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HomeMy WebLinkAbout1998-1368.Alcock.03-10-07 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1998-1368 UNION# 98D003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Alcock) Grievor - and - The Crown In RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Chnstopher Jodhan Counsel, Management Board Secretanat Kate Karn Staff RelatIOns Officer Mimstry of PublIc Safety and Secunty HEARING July 9 December 13 December 14 2001 July 24 and July 25 2002 2 DECISION In a gnevance dated October 19 1998 Mr Nell Alcock complaIns that he had not been provIded wIth hIS new Job descnptIOn. EffectIve July 8 1998 the Employer had permanently reassIgned Mr Alcock to a newly created Secunty Officer 2 ("S02") posItIOn at the Kenora JaIl Pnor to the reassIgnment he had been classIfied as a CorrectIOnal Officer 2 ("CO"), occupYIng the posItIOn of General Duty Officer Dunng the first day of heanng, counsel for the Employer raised an Issue about the form of the gnevance, but by the second day of heanng the partIes had resolved that Issue They dId so by agreeIng to treat Mr Alcock's gnevance as allegIng that the Employer had faIled to properly accommodate hIS dIsabIlIty when It reassIgned hIm to the S02 posItIOn, thereby reducIng hIS rate of pay The Umon takes the posItIOn that thIS conduct by the Employer contravenes the Ontano Human Rights Code ("the HRC") as well as ArtIcle 2, the management's nghts provIsIOn, and ArtIcle 3 a no dISCnmInatIOn clause of the CollectIve Agreement. In submIttIng that It dId not contravene the CollectIve Agreement or the HRC the Employer takes the posItIOn that It dId not fall to properly accommodate Mr Alcock and that by assIgmng hIm to the S02 posItIOn It went beyond ItS legal oblIgatIOn. The Employer also argues that the gnevance before me IS, In essence, a claSSIficatIOn gnevance and, accordIngly a matter over whIch I have no JunsdIctIOn. Mr Alcock testIfied for the Umon and Ms K. KInger Supenntendent at the Kenora JaIl, testIfied on behalf of the Employer Ms KInger commenced her employment at the Kenora JaIl as a Deputy Supenntendent In 1998 and became Supenntendent of that InstItutIOn 3 In October 2000 Although there was lIttle dIspute on the facts, the partIes have sIgmficantly dIfferent VIews on what legal conclusIOns flow from the facts gIVIng nse to the gnevance Mr Alcock commenced hIS employment at the Kenora JaIl on December 17 1986 and In October 1988 he attaIned the status of a CO2 In February 1992, Mr Alcock was In a motor vehIcle accIdent, sustaInIng a spInal InJury Apart from a bnef return, he was off work due to hIS InJury untIl November 1992, when he returned to work and was assIgned to the control module WhIle at work In May 1993 Mr Alcock exacerbated hIS pre-exIstIng condItIOn when hIS head struck a doorway Dunng the enSUIng absence Mr Alcock receIved STD and LTIP benefits and dId not return to work untIl November 13 1995 When he returned at that tIme he entered Into the first of a senes of RehabIlItatIOn Employment Agreements, In accordance wIth ArtIcle 42 7 of the CollectIve Agreement, a provIsIOn whIch deals wIth employees reCeIVIng L TIP benefits Each such agreement sets out a number of terms, IncludIng Mr Alcock's hours per week and the dutIes he would perform ThIS process was Intended to assIst Mr Alcock In becomIng a full tIme employee He ImtIally began workIng 20 hours per week and by late 1997 he had gradually Increased hIS hours to 40 per week. Upon hIS return In November 1995 Mr Alcock was agaIn assIgned to the control module His last RehabIlItatIOn Employment Agreement expIred on October 30 1997 and hIS LTIP benefits ceased as of November 15 1997 The Employer extended the 24 month RehabIlItatIOn Date to January 15 1998 In February 1997 the then Supenntendent requested Mr Alcock provIde the Employer wIth a medIcal prognosIs and an IndIcatIOn of the antIcIpated duratIOn of further accommodatIOn. In a response dated Apnl 29 1997 Dr Bevendge IndIcated that Mr Alcock 4 "has not had any measurable or sustaIned Improvement In hIS neck, shoulder and arm paIn for the last several years, and therefore, hIS prognosIs for complete recovery IS guarded." He also IndIcated that Mr Alcock "IS Indefimtely partIally dIsabled and wIll reqUIre some Job modIficatIOns " Dunng the latter part of 1997 the Employer requested Mr Alcock to provIde a medIcal assessment of hIS abIlIty to perform the essentIal dutIes of a CO and a proposed S02 posItIOn. In a handwntten note dated November 13 1997 Mr Alcock provIded the Employer wIth an outlIne of the dutIes he performed In the control module In a letter dated January 27 1998 the Deputy Supenntendent at the Kenora JaIl wrote to Mr Alcock as follows On December 10 1997 you were requested to obtaIn a prognosIs from your physIcIan as to when you could resume the full dutIes of a CorrectIOnal Officer Your physIcIan has wntten the Kenora JaIl that due to your neck InJury resultIng from your motor vehIcle accIdent, It IS not safe for you to work at the full level of a CorrectIOnal Officer and that any Improvement In your medIcal condItIOn wIll be subtle and gradual over the next few years Please be advIsed that as you wIll not be able to perform the full dutIes of a CorrectIOnal Officer In the near future you are beIng assIgned, effectIve January 19 1998 to a Secunty Officer posItIOn workIng full tIme on shIfts, In the Control Module due to health reasons ThIS IS In accordance wIth ArtIcle 75 of the OPSEU CollectIve Agreement. As per the above noted artIcle you shall receIve your current salary for 6 months After 6 months, If you cannot perform the full dutIes of a CorrectIOnal Officer you wIll be assIgned permanently to the Secunty Officer 2 classIficatIOn whIch IS sItuated In the AdmInIstratIve BargaInIng Umt. Your salary wIll be $17 00 per hour You are to provIde documentatIOn from your physIcIan IndIcatIng whether or not you can perform the full dutIes of a CorrectIOnal Officer on July 10 1998 If you have any questIOns please advIse 5 In a letter to the Deputy Supenntendent dated July 7 1998 shortly before the tIme Mr Alcock was to be permanently assIgned to the S02 posItIOn, Dr Bevendge wrote to the Employer as follows I have elected to answer In narratIve form your request for FunctIOnal Health InformatIOn on your employee Nell Alcock. I have read both of hIS Job descnptIOns 1 e that of CorrectIOn Officer 2 and that of Secunty Officer I have revIewed Health InformatIOn on Mr Alcock over the last five years or more SInce hIS motor vehIcle accIdent In whIch he InJured hIS neck. It IS my OpInIOn because of ongOIng symptoms that for physIcal reasons It would not be safe for hIm to be workIng as a CorrectIOnal Officer gIven the Job descnptIOn. ThIS IS based on hIS neck paIn and hIS functIOnal dIsabIlIty In hIS neck, arm, and shoulders, whIch preclude hIm dOIng several physIcal aspects of the CorrectIOnal Officer 2 Job I revIewed the Job descnptIOn of a Secunty Officer and I feel that by In large even wIth hIS neck dIsabIlIty thIS employee could do all of the tasks lIsted for thIS posItIOn. I do note that as the day wears on, because of fatIgue and Increas- Ing paIn and IncreaSIng weakness In the neck and shoulder muscles, that he sImply can't tolerate a 12 hour shIft. He stIll relIes heavIly on physIOtherapy for treatment for hIS neck condItIOn, and usually after 8 hours of work, he needs phySIO attentIOn. I am recommendIng to you and your department that Mr Alcock work 8 hour ShIftS and I feel confident he could do the Job descnptIOn as descnbed for Secunty Officer With regard to prognosIs for the future, I would thInk It would be reasonable that the status of hIS neck InJury and neck dIsabIlIty be reassessed on approxI- mately a 6 to 12 month basIs I am personally optImIstIc that In the long run hIS medIcal condItIOn can and wIll stIll Improve CertaInly he IS physIcally functIOnally at a hIgher level now than he was several years ago Any Improvement In the future wIll be subtle and gradual, however over the next several years, I stIll expect a favourable outcome to hIS health problem I trust thIS IS the InfOrmatIOn you reqUIre Please don't hesItate to contact me by phone If there are other questIOns that need to be addressed. HavIng regard to Dr Bevendge's assessment, Mr Alcock was permanently assIgned to the S02 posItIOn, located In the AdmInIstratIve BargaInIng Umt, at a wage rate of $17 00 per hour effectIve July 8 1998 As a CO In the CorrectIOns BargaInIng Umt Mr Alcock was paid 6 $21 39 per hour As an S02 Mr Alcock contInues to work a 7 a.m. to 3 pm. ShIft, Monday to Fnday for a 40 hour workweek In the control module There IS no dIspute that Mr Alcock has a permanent dIsabIlIty whIch precludes hIm from workIng In dIrect contact wIth Inmates Any dIrect contact wIth Inmates could potentIally lead to a physIcal altercatIOn whIch mIght result In further InJury to hIS neck. Pnor to the heanng of thIS gnevance Mr Alcock dId not obJect to only beIng assIgned control module dutIes and there IS no IndIcatIOn that other assIgnments were consIdered or dIscussed. Dunng hIS testImony Mr Alcock suggested that, wIth modIficatIOns, he could perform dutIes at other posts, such as AdmIttIng and DIscharge Although counsel for the Umon dId not focus on thIS aspect of the eVIdence dunng hIS submIssIOns, It IS my conclusIOn that Mr Alcock could not perform CO dutIes at other posts It would be ImpossIble to modIfy the dutIes at other posts to entIrely aVOId the possibIlIty of dIrect Inmate contact. The lIkely explanatIOn for the absence of any dIscussIOn or consIderatIOn of other dutIes IS because of the recogmtIOn, even by Mr Alcock, that the control module dutIes are the only dutIes he can perform, gIven hIS medIcal restnctIOn. The CorrectIOnal Officer Senes provIdes that COs perform a vanety of functIOns related to the care, custody and control of Inmates and that they can be assIgned to vanous functIOnal areas of the InstItutIOn. The class standard IndIcates that a CO's dutIes are usually performed on a rotatIOnal ShIft basIs The J ob descn ptIOn of the General Duty Offi cer posItIOn at the Kenora JaIl sets out a number of dutIes, most of whIch Involve dIrect contact wIth Inmates These dutIes Include proceSSIng offenders on admIssIOn and dIscharge, searchIng 7 Inmates, escortIng Inmates and dIrectly supervISIng Inmates Under the headIng of DIsagreeable and Hazardous WorkIng CondItIOns, a CO Job descnptIOn and evaluatIOn form refers to the folloWIng matters Job reqUIres contInUOUS InteractIOn wIth the full range of offenders whose behavIOur can be unpredIctable creatIng a workIng envIronment where a range of InJunes or harm could occur (e g. spraInS, straIns, bruIses, scrapes, broken lImb loss of conscIOusness) Job reqUIres workIng outdoors dunng ShIft (e g. exposure to heat and cold) Job reqUIres carryIng out stnp/fnsk searches of offenders dunng ShIft to ensure contraband (e g. weapons, drugs) IS not present. Job reqUIres exposure to the nsk of InfectIOus/commumcable dIseases and/or condItIOns (e g. HepatItIs Band HIV) The control module IS an Integral part of the operatIOn of a correctIOnal facIlIty It operates 24 hours a day 7 days a week, and IS off lImIts to Inmates ThIS functIOnal area IS staffed by one officer at a tIme and IS the only secure area at the Kenora JaIl At the Kenora JaIl CO's rotate through the control module Dunng the course of a ShIft, a CO IS usually assIgned no more than 2 hours, and at the most 4 hours, In the control module Mr Alcock IS able to perform all of the dutIes assocIated wIth the control module In other words, the control module dutIes he performs are the same dutIes performed by anyone assIgned to that post. For our purposes It IS unnecessary to detaIl all of the control module dutIes Suffice It to say that these dutIes Include ISSUIng keys to staff, answenng the telephone and dIrectIng calls, maIntaInIng radIO commumcatIOn wIth radIO posts, supervISIng Inmate VISItS from the control module, observIng segregatIOn cells by means of vIdeo cameras and operatIng electnc doors to and from vanous areas of the InstItutIOn. 8 Supenntendent KInger testIfied that the essentIal feature of the dutIes of a CO IS dealIng dIrectly wIth Inmates and that It IS thIS dally InteractIOn whIch subJects an officer to nsk of InJury She testIfied that control module dutIes constItute approxImately 10% of the dutIes of a CO I take thIS to mean that SInce CO dutIes are usually assIgned on a rotatIOnal basIs, a CO would usually spend no more than approxImately 10% of theIr tIme performIng control module dutIes The absence of dIrect Inmate contact means that the usual nsks assumed by COs are not present wIth such an assIgnment. IfMr Alcock IS on a break or lunch when a pamc alarm IS actIvated, he IS reqUIred to ImmedIately return to the control module Ms KInger also testIfied that the reason for the rotatIOn In the control module IS because the dutIes performed In that functIOnal area represent a small component of the care, custody and control functIOns of a CO She IndIcated that In an effort to meet ItS oblIgatIOn to accommodate an employee the Employer would often assIgn a CO to the control module for an entIre shIft for a penod of tIme untIl the CO can return to hIS or her usual dutIes Ms KInger testIfied that In the case ofMr Alcock the Employer accommodated hIm by assIgmng hIm control module dutIes and contInued to pay hIm at the CO rate of pay Dunng her cross-eXamInatIOn, Ms KInger agreed that there was no undue hardshIp for the Employer In gIVIng Mr Alcock such an assIgnment. It was only when It receIved medIcal confirmatIOn that It was unlIkely that Mr Alcook would be able to return to perform the full dutIes of a CO that that the Employer created the S02 posItIOn at the Kenora JaIl and assIgned hIm to that posItIOn. The class standard for the S02 posItIOn IndIcates that the posItIOn Involves provIdIng secunty servIces from an assIgned post In a government facIlIty The posItIOn specIficatIOn for the S02 posItIOn at the Kenora JaIl sets out the maJonty of the dutIes performed by an officer 9 In the control module Dunng hIS cross-eXamInatIOn, Mr Alcock acknowledged that he performs 90% of the dutIes contaIned In the posItIOn specIficatIOn for the S02 posItIOn at the Kenora JaIl It appears that these dutIes were essentIally adopted from the lIst of dutIes dated November 13 1997 prepared by Mr Alcock. Ms KInger testIfied that an S02 posItIOn eXIsts at the Millbrook CorrectIOnal Centre In a detentIOn WIng control module The S02 posItIOn created for Mr Alcock appears to be the first such posItIOn In a central control module Pnor to hIS dIsabIlIty Mr Alcock worked as a CO In the control module on a rotatIOnal basIs, Just lIke other COs Between hIS return to work In November 1995 untIl July 1998 he was beIng accommodated wIth a control module assIgnment where he only performed control module dutIes and was paid the CO rate Once he was assIgned to the S02 posItIOn, at a lower rate of pay Mr Alcock contInued to perform the same control module dutIes SInce November 1995 when Mr Alcock was not at work, the control module dutIes contInued to be performed by COs on a rotatIOnal basIs as prevIOusly described. As It IndIcated In the letter to Mr Alcock dated January 27 1998 the Employer assIgned Mr Alcock to the S02 posItIOn In the control module due to health reasons and In so dOIng relIed on ArtIcle 7 5 of the CollectIve Agreement. ThIS provIsIOn provIdes as follows 7 5 Where, for reasons of health, an employee IS assIgned to a posItIOn In a classIficatIOn havIng a lower maXImum salary he or she shall not receIve any salary progressIOn or salary decrease for a penod of SIX (6) months after hIS or her assIgnment, and If at the end of that penod, he or she IS unable to accept employment In hIS or her former classIfi- catIOn, he or she shall be assIgned to a classIficatIOn consIstent WIth hIS or her condItIOn. 10 ArtIcle 7 5 IS contaIned wIthIn a pay admInIstratIOn provIsIOn. It confirms the Employer's nght to assIgn an employee to a classIficatIOn consIstent WIth hIS or her condItIOn If the employee IS unable to accept employment In hIS or her former classIficatIOn due to health reasons In theIr submIssIOns as to whether the assIgnment of Mr Alcock In these CIrcumstances to the S02 posItIOn contravenes the CollectIve Agreement or the HRC both counsel recogmzed that such an assIgnment could not be made for health reasons unless Mr Alcock IS unable to perform the Job of a CO The maIn focus of the dIspute between the partIes IS on the appropnate way to charactenze the control module dutIes In the context of the CO classIficatIOn. In dealIng wIth thIS aspect of the dIspute counsel made submIssIOns on the Issue of the Employer's oblIgatIOn to accommodate Mr Alcock, havIng regard to hIS dIsabIlIty The essence of the Umon' S posItIOn IS that control module dutIes are the dutIes of a CO and that an employee performIng such dutIes IS entItled to be paid the CO rate Counsel emphasIzed that the control module IS a functIOnal area of work whIch has been hIstoncally assIgned to COs In the Umon' S VIew the Employer properly accommodated Mr Alcock by remOVIng schedulIng barners and permanently assIgmng hIm to the control module, thereby modIfYIng the CO posItIOn. Counsel submItted that the duty to accommodate IS an ongoIng oblIgatIOn whIch In thIS Instance reqUIres the Employer to contInue to assIgn Mr Alcock the control module dutIes and to pay hIm the CO rate because to do so causes the Employer no undue hardshIp Counsel argued that the management nght reflected In ArtIcle 7 5 does not apply In thIS case because the Employer cannot assIgn an employee to a dIfferent classIficatIOn when the employee, In thIS case Mr Alcock, IS performIng the dutIes of hIS claSSIficatIOn, WIth modIficatIOns Counsel submItted that the control module dutIes performed by Mr Alcock as 11 an S02 should not be treated as the dutIes of a dIfferent classIficatIOn SInce they clearly are dutIes of the CO classIficatIOn. Counsel argued that the Employer created the S02 posItIOn and assIgned Mr Alcock to the posItIOn solely because of hIS dIsabIlIty contrary to the HRC and the CollectIve Agreement. Counsel submItted that the Secunty Officer ClassIficatIOn Senes does not capture Mr Alcock's dutIes, whIch IS further support for the proposItIOn that the control module dutIes best fall wIthIn the CorrectIOnal Officer ClassIficatIOn Senes Although concedIng that the Employer has a general management nght to create an S02 posItIOn at the Kenora JaIl, counsel argued that thIS nght was exercIsed Inappropnately In thIS Instance The Umon takes the posItIOn that It unreasonable and contrary to the management nghts provIsIOn to have Mr Alcock perform the control module dutIes at a lower rate of pay when he had performed these dutIes In the past and COs contInue to perform them whIle enJoYIng the CO rate The Umon referred me to the folloWIng decIsIOns British Columbia (Public Service Employee Relations Commission) v B C G s.E. U (1999) 176 D.L.R. (4th) 1 (SCC) British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (1999) 181 D.L.R. (4th) 385 (SCC) Re Riverdale Hospital and C UP.E. Loc 79 (1994) 41 L.AC (4th) 24 (Knopf) Re Calgary District Hospital Group and UNA. Local 121-R (1984) 41 L.AC (4th) 319 (Ponak) Re Mount Sinai Hospital and ONA. (1996),54 L.AC (4th) 261 (R. Brown) Re Greater Niagara General Hospital and ONA. (1995) 50 L.AC (4th) 34 (H. Brown) The essence of the Employer's posItIOn IS that Mr Alcock cannot perform the essentIal dutIes of the CO posItIOn, even WIth accommodatIOn. The Employer maIntaInS that It accommodated Mr Alcock by assIgmng hIm the control module dutIes wIth the hope that thIS 12 would enable hIm to perform the key aspects of the CO posItIOn. Counsel submItted that control module dutIes, whIch Involve no dIrect Inmate contact and are generally performed on a rotatIOnal basIs, represent only 10% of the dutIes of a CO Counsel argued that dIrect Inmate contact IS a feature whIch defines the key element of the CO posItIOn and that SInce Mr Alcock cannot perform the CO posItIOn for health reasons, the Employer was entItled to transfer hIm to a posItIOn consIstent WIth hIS medIcal restnctIOns Counsel submItted that the Employer only created and assIgned Mr Alcock to the S02 posItIOn once the medIcal eVIdence clearly demonstrated that he would be unable to perform the Job of a CO In the foreseeable future The Employer takes the posItIOn that It exceeded ItS duty to accommodate Mr Alcock when It created the S02 posItIOn for hIm at the Kenora JaIl Counsel argued that once It IS determIned that Mr Alcock has been properly accommodated the only Issue remaInIng IS the rate of pay for the performance of control module dutIes Counsel submItted that the Employer IS entItled to determIne the value of control module dutIes and that SectIOn 51 of the Crown Employees Collective Bargaining Act precludes an arbItrator from requmng a change to be made In the classIficatIOn of an employee Counsel for the Employer relIed on the folloWIng authontIes Re OE.C TA. and OP.E.I U (Beharry) (1996) 61 L.AC (4th) 109 (Burkett) OPSEU (Aitken et al) and MinistlY of Health 678/87 (Gorsky) Re Community Nursing Home and UF C W Loc 175 (1996) 60 L.AC (4th) 35 (Gorsky) Re Better BeefLtd and UF C W Region 18 (1994),42 L AC (4th) 244 (WellIng) Re Sault Area Hospitals and S.E.I U Loc 268 (2001) 96 LAC (4th) 168 (WhItaker) OPSEU (Rosamond) and Ministry of Citizenship Culture and Recreation, 2086/96 (LeIghton) OPSEU (Boyel) and Ministry of the Environment 0742/00 (Abramsky) 13 The Issue before me IS whether In these CIrcumstances the Employer has the nght to permanently assIgn Mr Alcock to the S02 posItIOn, thereby transfernng hIm from the CO classIficatIOn and reducIng hIS rate of pay As noted earlIer the only functIOnal area In whIch Mr Alcock can work gIven hIS medIcal restnctIOn IS the control module What IS not In dIspute therefore IS that the control module dutIes are appropnate for Mr Alcock havIng regard to the state of hIS health. The sItuatIOn here IS dIstIngUIshable from the CIrcumstances In most of the accommodatIOn decIsIOns where the focus IS on whether an employer has met ItS oblIgatIOn by provIdIng appropnate work to an employee wIth a dIsabIlIty It IS no cOIncIdence that the Employer assIgned Mr Alcock control module dutIes upon hIS return to work In November 1995 and that he made no complaInt about the assIgnment untIl after he was assIgned to the S02 posItIOn The Employer and Mr Alcock realIzed that hIS assIgnment to other posts, whIch would entaIl dIrect Inmate contact, would InVIte nsk of further InJury to Mr Alcock and perhaps constItute a nsk to other COs as well Mr Alcock undoubtedly belIeved that he contInued to perform the Job of a CO whIle performIng control module dutIes After all, he and other COs performed these dutIes on a rotatIOnal basIs and he performed these dutIes on an accommodatIOn after November 1995 whIle beIng paid the CO rate In the case at hand, the Employer accommodated Mr Alcock by assIgmng hIm control module dutIes In order to enable hIm eventually to assume the other tasks assocIated wIth the CO posItIOn. With the elImInatIOn of the rotatIOnal and certaIn schedulIng features relatIng to control module work, Mr Alcock started by workIng reduced hours and gradually attaIned full tIme work, 8 hour day shIfts Monday to Fnday I agree wIth the Umon' s submIssIOn that the oblIgatIOn to accommodate employees IS an ongoIng oblIgatIOn and that It relates to essentIal 14 as well as other dutIes of a posItIOn. To the extent the Employer's submIssIOns suggest that ItS oblIgatIOn to accommodate Mr Alcock ceased when, from ItS perspectIve It became clear that he could no longer perform the essentIal dutIes of a CO I do not agree The Employer was able to accommodate Mr Alcock, as It has other COs, In the control module by modIfYIng certaIn aspects of the posItIOn, wIthout any undue hardshIp HavIng accommodated Mr Alcock In thIS way for approxImately two years, there IS no JustIfiable reason for not contInuIng to assIgn hIm control module dutIes ThIS In fact IS what the Employer dId after It transferred hIm to the S02 posItIOn. Although I agree wIth the Umon' s submIssIOn that the Employer was oblIged to contInue to assIgn Mr Alcock control module dutIes due to hIS handIcap In the absence of undue hardshIp It does not flow from thIS conclusIOn alone that the Employer IS precluded from assIgmng hIm to another posItIOn. The submIssIOns dIsclose that each party has a dIfferent perspectIve on whether Mr Alcock was performIng the Job of a CO whIle assIgned exclusIvely to the control module The Umon's VIew IS that by performIng all of the dutIes In thIS functIOnal area, Mr Alcock IS performIng the Job of a CO and should be paid accordIngly In attemptIng to ascertaIn whether thIS perspectIve IS valId, It IS necessary to determIne what constItutes the essentIal elements of the CO posItIOn. The eVIdence dIscloses that a CO IS engaged In the custody care and control of Inmates, wIth the key element of the posItIOn beIng dIrect contact wIth Inmates It IS the contInUOUS dIrect InteractIOn wIth Inmates, whether It takes place outdoors or whIle escortIng or dIrectly supervISIng Inmates, whIch creates the nsk of Incurnng physIcal InJury or dIsease Control module dutIes constItute a very small percentage of the dutIes of a General Duty Officer at the Kenora JaIl and, apart from accommodatIOn sItuatIOns, no General Duty Officer 15 at the Kenora JaIl IS permanently assIgned to the control module With modIficatIOns to the way In whIch control module dutIes are scheduled, Mr Alcock IS able to perform these dutIes for an entIre shIft. But thIS does not change the fact that control module dutIes are performed wIthout dIrect Inmate contact, an essentIal feature of the CO posItIOn. Therefore, when examInIng the essentIal dutIes of a CO In the broadest sense, It IS dIfficult to conclude that an employee engaged only In control module dutIes, wIth no dIrect Inmate contact, IS performIng the Job of a CO The determInatIOn that Mr Alcock IS not performIng the essentIal dutIes of the CO posItIOn makes these CIrcumstances sImIlar to those found In Re OE. C TA. and OP.E.I U supra, where It was found that the gnevor who was able to perform many functIOns of the maIlroom/pnntIng clerk, was Incapable of performIng a number of the core functIOns of the posItIOn, even WIth accommodatIOn. ArbItrator Burkett concluded at page 122 that "the Employer has met ItS statutory oblIgatIOns when It placed Ms Beharry In a lower rated office person classIficatIOn (albeIt wIth some modIficatIOn) and paid her at the rate for that posItIOn." As noted prevIOusly the central feature of the Umon's submIssIOns, and the one on whIch ItS other arguments are based, IS that Mr Alcock IS performIng the Job of a CO when performIng control module dutIes ThIS was the pnmary focus of attack by the Umon on the Employer's decIsIOn to assIgn Mr Alcock to the S02 posItIOn. The fact that he IS not engaged In the core functIOns of a CO when In the control module has ObVIOUS ImplIcatIOns for the other Issues raised by the Umon. SInce Mr Alcock IS unable to perform the essentIal dutIes of the CO classIficatIOn, the Employer has not faIled to properly accommodate hIm sImply because It elected to transfer hIm from that classIficatIOn. And, on the same basIs, the 16 Employer can exerCIse Its dIscretIOn ImplIcIt In ArtIcle 7 5 of the CollectIve Agreement to assIgn Mr Alcock, for reasons of health as confirmed by hIS phYSICIan, to a claSSIficatIOn consIstent WIth hIS medIcal restnctIOns Mr Alcock belIeves that he IS beIng treated unfairly and dIscnmInated agaInst because of hIS handIcap when he IS now beIng paid less than COs for the performance of control module dutIes However Mr Alcock IS clearly not In the same posItIOn as the COs who rotate through the control module These employees spend the vast maJonty of theIr workday at a vanety of posts engaged In dutIes wIth dIrect Inmate contact. WhIle In the control module, Mr Alcock works steady days performIng the dutIes outlIned prevIOusly and he does not expenence the sIgmficant nsks that COs assume through theIr InteractIOn wIth Inmates The duty to accommodate and to act reasonably does not oblIge an employer to contInue to pay an employee the rate of pay of hIS or her classIficatIOn when the employee IS unable to perform the essentIal or core functIOns of the posItIOn, even WIth accommodatIOn. ThIS proposItIOn has been ImplIcItly recogmzed by the partIes In ArtIcle 7 5 of the CollectIve Agreement. The Employer's decIsIOn to assIgn Mr Alcock to the S02 posItIOn IS not by Itself unreasonable or dISCnmInatory SInce It IS based on the work he IS able to perform, gIven hIS medIcal restnctIOns The result here would be dIfferent IfMr Alcock was able to perform the CO Job wIth accommodatIOn or If It had been establIshed that there are COs who perform control module dutIes on a permanent basIs As conceded by the Umon, the Employer has a general management nght to create an S02 posItIOn at the Kenora JaIl Apart from takIng the posItIOn that the S02 work constItutes 17 CO dutIes and that the Secunty Officer Class Senes IS not a good fit, the Umon dId not suggest In the alternatIve any other posItIOns whIch may have been more appropnate for Mr Alcock In the CIrcumstances The Job descnptIOn for the S02 posItIOn references at least 90% of the work performed by Mr Alcock In the control module Contrary to the Employer's submIssIOn, It IS my VIew that I do have the JunsdIctIOn under the HRC to alter an employee's eXIstIng classIficatIOn In order to properly remedy a breach. However In these cIrcumstances, there IS no basIs for eXerCISIng such a JunsdIctIOn. I note that Mr Alcock's gnevance has been referred to the JOInt System SubcommIttee ("the JSSC") pursuant to ArtIcle 22 122 of the CollectIve Agreement. ThIS provIsIOn provIdes that classIficatIOn gnevances may be referred to the JSSC for resolutIOn. For the forgoIng reasons, It IS my conclusIOn that the permanent assIgnment ofMr Alcock to the S02 posItIOn at the Kenora JaIl does not constItute a contraventIOn of eIther the CollectIve Agreement or the HRC AccordIngly Mr Alcock's gnevance dated July 19 1998 IS dIsmIssed.