods of s~anding or walking;
l) open and close security doors and grilles; and
m) maintain visual contact of another staff member.
(iii) at the time material to the instant dispute, the
grievor was working ~n the control module for Unit One. This
module is a glass enclosed area from which one officer generally
monitors the movement and activities of inmates and other
officers within the unit. More specifically, the grievor was
required to prepare inmate rating sheets; maintain the log and
unit.fount; wa:ch the panel lights for the unit; make periBdic
checks with other officers; respond to problems and emergencies;
and communicate with Central Control, if necessary.
(iv) the grievor was notified that she was required to
attend at a Grievance Settlement Board hearing on Monday,
February 1, 1988 with respect to a grievance which she had fi'led.
She had been scheduled to work the mid-night shifts on both
Sunday, January 31st and Monday, February 1st. The midnight, or'
number three (3) shift, commences at 11:00 pm and ends &% 7:00 am
on :he following morning.
(v) By way of requests dated January 7 and 22, 1988, the
grievor asked for paid leave for tme first midnight shift
pursuant to article 27.6.1 of the collective agreement. While
the documentation supporting this request was not entirely clear
on its face, the grievor testified that she intended only to ask
for paid leave for the initial shift. The aforeSa!d request was
rejected by the Employer. The grie,.'or was advised however that
vacation or lieu day. would be granted as required. Ultimately cn
January 28, 1988 the grievor as~== f?-, ~nd was granted, a lieu
day for ·January 31, t988. This ~e~'~C c~',at she did not have to
work the midnight shift immediately prior to her attendance at
the Board. The grievor did, however, work the midnight shift of
February 1, t988.
(vi) the grievor testified t~ s~e made the above-noted
requests as she was concerned as %o %~e loss of sleep that would
occur were she to work both shifts and appear at the Board. She
estimated that over a period of approximately thirty-three (33)
'hours, commencing late in the evening of January 31s~, she would
get a maximum of two (2) hours sleep if she pursued this course
of action. Specific men~ion was ma~e of the possibility of
fatigue, decreased alertness, loss of Judgment, diminished
reaction, and stress all of which could result from the lack of
sleep. It was the grievor's belief that this response could
detrimentally affect her work as a Correctional Officer and, in
the worst extreme, might expose both merself and other staff to
serious jeopardy.
Dr. G. Scott, a medical doctor specializing in psychiatry,
was called as an expert witness by the Union. Dr. Scott has had
approximately forty (40) years experience with psychiatric
practice in a corrections context. His list of appointments
include: (i) Senior Psychiatrist, Ontario Regiorl, Department of
Solicitor General, Penitentiary Service, 1960-1980; (ii)
Psychiatric Consultant to Millhaven Maximum Security Prison;
(iii) Consultant Psychiatrist, Quints Regional Centre. Dr. Scott,
in addition, has trained and treated Correctional Officers with
respect to the emotional difficulties of adjusting to the demands
of their job. He currently sees about one hundred and twenty
(120) officers within the confines of his practice, An
impressive curriculum vitae and list of related publications was
filed with the Board.
Dr. Scott was called in this case to provide expert evidence
as to ~he effect of stress induced by the type of schedule the
grievor would have had but for her decision to use the lieu day.
In the context of a hypothetical question, it was his .opinion
that a person such as the grievor would have suffered a
significant physical and psychological impairment had they worked
both of the midnight shifts. He testified that this imoairmen~
would have been evidenced by restlessness, irritability, fatigue,
feelings of panic and frustration, and loss of concentration. Zn
his estimation, these symptoms would have adversely affected the
officer's ability to function effectively dur~g the second o¢
the midnight shifts. Indeed, Dr. Scott suggested that this
combination of physical and mental conditions could have
5eopardized the grievor, other officers, inmates and the
institution generally. In summary, it was his opinion that had
the grievor worked the original schedule she would constitute a
health and safety risk to all concerned. Dr. Scott was not
cross-examined by the representative of %he Employer. Nor did
the Employer elect to call any evidence in support of it's
position.
The provisions of the collective agreement relevant to the
resolution of this dispute read:
.ARTICLE 18- HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
18.1 The Employer shall continue to make reasonable
provisions for the safety and health of its
employees during the hours of their employment.
Zt is agreed that both the Employer and the Union
shall co-operate to the fullest extent possible in
the prevention of accidents and in the reasonable
promotion of safety and health of all employees.
ARTICLE 27- GRIEVANCE PROCEDURE
27,6.1 An employee who is a grievor or complainant
and who makes application for a hearing before
the Grievance Settlement Board or the Public
Service Labour Relations Tribunal shall be
allowed leave-of-absence with no loss of pay and
with no loss of credits, if required to be
in attendance by the Board or Tribunal,
27.16 The Grievance Settlement.Board shall have no
jurisdiction to alter, change, amend or enlarge
any provision of the Collective Agreement.
The position of the Union, simply put, was that the Employer
had breached article 18.1 as it had improperly required t;'e
griever to incur the financial burden of ensuring a safe work
place. It was submitted by counsel that the primary obligation
with respect to health and safety rests with the Employer and it,
therefore, should have borne the related cost in the form of paid
leave, The Board was requested to declare that %he provision had
been violated when the Employer insisted the griever %ake. a lieu
day to avoid working the consecutive midnight shifts. It further
claimed that the griever was entitled to damages corresponding to
her toss of the lieu day. We were referred to Gonneau, 22~/~
(Teplitskx) in support of this submission.
in response, it was the position of the Employer that it had
made reasonable provisions for %he health and safety of the
griever by permitting her to take the lieu day, In this regard,
the [epresentative of the Employer argued that there is a shared
obligation under article ~8.1 and, consequently, the griever
could legitimately be expected to assume some of the
responsibility. He further suggested that there was no medical
evidence of an objective nature to substantiate the existence of
health and safety concerns in respect of this particular griever.
From the vantage point of the Employer, Br. Scott's evidence was
excessively general. Lastly, it was submitted that the
collective agreement did not contractually compel the. provision
of paid leave in the circumstances of this case. We were urged
to conclude that any extension of this benefit should be
bargair~ed for, The following awards were relied on
6
Employer' Roberts et al., 2545,2567-2569/87 (Verity); Ai3ksa et
~,1,, t130,1136,1137/84 (Brent); Croft, 2287/87 (Roberts);
Berlinghoff ~nd [~ton, 1878/87 (Barrett).
The Board has no doubt on the evidence presented that the
grievor could have posed a health and safety risk to herself and
others had she elected to work the night shifts o¢ January 3! arid
February I, 1988. We think it more likely than. not, that had she
worked these shifts, she would have exhibited the symptoms
referred to in both bar evidence and that of Dr. Scott. We have
been persuaded that the existence of such symptoms of stress and
fatigue could have prejudicially affected the health and safety
of the grievor, her .fellow officers and, ultimately, t~at of the
inmates in Unit One(l). Fortunately, the grievor recognized in
advance the dangers inherent in working both of the shifts in
question. Her wise decision to employ a tieu day in respect of
the first of these'shifts prevented a potentially dangerous
situ&tion from subsequently arising. This does ncr preclude the
Board, however, from assessing ~he Employer's response to
determine whether it was in accord with article 18.!.
We see little merit in the Employer's criticism of the
evidence of Dr. Scott. While it spoke to a prospective situation
which did not in fact arise, such evidence allows %he Board to
assess the validity of the health and safety concern expressed by
the U~ion. It is clear to us that the obligation ~mposed b)
7
~rticle 18.1 may require the Employer to a~oPt ~ 'proactive' or
'preventative' approach in matters relating to health and safety.
It is in our judgment immaterial that the grievor did not
actually experience the symptoms cited as long as the
condition(s) likely to result in same have Oeen established.
This case is distinguishable from Alaksa in which the grie¥ors
had been working an undesirable shlft for a considerable oer. ioU
of time. It was ultimately decided on a question of causation as
the Board was not satisfied that t~,e shift schedule leu directly
to the physical ailments compla~e~ cf. In that instance, the
Board was assessing a situation t~t h~d actually been
experienced. Here, the grievor took preventative action, albeit
with the consent of the Employer, tc avoid the potential hazard.
Both parties appeared to coKceQe that the threshold issue in
this case was one of cost. This Board has previously determined
in Roberts et al. that article 27.6.1 is triggered only where a
hearing is scheduled during any t~e when a grievor is scheduled
to work. In this regard, the follow~ng comment is found between
pages 9-10 of the award'
"... the Employer is obligated to grant a leave of absence
with no loss of pay and no loss of credits where an
employee is a grievor or complainant and is required to
be in attendance at a he&ring before either the Griev-
ance Settlement Board or the Public Service Labour
Relations Tribunal.. ~rt~cte 27.6.1 comes into effect
where the grievor or complainant, as the case maybe ,
would otherwise be work,hq but Cdr the reou!red atten-
dance at the hearinq" (emphasis ours)
The Board in that instance was not prepared co ex,.end ~his
obligation to cover midnight shifts falling on the day of the
hearing. While the case was decided on an ~nterpretation of
article 27.6.1, it is of some interest to note that the grievors
therein maintained the Employer's practice was unreasonable,
inter alia, from the stand point of health and safety. The
award, however, does not comment further on that conceF~.
Ultimately, the Board in Roberts et al. concluded that it would
be breaching article 27.16 o¢ the collective agreement if it
enlarged article 27.6.1 in ~he manner claimed.
It was argued by counsel for the Union that the case of ~s.
Sim was "extra ordinary". After considerable thought, we are
unable to agree. We think that analogous situations would
frequently arise.in the corrections context where employees
regularly work midnight shifts. In our assessment, any award of
damages which we might grant would be equally applicable to other
employees whose hearing falls between two scheduled midnight
shifts. Ultimately, the Board concludes %hat to orde~r the relief
claimed, in ~he form of paid leave, would be tantamount %o
altering or amending the collective agreement. We are prohibited
from engaging in such an exercise by article 27.1§. This
conclusion should not be construed as meaning that this Board
cannot impose additional obligations when awarding a remedy under
article 18.1. There will likely be occasions where the Board
will be compelled to create new obligations so as to give effect
to the parties intent as reflected in the article. We are
disinclined to do so in respect of this grievance, however, as we
do not think that its effect' could be limited to this instance.
In the last analysis, we believe that the claim of the Union for
paid leave for this type of circumstance should be a subject to
be reviewed during negotiations rather than arbitrated. Given
the language of the collective agreement as it now stands, the
Board finds that the Employer made the reasonable provision
contemplated by article 18.1 when it granted the lieu day to the
grievor. This allowed her an opportunity to get a good nights
sleep prior to her attendance before this Board on February 1,
1988. Additionally, the Employer. response minimized the
likelihood of the grievor experiencing fatigue or the related
symptoms on the subsequent midnight shift,
Notwithstanding the result in this case, the Board remains
sensitive to the tYpes of health and safety issues which may
arise in correctional facilities similar to Maplehurst. While
evidence was not led on the point, we were left wondering why the
present ieeue was not resolved as a matter of scheduling or
through an exchange of shifts. Had that been possible, the
grievor would not have had to employ the lieu day. Such an
10
accommodation would also seem to further the Employer's interest
is maintaining a safe and efficient institution.
For the reasons expressed above, the g¢ievance is denied,
Dated at Windsor, Ontario this 7th day of February, lOqO.
M.V, Watters, Vice-Chairperson
,~, di.$~nr" (Di.~r rn fn~Io~)
~r~es-Bugden, Member
D. Wal lace, Member
!I