Loading...
HomeMy WebLinkAbout1992-3042.Vassallo.97-05-20 ~ , OWTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OWTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G.1ZB TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 3042/92, 1447/93, 785/94, 786/94, 787/94, 788/94, 847/94 OPSEU # 9~A131, 93F611, 94A999, 94A998, 94A997, 94A996, 94E058 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Vassallo) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE S. Kaufman Vice-Chair P. Klym Member M. Milich Member FOR THE S. Stamm GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J Benedict EMPLOYER James F. Benedict Dispute Resolution Services Inc. HEARING september 5, 6, 1996 October 7, 18, 28, 1996 --- .., "i 1 DECISION This decision deals with the merits of four grievances of Joseph Vassallo dated October 9, 1992, May 28, 1993, and two dated May 5, 1994 (GSB files 3042/92, 1447/93, 0787/94 and 0785/94. The grievance dated October 9, 1992 alleges that the employer had been "conducting and condoning a poisoned work environment" and that the grievor had not been treated "fairly, equally" and "in a non-discriminatory manner" . The May 28, 1993 grievance alleges the same, and alleges harassment. Grievance 0787/94, dated May 5, 1994, repeats the allegations in the October 9, 1992 grievance, and specifies "with regard to handicap". Grievance 0785/94, dated May 5, 1994, alleges that the employer has failed to comply with the Ontario Human Rights Code, the workplace Harassment and Discrimination policy, and Employment Equity regarding work assignments and accommodation re disability. Mr. Vassallo is a Corrections Officer 2 (CO 2) at the Toronto Jail. He was diagnosed as an insulin-dependent diabetic in March, 1992. His grievances, which were of a continuing nature, allegedly arise from the circumstances of his employment following his disclosure to the employer of his diagnosis and his various requests for accommodation from approximately March, 1992 until May 5, 1994. Evidence pertaining to these grievances was provided by Mr. vassallo, Deputy Superintendent Peter Northcott, CO 2 Bob Christensen, Dr. Christopher Pinto, OM 16 Leroy Jeffers, Health Care Coordinator Nancy Ogden, OM 16 John Street, Maintenance Electrician Aldo De Souza, and former Deputy Superintendent/ Administration Joe DeFranco. The grievor has been in the employ of the Ministry since 1977 with a brief hiatus of 1 1/2 years from 1988 to 1990. He commenced employment as a CO in 1977. In 1982 he was an Acting Supervisor for 6 months, and was thereafter assigned that acting position periodically as required. In 1983 he " 'i 2 was successful in a competition for Operation Man~ger (OM \ 14) , in which he was required, among other duties, to act as Shift Scheduling Officer and Shift Supervisor, as necessary. He entered the OM 14 position in 1984 and continued in it until April, 1988, when he left the employ of the Ministry. He returned as a CO 2 in 1990. In March or April, 1992 he became Co-Chair of the Health and Safety Committee at the Jail, and as such was from time to time involved in the investigation and resolution of various health and safety issues in the facility. On March 12, 1992 he learned that he was an insulin- dependent diabetic. On March 14, 1992, his first shift thereafter, he verbally advised his Shift Supervisor (SS) Ms. Martinsen, of his diagnosis. He also spoke with and verbally advised Deputy Supt. (DS) Peter Northcott of his diagnosis and "gave him a rough outline of his needs". Mr. Vassallo advised that Mr. Northcott told him that he would assign him to B Landing, that he would enter that work assignment, as well as the fact that he was to have prompt access to the kitchen and lockers, in a confidential logbook, and that they would "take it from there". He advised that the confidential logbook contained information which was to be kept within the supervisory group regarding staff, and that it was kept in the SS's office. All SS's had access to that logbook, he advised. On or about March 24, 1992, Mr. Vasallo provided the employer a letter of that date from his family physician Dr. Pinto which stated (Ex. 3) Re Joseph Vassallo To Whom It May Concern I recommend that the above named patient not work night shifts due to recently discovered diabetic condition Should you require further information, please feel free to contact this office directly " 1 3 On or about April 2, 1992, he provided the employer a letter of that date from Dr. pinto (Ex. 4) which stated: Re Joseph Vassallo To Whom It May Concern The above named patient is diabetic and requires the use of syringes and insulin Should you require further information regarding this matter, please feel free to contact this office directly He advised that the above note was provided to explain to the employer why he had a syringe and insulin in his locker, and to inform the employer that the insulin was not a narcotic, and enable him to obtain insulin and a syringe from the doctor at the jail if he forgot to bring his own with him, as well as to assure authorities regarding an up-coming training session which he was to attend in Hamilton, that his syringe and insulin was not related to narcotics use. Dr. pinto advised that the human body requires insulin in order to live. In the absence of insulin, sugar does not get into the body's cells, and they die. Diabetes is a meta- bolic condition in which the body produces less insulin. If the body produces no insulin, the condition is identified as insulin dependent diabetes. In order to obtain the best out- come for insulin-dependent diabetic patients, the treatment goal is to achieve a normal blood sugar level at all times, i.e. between 3.8 and 5.5 ml. of blood sugar per litre of blood, and to avoid high and low blood sugar levels. If a diabetic patient experiences high or low blood sugar, i.e. below 3.8 or above 11 mI. per litre of blood, the condition may result in a loss of consciousness. Over time, th~ diabe- tic patient may develop kidney disease, peripheral vascular disease and/or other conditions. Monitoring and adjusting blood sugar levels helps to avoid the development of such conditions. The avoidance of recurrent high and/or low blood sugar levels is accomplished, in Mr. Vassallo's case, through I 4 exercise, diet, the consumption of meals and snacks within certain periods of time each day, administration of the appropriate level of insulin once a day, verification of blood sugar level through the use of a glucometer 4 or more times a day, as required, depending upon his current symp- toms, and the avoidance of stress. Each of these elements is enhanced and made more practicable by the avoidance of night shifts. Working night shifts would require him to make sub- stantial adaptation to his sleeping, and/or medication level and schedule, as well as exercise regime, before and/or after the period in which he was working nights. Those alterations would place an added burden on his personal time that a non- diabetic co would not ordinarily require or experience in order to work rotating shifts, as well as increase the proba- bility of more incidences of hypoglycemia or low blood sugar. Dr. Pinto acknowledged that elimination of the requirement to rotate into night shifts would be optimal treatment, and that if it was not possible for the employer to provide those con- ditions, adjustments could be made in the management of Mr. Vassallo's condition. Dr. Pinto advised that diabetes is a multi-system disease which may result in problems with the organs supplied by blood vessels, e.g. the kidneys. As well, the hormones epinephrin and norprinephrin increase blood sugar. People under stress produce those hormones. Surprise and agitation can produce them. The body has a compensatory mechanism, but depending upon the insulin levels, a rebound effect can occur. Consequently, it is preferable. for diabetics to avoid circumstances in which they produce epinephrin and norpri- nephrin and the resultant increase to blood sugar. Dr Pinto advised that other factors which increase blood sugar include the amount of food the diabetic eats, illness, fever, He advised that exercise can lower blood sugar and sudden exercise can cause a sudden dramatic drop in blood sugar. Reducing the insulin dose can counteract the effect of sudden heavy work or exercise. The diabetic , 1 5 patient needs to keep food available at all times to eat when feeling hypoglycaemic, as the ingestion of glucose elevates the blood sugar level and can prevent loss of consciousness. A person experiencing low blood sugar requires immediate access to food, and cannot think properly; the circulation of blood to the brain begins to be compromised in this state. A diabetic experiencing the symptoms of low blood sugar should ideally check his/her blood sugar, and then take food. If the glucometer is not available or accessible, s/he should err on the side of caution and just take food. Cheese and crackers are preferable to candies or sugar, as although the latter may offset symptoms, the patient will experience a peak and a rebound effect, which should be avoided if pos- sible. A diabetic can lose his/her capacity of full speech within 5 minutes of a recognized need for food, although the rate at which this facility is lost will depend on the rate at which the blood sugar has dropped. Dr. Pinto advised that once a patient has taken insulin, his/her blood sugar level drops. Thereafter in order to maintain an optimal blood sugar level, s/he must eat meals and snacks within certain time intervals. Dr. Pinto recommended that Mr. Vassallo work with a partner, rather than alone. He cautioned that if he must work alone, he should be monitored by someone who could respond immediately if he became incapacitated, and, at minimum, he should have access to food and the glucometer at all times, and within 5 to 7 minutes of the onset of symptoms suggestive of low or high blood sugar. As it is necessary for a CO to retain mental and physical competence at all times, a diabetic CO working alone or unmonitored while exposed to and responsible for the management of correctional facility inmates creates a potential risk to both the facili- ty and the employee, which should be avoided if at all pos- sible. If a diabetic CO works in an office or in an area which is not sequestered, this risk is more easily avoided. If Mr. Vassallo were being constantly monitored on a video i' .. 6 and someone could respond promptly if he appeared in distress or symptomatic, he could work any position, but someone calling him on a radio and the 24-hour availability of staff nurses would be insufficient monitoring. Dr. Pinto advised that in 1996, Mr. Vassallo was an "experienced" diabetic, who, in his experience, had been and continued to be a reasonably cooperative patient in following his medical advice. Mr. Vassallo had, as a result of his training/teaching, learned to recognize the onset of symptoms and potential difficulties, and to remedy them in order to limit their impact. Dr. Pinto acknowledged that insulin dependent diabetes is a variable condition, depending upon the individual patient, e.g. with respect to the number of times per day that blood sugar must be tested, the rate at which the condition progresses, the level and type of insulin required. He also agreed that Mr. Vassallo could, as part of an overall plan to manage nis diabetes, plan to have food with him/her at all times, and could carry packaged food with him in his pocket. Because he understood that at times that the grievor had experienced sweatiness while at work, he was of the view that he had become hypoglycaemic while at work, and concluded that it was therefore possible that he could lose conscious- ness at work. He observed that relief for Mr. Vassallo, should it become necessary, would be more difficult on night shifts, owing to the lower staffing level on those shifts. Peter Northcott was Deputy Superintendent of Operations at the Toronto Jail in February, 1996. He advised he had been doing the same job functions under similar titles for 6 years, and that it was within his job function to carry out the accommodation of staff with disabilities. Mr. Northcott supervises 15 Operational Managers, to whom 200 line staff, including Mr. Vassallo, report. He advised that an accommodation procedure was in place in March of 1992. Short-term, e.g. 1-day injuries, could be ----------- .. 7 handled by the Operations Manager. If the condition was more complex, the employee was required to meet with him, with a union representative present, if desired. They would explore the symptoms that had to be dealt with, permission to contact the employee's doctor would be requested for a prognosis and/or to learn what is required to facilitate the employee's recovery and/or attendance, whether the accommodation needs would change over time, whether the physician understands the environment in which the employee works. There should be a partnership between the employee, the employer and the physi- cian. On occasion, the doctor may be invited to observe the workplace. Mr. Northcott advised that accommodation is not a matter of discretion for the employer, and that the employer is obliged to accommodate the employee's needs "to the point of saturation" e.g. if 50 employees all required desk work and there were less than 50 desk jobs. The employer generally accepts the accommodation a doctor requests at face value. If the employer denied an employee the accommodation the employee was requesting, on the basis of the employee's doctor's opinion, the employer would meet with the employee and offer alternate accommodation or permit him to obtain a second medical opinion. On rare occasions, e.g. if the employee's doctor refused to disclose information, the employer might require the employee to see a doctor from its own list and undergo a mandatory medical. Mr. Northcott advised that accommodation through the assignment of an employee to only certain areas, is implemen- ted by entering the requirement in the accommodation log, which is in the General Duty Manager's Office. The accommo- dation log has existed since 1991, when he implemented its use As well, "there is information sharing" among the mana- gers. If someone assigned to a particular location on the daily roster cannot be moved, the assignment is written in a different colour, he advised. The employee's illness would not be entered. He stated, as examples of entries in the ac- I 8 commodation log to inform scheduling, "B Landings only until X date", "not to do outside escorts", "control only, can't turn keys until X date" and advised that the Scheduling Offi- cer (now called the Staff Relations Officer) has all the in- formation in his/her office, e.g. in the form of a memo, for instance, that CO 2 X is not to work in a certain area. The information from the doctor is kept "in a locked away file", but the Staff Relations Officer could have a memo from him, the Deputy Superintendent, as to the medical accommodation required. The accommodation log from March 1992 to May, 1994 and the "locked away file" and/or the grievor's personnel file were not produced, and were thought to have been mis- placed. Since 1992, the system has changed somewhat, but the basics have not changed. The Staff Relations Officer works toward the rehabilitation and reintegration of the employee into the workplace. Mr. Northcott recalled the grievor having approached him regarding accommodation after he was diagnosed. He remember- ed that the grievor's diabetes was controlled by insulin, and the importance of keeping his blood sugar under control and timeliness of meals. He recalled discussing the need for food to be available at the grievor's work station. He recalled having told the grievor that he could have snacks at his work station, at his desk when he worked on ranges, and with him when he worked on control. He understood that the grievor would not require a snack while working on back visits, because the assignment was of short duration, with block visits of 1 1/2 hours. He understood that he could have food at his desk when working on 1B Landing and ranges. Mr. Northcott did not recall having seen Dr. pinto's letter dated March 24, 1992 (Ex. 3) or it having been brought to his attention. He did not recall having seen Dr. pinto's letters dated April 2, 1992 (Ex. 4), April 15, 1992 (Ex. 5) , and February 24, 1993 (Ex. 6) . He said that if he had seen them, he would have called the grievor in and started the partnership process to which he had earlier referred. He 9 advised that Mr. Vassallo did not request further accommoda- tion, but rather, said to him that the managers were not get- ting the information. He advised that the grievor told him that he felt that he shouldn't have to remind the managers that he could have food at his desk, that he should not be assigned to a landing on a night shift, and that he could not get to food while assigned to an outside escort duty. Mr. Northcott said that he told his Managers to be aware of what was in the accommodation log. Mr. Northcott indicated he did not remember whether Mr. Vassallo needed accommodation by assignment to day and mid- day shifts only. He stated that requiring him to find some- one to switch with to cover his night shifts was not parti- cularly intrusive, but "may not be the best solution". He said he directed that the grievor be assigned to work areas where he could get to food, and did not recall him complain- ing specifically about the back visits area. He said that if the grievor wants accommodation, he should start the process and provide him the information as to his requirements, which may entail a meeting with the Staff Relations people. Mr. Northcott acknowledged that the accommodation pro- cess, although in place, was not perfect. He agreed that the facility does its best to accommodate a whole range of needs, both short and long-term, and that this is currently carried out by the Staff Relations Officer. The position was created in April of 1995 and the incumbent reports to him. Prior to the implementation of that position, the system was more ad hoc, and is currently firmer. The Staff Relations Officer assigns staff to posts, communicates with the COs and other managers, and supports a measure of consistency in the accom- modation process. The incumbent has had some training in Workers' Compensation, Workplace Discrimination and Harass- ment, and Health and Safety, and is skillful and knowledge- able in these areas and in the area of accommodation. 10 Mr. Jeffers was Acting Senior Assistant Supervisor in 1992 and 1993. He advised that a CO would not necessarily be required to write out the accommodation he was requesting, but could do so verbally to a Senior Assistant Supervisor such as him. He would then enter the accommodation in a con- fidential logbook. Examples of such entries would include the duties the CO cannot do or is permitted to do for accom- modation, including specific shifts they should receive or not be assigned. He advised that all managers have access to the logbook, and agreed that all managers are expected to know that certain staff require certain accommodation. Mr. Jeffers advised that the CO is expected to hand medical notes to the Shift Supervisor, who is expected to give the information regarding accommodation contained in the note to Scheduling staff, and that the note should be placed in the CO's personal file. Mr. Jeffers advised that in 1991 he learned, in casual conversation with Mr. Vassallo, that he was a diabetic. He said that he did not enter that informa- tion in a logbook, and that he did not know who Mr. Vassallo had informed of his diagnosis, who might then have been expected to make such an entry. He said that he understood that Mr. Vassallo was not insulin-dependent. If he had seen Dr. Pinto's letter of March 24, 1992 (EX. 3 ) , he would have informed someone else, and would have taken him off night shifts, if he had been Acting Senior Assistant Supervisor at the time. He was a Shift Supervisor in March of 1992 and became Acting Senior Assistant Supervisor that summer. He had not seen Dr. pinto's letters dated April, 1992 (Ex. 4 and 5) but he had seen his letter dated February 24, 1993 (Ex. 6) He did not believe that he had received the letter, and thought that it went to, or should have gone to the schedul- er, who should have taken Mr. Vassallo off nights. He agreed that once the letter had been received by the scheduler, af- ter the current 9-week schedule had been completed, the grie- vor's next schedule should not have indicated the assignment of any night shifts. 11 The grievor stated that he was not properly accommodated in April, 1992, as his assignments were not confined to B landing, despite his understanding from his discussion with Mr. Northcott, and particularly, because he was assigned to the back visits area. As well, on one occasion in April, 1992, he was feeling light-headed while his partner was at lunch. He initially requested SS Jeffers to provide relief, and made a second request to another manager to provide that relief after some time had passed and none had arrived, and he was not given relief to go to his locker in order to do a blood glucose test, despite two requests. At the time, he advised, he was also experiencing pain as a result of a re- cent motor vehicle accident, and wanted to obtain medication for those symptoms. He said that at the time of each request he was told that there was insufficient staff to relieve him. He advised that when his partner returned from lunch, he, Mr. Vassallo, stopped by Mr. Jeffers' office and attempted to ex- plain to him the reason for which he needed relief promptly, and said that Mr. Jeffers told him that he did not require any accommodation. Mr. Jeffers denied having made that statement to him and indicated that the problem was one of staffing. COs are ordinarily scheduled to work rotating day, mid- day and night shifts, which result in them being assigned to several night shifts approximately every 8-9 weeks. COs without disabilities who do not wish to work particular shifts to which they have been assigned are permitted to switch their shifts with those of other COs, provided both COs have agreed to the change. Mr. Vassallo advised that in April, 1992, despite Dr. pinto's letter, he was scheduled to work night shifts in June, 1992 and was obliged to find a CO who was willing to work his night shifts for him, in exchange for him working the other CO's day and mid-day shifts (Ex. 7 ) CO Horobetz agreed to such an exchange Mr. Vassallo was scheduled to work several night shifts in August, October and December, 1992, and February, 1993, and was again obliged . 12 to find a CO who was willing to exchange day and mid-day shifts for his night shifts (Ex. 8, 9, 10) . CO Horobetz, when asked, agreed to do so. There is little doubt, on the evidence, that the grievor found it frustrating and annoying to continue to be scheduled to work night shifts after April, 1992 and to repeatedly be required to find another CO with whom to switch shifts. Dr. Pinto supplied another note for Mr. Vassallo, dated February 24, 1993, which stated: Re Joseph Vassallo To Whom It May Concern I recommend that the above named patient not work night shifts because he is a diabetic Should you require further information, please feel free to contact this office directly The evidence did not establish when it was supplied to the employer, and where it was kept and/or noted. In March, 1993, Mr. Vassallo was scheduled to work seve- ral night shifts in April, 1993. At that point, SS Angelidis was the Scheduling Officer. Apparently he and the grievor had a conversation in which Mr. Angelidis advised the grievor that the grievor did not need to find someone with whom to switch shifts, and that he, Mr. Angelidis, could "do it on the computer". Mr. Angelidis requested him to submit a memo to him, "to remind him". In a memo dated March 24, 1993, Mr. Vassallo requested Mr. Angelidis to change his night shifts to day shifts, citing "medical reasons" (Ex. 11) . Apparently SS Angelidis then made the change after Mr. Vassallo had been - assigned several night shifts. In June, August, and October, 1993 Mr. Vassallo was scheduled to work several night shifts. Each time he sent Mr. Angelidis a similar memo requesting him to change them to day shifts, citing the same reasons, and each time Mr. Vassallo's schedule was changed (Ex. 12, 13 and 14) . There is little doubt, on the evidence, that the grie- vor continued to find it frustrating and annoying to continue 13 to be scheduled to work night shifts in 1993 and to be oblig- ed to submit memos on each occasion that a new schedule was issued. The grievor said that as a result of Mr. Angelidis' changes to his schedule to eliminate night shifts, on the week of June 14, 1993 he worked four 1i-hour day shifts consecutively, although not continuously or back-to-back. He alleged that in doing so, he "was being punished by the new schedule" . He later said that two of the four 12-hour shifts had been scheduled as a result of another earlier change he had requested, apparently unrelated to his request to be taken off night shifts. In August, 1993 Mr. Vassallo spoke to Deputy Supt. DeFranco and requested that if he was going to be required to work overtime, that the request be made no later than 5 p.m., so that he could make adjustments to his meal schedule and obtain more food, if necessary, in respect of the overtime period. He understood that Mr. DeFranco would note his request on either an occurrence report, a note in the Head Shift Supervisor's report, or in an entry in the "accommoda- tion book" in the Head Shift Supervisor's office. In October, 1993, the grievor was working on a 7 a.m. to 7 p.m. shift, and had been assigned exercise yard duty. At about 7:30 a.m. Mr. Street requested him to escort an inmate to hospital. He learned shortly that the assignment involved an admission of the inmate to hospital, which could take the full day, as opposed to an appointment, which would take 2 to 4 hours. He said that he had not brought enough food with - him for the day, and could not obtain sufficient food from the Jail kitchen until some time between 7:45 and 8:30 a.m., when breakfast was over. He advised Mr. Street that he wasn't sufficiently prepared to undertake the duty. Mr. Street apparently made it clear that he was not pleased with the grievor, but assigned him to another duty. In December, 1993, a heat and air circulation problem in the back visit area, which had existed for at least several '. 14 months, was addressed by Senior Assistant Superintendent (Support Services) Terry Howes in a memo dated December 9, 1992 in which he indicated that the ventilation was expected "to improve with the completion of the H.V.A.C. project" and that if staff requests a change, through the First Floor Supervisor or Shift Supervisor, Officers assigned to that area "should be rotated after a reasonable length of time" (Ex. 28) . The grievor advised that he had difficulty with assign- ment to the back visit area, where inmate visits take place. The CO assigned to that area works alone and is often obliged to work without relief from 9:30 a.m. to 11:45 a.m , as well as relieve staff in the control module. He advised that he cannot leave the back visits area for a snack or medication, and if he brings a snack with him, there is no bathroom or wash facility. He advised that on or about November 1, 1993, he was assigned to and was on duty in the back visit area. It had become very hot and he was having difficulty breath- ing. He telephoned Mr. Street, the First Floor Supervisor, and requested that another CO be sent to relieve him. Mr. street told him he would see what he could do, but no one relieved him and he continued at his post until 11:20 a.m. when the visits were completed. At that point he was not feeling well, and the officers in the control module agreed that he could take his lunch before relieving them. Before the afternoon visits, which take place between 1:30 - 45 p.m. to 4:30 - 45 p.m., he saw Mr. Street and asked him to either substitute another CO in the back visit area in his place - that afternoon, or provide him with relief for part of the afternoon, and Mr. Street again said he would see what he could do. No one was substituted for him and no relief was provided that afternoon. Between 4:30 p.m. and the end of his shift at 7 p.m. he had his meal break and relieved another CO in the Health Care unit. The following day, he was again assigned to the back visit area. He requested Mr. Street to assign him elsewhere, . 15 and advised him that he was diabetic, and unable to eat in the area, and that the heat was very uncomfortable. On that occasion, Mr. Street reassigned him to another area. The grievor advised that Mr. Street assigned him to the back visit area on December, 31, 1993, and he again explained to Mr. Street that he was diabetic, that the assignment to that location interferes with him ability to take care of his needs as a diabetic, and that he was declining the assign- ment. He advised that it had taken him approximately 5 weeks to recover from the adverse effects of having worked in that overheated area without relief in November. The grievorsaid that on April 20, 1994 he was working a 7 a.m. to 7 p.m. shift. At about 6:25 p.m. Mr. street informed him he was being ordered to work overtime. He said that he asked Mr. Street if he knew about his arrangement regarding overtime, and told him that he was diabetic. He also told Mr. Street that he had no way of getting home, as his car was in the shop, and he had planned on getting a lift home at 7 p.m. with another CO, and otherwise had no way to get home. Mr. Street insisted that he work overtime. The grievor then spoke to Evening Head Shift Supervisor Martin- sen, at which time he placed more emphasis on his diabetic requirements than on the problem about getting home, and noted that he had not been ordered to work overtime on short notice in 9 months. Ms. Martinsen permitted him to leave at 7 p.m. The grievor advised that between about 12:30 and 1:30 p.m., while on a Health and Safety inspection he had seen documents in Mr. Street's office which indicated a need for 6 - staff to work overtime that day from 5 to 9:30 p.m. He advised that overtime is assigned from the seniority list on the basis of those with least seniority to those with most seniority, and that 15 to 18 COs had less seniority than him. The grievor advised that the following day he spoke with Day Head Shift Supervisor Walmsley and told him about the arrangement he had made in August of 1993 with Mr. DeFranco regarding notice of overtime. Mr. Walmsley investigated and 16 told him he could not find any document in his personnel file of his agreement with Mr. DeFranco. Mr. Walmsley ordered the grievor to work overtime that day, well before 5 p.m., and ordered another CO, with whom the grievor planned to obtain a lift home, to work the same overtime hours. The grievor advised he did not object to the assignment of overtime in these circumstances, particularly because he was advised of the assignment substantially before 5 p.m. Mr. Vassallo attended a meeting on May 4, 1994 meeting with union Representative Mr. Hart, Senior Assistant Superin- tendents Northcott and Howes and General Duty Manager Street, which was intended to address a number of incidents to which Mr. Vassallo testified, in which he felt he had been subjec- ted to unreasonable directions, assignments, duties, as a result of which he had experienced uncomfortable and distres- sing physical sYmptoms which were not helpful in his efforts to maintain his blood sugar within the normal range. There was substantial conflict between the grievor's and Mr. Street's evidence as to what occurred at the meeting. With the exception of the need for reasonable lead time or notice of overtime, the importance of the timing of his meal breaks, and his request for prompt relief and reassignment from the back visits area, we are unable to reach any conclusions as to whether Mr. Street in fact was aware on May 4, 1994 of the grievor's specific needs for and prior requests and arrange- ments for accommodation, e.g. to Mr. Northcott and Mr. DeFranco in the absence of any clear and direct oral or writ- ten evidence as to precisely what in fact had been communica- - ted to Mr. Street or other management staff about the grie- vor's condition and as to what, if anything, had been record- ed in the accommodation log by Mr. Northcott or Mr. DeFranco or others. Mr. Northcott recalled that Mr. Street admitted at the meeting that he'd "made some mistakes", but did not specify them. The grievor also testified to a number of incidents in which in his view he had been assigned certain duties . 17 unnecessarily and unreasonably, without due regard for his condition as a diabetic, and on some occasions, in his view, deliberately, and which had impacted upon his condition as a diabetic. In view of our conclusions below, no useful pur- pose would be served in setting out the evidence regarding those incidents in detail. Bob Christensen has been a CO at the Toronto Jail for over 16 years, and has been a CO 2 for about 15 years. He was diagnosed a non-insulin-dependent diabetic in 1990. In about September, 1990, after a period of hospitalization to stabilize his blood sugar following a threat of physical harm by an inmate, he returned to work and under his doctor's ad- vice, requested the Scheduling Officer to accommodate him by scheduling him straight day shifts, 7 a.m. to 7 p.m. At the request of the Scheduling Officer, he supplied a letter from his doctor, Dr. Scott, who is now retired. The letter, he advised, stated briefly that he was a non-insulin-dependent diabetic and requires a regular routine, and that the facility's cooperation would be appreciated if he was given straight days. He said that the letter that Dr. Scott sup- plied in 1990 was much the same as the one dated December 14, 1994 (Ex. 37, # 4) by Dr. Janicki. In chief, Mr. Christensen said that he had been scheduled straight days since 1990 until December 31, 1995 and assigned generally to 2B Land- ings, and occasionally to 3B. In cross-examination he ac- knowledged that from 1990 to 1992, he may have been assigned to night shifts and required to find another CO willing to work his night shifts in exchange for Mr. Christensen working his day shifts. He confirmed that from 1992 to 1995, he was scheduled straight days. He advised that he had sought no restriction on his duties or work assignments. At the begin- ning of 1996, he understood that the facility would "assist him to accommodate him" and that his schedule now involves mostly days, with some mid-day and night (7 p m. to 7 a.m.) shifts. He said that he is being assisted not to work any . 18 nights, and that the Scheduling Manager, Mr. Moore, told him that he would have to find another CO who would work his night shifts in exchange for him, Mr. Christensen, working that CO's dayshifts, and that if he was unsuccessful in finding such a CO, Mr. Moore would assist him. Thereafter, he has worked day and mid-day shifts. Mr. Christensen advised that he had not been asked for any further medical reports and hadn't given Mr. Moore any medical information, and that he believed that was attributable to the fact that he, Mr. Christensen, is a diabetic. A letter from Dr. Janicki, addressed to Sr. Asst. Supt. T. Howes dated December 14, 1994 (Ex. 37, document # 4), which simply stated that Mr. Christensen continued to be a non-insulin dependent diabetic and "It is most important that he maintains a daily routine in order to keep his diabetes under control", was produced during Mr. Christensen's cross- examination. Mr. Christensen said that that letter had been supplied in response to the employer's request for an up- dated medical certificate. A memo to Mr. Christensen from Mr. Howes dated January 12, 1995 (Ex. 37, document # 6), states that for the following 3 months he will be accommoda- ted by a change of his assigned M- and E- shifts to D-shifts and that if he requires medical accommodation, he requires supporting documentation from his physician. Thereafter, correspondence dated May and October 1995 (Ex. 37, documents # 7 and 9) indicates that Mr. Christensen was asked to submit a current medical certificate in order to continue the accom- modation he was then receiving. A letter dated October 23, 1995 (Ex. 37, document # 10) from Dr. Ahmed states Mr Christensen is an insulin-dependent diabetic and it is not expected that his condition will ever improve It is most important the (sic) he maintain a daily routine in order to keep his diabetes under control Mr. Christensen confirmed that he remains a non-insulin- dependent diabetic 19 A letter from Mr. Moore, Staff Services Manager, to Mr. Christensen dated November 6, 1995, (Ex. 37, document # 11) advises him that Dr. Ahmed's letter indicates no restrictions to his work location or a medical condition that would preclude him from working all areas of the institution and does not state that he is unable to work rotating shifts. It indicates that he would be assigned rotating shifts, and that the writer will be happy to help if he requires "assistance in arranging mutual shift changes with other staff to avoid the "E" shifts. Mr. Christensen said that he understood in 1995 that there was going to be a new policy regarding accom- modation which resulted in the communication he was sent. He agreed that in January, 1995, he was fit to be assigned to all CO duties. He agreed that he had been sick and had not worked since February 26, 1996. He said that from November, 1995 to February, 1996 when he booked off sick, he had not worked nights, as a result of having asked the Scheduling Manager for a change. He said that as well, after November, 1995, he continued to be assigned primarily to B Landings. The documentary evidence disclosed that from 1989 to 1996 from time to time Mr. Christensen experienced other medical conditions in addition to diabetes. The evidence did not establish whether those conditions had any any effect on the nature of the accommodations he was provided. Joe DeFranco, Deputy Superintendent/Administration, was unable to recall whether he had put the grievor's occur- rence report in August of 1993 into the log. He said that if he had put it in the log, it would have gone into the Shift IC's confidential journal, and that there was no need for a written agreement as to accommodation. Mr. DeFranco was un- certain as to whether he had seen Dr pinto's letters dated Mar 24, 1992 and April 2, 1992 (Ex. 3 and 4) He said that the letters would have gone to the grievor's immediate super- visor, which may have been Mr. Jeffers, or Mr. Northcott. He agreed that the grievor's immediate supervisor would be 20 required, on receipt of the note(s) to determine whether and what accommodation the CO required. He agreed that he would have asked the doctor to provide more information, and added that alternatively, he might have asked the CO to write a note. He said that at the time, the policy was to provide 3 months of temporary accommodation. He said that if a person could have been accommodated, he would have been and "it wasn't always the case". He advised he had no knowledge of what was done in response to Dr. pinto's letter dated Febru- ary 24, 1993 (Ex. 6) . When advised that the grievor was scheduled nights regularly and had to find someone to change shifts with him, he replied "that happens frequently". He advised that a Shift Supervisor would not necessarily know that a CO is an insulin-dependent diabetic unless the CO told him/her. When asked where he would send the information from a discussion with the grievor as to accommodation he was requesting, so that the information would be stored or cen- tralized, his response was unclear. He said that accommoda- tions are reviewed on a quarterly basis. Ar9ument By the Union: There are two facets to the employer's violation of Art. A. The grievor has a medical disability, insulin dependent diabetes, and the employer has policies, procedures, stan- dards and practices which have an adverse impact on him be- cause of his condition. Despite the grievor's request for help, he received no accommodation at all. As well, the em- ployer violated Art. A; the grievor's constant requests for accommodation resulted in management staff branding him a "whiner", and in them giving him a harder time than other COs who were not diabetic, which constituted harassment, related to his disability. 21 The grievor's requests and concerns should have been resolved within the workplace; this hearing should not have taken place. Between 1992 and 1994, the employer had no standards, policies and procedures in place to deal with accommodation. If such were in place, management staff either maliciously or in bad faith refused to accommodate the grievor, or the grievor fell through the cracks. Management witnesses were totally inconsistent regarding the appropriate procedures for obtaining accommodation. If the process described by Mr. Northcott had been in place, these grievances would not have arisen. The process he described was "the ideal", but it was not in place. No meeting occurred with the grievor's doctor, as contemplated by the process Mr. Northcott described, despite Dr. Pinto's ~ letters, which invited the employer to contact him. Mr. Northcott indicated the process should be carried out in a manner which preserves the individual's dignity, so that not all staff need to know the condition, but some need to know what accommodation is required. The entries in the 1995 accommodation log (Ex. 37, p. 1) do not indicate the diagno- sis, simply the accommodation to which the employee is entitled. The log eliminates the need for each employee to tell each manager the details of his condition and of the accommodation required. Mr. Jeffers testified that verbal requests for accommodation were sufficient in 1992. Mr. Jef- fers said that having seen Dr. pinto's 1993 letter (Ex. 6) , he would have made the arrangements to have taken him off nights, yet Ex. 31 indicates that he was still being assigned nights as recently as January, 1995. Mr. Jeffers did not remember writing anything in the log about Mr. Vassallo. Mr. Northcott was uncertain in his recall as to whether he had written anything in it. Mr. DeFranco indicated Mr. Jeffers or Mr. Northcott were responsible for dealing with the grie- vor's request for accommodation. Mr. Street said he could not make the decisions as to accommodation, as they are made 22 higher up. The union agrees with the employer's position, as expressed by Mr. Northcott, that an employee should not have to tell every M14 who assigns him that he is an insulin- dependent diabetic, and that this information should be conveyed to management staff in a manner which protects his dignity. Mr. Jeffers' and Mr. Christensen's evidence as to the process was consistent. The 1995 accommodation log indicates that Mr. Christensen is to be assigned "day shifts only" on an "ongoing" basis. Mr. Christensen testified that the scheduling officer did not schedule him nights, and that there were no meetings with his doctors. In 1995, things began to change around the issue of accommodation, but we are not asking the panel to deal with that in this case. The panel is being asked to address the lack of action in March 1992, after the grievor spoke to Mr. Northcott and requested accommodation, and provided Dr. Pinto's letter dated March 24, 1992, and approximately 20 incidents thereafter which the grievor ascribes as constituting discrimination, unfair treatment and harassment. Dr. pinto's evidence establishes that the proper way to treat the grievor's diabetic condition is to provide him with a regular schedule, predictable levels of exercise, regular mealtimes, ready access to food and insulin, working with a partner, but when not partnered, the prompt provision of relief from his post if required. His evidence established that the worst scenario is that the grievor may lose con- sciousness while in control of prisoners. Dr. pinto acknow- ledged that the grievor can work night shifts but such a change in his schedule is difficult and taxing and would detract from his ability to enjoy his days off because of the necessary changes during that period to accommodate the night shifts. Optimal control of his blood sugar levels would be more difficult if the grievor is required to shift from day to night shifts Relief is more difficult to provide on night shifts owing to the lower staff complement on that -- 23 shift. The long-range view, which seeks to preserve the employee's day to day health and thereby prevent absenteeism, is the proper view of the accommodation an employer is obliged to provide. The grievor objects to being assigned to ranges because although he is partnered on that assignment, one CO is inside the unit, and the other is outside it. It is difficult for either CO to get another to relieve them, and particularly difficult for the inside person. Assignments to the back visits area result in the grievor being at a station without a partner, responsible for many inmates in the same area, and having difficulty obtain- ing relief. The grievor can work overtime and outside visits and admissions, provided he is given sufficient lead time. He needs 2 hours advance notice when he is ordered to work overtime on day shifts. In order to establish discrimination, the union must show a policy or a procedure was in place which reacts ad- versely against the grievor. The evidence established that night shifts have an adverse impact on the grievor, both in terms of changes he must make to his routines on days off, as well as the impact of the difficulty of his obtaining relief on those shifts. Assignments to outside visits and overtime, which may require a CO to skip a meal or defer a mealbreak for a substantial period of time, do not impact adversely on non-diabetic staff, but do impact adversely on the grievor. Once this adverse impact is established, the onus shifts to the employer. The employer must establish that it agrees that the grieving employee requires accommodation and that it provided that accommodation, or that it cannot accommodate him/her without undue hardship. The evidence established that the grievor told Mr. Street, Mr. Jeffers, Mr. DeFranco, Mr. Northcott and others repeatedly that he is an insulin-dependent diabetic. Neither Mr. Jeffers nor Mr. Northcott recall taking responsibility to , . 24 ensure that he was accommodated. There was no evidence that any comprehensive structure was in place to ensure that he was accommodated. Toplin, 2690/92 etc., at p. 5, indicates that to establish harassment, the union must establish 1. that the employer engaged in a course of vexa- tious comment or conduct; 2. at the relevant times the complainant was an employee and the respondent was the employer or agent of the employer; 3. that the comment or conduct complained of was known, or ought reasonably to have been known to be unwelcome; and 4. that the comment or conduct complained of was for the reason that the complainant has or is believed to have a handicap. The evidence supports a finding of harassment against Mr. Jeffers, Ms. Ogden and Mr. Street. The union seeks a declaration that the grievor has a disability, that the employer has a duty to accommodate, that there is no reason the employer cannot provide him that accommodation, and that the grievor has suffered harassment. It seeks an order directing that the harassment cease and desist and directing the employer to stop scheduling the grievor to night shifts and assigning him to back visits and ranges, and directing it to notify the grievor by 5 p.m. of overtime assignments or not order him to do overtime on those occasions, and to give him a day's notice of assignments to hospital admissions and assignments outside the Jail. None of the relief sought will result in undue hardship. Further, the employer should be ordered to cease requiring a review of - the grievor's condition every 3 months. Diabetes is a chronic condition; the grievor's condition will not improve. The employer shquld be directed to pay a nominal. amount, $3,000.00, to compensate the grievor for the injury to his dignity and self-respect, and to recognize the affront to his human rights. I 25 By the Employer: The board must measure the evidence against the defini- tion of discrimination in Dewar, 941/94, which cited Andrews v. Law Society of British Columbia, 56 D.L.R. (4th) (S.C.C.) , p. 18: discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society Distinc- tions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual s merits and capacities will rarely be so classed It must weigh the evidence against the elements required to establish harassment in Toplin, supra. The Ontario Human Rights Commissions' "Guidelines for Assessing Accommodation Requirements for Persons with Disa- bilities" indicates that the employer must determine the es- sential and non-essential duties of the employee and position in question. The employer must re-assign the non-essential duties, and explore accommodation that will enable the person to perform the essential duties. The employer is of the view that working rotating shifts, including night shifts, is an essential duty. The essence of accommodation is individualization and the alleviation of barriers to the person being able to carry out their essential duties The employer had to address the question of how it could accommodate the grievor to work night shifts, since he must work them. In this case, the grievor made shift changes, and that avoided the issue of accommodation regarding essential duties. The need for accommodation regarding the night shift has never arisen. These grievances must be determined based upon the in- formation that management had at the time of the grievances, some of which were 4 years old when this hearing commenced. 26 The grievor is a diabetic, which the employer acknowledges is a " handicap" . However, the evidence demonstrated that he is capable of performing all the essential duties of a CO, that he is able to work all posts without restrictions. He is an experienced CO and knows all the situations which can arise at the Jail, e.g. last-minute overtime, mix-ups in proce- dures, delays in getting breaks, and would know that it was not always possible for management to provide him immediate relief The grievor appears to be seeking a carte blanche exemption from being scheduled to work night shifts because working them would necessitate putting in place a plan to deal with his diabetes and would necessitate a change in his life style. The employer is not required to indulge an em- ployee's lifestyle preferences. Exemption through accommoda- tion procedures must be supported by well-informed medical opinion. Further, altering one's daily routines to accommo- date one's job is not an unreasonable requirement. The employer expects a CO to bring to work the medica- tion, snacks and food s/he may require for his/her diabetes. It is unreasonable for an employee to come to work unprepar- ed, and because s/he forgot to bring the items s/he needs suggest that management, by giving him certain assignments, , is harassing him. As in Toplin, supra, p. 26-27, none of the actions of management staff complained of by the grievor, however "vexing and unwelcome" and inducive of "negative emo- tional reactions", emanated from an improper motive. There is no evidence that the grievor was ever in any danger as a result of these alleged incidents of harassment. Further, as the grievor took no notes or reports regarding most of the incidents, it must be concluded that they were not brought to the attention of senior management at the time of those events. The evidence has not demonstrated bad faith, improper motive, or conduct by management designed to harass or dis- criminate against the grievor. Rather, it suggested that --- 27 communication between the grievor and his immediate supervi- sors, and among them and senior management, ought to have been better. The grievor stated simply that he was a diabe- tic, and asked for accommodation. Management was waiting for the grievor to provide specific information regarding his needs for accommodation, but did not ask the grievor for specifics. Some of the grievor's complaints arise from attitudinal differences. The grievor has unreasonable expectations regarding his supervisors' knowledge of diabetes. He failed to provide clear work restrictions from his doctor, and expected management to know what his accommodation require- ments were. This does not translate into harassment and discrimination. The grievor's own evidence is that he is able to work all shifts and perform all CO duties at the Toronto Jail. Mr. Christensen's evidence throws a wrench into the em- ployer's case; unlike the grievor, he was not scheduled night shifts after 1990, and the grievor had to switch shifts with another co. The employer has since changed its treatment of Mr. Christensen (Ex. 37, p. 11). The employer is not in breach of the collective agreement in accommodating people with the same disability in different ways. Accommodation may be accomplished within a range of alternatives. The grievor's rights flow from the collective agreement, rather than from the treatment of another employee. The grievor must demonstrate a violation of Art A, which violation must have occurred without respect to anotner employee. An order of the board directing the employer to refrain from assigning the grievor to work in the back visits area, or any other relief requested on his behalf, would, in view of the evidence, constitute nothing but a punishment of the employer. Nothing in the evidence justifies granting such relief. 28 Conclusions: The evidence suggests that between March, 1992 and May 4, 1994 the protocol and process of requesting and being granted accommodation at the Toronto Jail was somewhat un- clear. There appears to have been no firm or written proto- col regarding the recording, handling and storage of medical letters requesting accommodation, and of verbal and written requests by the CO for accommodation. There appears to have been no distinction between the handling of requests for accommodation arising from diagnoses of chronic, long-term medical conditions which the employee will likely experience for the rest of his or her life, unless a cure is found, as opposed to those of a more short-term nature and which will require the provision of stable, long-term accommodation ar- rangements. The employer may wish to make a distinction regarding the frequency with which it may require up-dated medical reports pertaining to employees who have long-term chronic conditions as opposed to short-term conditions. The evidence strongly suggested that requests for accommodation could be dealt with both formally and informally, within the individual discretion of any of the Deputy Superintendent, the Senior Assistant Superintendents, the Shift Supervisors and/or the Scheduling Officers, as well as the officers assigning duties at muster on any given day. It suggested that consideration should be given to providing the informa- tion in the accommodation log to the officers assigning duties at muster each day. The evidence suggested that the process for the communi- - cation of requests for accommodation by the immediate reci- pient of them e.g. the Shift Supervisor, to the various Scheduling Officers and other OMs who, for example, assign COs to particular duties e.g. outside escort duty, overtime, etc. was not entirely clear or well known While there was an expectation that each Scheduling Officer check the accom- modation log and inform him or herself of the contents, it does not appear to have been acted upon consistently. , 29 The evidence also suggested that at times the grievor himself was not clear with management staff as to specific accommodation he was seeking for diabetes. It occasionally suggested that the grievor was not clear with management staff as to whether the accommodation he was seeking at particular times pertained to his requirements as a diabetic, as opposed to other circumstances and/or medical conditions he was experiencing temporarily. In this context, we conclude that the grievor did indeed fall between the cracks in the accommodation system then in place. On all the evidence, we conclude that from March, 1992 to January, 1995 a) the policy with respect to the level of management to whom COs were to provide written medical requests and/or written or verbal requests for accommodation, and which was responsible for receiving and processing those requests, and the procedure and manner of processing such requests was not well defined and appears not to have been clearly communicat- ed to staff; b) this resulted in inconsistent treatment of the accommodation needs and requests of Mr. Christensen and the grievor; c) from March 1992 to the end of 1993 the employer inadvertently failed to accommodate the grievor by failing to schedule him day and mid-day shifts only, and by requiring him, from April until December, 1992, to find another CO willing to work his night shifts for him in exchange for the other CO's day and mid-day shifts; d) in doing so, perhaps inadvertently, it discriminated against him, on the basis of handicap; e) this, however inadvertently it may have occurred, constituted a cqntinuing violation of Art. A.1.1 of the Collective Agreement and a violation of s. 5 and 17 of the Ontario Human Rights Code. The grievor's work takes place within a secure correc- tions facility, an environment which requires quasi-military 30 discipline and responsiveness of the staff, to ensure the security and protection of the public as well as staff and inmates, 24 hours a day. It is unlikely that the stress associated with the position of co 2, and experienced by the grievor during the approximately 20 incidents he described could have been avoided. We are of the view that on most of the occasions to which the grievor testified, the negative attitudes and escalation of temper which we find the grievor probably witnessed on the part of various OMs, resulted as a consequence of several features then existing: - the then current lack of a clear policy and directives concerning the receipt and recording of medical and personal requests for accommodation; - unclear, if any, communication by administration of the grievor's requests for accommodation; - the grievor's assumption that all managers should know his requirements as an insulin-dependent diabetic without explanation or clarification; - the grievor's assumption that all his letters and communications were being recorded in the accommodation log and shared with the appropriate OMs; - the grievor's inadvertent lack of clarity as to the accommodation he required until a request was made of him which exceeded his capacity to accommodate on that particular occasion. We find, on balance of probabilities, that on occasion, in this context of miscommunication, non-communication and/or poor communication on the subject of accommodation, the - grievor and his managers became verbally abusive with one another. As a general proposition, management staff at the Jail are expected to and do in fact issue orders to COs on a sum- mary basis, in the context of the quasi-military environment of the Jail. On most occasions, they do so in order to en- sure the security of the institution and the public, and to ensure that the public's as well as the institution's other . 31 needs, e.g. good public relations, are served. Undoubtedly, from time to time, this type of order will induce in the grievor stress and symptoms adverse to his diabetic condi- tion, particularly when he is of the view that the order is not necessary or justified in the circumstances. It is hoped that in future, management staff will bear this in mind, and minimize the frequency of such circumstances for the grievor. The grievor cannot reasonably expect the employer to be sen- sitive to his needs at all times in such an environment, nor can he reasonably expect the environment to be made free of stress at all times. We are unable to conclude, on the evi- dence before us, that the stress and the aggravation and the physical symptoms the grievor experienced in the incidents he described were caused intentionally, maliciously or as a re- sult of indifference or poor judgment on the part of any in- dividual manager, or were generated unnecessarily in all the circumstances. We conclude, on all the evidence, that the incidents of which the grievor complained arose as a conse- quence of a lack of awareness of and insensitivity of indi- vidual staff members as to the nature of his condition and the effect of stress upon it, and not from any intention to deliberately harass or inconvenience him. The incidents arose in a period of approximately two years from occasional instances of poor communication, misunderstanding, over- sights, delay and confusion among various staff within the institution, which were regrettable in respect of their im- pact on the grievor, but which were unrelated to his diabetic condition. We accept that the grievor will not bring a 15-hour supply of meals and snacks with him each shift, in anticipa- tion of escort duty and/or overtime, although it might be prudent for him to do so. We expect him to bring sufficient food and medication and equipment for his scheduled shift, and to be given sufficient notice of assignments which re- quire him to make adjustments to his snack and meal plan, and sufficient arrangements for relief, so that he can perform . 32 all duties to which he is assigned. We acknowledge the grie- voris preference to be temporarily relieved of duty in order to avail himself of washing facilities when he requires food. However, we do not find it unreasonable or a security risk that he be permitted and expected to leave sufficient food at his desk or carry it in his pocket to consume at his post if he experiences sYmptoms while on duty, if for any reason the facility is unable to promptly respond to his request for re- lief. In arriving at accommodation, there must be some give ~nd take. The grievor must recognize and be prepared for the possibility that staff shortages may preclude managers from providing him prompt relief at his work station when he requests it, except where he makes clear that the matter is an absolute emergency. We find it doubtful, on all the evidence, that certain of the management staff had and demonstrated as much respect for the grievor and his requests for accommodation as they maintained. We conclude that from time to time during the period in question, the grievor was not relieved of his post when he reasonably requested that relief, and was asked to perform certain duties, such as hospital escort duty, over- time, occurrence reports, and others, without due considera- tion for his needs as a diabetic and on occasion, without due consideration for his immediate physical symptoms. We find that those instances resulted from a lack of effective commu- , nication to management staff of his condition and the effect of stress on his condition. Although on a number of occa- sions over the two years following his diagnosis the grievor perceived certain assignments, requests, or orders and the need on those occasions to advise those manager that owing to his diabetes, he could or would not perform those duties, as unreasonable and aggravating, and that he should not have been given such assignments in the first place, and should not have had to repeatedly request special consideration, and felt that he encountered resistance to such requests, we note that no instance in which the grievor objected to management . ~ 33 staff of the assignment of a particular duty and declined it on the basis of his medical status, his immediate physical symptoms, or his lack of sufficient notice or preparation, resulted in discipline or a written warning. While this ob- servation does not address the concern that more effective ~ and discreet communication within a clearer protocol for ensuring accommodation would probably have decreased the fre- quency with which this problem arose, we conclude that once informed by the grievor of his requirements, albeit repeated- ly, the grievor's managers responses were quite reasonable. We conclude, on balance of probabilities, that the changes to the grievor's schedule in May and June of 1992, regarding the weeks of July 13 and 20, while insensitive, and annoying and frustrating to him, arose in the ordinary course of scheduling, and not out of any deliberate effort to punish or inconvenience him, as either a fellow employee or as a diabetic. In the case of the allegations of harassment by the Health Care Coordinator, we find, on the evidence, that the animosity or suspicion which she admitted she harbours toward the grievor arose from her idiosyncratic beliefs regarding him, which were unrelated to the grievor's status as a diabetic and were more probably related to his role and his , duties as Health and Safety Representative, as well as other interaction and poor communication between them, and their lack of respect for one another. We note that the grievor, when assigned to the Health Care unit, is responsible as a CO 2 for security on the unit, whereas the Health Care Coordi- nator is responsible for the security of the equipment and facilities and pharmaceuticals, and the health of the inmates and others on the unit. We conclude that at times this may have lead to conflict between the grievor and the Health Care Coordinator and resulted in her view that he was obstructive to the timeliness of her and her staff's performance of their duties We conclude, on the evidence and on balance of probabilities, that on one occasion in August of 1992, after . 34 the grievor had left the unit in order to go to his locker for a few minutes to use his glucometer and eat something, having told his partner this reason, his partner did not fully explain to the Health Care Coordinator why he had left the unit. We conclude, on balance of probabilities, that the Health Care Coordinator, requiring more CO 2s on the unit in order to accomplish a particular task, paged the grievor more than once in rapid succession on that occasion, and that the grievor mistakenly assumed that she did so to deliberately harass him. Neither the grievor nor his physician initially provided the employer a detailed written list of the accommodation, aside from not being assigned night shifts, that he required medically. The grievor testified that in addition to not being scheduled nights, his condition required that he not be assigned to back visits area and ranges, advance notice of outside assignments and notice by 5 p.m. of overtime on day shifts, and gave evidence as to the circumstances in which he verbally requested the latter accommodation. These requests were not presented to the employer in written form. We con- clude that the lack of' a written request by the grievor him- self may have contributed in part to the unpleasant and at times stressful, frustrating and annoying incidents he ~ experienced. Having so observed, we note that the accommodation log for 1992 to 1994 was not produced as part of the employer's record and was apparently mislaid by the employer at some undisclosed point. As a result, there is no evidence that Dr. pinto's written request in 1992 that the grievor not be scheduled to work night shifts was entered in the accommoda- tion log and communicated to the Scheduling Officer(s). We are therefore unable to conclude that the failure to detail the grievor's requests for accommodation in writing was the most direct cause of the difficulties he experienced. I . . 35 Remedy: The board declares that a) from March 1992 to the end of 1993 the employer inadvertently failed to accommodate the grievor by failing to schedule him day and mid-day shifts only, and by requiring him, from April until December, 1992, to find another CO willing to work his night shifts for him in exchange for the other CO's day and mid-day shifts; b) in doing so, it inadvertently discriminated against him, on the basis of handicap; c) this, however inadvertently it may have occurred, constituted a continuing violation of Art. A.1.1 of the Collective Agreement and a violation of the Ontario Human Rights Code. The board suggests that the employer ensure that the policy regarding requests for accommodation is clearly communicated to all staff at the Toronto Jail, so that requests like Mr. Vassallo's are handled in a consistent manner and do not fall through the cracks. The grievor's doctor requested and continues to request that he not be scheduled to work night shifts. s. 17 of the Ontario Human Rights Code obliges the employer to accommodate an employee with respect to his/her handicap, to the point of "undue hardship". As no hardship appears to have arisen to the employer from the provision to Mr. Christensen of a sche- dule which did not include night shifts, and as the employer did not argue that such constituted an undue hardship with respect to the grievor, we therefore also order that the - employer cease scheduling the grievor to work night shifts. with respect to the grievor's requests that he not be assigned to the back visits area, in the absence of evidence as to current heat and air circulation in that area and whe- ther the problem which the grievor stated adversely affected his condition has been permanently resolved, we decline to rule on that issue specifically We find that there was insufficient evidence to support the g~ievor's position that ~ ~ 36 he not be assigned to ranges. We order the employer to relieve the grievor from his post within a reasonable period of time when he requests it for medical reasons, and to relieve him expeditiously where his medical/physical condi- tion warrants it. We recognize that the latter obliges the grievor to disclose his immediate condition to a member of management when requesting relief; we do not find this obligation unreasonable or an infringement of the grievor's rights in all the circumstances. We note that the employer has provided the grievor notice on the day before it intends to post him to an outside assignment and reasonable (2 hours) notice of overtime required, and we recommend that this practice continue. For all the above reasons, we conclude that the allegations of harassment and conducting and condoning a poisoned work environment were not supported by the evidence and are therefore dismissed. The allegation of failure to comply with Employment Equity was not addressed, and is likewise dismissed. In view of all the evidence, we do not find the circumstances of this case justify an award of damages to compensate the grievor. - I ., . 37 Dated at Toronto this 20th day of May, 1997. '----.. Susan D. Kaufman Vice-Chair dJ~Liy} Micheal Milich Employer Nominee ll(&;~ Peter Klym Union Nominee