Loading...
HomeMy WebLinkAbout1988-1268.Leeanan.90-08-22 ONTA ~0 E~P&O Y~S DE I-A COURONNE CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS '180 DUNDAS STREET WEST, TOR~)NTO, ONTARfQ MsG lZ8- SUITE 2100 TELEPHONE/T£L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG lZ8 - BUREAU 2100 (4'i6) 5g$-0688 1268/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Leeanan) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.J. Roberts Vice-Chairperson J. McManus Member G. Milley Member For the Grievor: C. Paliare Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: L. Oudyk Staff Relations Officer Ministry of Correctional Services Hearing: June 30, 1989 AWARD In the grievance leading to this arbitration, the 'grievor claimed that the Ministry violated his rights under the Health and Safety Provisions of Article 18.1 of the Collective Agreement, which reads as follows: The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible i.n the prevention of accidents and in the reasonable promotion of safety and health of all employees. The events leading to this grievance took place at the Toronto East Detention centre, which is a maximum security facility adapted to hold remanded inmates and those awaiting disposition by the courts. The facility is also a collection point for all' prisoners who are classified as going to a Federal'penitentiary but have yet to be moved to their final destination. As a result, the Detention Centre houses prisoners whose crimes range from impaired driving to first degree "murder. Currently, there are between 450-475 inmates in the facility. It perhaps goes without saying that a major concern of the Ministry is that Security be maintained within the Detention Centre. Mr. J... A. Hume, Senior Assistant Superintendent (Corrections), testified that a major concern is the prevention of contraband such as alcohol, drugs and weapons from coming into the hands of inmates. He stated that inmates are ingenious when it 2 comes to fashioning weapons. They can, he stated, be made from glass, metal and even wood. As a result, there are many procedures in place to provide security for the prevention of the introduction of contraband. A stringent program of searching of inmates and their quarters is followed. In addition, correctional staff are forbidden to carry personal bags and lunch pails to the areas where inmates are housed. The grievor came into conflict with this lat~er rule. Some time in October, 1988, it came to the attention of supervision that the grievor was carrying with him to his post a personal bag whose contents were unknown. On October 25, Mr. Hume asked the grievor about the contents of this bag. The grievor replied that the bag contained, inter alia, items which were vital to the treatment of his diabetes problem. On October 31, the grievor provided Mr. Hume with a report listing these contents. They were as follows: 1. Lenteinsulin Insulin syringes 3. Alcohol swab 4. Regular meal 5. Snacks 6. Artificial Sugar '7. Lifesaver candies 8. Freezer pack 9. Klinistix 10.' Glucometer 11. Ministry supplied pullover 12.. Aftershave 13. Hairbrush 14. Face towel 15. Nicorets gum 3 When he received this list, Mr. Hume referred it to Dr. G. G. Prowse, a qualified Family Physician who had been providing medical services at the Detention Centre since 1977. Dr. Prowse was called to testify at the hearing. He stated that he had been a Medical Doctor since 1958', and in his experience ke had seen thousands of diabetics with conditions ranging from the mildest to the most severe. · Dr. Prowse advised Mr. Hume that all of the items related to maintaining control over the grievor's diabetes, i.e., items 1 to 9 on the above list', did not need to be carried to the floor in the grievor's bag. The insulin, syringes, and associated items could be kept in.the grievor's locker, one floor below that on which his Dost was located, with no risk to the health of the grievor. Dr. Prowse indicated that some small items such as lifesaver candies; packages of artificial sugar and a snack could be carried to the floor by the grievor; however, it was unnecessary to carry those inca bag. ~aving received this advice, on November 2, Mr. Hume wrote a memorandum to the grievor which read, in pertinent ..part, as follows: Considering all of the above, I have.no alternative but to advise you that only the items recommended by Dr. Prowse will be allowed to be taken to your place of work beyond the .lB l'anding while'on duty in this institution. All other items not authorized, including your carrying case, may 'be stored in the refrigerator provided in the staff lounge area or in your personal locker. in view of the fact that you and/or your partner are issued with a radio transmitter during your~ assigned duties on the ~3 shift, and the fact that every living unit has a telephone, you need only contact your immediate supervisor in the event that you require relief to attend to your medical requirements. The Shift Supervisor's office will be made aware of the potential need for you to be relieved from your post to attend to your medical requirements and will be instructed to give immediate attention to such a request when received. Should you have any other information relating to your medical status that you feel is pertinent, please have your family physician contact Dr. Prowse at this institution. For your information.. (signed) J. A. Hume The grievor was forbidden to take his bag to his post. In recognition of his medical condition, however, the grievor was assured that matters would be arranged so that he could be virtually i~mediately relieved from his post whenever necessary to attend to his medical requirements. In his testimony, the grievor disputed ~he adequacy of the provisions made for the maintenance of his health. He said that it gave him a feeling of reassurance to have his insulin, etc. close at hand. He agreed, however, that if he had to go downstairs to take a booster Shot of insulin, it would only take about six-to seven minutes to do so. 5 Dr. Prowse testified that with diabetes, matters of minutes are of no consequence. He said that if a diabetic feels the need for another injection of insulin, something that in his experience did not occur very frequently, time was not of the essence. An hour or two, he S~id, made no difference in the general condition of the patient. For this reason, he said, storing insulin, syringes, alcoholic swabs, etc., on the first floor of the Institution was reasonable even for a person with an extreme case of diabetes. When questioned on cross-examination about the need for more im~ediate attention when a person's diabetes was out of control, Dr. Prowse stated that to develop that kind of a condition, the grievor would have had to go without insulin for a number of days. He said that when a patient goes without insulin a severe problem does not happen within minutes or hours. It happens in a day or two or so. Moreover, he added, before a patient went out of control, there was no pain for the diabetic. There was no discomfort to the diabetic even with a blood sugar count of 20 to 25. Turning to the provisions of Article 18.1 of the Collective Agreement, we note. that it is comprised of two sentences, each of which imposes distinct duties upon the parties. The first sentence, "The Employer shall continue to make reasonable provisions for the safety and health of its employees during the 6 hours of their.employment", is a substantive provisions. It allocates responsibilisy to the Employer. The Employer is the party which has to do whatever is reasonably necessary to protect' the health and safety of employees. The second sentence, "It is agreed that both the Employer and the Union shall co-operate to the fullest extent p0ssible...~n the reasonable promotion of safety and health of all employees," is procedural. It defines the process to be followed in deciding what needs to be done to reasonably protect the health and safety of employees. It is a co-operative process. Both the Employer and the Union must "co-operate to the fullest extent possible." When we review the circumstances of this case, we cannot held but conclude that the Ministry fully discharged its substantive responsibilities under the first sentence o~ Article 18.1. The Ministry made reasonable provision for the health of the grievor while at the same time securing the safety of its employees. We accept the testimony of Dr. Prowse that the arrangement that Mr. Hume provided for the storage of the grievor's medical supplies more than reasonably protected the grievor's health. It also protected the safety of employees by ensuring that personal bags which might either contain contraband or items which could be converted into contraband by inventive inmates, were not brought onto the inmate floors. 7 We do have, however, some reservations about the compliance of the Ministry with the second sentence of Article 18.1. This has been held to place "lain onus of equal weight upon both the Employer and the Union--to 'co-operate to the fullest extent ~possible...in the reasonable promotion of safety and health of all employees'". Re~ Ethier and Ministry of Health (1989), G.S.B. #959/87 at pp. 19-20 (Wright). In light of this, Mr. Hume should have consulted with the Union with respect to the recommendations of Dr. Prowse prior to issuing to the grievor his memorandum of November 2, 1988. 'Because of the reasonableness of the solution reached by Mr. Hume, it is unlikely that the consultation would have resulted in any change; however, the spirit and the letter of the second sentence of Article 18.1 would have been observed. In this sense, then, there was a breach of one of the requirements of Article 18.1. In the circumstances of this case, the existence of the above breach does not seem to warrant any remedial order from this Board. Fortunately, the 'action taken by Mr. Hume was, as indicated, reasonable. There seems to be little doubt that it was made in good faith. Accordingly, the Board will resolve this matter by issuing a declaration that the Ministry breached the procedural requirements of Article 18.01 of the Collective Agreement DATED at Lo~don, Ontario, this 22hd day of August ~. J. ~erts, Vice-Chairman J. McManus, Member "I DISSENT" (Dissent attached G. Milley, Member RE OPSEU (LEEANAN) and THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES) Partial dissent of George Milley The award states that the Ministry fully discharged i-ts substan- tive responsibilities under the first sentence of Article 18.1. However, the Board also issues a declaration that the Ministry breached the procedural requirements of the article, namely, the second sentence, because Mr. Hume did not consult with the Union with respect to the recommendations of Dr. Prowse prior to issuing his memorandum of November 2,1988, to the gfievor.. While I agree that the ministry discharge~ its substantive resp- onsibilities under the first sentence, I cannot agree that it breached the procedural requirements of the second sentence. For the reasons which follow, to hold that it did is, in my view, illogical. The stated purpose of the Article is the reasonable promotion of safety and health of employees. The Article is meaningful only when both sentences are read together. It is not meaningful if the second sentence is isolated and treated as if the first sentence did not exist. More precisely, the first sentence is the principle and"governing one while the second sentence is secondary or supplementary. When read as an entity, the Article implies that the duty to cooperate becomes operative only where there is a reasonabie health or safety risk involved. In the instant case the Board concluded there was no health or safety and said~ "..the Ministry fully discharged its substantive respon- sibilities under the first sentence of Article 18.1. The ministry made reasonable provision for the health of the grievor while at the same time securing the safety of its-employees." How could the Ministry have made the reasonable provisions required and, at the same time, be held to have breached the procedural requirements of Article 18.17 It just does not make sense! If, as stated, the Ministry breached the second sentence of Article, notwithstanding that no hea~th or safety risk was involved, the first sentence becomes meaningless. It must follow that it now becomes mandatory for the Ministry to consult with the Union regarding reasonable provisions to be made regardless of whether or not there is a health or safety risk. Effectively, in practice this means management by joint consultation. I view this as an impractical and absurd interpretation of Article 18.1. It is~the Ministry who is responsible for making reasonable provisions for safety and health and as long as it fully discharges its resp- onsibility in this regard, there can be no breach of the Article. Finally, the Board, in its decision, relies on RE ETHIER AND MINISTRY OF HEALTH. I would point out that'the critical differ- ence between that and the present case is that in ETHIER the Board did not find that the' Employer had made reasonable prov- isions for the Mealth and Safety of the employees or that no risk was involved. The obverse is true here. For the above reasons, I would have to find that the Ministry did not breach the provisions of Article 18.1 as the award states. Respectfully submitte.d,~ ,