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HomeMy WebLinkAbout2008-2682.Hyland.09-09-09 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-2682 UNION#2008-0337-0014 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 Ministry of Community Safety and Correctional Services) BEFOREKen Petryshen Vice-Chair FOR THE UNIONDavid Wright Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYERSuneel Bahal Ministry of Government Services Counsel HEARINGAugust 31, 2009. Decision [1] The style of cause is amended by adding the Ministry of Community Safety and Correctional Services. [2] In a grievance filed in October of 2008, Mr. B. Hyland claims that the Employer contravened the Collective Agreement when it did not allow him to transfer to the Central East Correctional Centre (?CECC?) at Lindsay, but instead transferred a junior employee to that institution. Mr. Hyland?s grievance raises the issue of his entitlement to a lateral transfer from the Brookside Youth Centre (?Brookside?) to the CECC in the face of a December 4, 2003 decision in which I determined that the appropriate placement for Mr. Hyland was at Brookside, given his need for an accommodation. The circumstances giving rise to this grievance were not in dispute and neither party elected to call viva voce evidence. Counsel made relatively brief submissions and noted that they were unaware of any decisions that addressed the issues in dispute. There was no challenge to my jurisdiction to hear and determine this grievance. [3] Since August of 2004, Mr. Hyland has been employed as a Youth Services Officer at Brookside, a facility within the Ministry of Children and Youth Services (?MCYS?). Prior to locating at Brookside, Mr. Hyland had worked at correctional institutions within what is now called the Ministry of Community Safety and Correctional Services (?MCSCS?). It was shortly before Mr. Hyland moved to Brookside that the provincial youth detention facilities were transferred from the MCSCS to the MCYS. I was advised that the parties agreed that employees affected by this transfer would have the right to transfer back to the MCSCS if an employee placed his or her name on a transfer list by a certain time. Mr. Hyland placed his name on the list and indicated a desire to transfer to the CECC. Vacancies arose at the CECC and in the - 3 - normal course Mr. Hyland would have been entitled to exercise his right to transfer and fill one of those vacancies, given his seniority. However, the Employer advised Mr. Hyland that he was not eligible to be on the transfer list and could not transfer to the CECC because of the December 3, 2003 arbitration decision placing him at Brookside. The Union takes the position that the Employer?s basis for denying the transfer is not valid. [4] Before reviewing the decision that placed Mr. Hyland at Brookside (?the placement decision?), it is useful to briefly review some of Mr. Hyland?s history while employed at correctional facilities in order to appreciate the context within which the decision to place him at Brookside was made. [5] Mr. Hyland has asthma, with a sensitivity to cigarette smoke. He requires an accommodation for this disability. Mr. Hyland has filed many grievances since 1986 in which he claimed that he had not been properly accommodated because he was exposed to cigarette smoke while at work, became ill and missed work as a result of these exposures. He filed such grievances while working as a Correctional Officer at the Toronto Jail from September of 1986 until February of 1995 and while he was working in the same capacity at the Toronto East Detention Centre (?TEDC?) from February of 1995 until August of 2004. I have heard many of these grievances over many years, issuing at least ten decisions. It is unnecessary for our purposes in the instant case to review all of these decisions. I did find that the Employer did not adequately accommodate Mr. Hyland?s disability when he was working at the Toronto Jail and when he was employed at the TEDC. - 4 - [6] At one point during this history, the Union established that the Employer was unable to accommodate Mr. Hyland at the TEDC. In a decision dated November 13, 2002, I directed the Employer to focus its efforts on accommodating Mr. Hyland at another institution. Approximately three months later, 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 (?TWDC?). Mr. Hyland rejected this offer.At a subsequent hearing, the parties put before me the question of whether Mr. Hyland should be placed at the TWDC, the CECC or Brookside. The Employer took the position then that its offer of a position at the TWDC 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 called three witnesses in support of its position that Brookside was the best option for Mr. Hyland because the risk of exposure to cigarette smoke was lower there than at the other two institutions. [7] In the bottom line decision dated December 4, 2003, I determined that Mr. Hyland should be placed at Brookside and provided the reasons for that determination in a decision dated January 2, 2004. The primary reasons for selecting Brookside over the other two institutions are set out at page 4 as follows: 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 at Brookside 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. - 5 - [8] For completeness I note that the story did not have a happy ending once Mr. Hyland arrived at Brookside. He continued to have exposures to cigarette smoke and he continued to file grievances claiming a failure on the part of the Employer to adequately accommodate him. In a decision dated September 5, 2007, covering a period up to May of 2005, I found that the Employer had failed to take reasonable steps to accommodate Mr. Hyland to the point of undue hardship. [9] Union counsel indicated during his submissions that the Union would establish if it had to that the situation for Mr. Hyland has deteriorated at Brookside and that changes have occurred at the CECC which make it a better work location given Mr. Hyland?s particular need for accommodation. He argued however that whether or not there have been changes at both institutions is an irrelevant consideration in the instant case and that this matter can be resolved on the basis of what he described as a straightforward legal issue. Counsel submitted that Mr. Hyland has the same right as other employees to transfer to another institution for personal reasons and that the Employer improperly prevented him from exercising this right when it claimed that the placement decision was a bar to his transfer to the CECC. He submitted that the placement decision served a limited purpose and that it did not have the effect of limiting any rights Mr. Hyland enjoyed under the Collective Agreement. Counsel noted that the Employer has never claimed that it could not accommodate Mr. Hyland at the CECC. Counsel argued that the Employer breached Article 3, the no discrimination clause, of the Collective Agreement when it denied the transfer because it effectively took the position that Mr. Hyland has fewer rights than other employees due to his disability. - 6 - [10] Employer counsel argued that it is not possible to determine Mr. Hyland?s rights in isolation from his need for accommodation. He submitted that the Union?s position in this case ignores Mr. Hyland?s history, the health and safety issues and the determination that Brookside was the better option for him when compared to the CECC. Counsel submitted that the Employer, while acting in good faith, denied Mr. Hyland a transfer to the CECC because of the placement decision and because of its view that Brookside is still the best option for him in the circumstances. He argued that the normal transfer rules do not apply here because Mr. Hyland?s need for accommodation means that he should not be treated like other employees. Counsel submitted that it does not make sense to have Mr. Hyland?s seniority dictate his accommodation requirements, particularly in this instance when the CECC was rejected previously as an option for him. [11] Having considered the submissions of counsel and the circumstances of the instant case, it is my conclusion that the Union?s position has considerable merit. The placement decision merely decided that Brookside was the better option for Mr. Hyland based on the evidence at the time. I agree with Union counsel?s assessment of what the placement decision did not do. The decision did not indicate that the CECC would be an inappropriate assignment for Mr. Hyland, just that Brookside was a better option. The decision did not indicate that Mr. Hyland?s assignment to Brookside included a waiver of his rights under the Collective Agreement. It also did not decide that Mr. Hyland would have to remain at Brookside permanently. The Employer did not take the position during the placement hearing that it could not accommodate Mr. Hyland at the CECC. It is particularly worth noting that it did not deny the transfer because of a claim that Mr. Hyland could not be accommodated at the CECC. Nor - 7 - did Employer counsel suggest during his submissions that Mr. Hyland could not be accommodated at the CECC. [12] As a general proposition, I agree with Employer counsel?s submission that the rights of an employee should be balanced in light of the duty to accommodate. I also have no doubt that the Employer was acting in good faith when it decided to deny Mr. Hyland the transfer. However, what is at issue here is whether Mr. Hyland?s right to transfer to the CECC should be negated simply because it was decided nearly six years ago that Brookside was a better option than the CECC. In my view, the placement decision is not a bar to Mr. Hyland?s right to transfer to CECC, particularly when the Employer has not claimed that it cannot accommodate him at the CECC. By denying him the right to transfer to the CECC, a right that other employees enjoyed, the Employer has effectively denied him a right because of his disability, thereby breaching his Article 3 rights. It is my conclusion therefore that the Employer did not have a valid reason in the circumstances for denying Mr. Hyland?s request to transfer to the CECC. [13] For the foregoing reasons, Mr. Hyland?s grievance is allowed. The Employer is directed to transfer Mr. Hyland to the CECC forthwith. I will remain seized of this matter should the parties encounter difficulties in implementing this decision. th Dated at Toronto this 9 day of September 2009. Ken Petryshen, Vice-Chair