HomeMy WebLinkAbout1989-1478.Gibson.90-12-28, '" CROWNE~LDYEE$ DE L'ONTAR~O '
........ 'GRIEVANCE c,OMMISSION DE ..
SETTLEMENT REGLEMENT
'BOARD DES GRIEFS
~,~0 ~f)UNDAS S~E~ WEST, ~U~E 2~, ~O, ~TAR~. ~Q 1Z~ ~ONE/TE~ONE.. (~t6) 326-~388
180, RUE OUNDAS ~EST. BUREAU 21~. T~O (~). MSG 1Z8 FACSIMILE/T~LEC~IE ; 1416j 326- ~3~
1478/89
IN TH~ MATTER OF ,~N ;LRBITRATION
Un6er
TH~ CROWN EMP~OZEES COLLECTIVE B~ZNING A~
Before '~'
~ G~E~CE 8~T~~ BO~
'BE~EN ~ OPS~ (Gibson)
e=ievo=
- ~ -
~e Cro~ in Rich2 o~ Ontario
(Hinis2~. o~ Co~ectional Se~icea)
E'mploye~
BEFO]~: T.H. Wilson Vice-Chairperson ..
N. Cartiere Member
J. Campbell Member
FOR ~E A. Ryder
GRXETOR Counsel
Ryder, Whitaker, Wright &
Chapman
Barristers & Solicitors
FOR THE J. Vair
EMPLOYE~' Counsel
~ Mathews, Dinsdale & Clark,
Barristers & Solicitors
HEARINGt April 2, 1990
June 22, 1990 x
August 14, 1990
DECISION
The Griever was dismiSsed effective October 20, 1989 for failure to adherE; to the
conditions established.by the Grievance Settlement Board.on October 16, 1987" in that
you have not maintained the institutional average in attendance for a period of two years
and your prognosis for return to work is poor." The Griever was a Maintenance Mechanic
3 at the Hamilton,Wentworth Detention Centre. He grieves that dismissal.
The order referred to was a consent order, issued by the Grievance Settlement
Board on the 16th day of October, 1987 and concluded a long hearing which had begun
on January 30, 1986. It reads as follows: ,
ORDER
At the hearing he~d on October 16, 1987, the parties agreed to conclude the matter '
by causing the Board to issue the following Order:
(1) The Griever is reinstated as of October 16, 1987. There will be no
compensation because the Board believes the whole issue is one for the Workers
Compensation Board. Compensation will commence from the Grievor'~ return to ..
work.
.... (2) At the earliest possible moment, the Griever must have a complete medical.
examination by Dr. J. Chong and any other experts to whom Dr. Chong wishes to
refer the Griever for testing. There must be full cooperation to disclose the results
of this examination to the Superintendent of the Hamilton-Wentworth Detention
Centre.
(3) If Dr. Chong confirms that the Griever has a good prognosis for regular
.attendance in the job of Maintenance Mechanic 3, the Griever will return to work.
If the prognosis is unfavorable, the Employer will process an application for LTIP
for the Griever. If this application is not approved by the insurance carrier, the
Griever wilt be considered terminated with the severance benefits that would have
been due him as if he had resigned.
(4) Upon his return to work, the Griever is .required to maintsin the institutional
average in attendance for a period of two (2) years. In that period, he will be
required to provide full medical documentation for each absence of tw(~ (2) days '
or more.
Of course, the Board will retain jurisdiction pending the implementation of
this Order.
Dated at Toronto, Ontario this 16th day of October, 1987. 'i
R, ~t, ~oberts
R. J. Roberts, Vice Chairman
J. McMlanus
j. McManus, Member
A. McOu~ig~
A. McCuaJg, Member
The Grievor was examined, found fit to return to w~rk as a Maintenance Mechanic
3 and did return to work on December 18, 1987. In the first year of his return to work the
Grievor was able to maintain an acceptable attendance record,~ but between December
18, 1988. and his dismissal on October 20,. 1989, fell below the standard set out in
paragraph 4 of the COnsent order. There is no actual dispute on his attendance record.
The thrust of the Grievor's defence is that the air qualib) in the areas in which· he
worked was such that in fact it made him so iii that he was unable to keep to ·an
acceptable attendance standard in the relevant time. period. At the time of the consent
Order in light of the fact that the Employer had resisted any claims that the verttilacjon
system was deficient,, the Order, according to the Union, envisaged that the Grievor would
be returning to work into a wholesome environment - something which the Union argues
turned out not to be the case. Furthermore, the Union argues that the documentation
and the evidence show that the Grievor is in fact fit to work if the air environment is
proper. The employer took issue with these defences.
Victor Villeneuve is the Superintendent of the Hamilton-Wentworth Correctional
Centre. It was his decision to release the Grievor pursuant to subsection 22(3) of the'
public Service ACt which provides as follows:
(3) A deputy minister may for cause dismiss from employment in accorclance
with the regulations any public servant in his ministry.
He testified that the Grievor was absent five days in the first year.of his .return
which was less than the average for the Detention Centre staff. However, by the time' he
met with the Grievor on October 20; 1989, the Grievor had-been absent for a total of 51
days since December 19, 1988. The period of significant absence began in August 1989
when he missed '20 working days and then was off all of September and October up to
the date of dismissal. For the same period, the institutional average was 8.64 days. For
the whole twelve month period, it was 13.08 days. On September 18, a letter from Dr.
Parker, the Grievor'.~ personal physician,' had arrived stating that it would be indefinite as
to when the Grievor would be able to return to workl Then on October 18, another letter
was received fi.om Dr. Parker stating as follows:
As you probably know, I have been Mr. Gibson's family physician since 1985 and,
as you are well aware, he feel that much of his comPlaints are due to pollution in
his work place.
The current absenteeism began on August 23 and since that time he has definitely
been much improved though I understand he has been absent from the work place
during this Period of time.
On September 20, ! had the pleasure of meeting with his wife and outlining some
of the options to him, but it is my strong reCOmmendation that he not return to the
work place under the current situation as his health is adversely affected by this
occupation for whatever reason.
I understand that Dr.. John Chong from the Health Risk Analysis Unit will be
corresponding directly with you with regard to his opinion on this matter.
I trust these comments will be of help to you in determining the final status of Mr..
Gibson.
SUperintendent Vilteneuve testified in cross-examination that one set of minutes of
the joint Health and Safety Committee had expressed concern about ventilation in the
institution. The result was a Study was done by the Consultant from Acres International
Umited whiCh reported to the Ministry on November 3, 1988. This air quality investigation
was carded out by John Orser, a Certified Industrial Hygiene Technologist. He reported
the following findings: ~
During the building survey, air concentrations of carbon monoxid~ and oxygen
content were reported at ten (10) locations, ozone concentrations 'were recorded
at two (2) locations, and smoke tracer tests were conducted at several locations
to determine approximate supply and exhaust air patterns. The above parameters
and the measured concentrations are found in Table 1.
Carbon Dioxide and zone concentrations were measured ~ an Exotoxmeter,
.~.
Which gives a continuous electronic readout.
-.The survey was conducted in the presence of Mr. Bob Johnston, Maintenance, and
Mr. Fred Druykers, who is an alternate on the Health and Safety Committee.
(For Table 1 see: Appendix "A")
We omit the Observations at this point. The Conclusions and Recommendations
were as follows:
1.4 Conclusions
(a) Elevated carbon dioxide levels, although not high enough to be
dangerous to human heatth, are an indication of a lack of sufficient air
movement and exchange throughout most areas of the building. .'
{b) Unusually heavy consumption or tobacco and subsequent release of smoke
into an inadequately ventilated atmosphere is putting both inmates and staff at an
unacceptable respiratory risk.
(c) Organic or inorganic contaminants from other sources may bring the Center ~_,
through the air intakes. This possibility has not been fully investigated.
(d) Organic or inorganic contaminants from within the Center itseff may be
entrained in the recirculated air flow. This possibility has not been fully
investigated.
(e) A full ventitation study to acces~ the efficiency of the HVAC system ..,
has not. recently been done.
" 1.5 - Recommendations (In order of prforfty)
(a) Initiation of an immediate, comprehensive ventilation study aimed at
determining all areas deficient in supply and exhaust air. Consideration
must be given to the input of an unusually high amount of tobacco smoke
into the closed atmosphere of the Center.
(b) Following the ventilaUon study report, take immediate action to initiate
those remedial measures specified. Any delay will extend the exposure
period of both inmates and staff.
(c) On completion of modifications to the ventilation system, monitor the
intake and recirculated air streams with subsequent follow up to trace any
contaminants discovered by the samples analysis. This should be assisted
by a survey of building occupants to detail and record symptoms which .
may indicate the need of further investigation.
(d) Check the ventilation system at least twice yearly to ensure that air flow
conforms to design specifications. Where. there is any variation outside of
the design limits and corrective action must be taken without delay .
Temperatures and relative humidities would be checked on a more
frequent basis as an integral part of the preventative maintenance program
to ensure occupant ,comfort.
(e) Equip the maintenance staff with the capability Jo test for carbon
dioxide and carbon monoxide levels and initiate a routine monitoring plan.
Mr. Villeneuve testified that there were two separate complaint issues at the time:
one was air circulation and the other was the storage of chemicals. Prior to the Acres
Report, there had been one test bu!/t re~ated only to the laundry area It was his position
the circulation was not putting staff at an unacceptable.risk, in his view, the result of the
Acres Report was to show that they had areas of deed air· which were not properly
circulating. Therefore, it became a quantity of air as distinguished from quality of air issue.
Prior to the Acres Report, certain areas were too warm and other areas were too cold.
In his ~/iew, the Acres Report verified this from a lack of air movement. He considered
paragraph (a) of the Conclusions as different from the problem identified in paragraph (b).
He understood it as an issue of imbalance in the circulation of the air, but he stated that
he did not know whether failure to move the smoke out was an unacceptable risk. The
first recommendation of the Acres Report was carried out by the Ministry of Government
Services in its Report dated' November 18,1988. It concluded as follows.:
Performance Of the air distribution system has ·deteriorated since the
Detention Centre was built. The number of occupants has increased. Air.
Quality in the Centre will be improved if the components are cleaned, and
the system balanced to redistribute air flows.
David Lynch
Regional. Mechanical Engineer
" The institution was originally designed for about 220 inmates and by 1989 had
about 456 and over 90% of them were smokers. Since. the buildings belong to
Government Services it was up to them whether to follow the recommendations of Lynch.
Tenders were made to repair the air vents. They had to be altered since they were
blowing on the top bunks and inmates were plugging the holes. Those changes were
begun. In August, 1989, cleaning of the ventilation system began. That involved the use
of a vacuum cleaner on a truck which drew out from the main ventilation shafts. After that
cleaning job was completed, unit by unit, a contractor would 1) relocate the vents, 2) the
air removal vent' under the bunk was replaced and at the same time the area under the
bunk behind the vent was vacuumed - something which had never been done before. 3)
the fire alarms in the cells were relocated for safety reasons. It also affected air
circulation. Mr. Ryder asked Mr. Villeneuve if the situation was therefore better now than
when the Grievor was working and he replied that he would expect it to be. However, he
also stated that the system will have to be rebatanced. The areas have n0{ been tested
because of the need to rebalance but it is intended to. do that by candle. The Grievor has
nOt worked in the institution since the vacuuming was done. The changes are aimed at
changing air circulation. In re-examination, he stated that ·he did not think that
contaminants were a problem since no other ·staff or inmates had Complained except
about red eyes and dry throats. And his understanding of the Acres Report was that the
CO2 levels were within acceptable: limits in the areas in which it was tested for,
Bert Jongerdon is the Maintenance Superintendent at the Hamilton-Wentworth
Correctional Centre and is responsible .for the ventilation and air exhaust system in the
building. He testified that he believes {he cleaning and vacuuming of the duct system
began on July 17,1989, and lasted about three and a half weeks. He described the-
institution as a six storey building consisting, of three separately ventilated components
shaped in a triangle and referred to as pods A,B, and C. Each pod, individually, has a
supply air,'a return air and an exhaust air system. When the contractor came to start his
ventilation cleaning, he brought a large truck which was parked in the service yard. The
A pod ventilation system is at the top of the six stow and the truck was 30 lineal feet from
the building. Flexible ducts were installed leading from the truck and hoisted six stories
up and along 30 feet of roofline into the=building and then into whatever fan system was
being worked on at the time. The other end of the duct was then connected to either the
return air or exhaust air caJ3iaets (fan boxes). To clean, the contractor would then start
the ventilating motor on the truck and the staff would start the relevant motor in the fan
box being worked on. The truck ventilation system generated about 30,000 cubic feet of
air movement (suction) and various fan boxes would generate from 5,800 to 12,000 cubic
feet of air movement. The contractor's people would begin work at level one, working their
way up. With the small ducts they would install a skipper -- a device that is attached to
a flexible rod end and as it is fed along it vibrates and dislodges any loose material. That
material was then drained out of the fan box and into the truck. With the larger ducts, a
man on a harness would manually clean the ducts. When the skipper was used, the
supply fan would be on at all times because there, is more air being drawn out by the
exhaust fans. He testified that it would be rare for any material being dislodged to enter
the building since twice as much duct air was being drawn out as was being supplied. He
felt it was virtually impossible for the foreign, matter to re-enter the system. This was not
the first time that the ducts had been cleaned but 'he could only give an "educated guess"
that the last time was in 1983/84. He did not think that the effect at the time would be ,
great.
Mr. Jongerdon had been present at the previous GSI3 hearing which resulted in
the consent order. He testified to this Board that at that heating there were issues of
quality of air, types o1 contaminants, general npJsance dust, CO2, fumes and cleaning
products/solvents. In cross-examination, he stated that there is an-exhaust air vent from..
the level one mechanical room, i.e. at ground level, But there is no air intake vent for the
laundrY/WoOdworking/kitchen area, although there is one in an adjacent yard for the
laundrY and kitchen; only it is separated by a 20 foot high wail. When asked whether an
exhaust fan would be working against the suction from the truck, he stated that 'it woufd
depend on which fan, is being worked in. Jf for example the exhaust fan was being worked
on, it would run along with the truck fan. He admitted that the duct has more particulate
when it is being cleaned than ordinarily. He also admitted that when the ducts were being
cteaned, more air and mom dust are drawn than usual. There are three systems: the
supply air supplies normal needs through~out the pod; the exhaust air system draws' air
· from specific areas, for example, toilet and celt areas and the air from it is exhausted
directly into the outs/de atmosphere at the sixth level; and the return air is a comPonent
drawn from other common areas such as offices, hallways, dayrooms and returned to
Level Six where a percentage of it is exhausted into the outside atmosphere and another ,
percentage is altered and then returned to the supply system. The supply system cleaning
was done at an earlier time. He admitted'that it is possible that the exhaust from the fan
of the vacuum truck could go up the wall over it, down the other side and into the air
intake in the Mechanical room, but his educated guess was that it was fairly unlikely due
to the pattern of air around the perimeter of .the building. The air, going into the truck
would, have passed through the filter °n t~e sixth 'floor and then through the filtration
system of the truck· itself before being exhausted into the atm°sphere.
Dr. J.P. Chong is a medical doctor whom the Grievor has been consulting and who
is an expert on Occupational health. He is the director of the Centre for Human
Performance and Health Promotion, Sir William Osier Health Institute in Hamilton,
Ontario. In addition to his M.D., Dr. Chong has graduate qualifications in occupational
medicine and is also a graduate engineer. He lectures at McMaster University. His righ{
to give .expert evidence was conceded by the .Ministry Counsel. He has published
extensively in the field of occupational health. One of the areas that he has done work
in is what is commonly referred to as the" sick building syndrome". This has an indoor
environm'ent where there 'is inadequate ventilation for the people in it. The more people
there are in this environment and the greater-their activity, the greater the need for~
oxygen and the greater the production of waste products .such as heat and carbOn'`
dioxide. Speaking as an engineer, Dr. Chong sees the solution as one of getting more
air into the building; as a medical doctor, he is concerned more about the·health problems
of people in the building which means identifying sources, such as any chemicals used,
by-products, micro-organisms - factors which might affect the quality of the ai¢ inside· In.
conclusion, he states that you cannot separate the two approaches. If there is not enough
oxygen present, occupants will feel tired and 'sUffer from lOSs of concentration. If other
contaminants are present, they may suffer from irritated mucous membranes, respiratory
problems, dizziness, nausea, and swelling of nasa~ membranes. Cigarette smoke is a
complex problem and second hand smoke may contain more complex substances
because of incomplete combustion and lack of filtering.
With respect to the grievor's situation, Dr. Chong testified that he had no medical
information which would indicate to him nor has he diagnosed any condition which would
explain why the Grievor might be extra susceptible, i.e. special because of any underlying
health problem, for example a pulmonary disease not environmentally connected. It was
his opinion that if the iail owners have made adequate provision for air quality, he could
be a reliable employee. "It is more likely than not that he could return'to work if the indoor
atmosphere is adequate and he is under close medical support, i.e. that I periodically
check up on
Drl Chong has read the Acres Report. In his opinion, it deals with both quality and
quantity of air but' in only a superficial manner. He first ·received a copy of it in April 1989.
In Table 1 at page 2.of the Report, ir'deals with the relationship of area to the quantities
of certain gases, usin~! a publication called ProbJem .Buildings ed. J.E.Cone and M.J.
_Hodgson as his authority (Ex 19), he testified that" carbon dioxide concentrations in
indoor air have been used as surrogates for various occupant-generated air
contaminants, such as bioeffiuents and environmental tobacco smoke." Referring to the
ASHRAE STANDARD A Guide published by .the American, Society of Heating,
Refrigerating and Air-Conditioning Engineers, Inc., it is recommended that carbon dioxide
concentrations in indoor environment not exceed 1000 ppm in order to satisfy occupant
comfort needs. However, Dr. Chong added that this is not so if indoor particulates and
gaseous components are not removed. In that case, it may be inadequate air quantity to
dilute. The Acres Report is only an introductory report because it does not identify the
indoor particulates and the gaseous components. He noted that the Table shows that in
the dayrooms, the CO2 tevels are all up to 1000 which indicated to Dr. ChOng that the
supply of air was not adequate. On page'3 of the Re'port, 1.4 - Conclusions - (la) seems
to indicate heaw particulates. The Chair finds it interesting to note that at p .735 of
Problem Buildings, Hodgson writes: "Ventilation in offices is regulated by' consensus
Standards, developed by professional bodies, that are subject to influences beyond strict
scientific considerations." Commenting on the MGS Report of' November 18,1988, Dr.
Chong commented that this tells us that the ventilation system is inadequate to prevent
acute and long term health threats. It is a system designed in the late 70's probably when
architects followed the current state of the art which was 'minimalist due to the energy
'crisis of .that period and the building was designed for only 200 inmates..Asked by
Counsel if he had known all this in 1987 would he have permitted the Grievor to return
t~ work, he answered no. At the time that Dr. Chong on consUltation with his fatuity doctor
decided that the Grievor should go off work, he was in fact unaware of the cleaning of the
ducts. Until that point, his inclination had been to keep him at work, but he had had a turn
for the worse. Based on the text of Problem Buildings at pages 782-3, Dr. Chong testified
that the CO2 levels should be below 800ppm. That does not assume that there is any
smoking in the areas. The standards under such circumstances are based on design
criteria, i.e. air flow per person which is a dilution problem. At page 10 of the ASHRAE
standards, Table 2 sets out criteria for .institutional facilities including specifically
correctional facilities, for cells', dining areas and. guard stations. For example,
20cfm\person(TM) 'for cells. The organization meets yearly and' puts out directives to
engineers. The specific standard referred by Dr. Chon§ is ASHRAE 62-1989. For a
.smoking lounge, it sets 60 cfm~erson. This is the kind of study that the Acres Report
wanted undertaken.
IDuring cross-examination before us, in describing his testimony before the Grievance
Settlement Board in the first set of hearings,'Dr. Chong.explained he was then concerned
about exposure to various chemical in the work place that adversely affected the Grievor's
health, From what he knew at the time, he had repeated exposures to .chemicals that
made Mm ill. At that time, Dr. Ch°rig had no information or) how they could be reduced
in terms of direct exposUre as :for example by a ventilation system. He did not speak of.
ventilation, Nor at the time of writing the return to work opinion, did he have the Acres
Report or know of the inmate smoking problem, On April 25, 1990, in a letter to Mr. RYder
the lawyer for the union, Dr. Chong had written on page 2:
It is questionable that certain areas in the correctional facility in question even met
the 1986 standards and was the reason why my clinical opinion were based on
a problem of so called "sick buitding syndrome or multiple chemical sensitivities.
That was the basis of my concerns and dealings for my patient's health in 1987
when went to the original arbitration.
In cross-eXamination, he further stated that "multiple chemical sensitivities" does
not mean the same thing as "sick building syndrome". He stated that there is a
conste{lation of jargon: they are all non-specific health complaints such as those
complained of and in such circumstances, when the doctor knows the environment, he
relates it to one of those clusters. Ali that Dr. Chong knew in 1987 was what the Grievor
had told him, namely about exposure to solvents in specific spills. In 1990, however, he
had the Acres Report before him and that is why there is a reference to the Sick Building
Syndrome. On the basis of what he understood from the Jonderdon testimony as it was
relayed to him, Dr. Chong thought that the method used could be an effective way of
'* cubic feet per minute per person
cleaning the' ducts but while being done the system would be out of balance.
The Gdevor testified that he is 61 years old and that he started with the Hamilton-
Wentworth Correctional Centre in July .1972, The present facilities opened in April 1978.
The Grievor was originally dismissed in June, 1984 and after the consent Order returned
to work in December' 1987. He was elected to.the Health & Safety Committee and an
issue of air quality was raised in a joint meeting. Management agreed to a study and the
.Acres Report was the result. SubSequently, on December 14, 1988, AAF Contractors
installed a new filter on the sixth floor in Pod A. Sometime later they installed new filters
in Pods B and C. VVhen the Grievor started back to work'in December 1987, he already
found the environment improved since an exhaust filtering system had been installed in
,. the woodworking shop where· he works' part-time. In July, 1989, the clear'lng with the
power pack truck began. In lhat situation, the fans were periodically shut down and the
Grievor at that time was assigned to work in the woodworking ship in Pod C. That was
full time except when he was out installing something. In July, the grills and ducts were
installed in the shop area and he found that a problem.. The Grievor was off work on July
26 and again from August 3 to 11. He retained to work on August 14, lasted that week
and then.was off again until August 27. As Dr, Parker's letter of September 29 indicates
the Grievor.feE improved when out of the Centre's environment, Dr. Parker would not let
him return to that environment at that time, He believed himself that when the cleaning
should be completed, he would be able to return to work.
He testified in cross.examination that in the woodworking shop there is a large
vacuum cleaner mounted in the wall .which is connected to three different units 'in the
shop; its function is to suck out the dust. But it is manually turned on and off and because
it makes a lot of noise, other people are always turning it.off. It needs an additional return
air to filter any additional dust since it is only about 75% efficient. He admitted that he
was cutting plywood without the filter in on August 15,1989. He further testified that his
symptoms were atways similar except when he had been working with chemicals'. He also
agreed with the Ministry's Counsel that during.the first hearing he had been concerned
about the ventilatiOn system. The building had had problems from the beginning with
some areas being too cold, others too warm, some areas with too tow. humiclity and
others with too much humidity; furthermore, there had been a breakrdown of the filtration
system in the laundry room which resulted in airborne lint, ammonia and bleach fumes
as well as detergent. The air return system was carrying the lint throughout the institution:
He admitted that the Acres Report confirmed his on-going concerns about air problems.
He also agreed with the Ministry Counsel that the air cleaning in Pod C began about July
24, 1989. He also agreed with Dr. Chong that he would have to return to work on a trial
basis and there must be testing.
ARGUMENT
Mr. vair for the Ministry argues that one of the terms of the Consent Order of 1987
was that the Gdevor must maintain the institutional average of attendance for a period
of two years. The evidence showed that in the year following December 1988 he fell
below the institutional average and the doctor;s notes indicated that the absence was to
be a prolonged one. He then posed the question as one of whether there were any
mitigating factors to justify reinstating the Griever since, the griever had failed to meet the
previous Award. He identified two possible areas: the air qualitY problem which the Acres
Report allegedly confirmed, and the impact of the cleaning of the ducts and ventilation
system in 1989.
With respect to air quality', Mr. Vair argued that this Board must Consider whether the
· adequacy of the ventilation system was· an issue at the time of the Board',~ consent
decision in 1987. While Dr. Chong'{ evidence was that the issue before that panel was
that of chemicals in the institution, the Griever in cross-examination indicated that he had
had concerns about the ventilation system, as a whole, including the return air system
through-out the institution and specifically about its circulating particulates. AcCordingly,
argues Mr: Blair, the adequacy of air circulation was the issue before the Roberts panel
13
in 1986-7 as before this panel in 1990.
With' respect to the second issue, namely, the Acres Report, there was Ministry
testimony that the Acres Report was concerned with air. circulation as opPosed to air
quality. Fu~hermore, the Ministry'~ position is. that the air quality has not changed since
the Acres-Report and the time. of hearing. With .respect to Dr. Chong's testimony, the
ASHRAE Standards but they accept 1000ppm as the beginning of the danger zone and
according to the Acres Report? none of the areas in'the Centre exceeded that. The intake
limit is 350, while in fact for the institution is down to 200. Accordingly, he argues that the
Acres Report does not show that air quality is unsuitable, but rather deals with circulation.
And at the time of the A~cres Report, the Grievor had an acceptable attendance record.
With respect to the duct cleaning in the summer of 1989, the Mini ~stry submits that
its evidence shows that the vacuum truck sucked any particles.out of the institution and
that it was not credible that contaminated air from the truck through the woodworking
room ventilation system occurred. Accordingly, that leaves the question of the relation of
air inside the institution and its movement during the duct cleaning. Furthermore, the
Grievor's own evidence was that he moved from any area that was being cleaned at the
time and the inmates .and the staff were moved from a pod when the main component
of the ventilation system in it were being cleaned. Accordingly, the cleaning of the ducts
was not a circumstance which should cause the GSB to reinstate the Grievor,
With respect to the prognosis of the Grievor, at the time of the discharge his own
doctor wrote that he would be off indefinitely and even at the hearing, Dr. Chong testified
that he can would only be able to return to work on a trial basis while still having
concerns about his ability to cope with smoke in the detention centre's environment. Mr.
Vair cited a number of authorities on the questions before us, and Mr. Ryder for the
Union stated that he c~id not take issue with the .decisions themselves. At this point,
therefore, ! wish to turn to the Union'~ argument and then deal with the case law.
Mr. Ryder for the Union submitted that although he had no argument with the case
law relied upon by the Ministry, it did not apply to a situation where the employer was
14.
wholly or partially responsible for a GrieVor's ability to meet the conditions of a Board
order, tt was his position that the consent Order does r~ot require the Grievor to take on
any unacceptable respiratory risks with respect to qual!ty or quantity of air: the. Board in
the Robert's panel did not determine the state of the air qual. ity. In that hearing; the union
" had contended it was bad and the Ministry claimed it was atright; in fact, the quality.of the
air was not known until the Acres Report was received. Furthermore, the control of testing
lies with management so that only it could order and investigation. It would be
unreasonable to assume that the Board's. order would require the Gdevor to accept
unacceptable air risks Such a requirement would be contrary to section 18.1 of the
Collective Agreement and furthermore, it did not say so.
SecOndly, Mr. Ryder argues that at all material times prior to the discharge of the
'" .: Grievor (in 1989), the air quality was inadequate. Section 18.1 requires: .
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. It
is agreed that both the Employer and the Union shall cooperate to the
fullest extent possible in the prevention of accidents, in the reasonable
promotion of .safety and health of all employees.
The .standard in section 18.1 is "make reasonable provision" which it does not
otherwise define..The .Board therefore may refer to community standards which are
changing all the time. In this regard, the ASHRAE Standards are becoming more stringent
all the time. For the G'rievor to succeed, the Board does not have to find that section 18.1
was actually violated; 'it need only find ~hat the air quality was inadequate. The evidence
shows that the air quality did improve between 1984 and 1987, but the Acres Report
concluded that there was an "unacceptable respiratory risk". And according to Dr.
Chong's testimony there was not enough air to dilute relying on his reference (Ex. 19)
giVen the quantity of tobacco smoke present. In.M~. Ryder"s submission that is the very
problem that the Acres report was concerned with and which is linked to the respiratory
15
risk. This finds further support in the MGS Report-and its references to the inmate
population increase. The Acres Report itself addresses only air quality but as Dr. Chong
testified both quantity and quality of air are involved in setting air quality. Even still, t,.he
Grievor was able to meet the attendance standard in the first year and only fell below
standard when the cleaning of the air system began. And there is no other evidence for
his failing health than the impact of the cleaning. With the cleaning completed, he should
be able to return to work in light of his attendance record prior to that. The cleaning
should have been done earlier and more regularly. This massive cleaning was necessary
because they had not done so earlier on a regular basis. In a dismissal, ~e governing '~'
law is subsection 18(2) of CECB Act and management cannot rely on a condition that
was based on a false premise, namely that the air quality was adequate.
By way of remedy, the Union requests that if the air quality is inadequate it would
be unsatisfactory to reinstate 'the Grievor without first ordering the air to be tested and
that he be reinstated only once the air quality is generally accepte_bte. The Board should
in such case remain seised of the matter. Mr. Vair responded to this proposal by saying
that since the Grievor had similar concerns before the consent Order, he could himself
have insisted on such requirements before the consent was issued and by not doing so
had assumed the risk.
REASONS FOR DECISION
The Board was referred to a number of decisions to which I wish now to turn.
These were: City of Toronto and' Metropolitan Toronto C~ivic Employees Union. Local 43
{~,Lmm{jt'man Grievance) (Dec. ,27.1_984) qnrep0rted; Zehrs Markets end Retail Clerks
Union. Loc. 1977, (1984) 14 L.A.C.(3d) 379; Oshawa General Hospital add CUPELoc.4,~,
(1986) 26 LA.C. (3d) 40; Steinberg .Inc. and Teamsters UQign,.~Oc~ 419, (1986~ 23
L.A.C.(3d) 193; Arthurs-Jones Lithggraghing Limited and Gr~j;).hi.c CommunicatiOns
Inte[naJ;ional Union, LQ~al 500M (Paul ,,laglal Grievance) June 1,1989; (~eneral Tire
Canada Ltd. and. United Rubber Workers qf America. Locat 5,3.6.(V,L~,wrence Grievance)
16
unreported, May 22,1989; Sa~!pdcrs and LC_BO (GSB 252/82) November 23,1982;
Rupert and MC~ (GSB 372/84) October 8,i985; and Krishn~murthy and MGS (GSB
1479/87).
In the City of Toronto (Zimmermar0 case, the Griever had been previously
reinstated by an earlier arbitration board as follows: "upon reinstatement the Griever must
· maintain an attendance record equal to the average attendance of all employees in the
Operations Sebtion for a period of One year from the date of his reinstatement. Should
he fail to meet this condition, he will be subject to termination." He failed to maintain that
average and the Employer again dismissed him. It appears that he had fatuity and ~-
" financial problems which were causing increased absenteeism for him. The new board
states that the previous award meant that the City had a discretion whether or not to
dismiss him. It characterized the case before it as~ being neither a classic innocent'
: absenteeism situation nor a disciplinary discharge.. It quoted from the decision in
Irltern~3tio[~ Woodworkers of America and ~ ! nca~ 2-69 and Consolidated - BathurSt
Packaging lgmited (19&3)' unreported (Howe) the proposition that in such circumstances:
...it was not our intention to thereby impose upon the Company an obligation to ,·"
demonstrate 'just cause' to discharge the griever. If that had t~een our intention,
there would have been no need to impose a 'trial period', as 'just cause would
have been the applicable standard (pursuant to the terms of the coil.active
agreement in force between the parties) if we had simply reinstated the griever
without any conditions.
However, it states at page 11:
,,
While Mr. Howe considered that the question was not one of just cause
where the condition attached to reinstatement was not met, we believe that
such a position may properly be criticized as varying the collective
agreement protection against discharge for other than just cause. We do
consider, though, that when a condition has been attached to reinstatement,
implicit in the condition must be the statement that failure to meet the'
condition is just cause for discharge. As a practical matter, therefore, We do
, not disagree with the Consotic[ated -B~,thurst award (supra). It is our view,
then, that the only questions before us are whether the City properly
, interpreted the condition and whether it was shown that the griever has
17
failed to meet it.
While the original discharge'~ad invotved a culpable situation, the new absenteeism
had been for innocent reasons, but'the board states:
We do not'consider that the City had interpreted the condition in an
unreasonable or improper manner when it determined that the grievor's
innocent absences could trigger the condition. The usual purpose of a
condition of that sort is to determine whether or.not a person can maintein
a suitable pattern of attending, despite ali the randoml usual minor illnesses
to which we are all subject. That is not to say that if some unusual event
had occurred, such as an accident, which resulted in the grievor's incapacity
OVer an extended period of time we would have agreed that the City had
· interpreted the condition reasonably and proPerly if it had counted against
the grievor.
The board dismissed the grievance.
The ZC, b[A decision needs' some examination, It was an interim award, i.e. it was
decided prior to the reception of any evidence. The parties had made a without prejudice
settlement which included a term that the GrievOr would remain in his full-time position
for two months.from Sept. 6, 1983 and. a company letter to the union suggests that if the
Grievor did not meet the requirements and expectations of the job, he would be
terminated. At the subsequent discharge hearing, the employer argued that the only issue
"was whether the company satisfied the terms of the settlement while the union and the
Grievor argued that just cause was the only issue. Mr. Barton states at pages 380-381
as fotlow~:
It is quite clear that it is a general principle ~e.t settlements of grievances
of grievances are to be encouraged. It is also essential from the point of
view of the grievance procedure, that settlements be enforceable and
enforced. There are a number of decided cases which establish this
proposition and which do not need t° be cited here.
It is also true that. once a grievance is settled, a further grievance
concerning the same matter cannot be entertained, nor can the reopening
of the original grievance. The sole iSsue to be decided here is, assuming
there is a settlement which resolves the original matter, are the parties to
be bound by it if the terms of the settlement deprive the employee of some
benefit found in the collective agreement.
He then goes on to state: . .
Assuming the company argument is correct, my jurisdiction beyond that
stage would be to determining [sic] whether or not the company had
. viotated the terms of the settlement. It is the case that under "arbitral
jurisprudence", an employee can be discharged for incompetence, There is
a considerable dispute as to whether or not such a discharge is disciplinary
or whether it is more tike a discharge for innocent absenteeism. Whether
it' is for disciplinary reasons and, accordingly, under the just cause
provisions of the agreement .or whether it .is a non-disciplinary type of
proceeding and subject to the sorts of requirements established in innocent
absenteeism cases such as burden of proving prognosis, if my jurisdiction
is to apply normal arbitral jurisprudence to the discharge, I obviouslY have
considerably more scope than ill am limited to determining whether or not
the company has followed the settlement. The principle which supports the
encouragement and enforcements of settlements is a very strong one. If a
person is represented by a union and enters into a settlement of a
-grievance, every 'effort should be made to carry out the terms of that
settlement. To hold the parties to the terms of a settlement is not to allow
them to contract out of the collective agreement. The suggestion th~ ~he
union may find itself subject to an unfair representation proceeding under
s. 68 of the labour Rel~tjgns Act. R.S.O. 1980. c. ~..8. ,~13ould not. be a
~Tightening one to the union if the 8{~lement is ~ ~ir one. I have no doubt
that if there is a settlement, and if the terms of that settlement can be
proved,my jurisdiction in this matter is limited to determining whether or not
the company has abided by the terms of the settlement ....
Oshawa General Hqspital followed the Zehm decision.
The right to discharge for innocent absenteeism was examined in. the Steir~b~rg
case where the underlying grounds fo~ the Grievor's absenteeism was add!ct, ion to
marijuana. Mr. Springate in that case cited an earlier decision made by Mr. Burkett in
Ameri(;a,~t ~ta0d~d ~nd [nt'1.13ro. t~erhood of PQtt,.enJ ~ &t.{iecLWorkers', 14 L.A.C. (2d)139
where at page 146 he states:
The arbitral jurisprudence accepts the existence of a power of justifiable
termination when it is established that the involuntary employee shortcomings is
such as to undermine the employment relationship and when it is also established
that the situation is not likely to improve... The rationale for this dual requirement
flows from the fact that it would not be fair or just to permit the termination of an
employee for reasons which he is powerless to (jontrol (i.e. , mental or physical
disorders ) if the prognosis is that'the disorder precipitating ~.he termination has
been corrected or is likely to disappear within the foreseeable future. Conversely,
if it is established that the employee cannot adequately perform and the prognosis
is that the conditions causing his inability to perform wilt continue it must be found
that he can no longer uphold his end'of the employment relationship. If such a
situation is proven to exist there is no basis upon which to alter the result. It is for
this reason that the power given to an arbitrator to modify a penalty under s, 37(8)
.. of'the Act [ Labour Relations Act R.S.O. 1970, c. 232 ] is limited to the
modification of disciplinary, as distinct from non-disciplinary, penalties,·
In the StaiD. berg case, there was therefore only the issue' of Whether there .was a
. reasonable likelihood that the Grievor would be able to attend regularly· ir/the future, The
board then stated that it required evidence that relates to the likelihood that the Grievor
would be able to attend regularly in the future. Following the decision in Canada Post
C:orD.and C, IJ,P.W, (1982) 6 LA.C.(3d) 385 for the proposition that if an employee proves
at an arbitration hearing that when he has been terminated .for blameless absenteeism
but is likely to be regular in attendance in the future, a proper balancing of interests
requires that that employee be returned to his empl°Yment. Mr. Springate found that the
Grievor had rehabilitated himself and returned him to work on Conditior~a relevant to his
situation.. Failure to meet the conditions would be grounds for the employer to terminate
his employment.
In Arthurs-Jones Lithographir~g Liroited and Graphic Communications International
Union. Igc. 500M (Grievance of Pi~ul Jagli~ (Arbitrator Marszewsk0 unreported.) the
Grievor had been dismissed and reinstated on an agreement in which he agreed that he
was medically f~ to return to work and to attend to his duties on a regular basis. When
his attendance was not regular, the employer again dismissed him, Ms Marszewski held
that" due to the specific wording of the agreement, the emploYer was not required to
evaluate the likelihood of the Grievor's future attendance being regular, prior to
terminating his employment..He had in the agreement warranted that as of the day of its
signing, he was fit to return to work on a regular basis. She writes at pages 21-22:
There is no provision in the agreement for a special consideration for the
Grievor in the event of a temporary relapse in his medical condition or some
other circumstance beyond his control. Consequently, the Grievor's failure
to attend on a 'regular' basis constitutes, in and of itself, a breach of the
agreement. This breach by the Grievor entities the Employer to terminate
the Grievor's'employment, and there is no further obligation imposed upon
the Employer once the breach occurs.
The arbitrator then considered s.44 (9) of the ILabgur ~elations Act which mandates
that in the event that the. arbitrator finds that" an employee has been discharged or
othewise disciplined by an emptoyer for cause and the collective agreement does not
contain a specific penalty for the infraction that is the sujeCt-matter of the ~rbitration, the
arbitrator ... may substitute such other penalty for the discharge or discipline as to the
arbitrator.., seems just and reasonable in all the circumstances." Ms Marszewski at page
26 adds: "even though I have found that the Grievor has not lived up to the terrfls of the
January 29,1988 agreement (see: lYlilk and Bread Dr. iv~r,~, DairY Fmploy~es. Caterers
and Atlied Employees, Local Union No. 647 and Mortarch Fine Fo~.Cls. C.o~ Ltd.. and lan
A Huhter. ( unreported decision, Divisional Court Ontario, February 4, 1985)." She then
found the agreement to be a significant circumstance to be weighed and considered in'
conjunction with the Grievor's absenteeism record .and the evidence as a whole. She
Upheld the discharge,.
The remaining cases were cited to us by Minist~j Counsel as examples of "last
chance" reinstatements. In the General Tire case, the Grievor had been dismissed five
times by his employer for innocent absenteeism. On the first two occasions he was
reinstated, subject to agreed conditions, the third discharge resulted in a grievance which
was he~ard by Mr. Michel Picher and it was resolved by the agreement of the parties at
the hearing to reinstate the Grievor subject to such cOnditions as the Arbitrator deemed
appropriate. The evidence was that the Grievor suffered from a condition of recurring
anxiety which could.be expected to cause him an annual absence of between seven and
ten days. He set a two year period in which.the Grievor had to meet a certain attendance
level. Subsequently, the case came back before the Arbitrator with respect to the
interpretation of the conditions. At page two Mr. Picher writes:
In a further Award dated October 20, 1987, the Arbitrator found that while
the evidence confirmed that the grievor had failed to abide by the conditions.
set, the Company's own prior application of attendance standards had
caused the grievor to be misled with respect to the computation of his dates
of absence. In the circumstances the Arbitrator ordered the reinstatement
of the grievor, without compensation' anci without any loss of seniority,
21
'· subject to a further two years Under the same conditions.
That order, issued'on October 20,1987, was then the question in the next dismissal
grievance which was the-immediate subject of the written reasons ·before us. The
Arbitrator refrained from deciding whether he still had. any discretion once it was shown
that the Grievor had not met the conditions of the Order of October 20,1987. At pages
6-7i he discusses discharge for innocent absenteeism: ,
When a discharge resulting from innocent absenteeism comes before a
board of arbitration the inquiry generally considers the rate of the
employee's absences from work as compared to the average, the reasons
for such absences and the good likelihood that the employee's pattern of
absenteeism will improve in the future. Where the prognosis is reasonably
positive, but the record relativety negative, boards of arbitration will often
seek to protect the interests of both parties by reinstating the employeqs
subject to conditions of attendance that are stipulated in the award, In that
:~.;~ circumstance the award becomes, to some extent, a form of last chance
designed to protect the interests of both parties. If the grievor is correct in
' asserting that discharge was not appropriate and that future attendance'will
not be a problem, he or she is given a chance to demonstrate the truth of
that positiOn, On the other hand, if the Company's more negative prediction
With respect to the employee's future attendance should be confirmed,, it
can expect to dispense with the employee's services without further ..
recourse to arbitral litigation.
In Mr. Picher's view on the facts before him, the Grievor had had his last chance;
· the grievance was dismissed and the discharge upheld. It is important to note in this case
that. all the relevant absences involved were not attributable to the grievor's medical
condition of susceptibility to anxiety (see page 5). He concluded:
The grievor in the instant case has had the benefit of four opportuities of termiatin
and reinstatemenL Twice his reinstatement has been on the basis of conditions
arbitrally imposed. In the final instance'those conditions granted to the grievor
reasonable allowance fro his medical condition. For the reasons related above, it
must be found that those allowances were adequate,and that Mr.~ Lawrence's
failure to meet the conditions set out is not, in fact, attributable to his medical
condition. In the circumstances, and bearing in miknd the importance of sustaining
the credibility of arbitrable awards of conditional reinstatement, ! must find that the
Company di have just cause to terminate the grievor's employment and, assuming
the validity of the Union's position with respect to my remedial jurisdiction, I must
also conclude that there are no compelling grounds disclosed that wOiuld jsutify the
substitution of and any lesser out outcome. For the foregoing reasons the grivance
22
must be dismissed.
The three Grievance Settlement Board cases (.,%kOr.~ page 20) were all concerned
with absenteeism due to alcohol abuse. They all resulted in reinstatement on conditic~ns.
They ail looked to post dismissal evidence and some favourable prognosis for the
Grievor's being able to maintain an acceptable work attendance.
In this case we have to decide,· as in the various cases discussed above, where
there is a previous award or settlement reinstating, the grievor on conditions, whether to
apply the terms of that previous award (decision) or settlement or whether we still have
a residual power to exercise pursuant to its statutory power. In the case of the general .-.
labour relations sector arbitrations, Ms Marszewski referred to the discretion under the
l ~hour RelatJorts .Act. subsection 44 (9). The equiva~en~~' for the Grievance Settlemetn
Board is subsectior~ '19 (3) of the CECB Act, which provides as follows:
19.-(3) Where the Grievance Settlement Board determines that a
disciplinary penalty or dismissal of an employee is excessive, it may·
substitute such other penalty for the discipline or dismissal as it considers
just and reasonable in ail the circumstances.
There is however the issue of whether the dismissal is "without just cause" ur~der
subsection 18 (2) (a) which the Board then determines under subsection 19(1). in
arbitrations under the Labour Relations Ac1;, that issue arises usually under the collective
.!
agreement: see the Zir[trperman arbitration. Note that Mr. Burkett in ,American Standard
specifically stated that subs.37(8) <now subs 44 (9)> did not apply tO non-disciplinary .
dismissals.
If we first consider the consent Order, we have to consider 'whether the Grievor
violated it. I note for example that Mr. Picher in the General Tire Case at one stage
· refused to'find the Grievor had violated the preceding Order because even though he had
failed to abide by the conditions set, the employer's own application of attendance
standards had caused the Grievor to be misled with respect to the computation of his
dates of absence, Thus in effect because Mr'. Picher found that the act of the employer
had prejudiced the Grievor's ability to comply with the Order the empioyer could not rely
on' the terms of the Order to dismiss the Grievor and he gave the Grievor another chance.
23
'This seems logical to me; for if the employer 'interferes with the: ability of the employee
to comply, he 'cannot expect the arbitration board to allow him to rely on its technical
'requirements. I have no problem accepting that principle as proper arbitration taw.
In our case, we have conflicting evidence on whether the environment in the
detention centre was in fact the reason for the Grievor's inability to meet the requirements
of the consent Order. At the same time, the-Grievor raises the question whether his
problem, being concentrated around the ~ime that the Empioyer was hay/rig the vemi~ation
system cleaned may have been due to that cleaning process. The Employer's evidence
can only be described as defenSive: it called no expert evidence on the matter but
attempted, as the Ministry's arguments set out in this Decision show, essentially to punch
holes in the Grievor's e~pert evidence. It is clear to me .that this whole area of
occupational illness; as it emerged in the testimony before this Board in this case, is at.
the frontier of medicaJ science and is continuously expanding. Under those circumstances,
where an employee has been dismissed, where he is arguing that he has not been able
to comply with the. conditions of the Order because of the actions or inaction of the
Employer, and he adduces good scientific evidence on the point, in my view the Employer
must come forward with .persuasive evidence to counter that. It is not sufficient to simply
raise doubts about the Grievor's CaSe. Dr. Chong's testimony was left in tact and was
persuasive, At the end of this case, I am left with a clear sense of both the seriousness.
and the substance of the Gdevor's assertion that his problems of attendance arise fromm
the environment in which he had to work.:l do not know and, apparently, neither does any
one else at this stage,; know definitely .whether the Grievor's problems are caused by an
unsolved air quality/quantity situation or whether it was merely the result of the cleaning
of the ventilation system at the time preceding his absence or whether it may be due to
other unknown factors unconnected with his work environment. But.the employer has not
succeeded in negativing the first two possibilities so as to be able to rely on the Order.
Whether or not the consent Order assumed a proper working environment, the very real
possibility that the Grievor was prohibited from complying with the Order by reason of the
cleaning operation, in itself would cause me to find that the Order cannot be fully enforced
against the Grievor since the cleaning-operation was something undertaken by the
24
Employer to remedy a long standing problem which it has on its own testimony reluctantly
faced up to. There is no fault in the Employer fbr undertaking such a cteanJng process;
apparently it was certainly needed as the MGS Report shows. But it cannot insist on the
strict letter of the Order under such circumstances. It was certainly not a situation
contemplated by either of the parties at the'time the Consent Order was made. And it
was the act of the employer. If on ~e other hand, the Grievor's condition is the result of
a smoky environment in the inst/tution, then that is a situation which the Employer had
not yet completed reasonable provisions to remedy, They were still underway. The
· evidence of Dr. Chong was that the Grievor is not hyper - sensitive and there was no
other evidence on this point. Furthermore, an Order of this type would not normally
contemplate placing an employee back to work in an environment in which the Employer
was not making reasonable provisions for the health of its employees. It certainly did not- ~ ~
specifically so provide; indeed, paragraph (3) required only that the Grievor himself be
confirmed fit for work which inclines me to conclude that it assumed that there was a
suitable environment to return to. In the end, the Grievor has raised sufficient grounds for
the Board to conclude that the Emptoyer cannot rely on his failure to meet the attendance
standards set out in paragraph (4) of the consent Order because it has not sufficiently "
answered his evidence that the failure was caused by the actions or inactions of the
EmPloYer - by inactions, of course, where the Employer had a duty to act.
Although I am not strictly speaking,required to answer the question of whether there
is a residual authority in the Board where there is a previous Order.at issue, I will speak
to it as an issue on which there should be some guidelines in the future. Wherever an
employee is dismissed and he or she comes before this Board, with an unjust dismissal'
grievance, I cannot doubt that the statutory authority remains in tact. In my view, a denial
that such authority exists would be an incorrect refusal to exercise a statutory authority.
My reading of the various cases cited to me and set out above do not in my view deny
that with the possible exception of the Consolidated-B.athur,st case. What they do is to
suggest guidelines which should in my view be looked at when exercising that discretion.
Certainly, the conditions imposed by a previous Board of Arbitration should not be lightly
disregarded especially since the previoi, zs Board heard all the evidence or in the case of ..
25
a consent Order the parties made the specific bargain which the settlement or Order
reduced to words. But the Board hearing the dismissal, grievance still has the fin, al
responsibility for deciding whether on all the.facts before it, a dismissal is unjust. Applying
that reasoning to our CaSe, given the substantial questions raised by the Grievor as to
whether his failure to meet the attendance standard set out in the Order was due to
factors within the Employer's control and given that the ultimate issue is the Grievor's
prospective ability to meet the attendar~ce level essential to fulfilling his employment
obligations I do not find his dismissat .just. I am not however going to make any
comments on the Board's discretion under subsection 19(3).
Accordingly, the grievance against dismissal is allowed subject to certain conditions,
namely, as follows:
~ (1) The parties are to determine whether the Hamilton-Wentworth Detention
Centre has adequate air quality and quantity for the proper needs of normal
healthy emPloyees. The testing procedures to be carded out to determine
whether such is the case ~e to be determined by and agreed to by the
Employer and the Union jointly. The Board will remain seised in the
eventuality that they are unable to agree on testing procedures, standards
or conclusions.
(2) If the air environment is thus found adequate, the Grievor upon
certification by Dr. J. Chong and any other experts, to whom Dr. Chong
'wishes to refer the Grievor for testing, ' of his capacity to return to work and
maintain an acceptable attendance record shall be reinstated. There is to
be full cooperation to disclose the results, of all examinations to the
· Superintendent of the Hamilton-Wentworth Detention Centre.
(3) Upon return to work, the Grievor is to maintain an attendance recorcl
equal to the institutional average for two (2) years. He is to provide a.
medical certificate for any absences in excess of two (2) days: Failure to
attain that standard if not a result of the acts or neglect of the Employer
may be grounds for dismissal.
(4) If the parties or the Board should determine that the air environment is
inadequate, the Board witl on the request of either party resume hearings
to determine an appropriate remedy.
(5) If the Grievor is capable of returning to work and the environment is
adequate, the Board will receive argument as to what compensation the
Grievor is entitled to receive for the unjust dismissal.
: 26
(6) The Board 'will remain seised pending the implementation of this
Decision.
This has been an unusual, case involving questions, of health and safety-in the
context of the dismissal of a long term employee. As-a resu~ we have fashi°ned a
complex remedy to deal with this complex group of issues. We have also found it
necessary to retain jurisdiction to supervise the application of that group of remedies. In
our view, that is the very mandate given to the Grievance Settlement Board by the CECB
Act and the Collective Agreement. But because the issues are complex, it seems wise
to us to move step by step in formulating a solution.
Dec,,.mher :.
~om~ ~. ~l~on Vico-Ghair~r~on
Norm~ C~ere Member
"I DISSENT~' (Dissent .to follo~ )
Jacqueline Campbell Member
· i? APPENDIX "A"
TABLE !
F,N~L'roN ~ DEIIa~'rON ~
0CI'Ou.I~ t, 1988
· ' Carbon 6axtX:m
· ~. Dioxide [O0,~J. Monoxide ~00; Content
'A Pod.' - intake alt' 0.0Z 2:00 0 21.2
'A Pod,' - ~,~tu,t'n ~ 0.06 ' 600 0 21.1
lB ~ c~vrc,:m O.08 ~;0 0 20.9
4A ~ ~ 0.10 1000 0 21.1
~' Staff ~ 0.10 1000 0 20.9
Office rotes, 0.08 800 I 21.0
m~,e: 9,~ (zl ~e.t.a.teaa ~ ~ 'tiaa o.0s~ R:m oz.x~