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HomeMy WebLinkAbout2005-2549.Hyland.07-09-05 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2005-2549,2005-2561,2006-0595,2006-0596, 2006-0597, 2006-0598, 2006-0599 UNION# 2004-0337-0001,2005-0337-0007, 2006-0337-0026, 2006-0337-0027, 2006-0337-0028, 2006-0337-0029,2006-0337-0030 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hyland) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Sean Kearney Senior Counsel Ministry of Government Services HEARING May 11, June 12, September 6, 7 12, October 3,2006; February 14 and March 12,2007. 2 Decision I have before me a number of grievances filed by Mr. B. Hyland which raise the issue of whether the Employer has properly accommodated him as a Youth Services Officer ("YSO") at the Brookside Youth Centre ("Brookside"). Mr. Hyland has asthma and he is particularly sensitive to cigarette smoke. The hearing of what I will refer to as the Brookside grievances commenced in May of 2006 and took eight days to complete. There was no challenge to my jurisdiction to hear and determine these grievances. This is not the first time Mr. Hyland has claimed that he has not been properly accommodated. While working as a Correctional Officer at the Toronto Jail from September of 1986 until February of 1995 and at the Toronto East Detention Centre ("Toronto East") from February of 1995 until his arrival at Brookside in August of 2004, Mr. Hyland often raised issues about smoking. He was exposed often to cigarette smoke at work, became ill and remained off work until his asthmatic symptoms subsided. Grievances that he filed at the Toronto Jail and at the Toronto East resulted in at least ten decisions. In two separate decisions, I determined that Mr. Hyland had not been properly accommodated when he worked at these institutions. In essence, the Union takes the position that Mr. Hyland's experience at Brookside is similar to those at his former work locations and that I should conclude again that the Employer has failed to accommodate him to the point of undue hardship. It claims that Mr. Hyland has discovered evidence of smoking in his work areas at Brookside, has been exposed to cigarette smoke and has missed time due to these exposures because Brookside has failed to take reasonable steps to accommodate his disability. The Union argues that the Employer's failure in 3 this regard is contrary to the Collective Agreement and the Human Rights Code ("the Code") and that, among other things, I should direct the Employer to compensate Mr. Hyland fully for his losses. The Employer takes the position that it has taken reasonable steps to accommodate Mr. Hyland and it goes further by arguing that the problem in this relationship is the conduct of Mr. Hyland. The Employer asserts that Mr. Hyland is not credible, has his own agenda and will never be satisfied with any of the Employer's efforts to accommodate him. The Employer also asserts that it is impossible to accommodate Mr. Hyland. Counsel concluded his submissions by requesting that I dismiss the grievances and declare that Mr. Hyland can no longer work at Brookside due to his health complaints and his conduct. I will review the parties' positions in more detail after reviewing the evidence. Counsel recognized that Mr. Hyland's experience at Brookside could not be examined in isolation. It is necessary to consider his Brookside experience in the context of his previous accommodation claims. Therefore, I will briefly review his experience at the Toronto Jail and, more particularly, his experience at the Toronto East, the decision dated May 13,2002, which addresses certain issues relating to Mr. Hyland's successful claim that he was not properly accommodated at the Toronto East, and how and why Mr. Hyland was assigned to Brookside. During his tenure at the Toronto Jail, Mr. Hyland was exposed to pervasive cigarette smoke at work and it was during this time that he developed asthma. Exposure to cigarette smoke sometimes resulted in him becoming ill and missing anywhere from one to three days of work. Mr. Hyland filed occurrence reports and grievances which highlighted issues related to 4 smoking. He was compensated through the workers' compensation system for lost time at the Toronto Jail for absences due to exposures to cigarette smoke. After spending some time on a secondment at the Toronto East, Mr. Hyland believed that the risk of exposure to cigarette smoke would be less at that institution. He transferred to the Toronto East on February 1, 1995, after successfully competing for a position. The smoking policy at the Toronto East at the time permitted inmates to smoke only in inmate living areas, in the kitchen and in the laundry. Staff was permitted to smoke only in those areas where inmates could smoke. Staff could smoke on the property but not within twenty feet from the main entrance and not within Ministry vehicles. The smoking policy changed as of October 23, 2000 when the institutions within the Central Region became officially smoke free. Under the new policy, inmates and staff were not permitted to smoke within the institution, nor on the property of the facility. Mr. Hyland provided management at the Toronto East with medical notes indicating that he required a smoke-free environment. Although management attempted to accommodate Mr. Hyland, he was exposed to cigarette smoke on numerous occasions during his tenure at that institution. Some of the exposures were due to inmates smoking, but most were because staff, including managers, and visitors were smoking in non-smoking areas. The exposures often resulted in symptoms which included itchy/runny eyes and nose, wheezing, cough, shortness of breath and chest tightness, and often resulted in lost time from one to three days. While at the Toronto East, Mr. Hyland was not reluctant to complain about his exposure to cigarette smoke, about the evidence that he discovered of smoking at the institution and of management's failure to enforce the smoking policy. The evidence of smoking usually consisted 5 of cigarette butts and ashes. It appeared that at every opportunity he would file incident or occurrence reports and grievances. Workers' compensation claims were filed on his behalf as well. Mr. Hyland often kept notes in a dairy of incidents which he perceived to be contraventions of the smoking policy. During his first year at the Toronto East, there were discussions between Mr. Hyland and management about him moving to another institution. Mr. Hyland thought that a transfer to Brookside was worth exploring and he took a tour of Brookside and another institution. These discussions did not result in his transfer from the Toronto East. The parties filed medical reports during the Toronto East proceeding from Dr. Wong, an occupational health and safety consultant, and Dr. Lilker, a respirologist. At the Employer's request, Dr. Wong assessed Mr. Hyland on November 29,2000. In a lengthy report and as a witness, he confirmed that Mr. Hyland has asthma and that he subjectively feels worse after an exposure to cigarette smoke. Dr. Lilker has seen Mr. Hyland on a number of occasions since 1993, with the most recent assessment occurring on December 19, 2000. In his report, Dr. Lilker expressed the opinion that "it is entirely plausible that somebody in Mr. Hyland's condition could be perfectly well one moment and upon exposure to even low levels of second-hand smoke and even odors from cigarettes, could react by cough, wheezing and shortness of breath almost immediately." He went on further to note that, "If he has a respiratory infection or he is exposed to chemicals, fumes, or allergens such as cats, and in particular, sensitivity to cigarette smoke[sic], he sometimes can become subjectively ill with bronchospasms which can last for weeks at a time. There is however, no evidence in my mind to be concerned about permanent physical limitation." There was no indication from Mr. Hyland that any trigger other than cigarette smoke caused asthmatic symptoms when at work. 6 In a decision dated May 13,2002, I determined that the Employer had failed to accommodate Mr. Hyland to the point of undue hardship at the Toronto East. It is useful for purposes of the instant case to review how some issues were addressed in that decision. I found that the provision of sick leave credits to Mr. Hyland for absences caused by exposure to cigarette smoke was not a sufficient Employer response since sick leave does not address the circumstances that gave rise to his illness. I found that the Employer was not committed to enforcing the old and the new smoking policy and that the Employer's failure in this regard affected its obligation to accommodate Mr. Hyland. Although the Superintendent indicated that a progressive disciplinary approach would be followed for employees who contravened the smoking policy, no reprimands or suspensions were issued to repeat offenders. There was testimony, some of which came from operational managers, to support the conclusion that senior management was not committed to disciplining staff for violating the smoking policy. I also found that Mr. Hyland's failure to provide the Employer with the names of bargaining unit employees who contravened the smoking policy did not affect the determination of whether the Employer satisfied its duty to Mr. Hyland in the circumstances. Given the complete lack of enforcement of the smoking policy, it was my view that any refusal by Mr. Hyland to provide names of those who were smoking contrary to the policy would not likely have had any impact on smoking at the Toronto East. I referred to the apparent code in a correctional setting of not informing on other correctional officers and the fact that Mr. Hyland was prepared to name bargaining unit employees who violated the smoking policy if ordered to do so. For its failure to accommodate Mr. Hyland properly, I directed the Employer to renew efforts, in consultation with OPSEU and Mr. Hyland, to find an appropriate accommodation for Mr. Hyland at the Toronto East. I also directed the Employer to compensate Mr. Hyland for his 7 losses which were a direct result of absences caused by exposure to cigarette smoke. I did not grant the Union's request that I direct the Employer to consider positions for Mr. Hyland outside of the Toronto East, or the request that Mr. Hyland be off work without loss of pay until the Employer found an appropriate accommodation for him. In subsequent proceedings it became evident that the Employer was unable to accommodate Mr. Hyland at the Toronto East. In a decision dated November 13, 2002, I directed the Employer to focus its efforts to accommodate Mr. Hyland at another institution. In a letter dated February 19,2003, the Employer offered to place Mr. Hyland in a position at the central control module and front desk module at the Toronto West Detention Centre ("Toronto West"), which Mr. Hyland rejected. Rather than focus only on this offer, the parties agreed that I should consider whether Mr. Hyland should be assigned to either of the Toronto West, the Central East Correctional Centre ("Central East") or Brookside. The hearing to determine where Mr. Hyland should be placed ("the placement hearing") took three days and concluded on December 1,2003. I note that Mr. Hyland was off work receiving full pay on agreement of the parties while various issues concerning his accommodation were addressed. At the placement hearing, the Employer took the position that its offer to place Mr. Hyland at the Toronto West was appropriate and that the risk of exposure to cigarette smoke was the same at the three institutions. The Employer did not call any witnesses. The Union and Mr. Hyland took the position that Brookside was the best option for Mr. Hyland because the risk of exposure to cigarette smoke was significantly lower there than at the other two institutions. The Union called three witnesses, including Mr. B. Scanlon, a Union representative, and Mr. Hyland. 8 Once it was decided that the Employer was required to accommodate Mr. Hyland in a position outside of the Toronto East, Mr. Hyland toured Central East and Brookside in order to assess which institution could best accommodate his disability. Mr. Scanlon accompanied Mr. Hyland on the tour of these institutions. Mr. Scanlon and Mr. Hyland testified about their observations during the three hour tour of Brookside and their discussions with Mr. M. Maguire, Superintendent. Mr. Cromartin was present for a discussion that occurred in the Superintendent's office prior to the tour of the facility. Mr. Scanlon testified that Mr. Maguire advised them that smoking was not a contentious issue at Brookside. He indicated that he noticed the odd cigarette butt outside some of the buildings, but that he understood that smoking inside the buildings was not an issue and that smoking outside was not an accepted practice. I note that Mr. Scanlon testified about his understanding and not with any precision about what Mr. Maguire told them about the smoking policy. In his testimony, Mr. Hyland described the layout of the buildings and indicated that he observed a small number of cigarette butts outside a couple of the buildings. He stated that he did not observe anyone smoking and that he did not smell smoke during the tour. Mr. Hyland indicated that Mr. Maguire told them that the policy against smoking in the buildings was strictly enforced, but that he could not see why employees cannot smoke outside. Given his observations during the tour and the indication from the Superintendent that the smoking policy was enforced, Mr. Hyland formed the view that Brookside offered less risk of exposure to cigarette smoke than the other institutions. In a decision dated December 4,2003, I determined that the appropriate placement for Mr. Hyland was at Brookside. Reasons for this determination followed in a decision dated January 2, 2004. The essential reasons for placing Mr. Hyland at Brookside are set out at page 4 as follows: 9 The different physical structure at Brookside, with its spread out cottages rather than one or two large buildings, contributes to reduce the risk of exposure. It also appears that a large percentage of the work of a correctional officer at Brookside is outdoors and that the Superintendent is committed to enforcing the no smoking policy at least within the buildings of the institution. The evidence of some cigarette butts outside of buildings and the possibility of contraband suggest that there is still some risk of exposure to cigarette smoke at Brookside. Even with the Employer's best efforts, youth offenders and staff may not always adhere to a smoking ban. The endeavour in the case at hand has been to place Mr. Hyland in an institution where the level of risk of exposure to cigarette smoke is acceptable and the lowest possible. That objective is best met by assigning Mr. Hyland to Brookside. The Employer did not introduce the written Brookside smoking policy at the placement hearing and there was no indication that Mr. Scanlon or Mr. Hyland were provided with a copy of the policy during their tour. The written policy dated January 25,2002 was introduced during the hearing of the Brookside grievances and it provides as follows: INTRODUCTION The chairman of Management Board of Cabinet has approved a policy prohibiting smoking in all Ontario Public Service and Schedule 1 agency workplaces effective March 31, 1989. Workplace means any enclosed place or part thereof that is under the direct control or supervision of the Ministry of Correctional Services. Policy Statement: 1) Smoking will be prohibited in all offices, correctional facilities and other workplaces under the direct control or supervision of the Ministry of Correctional Services effective March 31, 1989. 2) The prohibition on smoking shall also apply to Ministry vehicles. 3) Staff is not permitted to smoke in the presence or proximity of young offenders. 4) Under no circumstances are young offenders permitted to smoke or be in possession of tobacco products. 5) Possession or use of tobacco products by young offenders will be considered possession or use of contraband and dealt with accordingly. 10 In essence, the Brookside smoking policy prohibits smoking inside buildings, inside Ministry vehicles and in the presence of offenders. Staff is permitted to smoke outside on the grounds of the facility and when Mr. Hyland arrived at Brookside staff did smoke on the grounds without any restrictions. There is no statute or government policy which precludes Brookside from having a smoking policy which permits staff to smoke outside. Mr. Cromartin indicated that the smoking policy and practice was based on a longstanding agreement between Brookside and the Local Union. Both Mr. Cromartin and Mr. Maguire testified that the smoking policy and practice had been a non-issue until the arrival of Mr. Hyland. Apart from some hearsay evidence from Mr. Hyland that some employees told him that they were unhappy with the smoking policy and had complained about it, it does appear that no one, including no one from the Local Union, took issue with the smoking policy or the way that it was enforced prior to Mr. Hyland's arrival at Brookside. After Mr. Hyland made his initial complaints about the smoking situation at Brookside, Mr. Maguire discussed the policy with Mr. Marsden, the Local Union President, and he received no indication that there was a problem with the policy. I note that the Brookside policy did not change when the institution became a part of the Ministry of Children's Services. During his testimony in this proceeding, Mr. Hyland indicated on more than one occasion that it did not take long for him to come to the view that the Superintendent had misrepresented the smoking situation at Brookside during the tour. Although he conceded in cross-examination that Mr. Maguire did not make a commitment that there would be no smoking outside and that he expected that there would be some smoking outside, Mr. Hyland indicated that Mr. Maguire said things which suggested that smoking outside would be restricted to a degree and that the policy would be enforced. Mr. Cromartin and Mr. Maguire both testified that Mr. Scanlon and Mr. Hyland were advised of the Brookside smoking policy during the tour. It is unfortunate that they were not provided with a copy of the smoking policy. Although I do not doubt that Mr. Hyland 11 believes he was misled to some extent, I am not prepared to conclude that Mr. Maguire intentionally misled Mr. Hyland about the smoking policy. There would be no reason for Mr. Maguire to mislead him about what appears to be a clear and longstanding policy. It is unfortunate that Mr. Hyland's relationship with Brookside started with his belief that he had been misled about the smoking situation and with management believing that he knew exactly what he was getting into when he chose Brookside. Ultimately, however, Mr. Hyland was placed at Brookside with the recognition that there would be smoking on the grounds of the facility. Three witnesses were called to testify in this proceeding. Mr. Hyland testified for the Union. Mr. Cromartin and Mr. Maguire testified for the Employer. In addition to the oral testimony, the parties filed a number of documents, including a number of occurrence reports and WSIB reports. As counsel clarified during the course of the hearing, the occurrence and WSIB reports were filed for identification purposes only and their contents were subject to proof. I note that many of the persons who authored occurrence and WSIB reports did not testify. The central issue for determination is whether Brookside took reasonable steps to accommodate Mr. Hyland to the point of undue hardship. I note that there were a number of matters referred to in the evidence which counsel did not specifically address in their final submissions. For example, there was evidence about the removal of Mr. Hyland from Johnson House and his placement in Martin House, evidence about Mr. Hyland's access to overtime in control and evidence about Mr. Hyland being placed at level 1 of the Attendance Support Program. There was also reference to Mr. Hyland missing work because of stress and anxiety relating to the smoking situation at Brookside. Counsel for the Union specifically noted that the Union was not seeking damages relating to this issue at this stage. As will become evident, I 12 have focused on the general question of whether the Employer has taken reasonable steps to accommodate Mr. Hyland's disability and any specific issues that were addressed in final argument. The parties agreed at the outset that the period for reviewing the Employer's conduct in accommodating Mr. Hyland would cover the time Mr. Hyland started at Brookside to the end of April of 2006. Mr. Hyland was assigned to Brookside in July of 2004 but did not actually start until August 10,2004, because he utilized some vacation credits. There were times between August 10,2004 and April 30, 2006, when Mr. Hyland was not working. Between November 19,2004 and January 23, 2005, he did not attend at work because he claims that Mr. Cromartin placed him on "administrative leave" or because the Employer did not provide him with appropriate work at that time, given his disability. Apart from the days that were covered by the use of vacation credits during this period, the parties disagree about whether Mr. Hyland was entitled to be paid for the days he was absent. Mr. Hyland was also absent from Brookside for six weeks of YSO training at Belle Cairn and for a parental leave. Therefore, Mr. Hyland was only at work for a little over one year during the review period. Brookside is a young offender facility located on a large property in Cobourg. The facility has a parking lot, an administrative building and a control station located outside of the secure area. Within the secure area, there are six residences that are spread out on the property, including Martin House and Johnson House. There is a sports area and other buildings inside the secure area, including a school and a kitchen/dining room. The duties of a YSO include supervising offenders in a House and during their movement to and from various locations within the secure area and while off site. 13 Mr. Cromartin testified about how Brookside prepared for Mr. Hyland's arrival. Mr. Cromartin had worked at Toronto East and, although he did not know him then, he was somewhat familiar with Mr. Hyland's problem with cigarette smoke. Knowing that Mr. Hyland was on his way to Brookside, he reviewed the previous decisions involving Mr. Hyland's claims for accommodation. He initiated discussions with the Superintendent, the other Deputy Superintendents and the management group about Mr. Hyland's history and difficulty with cigarette smoke so that any issues that arose at Brookside could be managed properly and so that managers could inform staff of the situation. Managers were advised that the smoking issue would be a concern for Mr. Hyland given that there is smoking at the facility and that they had to be prepared to address the matter. Managers were told that Mr. Hyland was not reluctant to raise issues related to smoking and that it was essential that they abide by the smoking policy. These discussions focused on preparing managers to deal with issues that may be raised by Mr. Hyland and did not include, as Mr. Cromartin conceded, any effort by management to alter the smoking policy. Mr. Hyland was first assigned to Martin House by Superintendent Maguire. The more difficult offenders reside in Martin House. While offenders in the other Houses will attend school, have their meals and participate in activities outside of their House, the offenders in Martin House will engage in these activities primarily within their House. The YSOs working in Martin House, therefore, have less opportunity to move throughout the facility than do YSOs assigned to other Houses. Because he started without having received young offender training, Mr. Hyland was not assigned the full range of YSO duties when he started at Brookside. Between the end of September of 2004 and early November of 2004, Mr. Hyland attended at Bell Cairn for YO 14 training. Although he passed his exams, there was still an issue over whether he successfully completed the training program and whether he would be permitted to work as a YSO. In mid- November of 2004, the Employer assigned Mr. Hyland driving duties which consisted of delivering supplies and items while operating a Ministry vehicle. Mr. Hyland performed driving duties for two days, was authorized to be off sick for two days and then was offuntil January 24, 2005. When he returned to work in January of2005 after a hearing at the GSB, the Employer had recognized that he was qualified as a YSO and he was assigned a full range of duties. He was transferred to Johnson House. Mr. Cromartin did not participate in the decision to transfer Mr. Hyland and he indicated that he was unaware of the rationale for the transfer. This transfer meant that Mr. Hyland would experience more movement throughout the facility. Mr. Hyland began parental leave around mid-September of 2005 and returned to work from this leave in early January of 2006. He continued to work out of Johnston House until near the end of the review period when he was assigned to Martin House by Deputy Superintendent Fisher. Mr. Cromartin indicated again that he did not participate in this decision and there was no explanation provided for the transfer. In his testimony, Mr. Hyland described the smoking situation that he experienced at Brookside throughout the period under review. He indicated that he observed signs of smoking in the form of cigarette ashes and butts, both within the buildings and on the property of the facility. He stated that he often observed staff smoking in the proximity of offenders and that many of these instances took place in the clear view of managers who, to the best of his knowledge, did not respond to these violations of the Brookside smoking policy. He indicated 15 that on one occasion he observed cigarette butts in the ashtray of a Ministry vehicle and, at the same time, was exposed to cigarette smoke. Mr. Hyland testified about observing staff smoking in the entranceway of buildings, sometimes with the door open. He also indicated that he was exposed to cigarette smoke on a number of occasions, both inside and outside of buildings. Mr. Hyland estimated that exposures due to an offender smoking occurred at most on five occasions and that the other exposures to cigarette smoke were directly related to staff smoking. Apart from the period from November 19, 2004 to January 23,2005, the Attendance Summary Report for Mr. Hyland indicates that he was absent due to sickness during the review period for eight days in 2004, for eighteen days in 2005 and for eight days in 2006. The majority of these days were single day absences and the others were absences for two consecutive days. Mr. Hyland testified that all of these days of sickness, except for one, were caused by an exposure to cigarette smoke at Brookside. The documentary material that relates to the smoking situation that was filed as exhibits includes WSIB Worker Reports and other WSIB reports, occurrence reports and grievances. The WSIB claims made on behalf ofMr. Hyland were deemed abandoned because he did not provide claim/consent forms. Mr. Hyland advised the Employer that he believed his accommodation issues were best addressed with his grievances at the GSB, rather than as a workers' compensation issue. In various documents executed by Mr. Hyland, he refers to exposures to cigarette smoke, to the discovery of evidence of smoking in the form of cigarette butts and ashes, whether inside a building or outside, and he often claims that the Employer is not enforcing the smoking policy. He often complains that the smoking situation at Brookside is contrary to the "OPS smoking policy". Since he is concerned about exposure to cigarette smoke or the potential of such exposure in areas where he is required to work, Mr. Hyland complains about exposures and the discovery of evidence of smoking even in circumstances where it is unlikely that there 16 has been a violation of the Brookside smoking policy. Based on his view that it is not his job to enforce the smoking policy and for other reasons, Mr. Hyland did not disclose the names of bargaining unit members who he observed smoking. He continues to take the view that he will only provide names if he is ordered to do so. As one will observe, the incidents that were detailed in the evidence were primarily those that were covered in written reports. However, not all of the written reports related to smoking prepared during the review period were available for this proceeding. For example, some reports relating to an incident refer to a report prepared by Mr. Hyland, but his report was not available. Mr. Hyland testified that he filed an occurrence report for virtually every one of his exposures, yet very few of such occurrence reports were entered as exhibits. Most of Mr. Hyland's absences due to exposures were therefore not the subject of detailed evidence. He had enough difficulty recalling the details of incidents for which there were reports, let alone the details of incidents for which no reports were available. It appears that Mr. Hyland no longer keeps a diary of smoking incidents and because of this his testimony suffered from a lack of specificity. Even when he did make a note of certain events during a two-month period in early 2005, the references contained therein were very imprecise. The absence of a complete documentary record did affect the quality of the evidence in this proceeding. I will now refer to most of the incidents that were the subject of evidence. Both counsel commented during their submissions that it necessary to examine the evidence carefully. I have done just that. I will highlight the relevant details of each incident, particularly those that were referred to during the final submissions. Mr. Hyland attended an orientation session with Mr. 1. Flesch, an Operational 17 Manager ("OM") on August 10, 2004, his first day of work at Brookside. Mr. Flesch set out what occurred during their meeting in an occurrence report and Mr. Hyland agreed with the essence of what was contained therein. Mr. Hyland asked Mr. Flesch what a cigarette receptacle was doing outside of control if Brookside was a no smoking institution. When Mr. Flesch explained that that it was there for visitors and staff to dispose of their butts before entering control, Mr. Hyland explained that he could not handle any smoke. Mr. Flesch explained that management does not condone smoking inside any building or in front of offenders and that any observed or reported violation would be dealt with immediately. Mr. Hyland stated that this was unacceptable and that no one should be smoking anywhere. Mr. Hyland also noticed on his first day that an ashtray outside of the administrative building was full of butts. I note with some interest that there was no reference by Mr. Hyland or Mr. Scanlon at the placement hearing to the presence of ashtrays, cigarette receptacles or butt cans when they toured Brookside. Mr. Hyland testified that within his first few weeks at Brookside he observed staff smoking in the presence of youth on a number of occasions and that he filed an occurrence report complaining about this practice. No such occurrence report was filed in this proceeding. In an occurrence report dated August 25,2004, OM 1. Luke refers to Mr. Hyland approaching him to tell him about an incident that occurred on the previous day. He notes that he accepted an occurrence report dated August 25,2005 prepared by Mr. Hyland. That occurrence report was not filed in this proceeding. Mr. Maguire responded to Mr. Hyland's occurrence report by letter dated August 31, 2004. One can discern from this response that Mr. Hyland had complained about Mr. 1. Kennedy, a Deputy Superintendent, and another male smoking at the entrance to the administrative building. Mr. Hyland was not exposed to cigarette 18 smoke. Smoking at this location would not contravene the Brookside smoking policy. Mr. Maguire's response was as follows: This letter is in response to your August 25,2004 occurrence report (Subject: Non Enforcement of Smoking Policy) that referred to your observations on August 24,2004 and to further clarification you provided to Operational Manager Don Chapman on August 25, 2004. My understanding of your submission is: . While leaving the administrative building you observed Mr. John Kennedy and another unknown male person at the butt stop preparing to light up their smokes. . While leaving the parking lot in your car you could see them smoking. . You are a person with a disability/handicap. . Smoking is condoned or allowed on the grounds. . You view the above as violations of the Ministry Smoking Policy, Collective Agreement, WDHP Policy and Health and Safety Act. Brookside Youth Centre's practise in order to enforce the no smoking policy is to ensure that smoking is not in front of youth, cannot be inside any building of the complex and cannot be within the immediate location of staff who have identified adverse affects from second hand smoke, which Mr. Chapman has stated to you. Due to the uniqueness of Brookside's setting, Brookside staff have supported and managed to abide within the parameters identified above. Your submission does not allege that you were directly affected by second hand smoke; therefore, there would appear to be no direct impact on your health. I would like to remind you that you were aware of the smoking practise prior to being placed at Brookside. With the knowledge of this practise, you thought that Brookside would be a good place to work, which was supported by the GSB. We have maintained that Brookside cannot ensure a total smoke free environment, for example contraband, which is a normal business hazard in a correctional/youth centre setting. I have consulted with the Ministry WDHP and have determined that your complaint does not fall within the WDHP policy; therefore, no further action will be taken. In this response, Mr. Maguire indicated that smoking "cannot be within the immediate location of staff who have identified adverse affects from second hand smoke" as a feature of Brookside's practice. As a review of the Brookside smoking policy set out previously discloses, there is no reference to this feature in the policy. Mr. Maguire testified that he wanted to "go above the policy" to address Mr. Hyland's situation. Mr. Cromartin, who assisted in structuring 19 Mr. Maguire's August 31,2004 response, without contributing to its content, testified that he had not heard previously that this was a feature of the Brookside smoking policy. Mr. Cromartin indicated that staff was not advised of this addition to the policy. There is no further reference of this addition to the smoking policy in any other subsequent written materials or otherwise. In a grievance date September 3,2004, Mr. Hyland complained that, "management violated the collective agreement including but not limited to Article 3.1 by not enforcing the ministry Smoking Policy and other Smoking Policies, as well as violating the WDHP and Health and Safety Act." Mr. Hyland could not recall if there was a specific incident which caused him to file this grievance. Although he did not have a specific recollection of the event when he testified, Mr. Hyland wrote in a WSIB Worker Report dated September 17, 2004 as follows: "I passed a "Butt Stop" at control while drawing keys. It should be noted that the Ministry policy is that this workplace is 100% smoke free. However, management condones smoking." Mr. Hyland notes on the form that the injury occurred at 1830 hours on September 17, 2004, and that he reported the injury to OM Mansley at 2000 hours. He explained the delay in reporting the injury on the form by writing "first supervisor I saw". In his occurrence report related to this incident, OM Mansley notes that while performing a round at Martin House, Mr. Hyland asked him for a WSIB Worker Report. At 2100 hours, Mr. Mansley called Mr. Hyland and asked him if needed immediate medical attention and he was told "not right now". Mr. Mansley writes that he brought Mr. Hyland a WSIB package at 2110 hours, asked him what happened and he was told by Mr. Hyland that he encountered second hand smoke as he passed the "butt station" at the control office. 20 On the day following this incident, Mr. Hyland called in to advise that he would not be at work that day. OM Nesbitt took Mr. Hyland's call and then prepared an occurrence report dated September 18, 2004, which refers to their conversation as follows: On 2004-09-18 I was on duty at Brookside Youth Centre in the position of OM 16 from 14:00 to 18:00 hours. At approximately 16:00 hours Correctional Officer (c/o) B. Hyland called to inform that he would be off work until at least 2004-09-22 on W.S.I.B. Mr. Hyland stated that he had seen his doctor and his lungs were filled up from exposure to second hand smoke from the butt box located at control. Mr. Hyland had completed a W.S.I.B. package on 2004-09-17 when the incident occurred. Mr. Hyland stated that he would have a doctor's note upon return to work. When he was referred to what Mr. Nesbitt wrote in the above occurrence report during his cross-examination, Mr. Hyland at first did not dispute the accuracy of what was contained therein. Counsel then pointed out to him that he must have lied to Mr. Nesbitt because he did not see his doctor by the time he talked to Mr. Nesbitt on September 18, 2004. In the WSIB Functional Abilities Form that Mr. Hyland gave to the Employer on September 24,2004, Dr. Bolger indicates that he examined Mr. Hyland on September 21,2004, that the injury was to Mr. Hyland's lungs, that Mr. Hyland needs a smoke free work environment and that he authorized his absence from work for September 18 and September 19, 2004 "due to asthma triggered by second hand smoke in workplace." Mr. Hyland testified that he would not tell Mr. Nesbitt that he had already been to see his doctor if it was not true and that it was likely that Mr. Nesbitt misinterpreted what he had told him. In a written response to the WSIB dated September 28, 2004 and in his testimony, Mr. Cromartin noted that the butt can is located five feet away from the entrance to control, that Mr. Hyland completed his shift and that he did not seek medical attention on the day of the incident. Mr. Cromartin also notes that the delay in reporting the incident prevented the Employer from effectively investigating the incident to determine if there was smoke from the butt can and to 21 what extent. Mr. Cromartin also expresses a concern that Mr. Hyland did not attend at Dr. Bolger's office until September 21,2004, which is a number of days after the incident. The next incident is the one which precedes Mr. Hyland's absence from work between November 19, 2004 and January 23, 2005. With the question of whether he successfully completed the YO training unresolved and after a meeting at the GSB, the Employer assigned Mr. Hyland to driving duties. He performed these duties for only two days with Mr. M. Letourneau. Mr. Hyland testified that on his first day of driving he detected the smell of smoke while at Johnson House and at Banting House. He advised Mr. Letourneau that he would not go into these Houses and Mr. Letourneau performed the necessary work inside these buildings. Mr. Hyland did leave work 1Iz hour early that day, but there is no indication that he did so because he was affected by an exposure to cigarette smoke. On November 16, 2004, there is no indication that the driving duties were anything other than uneventful during the morning. One of the responsibilities of a driver is to clean the vehicles. At approximately 1300 hours, Mr. Hyland was asked to clean a van and what he encountered is described in his WSIB Worker Report dated September 16, 2004, as follows: Cigarette Ashes in Ashtray and Butts. Asked to clean vans as part of Drivers Job. Ashtray full, odour of tobacco smoke. Aggravated symptoms, chest tightness, wheezing, etc. Institution Policy No Smoking in Vehicles. No Enforcement of Policy. Mr. Hyland left work at 13:45 hours. He testified that what he wrote in the Worker report accurately reflects what occurred. In a response to the WSIB dated November 18, 2004, Mr. Cromartin indicates that Mr. Letourneau told him that Mr. Hyland said that he could not clean the van because of the ashes and butts in the ashtray, that he, Mr. Letourneau, did not smell the odour of smoke and that he did not observe any of the symptoms described Mr. Hyland. Mr. 22 Cromartin indicated that the Employer disputed the claim because "it is not plausible for the worker to be affected in this manner after observing ashes and a cigarette butt in an ashtray." Dr. Bolger prepared a WSIB Functional Abilities Form dated November 18, 2004, the same day he examined Mr. Hyland. Under general comments Dr. Bolger wrote "Patient off work Nov. 16/04 - Nov. 18/04 inclusive due to asthma triggered by cigarette exposure at workplace." Although he had medical authorization to be off work only until November 18, 2004, Mr. Hyland did not report to work on November 19, 2004. Mr. Cromartin expected Mr. Hyland to be at work, however Mr. Hyland was not prepared to return to work until he was properly accommodated. Mr. Hyland and Mr. Cromartin met on November 24,2004, to discuss the November 16, 2004 injury claim and to review the issue of accommodation. Mr. Cromartin testified that he suggested that there was no exposure to smoke on November 16 and Mr. Hyland responded by saying that the issue was the presence of butts and ashes. When they discussed the smoking policy, Mr. Hyland did provide examples of violations of the policy, but Mr. Cromartin could not recall what they were. Mr. Cromartin testified that he did ask who was involved and that Mr. Hyland indicated that it was not his job to provide names. Mr. Hyland testified that one of the examples he gave was staff smoking in front of offenders in the presence of supervisors. When asked if he was prepared to report back to work Mr. Hyland said that he was when it was 100% smoke free and when asked what he meant, Mr. Hyland indicated that he meant no smoking at all on the property, consistent with government policy. Mr. Cromartin indicated that he could not meet Mr. Hyland's definition of 100% smoke free. As an aside, Mr. Cromartin asked Mr. Hyland ifhe would consider an accommodation outside of Brookside. Mr. Hyland said he would but only on a temporary basis until this issue was litigated. Mr. Hyland asked if 23 he could exhaust all excess vacation and was given permission to do so. On that day, Mr. Hyland submitted a written request for vacation days from December 31,2004 backwards to exhaust all overage. He testified that he did this to avoid losing these vacation days if he was transferred to another institution. Mr. Hyland had 22.5 days of vacation credits to use before the end of 2004. Moving back from December 31,2004, this took him back to November 29,2004. Mr. Hyland did not work any of his scheduled shifts between the meeting of November 24,2004 and the time his vacation started. Mr. Hyland testified that Mr. Cromartin specifically told him during their meeting that he was placing Mr. Hyland on an "administrative leave". Mr. Cromartin vehemently denies doing any such thing. From Mr. Cromartin's perspective, the Employer expected him to be at work, but Mr. Hyland would not return until the Employer provided a 100% smoke free workplace, which the Employer was unable to provide. Mr. Cromartin made inquiries about placing Mr. Hyland at another institution, but did not receive a positive response. Mr. Hyland testified that once his vacation ended on December 31, 2004, he was waiting to hear from Mr. Cromartin. When Mr. Hyland did not report for work on January 4,2005, Mr. Cromartin left him a message on that day essentially asking why he was not at work given that he was scheduled to work as a driver. Mr. Cromartin also advised him that no smoking signs were placed around the facility and in the vehicles and that the ashtrays were removed from the vehicles. Mr. Hyland returned the call on January 7, 2005 and advised Mr. Cromartin in a message that he had been put on "administrative leave" by him and that he had not been given him any indication of returning to work. He also advised Mr. Cromartin that the changes he referred to do not alter the fact that the smoking policy does not accommodate him and there was no indication that he would be accommodated. Mr. Hyland remained off work and the stalemate continued. After another meeting at the GSB, the Employer agreed to recognize that Mr. Hyland as a qualified YSO and he returned to work as such on January 25, 2005. The 24 dispute about how to treat the days Mr. Hyland did not work and for which he received sick pay was left to be resolved during the litigation of his Brookside grievances. I note that at the conclusion of his meeting with Mr. Cromartin, Mr. Hyland completed a WSIB Worker Report in which he claimed that management was harassing him and discriminating against him, causing stress. He indicated that he had symptoms including "headache, stomach problems, blood pressure, physcological[sic]" and that the symptoms had been building up and coming to a peak. In a response to the WSIB dated November24, 2004, Mr. Cromartin denied the allegations. It appears that Mr. Hyland also submitted a WDHP complaint on November 24,2004, in which he referred to his concerns about smoking at Brookside. Mr. Cromartin responded to this complaint by letter dated February 9, 2005, in which, among other things, he referred to the various steps the Employer had taken to limit his exposure to cigarette smoke, committed again to investigate any allegations of a breach of the smoking policy and to follow through with discipline where appropriate. Upon his return to Brookside in January of 2005, Mr. Hyland began making written notes of smoking issues. A one page document containing brief notes of twelve incidents covering a two-month period was introduced as an exhibit. The document, which was supplemented by Mr. Hyland's testimony, refers to the following matters. On January 26,27 and 28,2005, Mr. Hyland observed staff smoking in the presence of offenders near the entrance to the school and in the presence of OM Poelstra. On January 27,2005, he observed another incident of staff smoking in the presence of offenders. On January 31, 2005, Mr. Hyland observed staff smoking outside of the entrance to Johnson and Thompson Houses. Mr. Hyland met with OM Silvera and discussed smoking issues on February 2, 2005. On February 11,2005, while attending a training session at the administration building, he observed cigarette ashes at the entrance to the building 25 and staff smoking at the entrance during a break. He noted that on February 26, 2005, he observed evidence of smoking. He testified that he saw cigarette butts in front of the school and at other locations outside buildings. When he reported this to an OM he was instructed to get a YO to clean up the cigarette butts. On March 2,2005, he noted that he found ashes in the basement of Johnson House. He completed an occurrence report about this incident in which he indicates that he discovered the ashes at around 1900 hours in a corner by some tables. He ended his report by writing that, "This further illustrates management's lack of enforcement of the OPS smoking policy as well as its own made up smoking policy." In his occurrence report on this incident, OM Nesbitt indicates that Mr. Hyland advised him about the ashes at approximately 2030 hours and he confirmed that there appeared to be cigarette ashes in the area. He directed Mr. Hyland to clean up the ashes and thanked him for reporting the infraction. Mr. Hyland's notes refer again to the discovery of cigarette butts in front of the school on March 4,2005. His notation about March 17,2005, simply indicates "smoking" and he testified that he could not recall the incident. His notation of March 22,2005 indicates "smoking" and sets out the name of an offender. Mr. Hyland testified that it was around this time that a YSO approached him to complain about the fact that she had been instructed to get a YO to pick up cigarette butts around the property and that she found this disgusting given the quantity of butts. This YSO is a smoker. Mr. Hyland also indicated that a YO thanked him because he was able to increase his "stash" when assigned to pick up cigarette butts. Mr. Hyland believed that this YO was shortly thereafter found with contraband in his room. 26 In an occurrence report dated April 23, 2005, Mr. Hyland writes that on that day at 0840 hours he discovered cigarette ashes and a faint smell of tobacco in the staff washroom at Johnson House. Among other things, he points out that this is a violation of the Brookside smoking policy and that management "is giving no direction to enforce these policies that lead to my mental, physical and emotional detriment." This report generated occurrence reports from OMs 1. Luke, K. Boundy and P. Silvera. Mr. Luke indicates in his report that he worked the previous shift and that he did not observe smoking or the smell of smoke in Johnson House and the staff he questioned told him that they had no knowledge of anyone smoking. Mr. Boundy filed two occurrence reports on the incident. In the first one he notes that Mr. Hyland gave him his occurrence report and told him that he did not believe it was the day or night shift staff that was responsible and that it could have been anyone. Mr. Boundy told Mr. Hyland that the incident would be investigated. In another occurrence report he prepared later that day after interviewing staff, Mr. Boundy indicated that he could not determine who was responsible. He asked Mr. Hyland in a subsequent discussion whether he intended to submit a WSIB claim and that Mr. Hyland stated no because the series of incidents would be going before the GSB anyway. Mr. Boundy noted that Mr. Hyland then showed him a disposable cup with some water and cigarette butts. Mr. Hyland told him that he found the cup beside the computer in the staff office and that he would not write another report if Mr. Boundy included it in his report. Mr. Boundy stated that he would continue to look into the incidents. In his report, Mr. Silvera writes that he became aware of the incident on April 25, 2005 through Deputy Superintendent 1. Fisher. Mr. Silvera indicated that he placed a note to all staff in the communication log advising them to read the smoking policy, to follow it and that there was no smoking in washrooms and offices. He noted that he delivered a copy of the smoking policy to the mailbox of each staff member. 27 In a grievance reply dated May 3, 2005, Mr. Nesbitt responded to a grievance initiated by Mr. Hyland on May 3, 2005 which claims non-accommodation and a lack of enforcement of the smoking policy, with reference to the occurrence report dated April 23, 2005. There was no written grievance dated May 3, 2005, filed in this proceeding. In his reply, Mr. Nesbitt advises that he was unable to resolve the grievance. In an occurrence report dated May 19,2005, Mr. Hyland writes that as he went to the administration building to see Mr. Cromartin he observed staff smoking by the entrance. He advised Mr. Cromartin about this incident and Mr. Cromartin confirmed that this location was now a no smoking area. He also noted in his report that on the previous day there were many cigarette butts at the same location. In this lengthy report, Mr. Hyland writes, "it is not my job to enforce the Policy nor to do Managers Jobs and enforce it by naming staff as it is happening right in front of management." He asks for the smoking policy to be enforced and he concludes with the following plea: "I have asked for accommodation and I am not receiving any or being taken seriously and it is making me sick. I am asking for your Help. Please." Mr. Cromartin went to the front of the administration building once Mr. Hyland registered his concern, but did not see anyone smoking. Mr. Cromartin ensured that the area was cleaned up and that further communication was sent to all staff. In a memo to all staff dated May 24,2005, Mr. Kennedy advised that there is to be no smoking around the entrance to the administration building and staff were directed to smoke on the east side of the building. In an email toMr. Maguire dated May 25, 2005,Mr. Kennedy indicated that he personally spoke with all administration building employees that smoke about where they are allowed to smoke. In a letter to Mr. Hyland dated May 25, 2005, Mr. Cromartin advised Mr. Hyland of what he had done and that the Employer required further information before it could proceed with the matter. 28 Mr. Cromartin then ordered Mr. Hyland to provide the names of the staff he observed smoking in front of the administration building and to respond by an occurrence report to his attention. Mr. Cromartin testified that he did not receive an occurrence report from Mr. Hyland in response to his direction. He stated in cross-examination that he did not see the point in pursuing discipline for Mr. Hyland's failure to respond to his direction given the nature of and long history of Mr. Hyland's concerns about cigarette smoke. Mr. Hyland testified that he did prepare an occurrence report in response to Mr. Cromartin's direction in which he provided the name of a social worker. In an occurrence report dated June 10,2005, Mr. Hyland noted that he smelled cigarette smoke at about 1521 hours at Martin House in the hall around cells 1,2 and 3. He also noted that he and YSOs Stead and Hawthorne were unable to determine the source of the smoke and that a log notation was made. This was one of the four or five incidents that he attributed to YOs smoking. After returning from parental leave, Mr. Hyland testified that if there was any change, the smoking situation was worse. In an occurrence report dated January 25,2006, OM Nesbitt indicated that after relieving YSO Perry in secure isolation, Mr. Hyland pointed to the toilet and asked Mr. Nesbitt if there were ashes in there. Mr. Nesbitt told Mr. Hyland that he was not sure. Mr. Hyland stated that he did not want to make a compliant and suggested that Mr. Nesbitt speak to Mr. Perry about smoking in that area. Mr. Nesbitt noted that he intended to speak to Mr. Perry. In an occurrence report dated February 7, 2006, Mr. Hyland reported that when he attended Banting House for training at about 1530 hours he smelled tobacco smoke and noticed a 29 contractor smoking outside the office in the residence. He informed YSO House that he was leaving the area and OM Silvera that he was leaving the institution "to attend medical attention" and that he was initiating a grievance. YSOs House, Lockart, Broadbent and OM Silvera also filed reports on this incident. The YSOs indicate that they did not observe any smoking, but some noticed that the contractor had an unlit cigarette in his hand. In his report, Mr. Silvera referred to his discussion with Mr. Hyland and indicates that he went to Banting House where he did not smell smoke or observe any evidence of smoking, although there was a strong smell of fresh paint. He wrote that the contractors told him that they had not been smoking. In an occurrence report dated March 23,2006, Mr. Hyland refers to two incidents. He noted that at about 1000 hours he was exposed to smoke from a burning cigarette butt at the administration building and that there was a "plethora of cigarette butts around the front door of the building." He also noted that at about 1430 hours, while taking a YO to school, a staff member propped open the school door and put out a cigarette. Mr. Hyland noted that he could not see who the staff member was. He noted that the lack of enforcement of the smoking policy "affects my health and poisons my work environment." The Union filed a medical report dated June 3, 2006 prepared by Mr. Hyland's general practitioner, Dr. G. Bolger. Dr. Bolger indicates in the report that Mr. Hyland consulted him at his office with regard his asthma on August 27,2004, September 21,2004, October 4,2004, November 18, 2004, February 15,2005, April 11, 2005 and February 13,2006. He describes what occurred on these visits as follows: On August 27,2004, we discussed his exposure to tobacco smoke outdoors at his workplace. On September 21,2004, we discussed his asthma symptoms as triggered by tobacco smoke lingering in indoor buildings at work as well as by cigarette butt cans at different outdoor locations at his workplace. On October 4,2005 we discussed a mild asthma episode that occurred October 1,2004, while he was on a training course in 30 Hamilton and was exposed to smoke when the cafeteria doors were open. On November 18,2004, Mr. Hyland described his asthma triggered by duties at work that involved cleaning a van with cigarette butts in the ashtray. This incident occurred on November 16,2004. On February 15,2005, as well as April 11 and February 13,2005 [should read 2006], Mr. Hyland continued to complain of asthma symptoms and difficulties as a result of the smoking environment at work. On several occasions, Mr. Hyland has verbally stated to me that despite the official policy of smoke free government offices, cigarette smoking is tolerated both outdoors and indoors at his workplace and he suffers from continuous and ongoing exposure to cigarette smoke. Dr. Bolger also notes in his report that "Mr. Hyland has not complained of any other asthma triggers during this time. It has always been tobacco smoke or related cigarette butt or ashtray exposure as detailed above...I have supported and continue to support Mr. Hyland taking up to three days off work when necessary to recover from his asthma episodes. ..." Dr. Bolger also wrote that Mr. Hyland consulted him on April 11, 2005, May 12,2005 and June 6,2005 about issues related to stress and that "Mr. Hyland described anxiety related to cigarette smoke exposure during the visits documented initially related to asthma." Mr. Hyland testified, as he has in other proceedings, that he does not seek medical attention for every exposure. He is well aware of the symptoms that are triggered by cigarette smoke and how to deal with them. His view is that his doctor can do very little for him when he is recovering. When he does attend at his doctor's office, it appears that he often does so when he is ready to return to work and his asthma symptoms have dissipated. I previously referred to how the Employer prepared for Mr. Hyland's arrival at Brookside. During the review period, management did take some measures in response to concerns raised by Mr. Hyland. During the fall of 2004, the smoking receptacles were removed from the administration building and from the control station. No smoking signs were posted at the entrance of all buildings and inside facility vehicles. The butt can was moved some distance 31 away from the door to the kitchen. During the Spring of 2005, the entrance to the administration building became a no smoking area. Mr. Cromartin testified that he encouraged his managers to ask their staff to refrain from smoking right outside the entranceway to buildings and he explained that this was common sense. When circumstances warranted, memos were sent to staff reminding them of their obligations under the smoking policy. The smoking policy became an agenda item at all team/unit meetings. On Mr. Cromartin's instructions, the Security Manager developed a Smoking Policy Institutional Checklist which was to be completed every day. The Checklist refers to specific areas of the facility, including vehicles, and the manager is to check off whether an infraction was found in any of these areas. These measures were taken no later than the summer of2005. F or a number of reasons, Mr. Hyland had difficulty sleeping and he described himself as "a complete wreck". He requested that he be placed on the day shift on a steady basis and he supplied medical documentation to support this request. The Employer did accommodate this request and Mr. Hyland began working steady days by mid-June 2005. The Employer has always taken the position that it will take action against anyone who contravenes the smoking policy. The expectation is that managers who observe a violation of the policy will take corrective action and advise senior management about what action was taken. Mr. Cromartin testified that he has not observed anyone smoking in a building, but on occasion he had a suspicion that smoking had occurred, but he could not confirm it. It was obvious to him that smoking had taken place in the control station. When he would ask employees in control about this, he would be advised that visitors had been smoking outside of the control area and that their smoke had entered control. At Mr. Cromartin's direction, a part of the control area was professionally cleaned to remove any remnants of smoking. Mr. Cromartin 32 testified that he did observe two different employees, on separate occasions, smoking at the front entrance to the administration building. He spoke to both employees, asked if each was aware that this was a no smoking area and counselled each not to smoke there again. He was satisfied in each case that the conduct would not be repeated. Although he kept a note for himself about these infractions of the policy, another manager would not be aware that these two employees had been counselled by Mr. Cromartin. The submissions on behalf of the Union can be summarized as follows. The evidence demonstrates that there is a prevalence of smoking at Brookside, primarily on the grounds of the facility, which creates real and substantial risks for Mr. Hyland, given his disability. Brookside did little of significance to alter its smoking policy, with management essentially taking the view that Mr. Hyland chose Brookside, knew what he was getting into and that he should be content with the status quo. The failure of the Employer to communicate to anyone the added feature to the smoking policy contained in Mr. Maguire's letter of August 31,2004, is an indication that the Employer did not take this issue very seriously. Although it made some changes, management did not take enough measures to accommodate Mr. Hyland effectively. In particular, by not addressing the access offenders have to cigarette butts, by not designating smoking areas away from the entrances to all of the buildings and by not enforcing the smoking policy, such as when staff smoked in the presence of offenders, management failed to take reasonable steps to reduce the risk of exposure to cigarette smoke for Mr. Hyland. There is no evidence to indicate that taking steps to address these issues would cause the Employer undue hardship. Management's approach that it did not have to alter the essential features of its smoking policy in this instance is inconsistent with its obligations under the Code and the Collective Agreement. 33 It was further argued that Mr. Hyland is entitled to be paid for his absence from work from November 19, 2004 to January 24, 2005. I need not resolve whether Mr. Hyland was placed on an "administrative leave" because the only work being offered to Mr. Hyland during this time was driving and it is clear that this work was not appropriate to accommodate Mr. Hyland. The driving position requires more movement around the facility, thereby increasing the risk of exposure to cigarette smoke. On his first day of driving, Mr. Hyland encountered cigarette smoke in two buildings and on the second day he encountered cigarette smoke when cleaning the van. The driving assignment was inappropriate as well because Mr. Hyland was prevented from performing the full range of duties of a YSO. No significant changes were made by early January of 2005 that would have altered the substantial risks associated with the driving position. It was also submitted that if it is necessary to determine whether Mr. Cromartin placed Mr. Hyland on an "administrative leave", Mr. Hyland's evidence on this point should be preferred. Mr. Hyland's testimony that the words "administrative leave" were used by Mr. Cromartin and the surrounding circumstances indicate that the Employer was content to place Mr. Hyland on a leave with pay until it could determine whether it was possible to accommodate him at another location. The failure of Mr. Cromartin to insist that Mr. Hyland return to work when he was off work from November 19,2004 until his vacation commenced, the lack of a return to work date in the letter confirming his vacation days and the fact Mr. Cromartin called Mr. Hyland late on January 4,2005, rather than when he first knew Mr. Hyland was not at work, are factors which support the view that Mr. Hyland was placed on a paid leave by the Employer. To remedy the Employer's failure to accommodate Mr. Hyland, the Union requested that I direct the Employer to compensate Mr. Hyland for his losses due his exposure to cigarette 34 smoke. I was also asked to direct the Employer to develop an accommodation plan for Mr. Hyland for review by the Union and Mr. Hyland. Any dispute about the appropriateness of an accommodation plan would be referred to me. The Union requested that I order that Mr. Hyland is not required to attend work at Brookside until an acceptable accommodation plan is developed and that he receive full pay until the process is completed. In the Union's view, Mr. Hyland should not be expected to attend work at Brookside while there is an unacceptable risk of exposure to cigarette smoke. Counsel for the Union referred me to the following decisions: OPSEU (Hyland) and Ministry of Correctional Services (May 13,2002), GSB #1470/91 et al (Petryshen), OPSEU (Hyland) and Ministry of Correctional Services (June 6, 2003), GSB #1470/91 et al (Petryshen), OPSEU (Hyland) and Ministry of Public Safety and Security (January 2, 2004), GSB #1991- 1470 et al (Petryshen), Re Air Canada and C.A. W-Canada, Loc. 2213 (2001), 101 L.AC. (4th) 311 (Dissanayake) and Re School District No. 33 (Chilliwack) and B.C.TF (2006), 147 L.AC. (4th) 251 (Taylor). The submissions made on behalf of the Employer can be summarized as follows. The Employer did take reasonable steps during the period under review to accommodate Mr. Hyland's disability. As Mr. Hyland raised issues, such as smoking in front of the administration building, the Employer responded appropriately. Certainly, by April 30, 2006, the Employer had met its obligations under the Code and the Collective Agreement towards Mr. Hyland. Indeed, the Employer has gone further than required to accommodate Mr. Hyland. Counsel argued that the evidence illustrates that Mr. Hyland can no longer work at Brookside and that it is clear that the point of undue hardship has been reached. It is impossible 35 to accommodate someone with the grievor's disability. He cannot work there now, and in the future, irrespective what the Employer does. From Mr. Hyland's perspective, the Employer will never do enough to accommodate him. Mr. Hyland's conduct and his testimony amply demonstrate that he can no longer work for the Employer. It was submitted that even though Mr. Hyland wanted to come to Brookside, his conduct has not assisted the process, nor has his conduct been reasonable or credible. He knew what he would encounter at Brookside in terms of the smoking policy and practice, and the decision to place him at Brookside recognizes that Brookside will not be a pristine environment. Yet he continues to request that the Employer provide him with a 100% smoke free environment, even though it is not required legally to do so and the Employer could not do so even if it wanted to. Although he testified that he only wants to ensure that there is no cigarette smoke in the areas where he has to work, he demands that the entire Brookside property be entirely smoke free. Mr. Hyland came to Brookside with an agenda and he will only be satisfied if he gets the smoking policy he wants. He initiates WSIB claims for matters which are not a violation of the Brookside smoking policy and then abandons the claims. He does not provide the names of staff who he claims are smoking in inappropriate locations, even when he directed to do so by management. Counsel argued that the evidence is also clear that cigarette smoke is not the only trigger for Mr. Hyland, as the report from Dr. Bolger confirms. The evidence shows that Mr. Hyland cannot tolerate cigarette ashes and butts, and the odour of cigarettes. Even the sight of cigarettes is problematic for Mr. Hyland. These other triggers resulted in lost time from work. The Employer is dealing with someone who cannot tolerate an environment where someone smokes, regardless oflocation. Given this reality, it is impossible for the Employer to accommodate Mr. Hyland. 36 It was also submitted that Mr. Hyland is simply not credible on a number of matters, some of which are as follows. With respect to the alleged exposure on September 17, 2004, Mr. Hyland told Mr. Nesbitt that he saw his doctor prior to the call, but he did not see Dr. Bolger until September 21,2004. Although Mr. Hyland claims an exposure to cigarette smoke on November 16, 2004, when he was assigned to clean the van, no one present smelled smoke or witnessed the symptoms described by Mr. Hyland. Similarly, when Mr. Hyland claims that a contractor was smoking in Banting House, others in the area did not observe anyone smoking. Mr. Hyland is dishonest when he claims that Mr. Cromartin told him that he was going on an "administrative leave" during their meeting on November 24,2004. It is incredulous that Mr. Hyland only has issues with cigarette smoke at work, but rarely encounters cigarette smoke outside of work. With reference to his absence between November 19, 2004 and January 23, 2005, counsel noted that the medical certificate Mr. Hyland provided only covered an absence for November 17 and 18,2004. Mr. Hyland did not work as a driver beyond November 18, 2004, because the Employer did not provide him with a workplace that was 100% smoke free. There is no basis for concluding that Mr. Hyland was entitled to be absent from work during this time and the result of such a conclusion is that he is not entitled to be paid when he elects not to work. Mr. Cromartin's testimony in which he denies advising Mr. Hyland that he was on an "administrative leave" is credible. He indicated that he never used those words, does not know what they mean and did not have the authority to grant an indefinite leave with pay. The Employer expected Mr. Hyland to be at work during this period and it did not condone his absence from the workplace. Even if one were to assume that the driver's job entailed more risk of exposure for Mr. Hyland, he was not entitled in these circumstances to unilaterally decide not to report for work. Given 37 the circumstances, the Employer did not discipline him for his absence, but it has given him notice that it intends to recoup the monies he was paid during this period once the GSB has decided this matter. The Employer requests that all of Mr. Hyland's grievances be dismissed and that the GSB confirm that the Employer took reasonable steps to accommodate his disability. As noted previously, it also requests that I declare that Mr. Hyland can no longer work at Brookside due to the nature of his expanded health issues and his conduct. In addition to one of the Hyland decisions cited above, counsel for the Employer relied on the following decisions: OPSEU (Hyland) and Ministry of Correctional Services (November 13,2002), GSB #1470/91 et al (Petryshen), OPSEU (Kerna) and Ontario Human Rights Commission (2005), GSB #2002-0944 et al (Briggs), Anderson v. Alberta, [2004] AJ. No. 1216 (Alberta Court of Queens Bench), Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, Great Atlantic and Pacific Co. of Canada v. UF.CW, Local 175, [2004] O.L.AA No. 85 (Brent), Ottawa-Carlton District School Board v. Ontario Secondary School Teachers' Federation, [2005] O.L.AA No. 459 (Bendel), Re Better BeefLtd and UF.C W, Region 18 (1994),42 L.AC. (4th) 244 (Welling), Re Canada Post Corp. and C UP. W (1993),32 L.AC. (4th) 289 (Jolliffe), Desormeaux v. Ottawa-Carleton Regional Transit Commission, [2005] F.C.J. No. 1647, Re AirBC Ltd and Canadian Airline Dispatchers Assn. (1995), 50 L.AC. (4th) 93 (McPhillips), Canadian Union of Public Employees v. New Brunswick (Board of Management), [2003] N.B.L.AA No. 29 (Bruce), Washington Mills Electro Minerals Corp. v. United Steelworkers of America, Local 4151, [2003] O.L.AA No. 239 (H.D. Brown) and Halliday v. Michelin North America (Canada) Ltd, [2006] S.H.R.B.I.D. No.6 (Deaveau). 38 In reply, the Union vehemently opposed the Employer's submission that, in essence, I should terminate Mr. Hyland's employment relationship with Brookside. Apart from this issue being raised for the first time in argument, there is no evidence to support the submission and the GSB does not have the jurisdiction to make such an order in these circumstances. Mr. Hyland's testimony was truthful. The hearsay evidence contained in the various reports from persons who did not testify cannot be used to assess Mr. Hyland's credibility. The evidence throughout has clearly indicated that the only trigger for Mr. Hyland's asthma is cigarette smoke. Mr. Hyland can attend work regularly as long as the Employer takes reasonable steps to ensure that he will not encounter cigarette smoke in areas where he in required to perform his duties. There is nothing in Mr. Hyland's conduct which should affect the outcome of this case. The decisions relied on by the Employer deal with the consequences for employees who refuse reasonable offers of accommodation. In this case, Mr. Hyland has not refused any reasonable offer by Brookside to accommodate him. I will first address the question of whether the Employer has taken reasonable steps during the period under review to accommodate Mr. Hyland to the point of undue hardship. I will begin by commenting on the Employer's submissions that focus on Mr. Hyland's conduct. After reviewing those aspects of the evidence which the Employer uses as a basis for challenging Mr. Hyland's credibility, it is my conclusion that they do not support a finding that Mr. Hyland is not credible. To support most of these submissions the Employer relies on written reports of individuals who did not testify. For example, Mr. Nesbitt's occurrence report dated September 18, 2004, indicates that Mr. Hyland called him and told him that "he had seen his doctor" when it is clear that Mr. Hyland did not see Dr. Bolger until September 21,2004. Even though he initially confirmed the content of the report, in all likelihood without paying sufficient 39 attention to the details contained therein, Mr. Hyland explained that he would not mislead Mr. Nesbitt and that Mr. Nesbitt just misunderstood what he told him. Since Mr. Nesbitt did not testify, counsel for the Union did not have the opportunity to cross-examine him on a point which the Employer argues is significant for assessing Mr. Hyland's credibility. As an aside, one might ask why Mr. Hyland would mislead Mr. Nesbitt about a matter which at the time would not appear to be particularly important to either of them. The same problem exists with the incident with the van on November 16, 2004 and the incident with the contractor on February 7,2006. The Employer again relies on hearsay comments in reports to challenge Mr. Hyland's credibility. This evidence does not compel the conclusion that Mr. Hyland deliberately attempted to mislead me or mislead the Employer. There is no sound basis for discounting Mr. Hyland's assertions about smelling cigarette smoke at work and about his asthmatic symptoms, particularly in light of the medical evidence. I will later address the issue of whether Mr. Hyland is correct when he claims that Mr. Cromartin placed him on an "administrative leave". Whether Mr. Cromartin did so or not does not mean that Mr. Hyland was untruthful when he testified that he believed that he was placed on such a leave. Mr. Hyland has testified in previous proceedings at some length about how he avoids going to places where there is a risk that he will encounter cigarette smoke. But for a few instances, he has succeeded in avoiding this allergen. I did not find his evidence on this point incredible in the previous proceeding and I do not find it incredible when he reiterated it in this proceeding. Unfortunately, he has not been so successful in avoiding cigarette smoke at the Toronto Jail, at Toronto East or at Brookside. When I review his testimony in the context of all of the evidence in the instant case and in the context of the evidence in the earlier proceedings, and in the absence of a sound basis for concluding otherwise, I am not prepared to conclude that Mr. Hyland lacks credibility. 40 I agree with counsel for the Union that the evidence does not support the Employer's contention that Mr. Hyland's asthma is now triggered by more than just cigarette smoke in the workplace. Although there are other allergens that could trigger an asthmatic reaction, including the odour from cigarettes, the previously introduced medical reports and the evidence in general indicate that it is only cigarette smoke that triggers Mr. Hyland's asthma at work. Mr. Hyland certainly claims that this is the case and Mr. Cromartin indicated a number of times during his testimony that it is his understanding that cigarette smoke is what affects Mr. Hyland at work. I do not interpret Dr. Bolger's comments in his medical report as conclusively indicating otherwise. His reference to triggers as including". . . or related cigarette butt or ashtray exposure as related above" is not entirely clear and is nonetheless a reference to the van incident on November 16, 2004, an incident where Mr. Hyland asserts he smelled smoke and noted this in his report. As the evidence discloses, there are numerous occasions when Mr. Hyland encountered cigarette ashes or butts at Brookside and there many instances when he observed staff smoking. These incidents did not trigger an asthmatic reaction. There is no doubt that Mr. Hyland complains to management and becomes somewhat upset when he encounters evidence of smoking in areas of Brookside where he works, but there is no indication that an emotional response triggers his asthma. I note that he complained similarly at the Toronto Jail and at the Toronto East when he discovered evidence of smoking in non-smoking areas or areas where he was required to work. There is also clearly no evidence to support the Employer's submission that Mr. Hyland cannot work in an environment where cigarettes are present, even though he would clearly prefer that they were not present. Since his asthma triggers have not expanded, the submission that it is impossible to accommodate Mr. Hyland is not persuasive. The Employer raises the issue about Mr. Hyland not identifying staff who he claims are smoking contrary to Brookside policy as an example of his failure to cooperate with the 41 Employer. It was argued, in effect, that this failure to cooperate has an impact on the Employer's ability to enforce the smoking policy. I will deal with the general enforcement issue later, but it is obviously true that the Employer is hampered in its efforts to enforce the smoking policy when it is unaware of who is contravening it. However, as some of the previous decisions involving Mr. Hyland indicate, decisions with which Brookside management are familiar, Mr. Hyland has always taken the position that he will provide names of bargaining unit members who contravene the smoking policy if he is ordered to do so. In a typical employment context, it would be unusual to expect an employer to have to regularly order an employee to provide relevant information about a complaint. As I noted in the Toronto East decision dated May 13,2002, however, there can be adverse consequences for an employee in a correctional setting who is labeled a "rat" for telling management about the misdeeds of bargaining unit employees. Mr. Hyland testified that if he simply provided the names, a supervisor would likely tell the person he named that Mr. Hyland was the source of the information and he would be singled out as an informer. The evidence in previous proceedings indicates that he does provide names when ordered to do so. If the management at Brookside wants to know which employee is contravening the smoking in any incident raised by Mr. Hyland, it should order him to provide the name. Indeed, I would think it would be appropriate for management to give Mr. Hyland a general direction to provide it with the name of any individual who he believes is contravening the Brookside smoking policy. It would be open to the Employer to impose a disciplinary sanction if he failed to comply with such a direction. In my view, this is a reasonable approach in the circumstances which appropriately balances the interests of both Mr. Hyland and the Employer. Mr. Cromartin testified about the one instance when Mr. Hyland failed to comply with a direction to provide a name which led him to believe that Mr. Hyland will not reveal names even 42 when ordered to do so. Mr. Cromartin did not exercise his right to discipline Mr. Hyland for not complying for the reasons described earlier. Mr. Hyland testified that he did comply with Mr. Cromartin's direction. Given that the Employer was unable to produce some occurrence reports that clearly were filed by Mr. Hyland, it is difficult to conclude that Mr. Hyland did not comply with the direction simply because an occurrence report did not reach Mr. Cromartin. Given that Mr. Hyland has always provided names in the past when ordered to do so, it is difficult to understand why he would not comply with Mr. Cromartin's direction. In any event, there is no reason to believe that Mr. Hyland will fail to comply with a direction to provide names in the future. The Employer referred to a number of aspects of Mr. Hyland's conduct which it claims are unreasonable and relevant when assessing whether he has been properly accommodated. Counsel referred to Mr. Hyland having an agenda, his initiating WSIB claims with no follow through and the fact that he insists on a 100% smoke free workplace even though the Employer is not required to provide one. Counsel also referred to Mr. Hyland complaining about violations of the smoking policy when clearly no such violations occurred and how Mr. Hyland will never be satisfied no matter what the Employer does to accommodate him. There is no doubt that Mr. Hyland often does raise concerns about the smoking situation at Brookside and that he wants a smoke free environment. He complains about matters which do not violate the smoking policy or matters over which the Employer cannot be faulted. However, the question of whether Mr. Hyland has been properly accommodated by the Employer is not determined by Mr. Hyland's perspective of the smoking situation at Brookside or by what demands he makes. As noted previously, the Employer's obligation is to take reasonable steps to accommodate Mr. Hyland to the point of undue hardship. Either it has met this obligation or it has not, and it seems to me that the type of conduct referred to by the Employer is not relevant in determining that issue and 43 should not influence the disposition of this case. The type of conduct that would be relevant is whether an employee refuses to comply with a reasonable accommodation proposal. This is the kind of situation which is addressed in the cases referred to by counsel for the Employer. I agree with counsel for the Union's assessment that there is no evidence that Mr. Hyland has refused any reasonable accommodation proposal made by the Employer. I turn now to the general question of whether the Employer has taken reasonable steps to accommodate Mr. Hyland during the period under review. Although there were some smoking incidents inside buildings, the Union is correct when it suggests that the greater risk of exposure for Mr. Hyland has been on the property of the institution. It is here, of course, where smoking is permitted under the Brookside smoking policy. Mr. Hyland observed staff smoking at the entrance to the administrative building and at the entrances to other buildings. He also observed evidence of smoking in these areas and at other locations on the property. The evidence confirms that offenders are directed to pick up cigarette butts on the grounds, thereby giving them access to contraband. As described previously, Mr. Cromartin did prepare the management team for Mr. Hyland's arrival. However, management did not initially discuss altering the smoking policy to accommodate Mr. Hyland. It appears that this was due in part to the fact that Mr. Hyland chose Brookside with some knowledge of the smoking context. It appears as well that the placement of Mr. Hyland gave management some comfort that its smoking policy and practice were adequate to address Mr. Hyland's disability and concerns. The placement decision did nothing more than determine which of three institutions posed the least risk for Mr. Hyland given his disability. Given the evidence in that proceeding, I 44 determined that Brookside offered Mr. Hyland a lower level of risk of exposure to cigarette smoke than did the other two institutions. As noted previously, there was evidence to suggest that there was some risk that Mr. Hyland would be exposed to cigarette smoke at Brookside. Therefore, the decision to place Mr. Hyland at Brookside did not suggest or imply that Brookside was the perfect solution for him or that management at Brookside was free of the obligation to take reasonable steps to accommodate his disability. I agree with the Union's submission that the obligation to accommodate is a continuous one and that the Employer would not in this instance be entitled to simply take the view that its policy and practice are adequate and that it need not take reasonable steps to accommodate Mr. Hyland. The management at Brookside did not make changes to the smoking policy or practice when Mr. Hyland arrived, but it did eventually recognize that some changes were required. I agree with counsel for the Employer characterization that the Employer's approach to Mr. Hyland's presence at Brookside evolved. Mr. Hyland's exposure on August 25,2004, at the butt stop near the control station, appears to have led to the removal of butt stops at control and the administration building in the Fall of 2004. The other changes detailed previously, including the designation of the entrance to the administration building as a no smoking area and the direction that employees smoke near the back of the building, occurred over time. I disagree with the Union's submission that the Employer failed to take any significant measures to accommodate Mr. Hyland. Although it did not act as quickly as it should have, the Employer made a genuine effort and took some significant measures to accommodate Mr. Hyland. The question is whether the Employer took enough steps in the circumstances. I agree with the Union's position that the Employer did not take all of the reasonable steps available to it to accommodate Mr. Hyland. 45 A YSO, particularly if one is not assigned to Martin House, is required to move throughout various parts of the facility. Given a policy that permits smoking outside, it is not surprising that smokers would choose to smoke near the entrances of buildings, as described by Mr. Hyland. This situation creates a significant risk of exposure for someone like Mr. Hyland, both near the entrance and if the door is open, inside the building. It was a reasonable step for the Employer to ban smoking at the entrance to the administrative building since it appears that Mr. Hyland often is required to attend at that location. Mr. Cromartin testified that he advised his managers to encourage staff not to smoke at the entrances to buildings and he indicated that this was a matter of common sense. I agree. However, there is no indication that managers did give staff such advice, or that staff acted upon that advice. Indeed, the testimony from Mr. Hyland is that staff smoke at the entrances to buildings with regularity. In any event, the Employer did not see fit to establish designated smoking areas and direct staff not to smoke at the entrances to all buildings. Butt cans could be located in the designated smoking areas, thereby reducing the likelihood that butts will be scattered around the entire property and reduce the opportunity for offenders to obtain contraband. In my view, management could have adopted these reasonable steps without undue hardship. These measures would have lessened the risk of exposure for Mr. Hyland as he moved throughout the property performing his duties. The failure of the Employer to take those measures that it did take sooner and its failure to take the reasonable steps just outlined compel the conclusion that the Employer has not properly accommodated Mr. Hyland during the review period. I did not find compelling two aspects of the Union's submissions concerning the reasonable steps the Employer could have taken. The Union took the position that the Employer failed to adequately address offender access to cigarette butts, thereby creating a greater risk for Mr. Hyland. In my view, the risk of supervised offenders obtaining and using cigarette butts is 46 low. As Mr. Hyland recognized, the main problem is with staff smoking, not with offenders. The creation of designated smoking areas outside of the buildings with receptacles for butts should alleviate any problem that might exist in this regard. The Union also referred to the Employer's failure to implement the addition to the smoking policy set out in Mr. Maguire's letter to Mr. Hyland dated August 31,2004. In this letter, Mr. Maguire notes that smoking "cannot be within the immediate location of staff who have identified adverse effects from second hand smoke" and he testified that he was adding this feature to assist Mr. Hyland. However, this added feature was never communicated to staff. It does appear somewhat unreasonable to alter the smoking policy or practice and then not communicate the revision to staff. However, as a practical matter, the staff at Brookside has undoubtedly become aware that Mr. Hyland has a disability which causes him to be particularly sensitive to cigarette smoke. There is no evidence to indicate that anyone smoked within the immediate location of Mr. Hyland. In the circumstances, the failure of the Employer to advertise the change in practice or policy does not appear to have had any consequences for Mr. Hyland. In the decision dealing with the accommodation ofMr. Hyland at the Toronto East dated May 13,2002, I addressed the significance of enforcing the smoking policy in the context of a case such as this. As I noted previously, management's failure to take the reasonable step of enforcing its own smoking policy can increase the risk of exposure to cigarette smoke for Mr. Hyland. Although the Union argued to the contrary, the enforcement of the smoking policy at Brookside is quite different from the way the smoking policy was dealt with at the Toronto East. In my view, the senior management at Brookside is committed to addressing violations of the smoking policy when it is aware of them. The Union emphasized Mr. Hyland's evidence that staff repeatedly smoked in the proximity of offenders, often in the presence of an operational manager. However, senior management was not aware of the staff members who contravened 47 this aspect of the smoking policy. When Mr. Cromartin asked Mr. Hyland for their names, he refused to give them. In any event, there is no evidence that this infraction of the smoking policy had any effect on Mr. Hyland. Indeed, during cross-examination, Mr. Hyland indicated that he did not really care if staff engaged in this conduct as long as it did not result in exposure to cigarette smoke for him. To a degree, any tolerance for smoking contrary to the policy might encourage contraventions of other aspects of the policy. However, the enforcement of the prohibition against smoking in the proximity of offenders should no longer be an issue since the matter ofMr. Hyland providing names will no longer be problematic. There are many examples in the evidence where Mr. Hyland discovered evidence of smoking and then complained about a lack of enforcement. One example occurred on April 23, 2005, when Mr. Hyland discovered cigarette ashes in the staff washroom and a cup containing cigarette butts beside the computer in the staff office. One does get the sense from the occurrence reports that were filed relating to this incident that management made considerable effort to determine who was responsible, without success. Mr. Hyland believes that the mere discovery of evidence of smoking in Johnson House illustrates that the Employer is not enforcing the smoking policy. I disagree with this conclusion. Unfortunately, the smokers at Brookside, like the smokers at the Toronto Jail and the Toronto East, do smoke in contravention of the smoking policy. It is often difficult, if not impossible, to determine who is smoking contrary to the policy. As noted previously, management cannot enforce the policy ifit is unaware of who is violating it. The mere discovery of signs of smoking, by itself, does not establish that the Employer is not enforcing the smoking policy. There is no indication in the evidence that senior management ignores contraventions of the policy that come to their attention. When Mr. Cromartin observed two employees smoking in front of the administration building, he addressed 48 the issue appropriately. Unlike the previous situation at the Toronto East, I am satisfied that the senior management at Brookside is committed to enforcing the smoking policy. I turn now to what can be called the van incident which precipitated Mr. Hyland's absence from work between November 19, 2004 and January 23, 2005. After obtaining medical clearance to be off work on November 17 and 18,2004, Mr. Hyland elected not to attend work on scheduled shifts subsequent to November 18, 2004, because of his view that the Employer was not properly accommodating him. Mr. Cromartin expected him to be at work and the Employer did not condone his absence. Mr. Cromartin asked Mr. Hyland during their meeting on November 24,2004 ifhe was prepared to report back to work and Mr. Hyland responded by saying, "Yes - when it is 1 00% smoke free" which he explained meant, "It is no smoking period - from the sidewalk to the entrance to Brookside - no where on the property - just like the government policy states." Apart from expressing an inaccurate view of government policy, Mr. Hyland appeared to believe at the time that he could not be accommodated at Brookside unless smoking was banned there altogether. Mr. Hyland also believes that at this meeting he was placed on "administrative leave." The fact that he believed this is supported by his return call to Mr. Cromartin in January of2005 when his first statement to Mr. Cromartin was that he had been placed on an "administrative leave" by him. It was during their conversations at this time that Mr. Cromartin advised him that no smoking signs had been placed on buildings and in the vehicles and that the ashtrays had been removed from the vehicles. This information did not cause Mr. Hyland to return to work as a driver. He did not return to work until the Employer agreed that he was qualified to work as a YSO. There may be circumstances in which an employee is justified in being absent from work where an employer has failed to accommodate a disability. However, it is my conclusion that the 49 circumstances in the instant case did not entitle Mr. Hyland to be absent from Brookside from November 19, 2004 until January 23, 2005, except for those days he took as vacation. I note that I was not asked to resolve the dispute about whether Mr. Hyland was qualified to work as a YSO after he completed the training at Bell Cairn. With this issue unresolved, the Employer assigned him driving duties. Mr. Hyland was undoubtedly unhappy with this turn of events. He worked on November 15, 2004 as a driver, along with Mr. Letourneau. He testified that he did encounter smoke during that day in two buildings and he dealt with this situation by staying out of the buildings. Although he left one-half hour early that day, there is no indication that this was due to an exposure to cigarette smoke. Indeed, it is unlikely that Mr. Hyland would have reported for work on the following day ifhe had had an exposure on November 15, 2004. There is also no indication that Mr. Hyland had any difficulty performing as a driver during the first half of his shift on November 16, 2004. It was during the early afternoon that Mr. Hyland was asked to clean the van. Mr. Cromartin agreed that Mr. Hyland should not have been asked to clean an ashtray that had cigarette butts. As noted previously, I accept that Mr. Hyland did smell cigarette smoke that day and that he experienced the symptoms that he described. However, this kind of exposure was not particularly unique for Mr. Hyland. After only two days as a driver, Mr. Hyland's decision not to report for work is not justifiable. There is a risk of exposure to cigarette smoke that exists at Brookside for Mr. Hyland and the level of risk might vary depending on his assigned duties. For instance, the risk appears to be greater ifhe is a YSO at Johnson House rather than a YSO at Martin House. That increase in risk would not entitle him to refuse an assignment to Johnson House. As Mr. Cromartin conceded, Mr. Hyland would likely experience a greater risk of exposure to cigarette smoke as a driver when compared to working as a YSO. However, in my view, the increased risk is not 50 significant and certainly not so great as to allow someone in Mr. Hyland's position to decide unilaterally not to report for work as a driver. Just as Mr. Hyland's general contention that he is not being accommodated properly at Brookside does not entitle him to refuse to work in this context, his contention that the driver's job did not properly accommodate him did not permit him in these circumstances to absent himself from the workplace. Unlike in the past, the Employer is not prepared to agree that Mr. Hyland can remain off work with pay while his accommodation concerns are resolved. Although I accept that Mr. Hyland believed otherwise, the evidence does not support the conclusion that Mr. Cromartin placed him an "administrative leave". I accept Mr. Cromartin's testimony that he never used the term "administrative leave", did not know what the words signified, did not have the authority to place Mr. Hyland on an indefinite paid leave and that he did not do so. I have examined carefully the circumstances relied upon by the Union to support its assertion that even the Employer treated Mr. Hyland as if he was on a paid leave. It is true that the Employer did not direct Mr. Hyland to work his scheduled shifts after November 18, 2004 until his vacation commenced and after his vacation ended until he returned to work as a YSO. Nor did the Employer discipline him for failing to report for work. In my view, these circumstances and others relied on by the Union merely indicate that the Employer and Mr. Hyland were at a stalemate. Mr. Hyland did not want to work because he believed that he was not being accommodated. Although it expected him to be at work, the Employer was not inclined to make a bad situation worse by disciplining Mr. Hyland, given his situation and history. The Employer's relatively benign conduct towards Mr. Hyland does not lead to the conclusion that it took the rather extraordinary step of placing him on an indefinite leave with pay. The Employer did advise Mr. Hyland that it intended to recover the monies he was paid for which he was not entitled. 51 For the foregoing reasons, I find that the Employer has failed to take all reasonable steps to accommodate Mr. Hyland to the point of undue hardship during the review period. The Employer is directed to compensate Mr. Hyland fully for any monetary losses that are attributable to exposures to cigarette smoke on the grounds of Brookside. The Union's request that the parties meet to develop an accommodation plan has merit. Accordingly, I direct the Employer to meet with Mr. Hyland and the Union to discuss what other reasonable steps, if any, the Employer could take to accommodate Mr. Hyland. From these discussions, the Employer will be in a position to amend its accommodation plan for Mr. Hyland, if appropriate. The Union's request that Mr. Hyland remain off work with pay until this process is completed is denied. The level of risk for exposures at Brookside does not warrant such an unusual remedial response. I also declare that the Employer was not obliged to pay Mr. Hyland for his absence from work between November 19, 2004 and January 23,2005, except for the vacation monies that were paid to him during this period. I will retain jurisdiction of this matter to resolve any compensation or other implementation issues that may arise. Dated at Toronto, this 5th day of September 2007.