Loading...
HomeMy WebLinkAbout2014-2965.Gough.16-12-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-2965 UNION#2014-0108-0063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gough) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel HEARING November 24, 2016 - 2 - Decision [1] Correctional Officer (“CO”) L. Gough has been employed at the Elgin Middlesex Detention Centre (“EMDC”) since 1989. She engaged in a work refusal on Sunday, September 7, 2014, which she initiated soon after the commencement of her shift. In a grievance dated September 11, 2014, she claims that members of management engaged in systemic bullying during her work refusal because of her work place accommodation. The Union argued that the Employer contravened articles 2, 3 and 9 of the Collective Agreement, section 5 of the Human Rights Code (“HRC”) and various sections of the Occupational Health and Safety Act (“OHSA”), including section 50, the reprisal provision. CO Gough did not lose any pay for the time she spent at the EMDC on September 7, 2014. On her behalf, the Union requested that she be awarded $1,000.00 in damages for the Employer’s violation of her rights. Apart from the time restriction contained therein, the parties agreed that this matter be heard pursuant to article 22.16 of the Collective Agreement. In light of this agreement, I have provided a succinct decision in the context of the number of issues that were raised. [2] Counsel exchanged extensive particulars about the circumstances relevant to the grievance and provided them to me prior to the hearing. It was evident from the particulars that many facts were not in dispute. Exhibits were filed at the hearing and counsel commented on the relatively few facts in dispute during the course of their submissions. Neither party felt a need to call oral testimony. It was on this basis that I was provided with the factual context for the grievance. The efforts of counsel to proceed in an expedited fashion resulted in a one day hearing. [3] CO Gough has sinusitis and as a result is sensitive to second-hand smoke and other air contaminants, such a dust. The WSIB granted her a non-economic loss award for this condition. The employer has been aware for some time that CO Gough has a sinus condition that is aggravated by exposure to second-hand smoke. She also suffers from certain learning disabilities. Although a non-smoking facility, inmates smuggle contraband cigarettes into the EMDC which can lead to the presence of second-hand smoke in certain parts of the institution. Intermittent inmates who are present at the EMDC on weekends at Unit 8 on level 3 are particularly guilty of contravening the smoking policy. [4] The accommodation agreement in place for CO Gough at the time of her work refusal provided that she would not be scheduled to work night shifts and that she would not be assigned community escorts. There was also an informal arrangement in place for CO Gough to manage her sinus condition. If CO Gough detected smoke in whichever unit she was assigned, she was to inform management and steps would be taken to provide her with a different assignment. During the relevant time period, she had only been assigned to work at Unit 7, which is not on level 3. In the past, however, she had been assigned to other units, including male units. In a letter she wrote to Minister Y. Naqvi dated September 19, 2014, which is subsequent to her work refusal, she described her accommodation as follows: “I have a WSIB workplace accommodation that speaks to the fact if I am placed into any area other than my own and I am exposed to anything being burnt I am to be immediately removed from the - 3 - area and reposted to a more suitable post even on overtime shifts…” On November 19, 2014, the Employer and CO Gough entered into an accommodation agreement which provides for “modified duty assignments” and states: “Ms. Gough can work her regular schedule of 12 hour shifts. Ms. Gough will not be scheduled to work night shift for this period. Ms. Gough will not be assigned to complete Level 2 searches where a vest is required to be worn. Should Ms. Gough develop medical issues due to air quality she is to report the issue to her immediate supervisor immediately and she will be reassigned to another area of the institution to prevent her medical issues from worsening”. [5] CO Gough’s work refusal occurred at a time when circumstances at the EMDC were far from normal. Nine employees were disciplined on September 3, 2014, and this led to a period of labour unrest. During a number of days there were work refusals and sick calls by employees. This led to a lockdown, and managers from other institutions were redeployed to EMDC in order to maintain essential operations. On September 7, 2014, the day of CO Gough’s work refusal, management was unable to fill 18 positions and in addition there were 8 sick calls. This left the EMDC on that day with 32 COs instead of the usual complement of 58 COs. These circumstances created significant pressures on management. These included issues with inmates, some of which led to delays with the delivery of medication (including methadone). Management also had to deal with four work refusals that day and it did so by triaging refusals by way of priority. Some of the refusals were “mass work refusals” involving multiple employees that had an impact on delivering the necessities of life to inmates. Management gave the resolution of the mass work refusals a higher priority than it gave to CO Gough’s single work refusal. The period of labour unrest came to an end when the Union and the Employer entered into a Memorandum of Agreement dated September 9, 2014. [6] CO Gough was scheduled to work 7:00 a.m. to 7:00 p.m. on Unit 7 on September 7, 2014, which again had been her usual post for some time. However, due to staff shortages, management decided to staff the Admitting Unit and the adjacent Unit 7 entirely with managers, and relocate non-management staff to other areas. At muster, Deputy Superintendent (“DS”) S. Large directed CO Gough to report to Unit 9 on level 3. Unit 9 housed the EMDC’s worker inmates. CO Gough exercised her right to refuse to work at Unit 9 because she believed that she would be exposed to second- hand smoke and/or other air contaminants that would cause her to have a respiratory issue if she worked on level 3. DS Large directed CO Gough to wait in the lunchroom. She complied with his direction and waited for her work refusal to be dealt with. She waited for many hours and heard nothing from management. The Employer’s particulars note as follows: “With the number of issues going on in the institution, by the afternoon, management had mistakenly assumed that the Grievor’s refusal had been dealt with.” At about 3:00 p.m., CO Gough called the Ministry of Labour (“MOL”) and was advised that a stage 1 meeting was required before the MOL could be called in. She was also advised that the MOL would call the Employer and advise them to move forward with a Stage 1 meeting. Apart from an attempt to speak to a supervisor at 3:00 p.m. it appears that CO Gough made no concerted effort to contact management about the progress and status of her work refusal. - 4 - [7] Between 4:00 and 5:00 p.m., after it came to the attention of DS Large that CO Gough’s work refusal was ongoing, DS Large, and others, met briefly with CO Gough at the lunchroom. CO Gough explained the basis for her work refusal. She confirmed that she had not attended at Unit 9 that day and that she had not been exposed to second- hand smoke that day. There were no reports of second-hand smoke on Unit 9 on September 7, 2014. As reflected in the notes he took on September 7, 2014, DS Large advised CO Gough at the conclusion of the meeting that the stage 1 meeting would be held when there was an opportunity to do so. There is a dispute as to whether this meeting constituted a stage 1 meeting. CO Gough believes that this was a stage 1 meeting, but the Employer disagrees with her conclusion. In my view, whether or not this meeting was a stage 1 meeting is not particularly relevant in assessing the merits of the grievance since ultimately there is no dispute that the Employer did not completely address her work refusal. In any event, given the information I have before me about the meeting, I am inclined to the view that this was not a stage 1 meeting. I accept that DS Large was only gathering information and he did not believe that he was conducting a stage 1 meeting given his advice to CO Gough that the stage 1 meeting would be held when there was an opportunity. CO Gough continued to wait in the staff lunchroom. No other meeting was held about her work refusal and the MOL was not called. [8] Mr. K. Milligan and CO Gough passed each other in a hallway on September 7, 2014. At the time Mr. Milligan was in management at another jail, but was being used as a redeployed manager at the EMDC on September 7, 2014. He had been a manager at the EMDC and CO Gough had filed grievances against him twice. In one of her grievances she requested that Mr. Milligan be reprimanded for bullying and harassment. Her grievances pertaining to Mr. Milligan were resolved; they contain confidentiality clauses and no admission of wrongdoing clauses. It is fair to say that from CO Gough’s perspective their working relationship was not a good one. [9] Superintendent Wilson advised CO Gough and other staff participating in work refusals that there would be no overtime payments made for overstaying shifts to pursue work refusals. Staff members were told that if the circumstances of a work refusal still exist at the time of an employee’s subsequent shift, the employee could choose to re-activate their work refusal. At about 9:30 p.m., Superintendent Wilson advised CO Gough that the Employer had not contacted the MOL regarding her work refusal and that she should leave the building. CO Gough signed for overtime from 7:00 p.m. to 9:30 p.m. She was paid overtime for these hours due to an administrative error. The Employer did not seek to recoup what it considered to be an overpayment. [10] CO Gough reported for her next shift on September 10, 2014. This was the day after the Memorandum of Agreement resolving the labour unrest had been executed. Her work refusal was not with dealt on September 10, 2014, because she was assigned again to work at Unit 7 so that the basis of her earlier work refusal was no longer present. [11] During his review of the facts and making his submissions, Union counsel referred me to the following decisions: Canadian Auto Workers and Its Local 222 and - 5 - Ministry of Labour and PPG Canada Inc., 1995 CarswellOnt 5034 (Bradbury); and, Garda and Teamsters, Local 419 (Ackerman), [2011] O.L.L.A. No. 72 (Randall). [12] Counsel for the Employer relied on the following decisions: OPSEU (Deprophetis) and Ministry of Labour (2010), GSB No. 2008-3994 (Dissanayake); Re Ontario (Workplace Safety and Insurance Board) and CUPE, Local 1750 (Carito) (2014), 245 L.A.C. (4th) 347 (R. Brown); OPSEU (Moore) and Liquor Control Board of Ontario (2011), GSB No. 2009-2047 (Abramsky); OPSEU (Lafranboise) and Ministry of Community & Social Services (1997), GSB 2268/95 (Roberts); OPSEU (Sager et al) and Ministry of Transportation (2004), GSB No. 2000-0377 (Mikus); and OPSEU and The Crown in Right of Ontario (2015), GSB No. 2010-2489 (Briggs). [13] The central circumstances of this case from the Union’s perspective are that CO Gough engaged in a health and safety work refusal after she had been assigned to work at Unit 9 on level 3 on Sunday, September 7, 2014. After spending her 12-hour shift and some additional time at a safe place, the Employer did not investigate her work refusal on September 7, 2014. [14] On behalf of CO Gough, Union counsel identified a number of issues for resolution that deal with the conduct of the Employer in the face of CO Gough’s work refusal. As noted previously, the Union argued on behalf of CO Gough that the Employer’s conduct contravened the Collective Agreement, as well as the HRC and the OHSA. I will concisely address each of the matters raised by the Union. [15] The Union claimed that it was improper to give CO Gough an assignment away from Unit 7 because she had a proprietary right to the Unit 7 post. I disagree. The informal arrangement in place to deal with her sinus condition did not provide that CO Gough would be assigned to work at Unit 7 to the exclusion of any other post. The accommodation agreement entered into on November 9, 2014, after her work refusal, also does not provide that she will be exclusively assigned to Unit 7. Indeed, even that agreement appears to contemplate that she could be assigned to other posts. It would be quite unusual as a part of an accommodation process for an employee to acquire a proprietary right to job at a particular work location. Although CO Gough obviously believes she had a right to be assigned only to Unit 7, there is no basis on the facts or in the Employer’s duty to accommodate her to support the contention that she or any accommodated employee has a proprietary right to a particular assignment. It is open to the Employer to assign her to work other posts as long as the posts are consistent with her medical restrictions. [16] This brings us to the next issue and the Union’s contention that it was improper for the Employer to assign CO Gough to a unit on level 3 because to do so would be inconsistent with her medical condition and her accommodation. The Union argued that it was not necessary for CO Gough to first go to Level 3 and ascertain whether or not second-hand smoke was present at the start of her shift on September 7, 2014. In considering the submissions on this issue, I am not prepared to conclude that it was improper for the Employer to assign CO Gough to Unit 9 in the circumstances of what occurred on the day in question. There was not a common understanding between CO - 6 - Gough and the Employer that she could not be assigned to a particular post at the EMDC. There was a common understanding only that she would be removed from her post and reassigned if she encountered second-hand smoke. Given the nature of the informal accommodation arrangement and her medical condition, I was not convinced that the Employer was precluded from assigning CO Gough to work at Unit 9 for one day, even in circumstances where there could be an increased risk of exposure to second-hand smoke. This conclusion is not at all relevant to the question of whether it was appropriate for her to initially refuse the work assignment because she believed that she would inevitably be exposed to second-hand smoke. [17] The Union argued that the Employer failed to comply with its obligations under the OSHA by failing to investigate CO Gough’s work refusal both on September 7, 2014, and after the day of her refusal so the end result was that her work refusal was never investigated. Employer counsel acknowledged that the handling of her work refusal was not ideal, but submitted that this was solely attributable to the operational pressures confronting the Employer on that day. Section 43 (3) of the OHSA provides that an employer shall forthwith investigate a reported work refusal. In determining whether an employer has complied with this requirement, it is necessary in my view to consider whether the employer acted reasonably having regard to all of the circumstances. It was reasonable for the Employer to give priority to the mass work refusals that would impact the health and safety of inmates. I appreciate the nature of the significant pressures that confronted the Employer on September 7, 2014, as a result of the labour unrest, the sick calls and work refusals. This may have led management to mistakenly assume that CO Gough’s work refusal had been dealt with. However, I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014. It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large. CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift. In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA. I am also satisfied that its failure to conduct an investigation of the work refusal after September 7, 2014, is not a failure to comply with its obligations under OHSA because the work refusal had ended. [18] The Union contends that the way the Employer handled CO Gough’s work refusal constitutes harassment, was vexatious and was a reprisal against her for exercising her right to refuse unsafe work. I agree with counsel for the Employer’s submission that the facts do not support these allegations. Although the Employer’s failure to investigate her work refusal was unreasonable in the circumstances, there is no evidence of bad faith on the part of the Employer. The Employer was not motivated by a desire to in any way penalize CO Gough for exercising her right to refuse unsafe work. - 7 - [19] On behalf of CO Gough, the Union requested that I draw an inference that Mr. Milligan was involved in the decision to assign CO Gough to a different unit and in management’s decision not to address her work refusal. CO Gough maintains that such an inference can be drawn from the fact that Mr. Milligan was present at the EMDC as a redeployed manager on September 7, 2014, and that she and Mr. Milligan had a history of confrontation and animosity. The Employer asserted that Mr. Milligan was not involved in the decision to assign her to a different unit and in management’s handling of her work refusal. In my view it is quite clear that there is no basis for making the inference suggested by CO Gough. There is no evidence that Mr. Milligan was involved in altering her work assignment or in influencing management’s handling of her work refusal. [20] In my view, the only appropriate remedy in this matter is declaratory relief. CO Gough spent a long day at the institution in a safe place waiting for the Employer to investigate her work refusal. She was undoubtedly frustrated by the situation. However, the facts as set out in the particulars do not disclose that she experienced the kind of harm that would justify an award of damages. The Union’s request for an award of damages is hereby denied. [21] For the foregoing reasons, I declare that the Employer was unreasonable when it failed to investigate CO Gough’s work refusal on September 7, 2014, and that it thereby failed to comply with it obligation to conduct a timely investigation as provided for in section 43 (3) of the OHSA. Dated at Toronto, Ontario this 21st day of December 2016. Ken Petryshen, Vice Chair