HomeMy WebLinkAbout2011-1071.Hyland.14-04-07 DecisionCrown Employees
Grievance Settlement
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Commission de
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GSB#2011-1071
UNION#2011-0368-0091
Additional Files listed in Appendix “A”
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
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION David Wright
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Suneel Bahal
Ministry of Government Services
Legal Services Branch
Counsel
HEARING January 27, 30 and March 26, 2014
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Decision
[1] Mr. Hyland is a Correctional Officer employed at the Central East Correctional
Centre (“CECC”). The grievances now before me are those filed by Mr. Hyland covering the
period from July 15, 2011 to January 25, 2014. These grievances essentially claim that the
Employer failed to properly accommodate him. Mr. Hyland has asthma and a sensitivity to
cigarette smoke. One feature of his medical restrictions is that he requires a smoke free
workplace.
[2] In a recent decision dated January 15, 2014, I found that the Employer had failed in
its duty in a number of respects to accommodate Mr. Hyland at the CECC from the time he
started at that institution in September of 2009 until the agreed cut-off date of July 14, 2011.
I summarized my findings at paragraph 37 of the decision as follows:
To summarize my conclusions on those matters which were highlighted by the Union, I
find and so declare that the Employer failed to reasonably accommodate Mr. Hyland,
thereby breaching articles 3 and 9 of the Collective Agreement and the Ontario Human
Rights Code, between September 2009 and July 14, 2011, when it engaged in the following
conduct:
1. When it denied Mr. Hyland access to the secure part of the CECC for about three months
once it assigned him to his first post.
2. When it restricted its search for an initial post for Mr. Hyland to three posts without
considering placing him at a post within the secure part of the CECC that would have
allowed him to perform a broader range of CO duties.
3. When it failed to consider modifying the A&D schedule in order to permit Mr. Hyland
to work in that area.
4. When it failed to make reasonable efforts to police and enforce the smoking policy.
[3] One of the remedies the Union requested in that proceeding was an order directing
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the parties to find a proper placement for Mr. Hyland within the Ontario Public Service
(“OPS”), but not at the CECC, while Mr. Hyland received full pay without the requirement to
attend work at the CECC until a proper placement was found. I declined to make such a
direction for the following reasons set out at paragraph 39:
…To make such a direction I would have be satisfied that Mr. Hyland could not be properly
accommodated at the CECC. The evidence does not suggest that there is a basis for
reaching such a conclusion. By mid-July 2011, Mr. Hyland had been actually at work at
CECC for a little over 15 months. He has worked at two posts that have at least satisfied the
smoke free restriction. He has had fewer exposures at CECC when compared to his
experiences at other adult institutions. Taking into account these factors along with the
nature of the Employer’s failure to accommodate him, I am not convinced that the CECC
should be written off as a work location for Mr. Hyland or that it is necessary or appropriate
to direct that he be excused from work and paid while the parties search for a placement for
him.
[4] The Union has indicated that it intends to establish in this proceeding that the
Employer has continued its discriminatory conduct against Mr. Hyland for the 2½ years
following the period covered by the January 15, 2014 decision. Union counsel advised that,
among other remedies, the Union will renew its request that I direct the parties to find a
placement for Mr. Hyland outside of the CECC. Given the significance of this issue in the
context of this proceeding, the parties agreed to address it at the front end of the case. To this
end, the Union filed particulars of its allegations which for purposes of this decision are
accepted as true and provable. Counsel then made submissions on the question of whether
on these facts the Board would direct the parties to find a position for Mr. Hyland in the OPS
outside of the Ministry of Community Safety and Correctional Services, or alternatively,
outside of the CECC.
[5] The particulars filed by the Union covering the period from July 15, 2011 to January
25, 2014, absent the attached documentary material, are as follows:
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1. Throughout this period the Grievor has continued to suffer from susceptibility to
smoke which affects his asthma and thus to have a handicap within the meaning of the
collective agreement and Ontario Human Rights Code. As such the Grievor is entitled to
be properly accommodated by the Employer.
2. For the relevant period, the Employer has continued to fail to meet its obligations to
properly accommodate the Grievor.
3. The Employer has continued to fail to effectively and vigorously enforce the smoking
policy. As a result of the Employer’s failure to do so, the Grievor has continued to suffer
from exposures to smoke in his workplace on an occasional but too frequent basis, and he
routinely sees evidence that the smoking policy of the Central East Correctional Centre
has been breached.
4. As a further result of its failure to properly enforce the institutional smoking policy the
Employer has improperly restricted the range of movement of Grievor within the
Institution and the scope of the job duties which the Grievor has been assigned.
5. Instead of supporting the Grievor and making every reasonable effort to provide him
with a safe and healthy workplace, the Employer has instead isolated him in his work
assignment and from his peers; harassed him for raising concerns respecting the
enforcement of the smoking policy; and made direct threats to his job security.
6. The result is that the Grievor has been placed under a great deal of stress which has
had impacts on his mental and physical health and required him to be on medication,
which medication has had to be changed and strengthened.
7. From July 15, 2011 until January 27, 2014, the Employer continued to assign the
Grievor to the Unit 12 sub-control, despite the Grievor having made requests for alternate
assignments.
8. It was only subsequent to the release of the GSB’s decision of January 15, 2104, that
the Employer changed the Grievor’s work assignment. As of January 27, 2014, the
Grievor was assigned to a General Duty Officer (“GDO”) assignment, with the
understanding that he would not be assigned to attend on inmate living units as part of
that assignment.
9. While assigned to Unit 12 sub-control, the Grievor was not permitted to access the
kitchen area where inmates work and which was located in the vicinity of his work
station. This was an assignment with a very limited range of job duties and while
assigned there the Grievor performed only a limited portion of regular correctional officer
duties. In addition, he worked in isolation from his peers and had limited interaction with
others in the workplace.
10. Because he worked alone and without regular contact with peers or supervisors, the
Grievor had to arrange special coverage to take his breaks and even to be able to use the
washroom.
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11. Supervisors regularly ignored Mr. Hyland in the unit 12 sub-control and did not even
regularly enter the sub-control to do an inspection as is required. This is evidenced by
the scarcity of supervisor signatures in the Unit 12 sub-control log book, copies of which
have been requested but not yet produced.
12. Adding to the isolation caused by being assigned to the Unit 12 sub-control, from
July 14, 2011 until December 10 2012, the Grievor could also not attend at the staff
servery as smoking in the servery courtyard continued, to the knowledge of the
Employer, and without the Employer taking effective steps to deal with such smoking.
This had the effect of further isolating the Grievor from his peers as he was unable to eat
his lunches and take his breaks in the servery, where other staff gathers. He had no
option but to eat his lunches in isolation in his truck and take his breaks at his desk.
13. This isolation served to further single out the Grievor from his peers and increased his
stress in the workplace. He was unable to attend events in the courtyard such as BBQ’s
that other staff could attend (see memo of October 5, 2011 attached as Appendix 1).
14. By Memo dated December 14, 2012 (Appendix 2), the Superintendent advised all
staff that the Staff Servery Courtyard would be locked “in an interim effort” to enforce
the smoking policy. In that Memo, the Employer expressly acknowledged that it was
aware that the smoking policy continued to be breached and the Superintendent indicated
that he was aware of evidence of smoking in violation of the policy in areas such as the
staff servery courtyard, the warehouse loading dock, and the exterior of the
groundskeeper’s warehouse, commonly known as the beach.
15. The Grievor was not the only member of the bargaining unit to bring violations of the
smoking policy to the attention of the Employer during the period from July 15, 2011 to
March 17, 2014. Other members of the bargaining unit raised concerns those individuals
had with respect to smoking in the workplace. The Union routinely raised issues
respecting violations of the Policy at Joint Health and Safety Committee meetings
through this period, and made management aware of the growing frustration of members
of the bargaining unit at the lack of enforcement of the policy. The issue was raised at
virtually every meeting of the Committee between August 2011 and the fall of 2013 (see
Minutes attached as Appendix 3).
16. Despite its knowledge of these violations, the Employer did not take effective steps to
enforce the policy. The senior Employer representative at the meeting in fact stated that
she would only discipline persons she actually personally witnessed smoking in breach of
the policy and in so doing further indicated to the Grievor that it did not take his concerns
seriously.
17. The Employer reinforced this message in September 2011 by only issuing letters of
reprimand to employees who were caught smoking directly under a no smoking sign in
June 2011 (Appendix 4)
18. The lock on the servery courtyard was then removed again, and by February 2014,
there were again issues respecting violations of the smoking policy in the servery
courtyard. It was only after the Grievor raised additional issues respecting evidence of
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smoking in the servery courtyard on February 10, 2014 that the lock was ordered
reinstalled on February 12, 2014 (Appendix 5).
19. The Grievor filed Grievances on July 11, 2011 respecting the failure of the Employer
to adhere to the timelines respecting earlier grievances he had filed, and respecting the
efforts of the Employer to suppress evidence of smoking when the GSB was taking a tour
of the institution, and the failure of the Employer to act properly in response to those
efforts coming to light (copies attached at Appendix 6).
20. These actions of the Employer are attempting to cover up evidence of smoking and
not adhering to grievance timelines, reinforced the message that the Employer had been
sending to the Grievor since he arrived at CECC, that it did not take his concerns
seriously and that it did not intend to make efforts to resolve those concerns by properly
enforcing the smoking policy and accommodating the Grievor.
21. From July 15, 2011 through to February 2012, the Grievor was under a great deal of
stress as a result of his treatment in the workplace, and the Employer’s failure to properly
accommodate him.
22. While he still had exposures to smoke in the workplace and still saw butts and other
signs of the smoking policy being violated, he did not file reports as a result of his stress
and his feelings of frustration resulting from the Employer’s ongoing failure to enforce
the smoking policy and to properly accommodate him, and in particular from the
Employer’s efforts at covering up such evidence during the GSB tour of June 30, 2011.
23. The Grievor missed a great deal of work through the months of July 2011 to February
2012 as a result of this stress, and as a result of exposures to smoke. As his attendance
records at Appendix 7 show, he missed some 66 days of work for which he was on sick
leave during that period.
24. Throughout that period the Grievor remained in treatment with his physician, Dr.
Bolger, seeing Dr. Bolger as necessary and following Dr. Bolger’s treatment suggestions.
25. By letter of December 8, 2011 the Grievor was advised that he was required to
provide a medical note respecting his absences on December 7 and 8. The Employer
raised concerns about those absences (and subsequently with respect to absences on
December 12 and 13) in light of the fact that the Grievor had been able to attend hearings
at the GSB in that timeframe.
26. The Grievor provided a medical note on December 13, 20122 (Appendix 8) which
confirmed that the Grievor had been medically unable to attend work in that period, and
explained the basis on which the Grievor was at the same time able to attend hearings at
the GSB, given that attendance at the GSB did not involve any risk of exposures or
contact with peers and were aimed at ultimately improving his situation.
27. By letter dated December 16, 2011 (Appendix 9) the Employer refused to accept that
note and to pay the Grievor sick leave pay for those absences.
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28. In that letter the Grievor was instructed to instead apply for an unpaid leave of
absence, but when he did so, the application was denied on the basis that this was “an
issue involving sick days” and that the days were instead being treated as culpable
absenteeism (see emails of December 20, 2011 at Appendix 10). The Employer
maintained this position even after being provided with an additional medical note dated
December 20, 2011 confirming that the Grievor was ill and thus unable to attend work on
the dates in question (Appendix 11). The Grievor filed grievances on December 22, 2011
challenging the denial of sick leave and leave of absence request (Appendix 12).
29. The actions of the Employer in issuing these letters to the Grievor, rejecting his
doctor’s notes and denying his sick leave and leave of absence, greatly enhanced that
stress that the Grievor was under and further damaged his health and well being.
30. Then, on January 27, 2012, the Grievor was summoned to a meeting with the
Superintendent and Mark Dittenhoffer, Manager, Attendance Support and Management
Office, at which time he was told that the Employer was considering terminating his
employment, that his attendance would be managed outside the ASSMP, and that he was
required to obtain additional medical documentation. The Grievor was given a letter at
that meeting confirming this, and also attaching a letter to be taken to his doctor for his
doctor to provide additional information (see Appendix 13).
31. In the letter directed to his doctor, the Employer relied on all of the Grievor’s
absences from 2006 forward, without regard to whether or not the absences were the
result of exposure to smoke, or the impact of the failure of the Employer to properly
accommodate the Grievor and to properly enforce the smoking policies. The Employer
also relied on the Grievor’s attendance records for the period that the Grievor was
employed at Brookside, in direct violation of a settlement of the Grievor’s Brookside
grievances which had been reached in March 2011 and in direct violation of a
Memorandum of Understanding dated October 20, 2006 (copies attached at Appendix
14).
32. Despite being provided with a medical note dated February 13, 2012 (Appendix 15)
confirming that the Grievor’s absences were a result of smoking in the workplace and the
harassment the Grievor was experiencing in the workplace, and confirming that if those
issues were dealt with the Grievor’s sick time would be markedly reduced, the Employer
took no additional efforts to properly accommodate the Grievor and instead persisted
with its review of the Grievor’s absences.
33. The Grievor filed an additional grievance dated February 17, 2012 in response to
these actions of the Employer (Appendix 16).
34. At the same time, there were other issues in the workplace involving offensive graffiti
and offensive remarks, to such a degree that the Employer sent out a memo dated
February 17, 2012 to address these issues (Appendix 17). The failure of the Employer to
respond seriously to such issues, and to instead merely issue memos, reinforced the
Grievor’s experience that the Employer had no real interest in ensuring a workplace free
from discrimination and harassment, including in his own case. This served to further
increase the stress and anxiety suffered by the Grievor.
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35. On February 29, 2012, the Grievor received a memo (Appendix 18) from OM16
Jopling in Staff Services, purporting to advise the Grievor that his request for a change of
schedule and duties to that of GSO had been accepted. However, this was nothing but a
farce as the Grievor was then assigned, in the guise of being a GDO, to work only in the
Unit 12 sub-control (labelled as slot #23 in the GDO schedule – illustrating that this is a
position CO’s would normally rotate through). This was in direct contrast to how other
GDO’s are treated and signalled to the Grievor that the Employer remained utterly
unwilling to adjust his work assignment to allow him to perform a full set of CO duties,
in a setting where he could work with and interact with his peers, instead of being
isolated and put on display. The Grievor challenged this action by grievance dated
March 13, 2012 (Appendix 19)
36. On March 1 and March 7, 2012, the Grievor reported being exposed to smoke while
leaving the Institution through the main doors as a result of visitors smoking at that
location. He also reported evidence of cigarette butts in those locations (see Occurrence
Report dated March 12, 2012 attached as Appendix 20). Instead of attempting any action
to deal with the issue of visitors smoking at the doors, an issue which the Grievor and
others had brought to the attention of the Employer on numerous prior occasions, the
Employer instead responded only by a letter dated March 12 (Appendix 21) advising the
Grievor that his accommodation would be altered by permitting him to enter and exit the
institution through the A & D East Gate – a location that the Employer has, both before
and after the date of this letter, maintained is not safe for the Grievor in light of the fact of
its knowledge that people smoke at that gate in violation of the smoking policy. Such
action further reinforced to the Grievor that the Employer had no interest in actually
dealing with his concerns and in providing proper accommodation to him.
37. By letter dated March 2, 2012 (Appendix 22), the Grievor was advised that, despite
his disability and the Employer’s failure to accommodate it, he would be required to
bring his attendance within the institutional average within the next 3 months, at the end
of which period the Employer would “make a determination regarding [his] continued
employment.”
38. These actions of the Employer greatly increased the stress that the Grievor was under.
In addition to the stress he was already suffering from as a result of the failure of the
Employer to properly accommodate him and properly enforce the smoking policy, he was
now under direct threat of losing his job as a result of the Employer’s violations of his
rights.
39. The Grievor challenged these actions of the Employer by Grievance dated March 13,
2012 (Appendix 23).
40. As a result of these threats, the Grievor began to attend work even when not well,
which has further damaged his health, required new and strengthened medications, and
created further stress.
41. In the same time, the Grievor also experienced issues in his workplace related to a
build up of mould, which gave rise to further concerns for his health and safety,
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particularly in light of his asthma. He was advised that there was mould in the Unit 12
sub-control area. As a result he initiated a work refusal on March 29, 2012 and as a result
was assigned by OM16 Jackson to wait in the staff servery.
42. While in the servery, the Grievor witnessed two staff come into the servery, go into
the courtyard and smoke. The Grievor filed an Occurrence Report that day (Appendix 24)
in which he reported this incident and described the officers, who he did not know by
name. He also reported that OM16 Campbell was in the servery at the time and that the
officers in question passed OM16 Campbell to go to the courtyard to smoke. The
Grievor also advised the Employer of the evidence of ashes and butts in the courtyard, as
well as cans used for ashtrays and a shovel and dustpan. This state of affairs indicated
not only knowledge of, but condoning of, smoking in the servery courtyard by the
Employer.
43. Despite the Grievor’s report, the Employer took no action to investigate or follow up
on the event, or to sanction OM16 Campbell for his lack of action, further demonstrating
the Employer’s disinterest in enforcing the smoking policy. The Grievor ultimately filed
a grievance respecting the mould issue on June 7, 2012 (Appendix 25).
44. On May 7, 2012 the Grievor entered the servery in the afternoon and saw some 5 staff
members whose names he did not know smoking in the courtyard. He immediately
exited the area and advised OM16 Camen. The Grievor then filed an Occurrence Report
(Appendix 26). Despite his reporting the incident in a timely way, no action was taken
by the Employer.
45. Yet, despite taking no action to comply with its obligation to accommodate the
Grievor and to provide him with a safe and healthy workplace, on June 7, 2012, the
Employer met with the Grievor without warning him of the potential disciplinary
consequences of the meeting and, despite the Grievor’s attendance having improved,
advised the Grievor that his absences remained above the institutional average and that if
his attendance did not improve over the next 3 months his employment would be
terminated. This was confirmed by letter dated June 7, 2012 (Appendix 27) which stated
that if his attendance did not improve, “a decision would be made regarding his continued
employment.” The Employer took this action in direct disregard of the fact that at least
two of the absences relied on were the direct result of exposure to smoke, as the
Employer had been advised.
46. As a result of the Employer’s threats the Grievor was placed under even more stress.
He continued to be threatened with the loss of his job and as a result continued to attend
work even when ill as a result of stress and anxiety.
47. The Grievor filed grievances as a result of these actions of the Employer on June 7,
2012 (see Appendix 28).
48. In addition, throughout this period, the Employer failed to respond to the Grievor’s
concerns and grievances in a timely way and routinely cancelled and delayed meetings,
including grievance meetings (see emails at Appendix 29). These actions demonstrated
to the Grievor that the Employer did not take his concerns seriously and did not intend to
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take any action to improve his situation in the workplace or to properly accommodate
him. This again contributed and added to the stress the Grievor was suffering.
49. By letter dated August 30, 2012 (Appendix 30) the Grievor was advised that while his
attendance had significantly improved for the period from June to August, that the
Employer would continue to manage his attendance outside the ASSMP; that the
Employer was still “reviewing the employment relationship”; and that his attendance
would be monitored for the next 6 months to ensure he maintained his improved
attendance.
50. Thus, despite the Grievor’s absences being related to his disability and despite his
attendance having continued to improve, he remained under special scrutiny and his
ongoing employment remained under threat. The Grievor has never been advised that
this threat has been removed and thus continues to suffer anxiety and stress as a result.
51. In the March 2, 2012 letter, the Grievor was directed to report any occurrences related
to cigarette smoke, and as a result of that direction he again began to submit occurrence
reports when he witnessed or saw evidence of violations of the smoking policy. He has
reported violations of the policy on at least each of the following dates:
a. March 7, 2012 - direct exposure (Appendix 20);
b. March 29, 2012 (Appendix 24) ;
c. May 7, 2012 (Appendix 26);
d. July 3, 2012 (Appendix 31);
e. July 19, 2012 - use of electronic cigarettes (Appendix 32);
f. August 29, 2012 (Appendix 33);
g. October 2, 2012 - 2 separate events (Appendixes 34 and 35);
52. Despite the Grievor having advised the Employer that managers were smoking, or
that managers had witnessed a number of these events and failed to take action, the
Employer did not take any steps, to the knowledge of the Grievor, to sanction such
managers. The Employer also failed to conduct proper investigations of the incidents
brought to its attention by the Grievor, and to the knowledge of the Grievor has not in any
meaningful way sanctioned any person for violation of the smoking policy.
53. To the knowledge of the Grievor, other individuals have reported violations of the
smoking policy, including violations by managers, and the Employer has also failed to
properly investigate such reports and has failed to sanction any person in any meaningful
way for violation of the smoking policy. The Grievor was supplied with a picture of a
manager smoking in the servery courtyard on June 29, 2012 (Appendix 36).
54. As a result the Employer has demonstrated to the Grievor that it remains unwilling to
enforce the smoking policy, and to properly accommodate the Grievor, adding to the
Grievor’s stress.
55. In particular, with respect to the servery courtyard, not only did the Employer not take
any steps to try and prevent smoking from occurring in the area through October 2012, on
or about October 31, 2012 the Employer had blinds installed on the windows in the
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servery. In so doing the Employer sent the clear message that it was not concerned about
violations of the smoking policy, or about accommodating the Grievor, but that rather it
was only interested in concealing evidence of such violations.
56. The Grievor filed an additional grievance as a result on October 9, 2012 (Appendix
37).
57. He also filed a grievance on the same date respecting the continuing failure of the
Employer to deal with racial taunts and graffiti in the workplace, further reinforcing the
Employer’s lack of concern for discrimination and harassment in the workplace
(Appendix 38).
58. In fact, instead of properly accommodating him, the Employer has used the Grievor’s
reports of violations of the smoking policy in an attempt to discipline him.
59. By letter dated December 7, 2012 (Appendix 39) the Grievor was advised that he was
being investigated and considered for disciplinary action for alleged insubordination on
October 2 and 9, 2012, dates that he had reported managers and others smoking at the
front entrance to the Institution. It was alleged that he had been insubordinate by using
the front entrance when he has been allegedly been given specific direction to use the A
& D Sally Port and Female A & D Sally Port to enter the Institution. In fact, as can be
seen from Appendix 21, the Grievor had only been told that he could use these entrances
(and it must be reiterated that the Employer had over the same period taken the position
that the A & D was an unsafe work assignment for the Grievor due to smoking at the
entrance in question).
60. While the Employer did not in the end take any additional disciplinary action against
the Grievor with respect to this allegation, this event added another level of threat to the
security of the Grievor’s employment. It also reinforced that the Employer had no
concern for his safety and that it did not intend to take steps to properly accommodate
him. Instead of dealing with violations of the smoking policy, it was attempting to
conceal such violations from the Grievor. Again, this increased the stress and anxiety the
Grievor was suffering as a result of his treatment in the workplace.
61. The Employer took the same action and sent the same message after the Grievor’s
reports of multiple violations of the smoking policy on March 27, 2013, when he was
given access to all cameras in the institution. The Grievor that day reported to the
Employer that he had witnessed violations of the smoking policy on cameras 13, 14 and
15 (Appendix 40). Instead of acting on such evidence, and encouraging the Grievor to
monitor the cameras so that violations could be drawn to the Employer’s attention and
properly dealt with, the Employer the very next day removed the Grievor’s access to the
institutional cameras. Again, this reinforced that the Employer had no concern for his
safety and that it did not intend to take steps to properly accommodate him. Instead of
dealing with violations of the smoking policy, it was attempting to conceal such
violations from the Grievor. The Grievor filed an additional grievance respecting this
differential treatment on April 23, 2013 (Appendix 41).
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62. On May 16, 2013, the Grievor witnessed a staff member smoking at the front door
when exiting the institution immediately behind a manager. The manager took no action
to deal with the situation. The Grievor filed an Occurrence Report (Appendix 42) and
identified the manager and staff member. As a result of this exposure the Grievor had an
adverse reaction and missed two days of work.
63. Throughout this period the Employer has remained unwilling to make any change to
the Grievor’s work assignment despite his requests and seniority. The Grievor filed an
additional grievance respecting this on June 11, 2013 (Appendix 43).
64. The Grievor is also aware of other respects in which the Employer has failed to
provide a safe and health workplace free from discrimination and harassment (such as
racist and other inappropriate graffiti). This reinforces the message being sent to the
Grievor by the Employer, that the Employer has no intention of properly accommodating
the Grievor and that the Employer is not concerned for his well being.
65. The Grievor continues to suffer discrimination and harassment in the workplace.
66. As a result of the Employer’s failure to enforce the smoking policy; its failure to
properly accommodate the Grievor, including by providing him with a proper work
assignment; its isolation of the Grievor; and its direct and substantial threats to his job
security; the Grievor’s right to a workplace free from discrimination and harassment, and
his right to a safe and healthy workplace have been violated. As a result, the Grievor has
suffered financial loss; mental distress; physical and mental health damage; and
humiliation.
[6] During his submissions, Union counsel referred to the particulars in detail to support
the Union’s contention that management at the CECC has continued to fail in its obligation
to properly accommodate Mr. Hyland during the latest period under review. While
recognizing that Mr. Hyland has experienced fewer exposures to cigarette smoke, he noted
that Mr. Hyland still had exposures that affected his health and ability to attend work.
Counsel emphasized that the Employer has continued in its failure to adequately enforce the
smoking policy and to place Mr. Hyland in an appropriate position at the CECC. Counsel
submitted that these failures, along with the Employer’s treatment of Mr. Hyland’s absences
and its threats of termination, has had a continuing and increasing detrimental impact on Mr.
Hyland’s physical and mental health. Counsel noted that the Employer has had over four
years to properly accommodate Mr. Hyland at the CECC. He argued that the nature of
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Employer’s failure to accommodate Mr. Hyland for such a long time and the impact this has
had on Mr. Hyland is a strong basis for a direction that Mr. Hyland be placed in a position in
the OPS outside of the Ministry of Community Safety and Correctional Services, or
alternatively, outside of the CECC. In support of his submissions, Union counsel relied on
the following decisions: OPSEU (Pinazza et al.) and (2004), GSB No. 2002-0840 et al.
(Herlich); OPSEU (Ranger) and Ministry of Community Safety and Correctional Services
(2004), GSB No. 2002-2375 (Leighton); OPSEU (Hyland) and Ministry of Correctional
Services (May 13, 2002), GSB No. 1470/91 et al. (Petryshen); OPSEU (Hyland) and
Ministry of Correctional Services (August 28, 2002), GSB No. 1470/91 et al. (Petryshen);
OPSEU (Hyland) and Ministry of Correctional Services (November 13, 2002), GSB No.
1470/91 et al. (Petryshen); OPSEU (Hyland) and Ministry of Community Safety and
Correctional Services (January 15, 2014), GSB No. 2009-2699 et al. (Petryshen).
[7] In support of the Employer’s submission that the remedial request of the Union is not
warranted in the circumstances, Employer counsel emphasized those elements of the facts
which suggest that the efforts of the Employer to accommodate Mr. Hyland are improving.
Counsel noted the continuing reduction of the number of exposures to cigarette smoke and
the success the Employer has had with providing Mr. Hyland with work locations where he
has not experienced an exposure. Counsel noted the improved attempts by the Employer to
enforce the smoking policy. Although acknowledging that the Employer still has some way
to go in accommodating Mr. Hyland, counsel submitted that the facts do not suggest that the
Employer cannot accommodate Mr. Hyland at the CECC. Counsel argued that the Board
should take an incremental approach on the issue before me and that the drastic remedy
sought by the Union should only be awarded in extreme circumstances. Counsel submitted
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that those circumstances were not present at the CECC. Employer counsel relied on the
following decisions: OPSEU v. Ontario (Ministry of Children and Youth Services)
(Hyland Grievance), [2007] O.G.S.B.A. No. 184 (Petryshen); OPSEU v. Ontario (Ministry
of Transportation) (McCormick Grievance), [2006] O.G.S.B.A. No.31 (Abramsky); OPSEU
v. Ontario (Ministry of Community, Family and Children’s Services) (Balog Grievance),
[2004] O.G.S.B.A. No. 73 (Abramsky).
[8] As noted above, I declined to direct that Mr. Hyland be placed in a position outside
of the CECC when I determined in the decision dated January 15, 2014, that the Employer
had failed in some respects to properly accommodate him during the period from September
2009 to July 14, 2011. After reviewing the circumstances captured by the particulars
covering the period of time up to January 25, 2014, and after considering the submissions of
counsel, I remain of the view that it would not be appropriate to make the direction sought by
Mr. Hyland and the Union.
[9] In my view, it is significant that the number of exposures to cigarette smoke Mr.
Hyland has experienced at the CECC has been declining to the point where exposures are
becoming less problematic. Also of significance is that the Employer is able to assign Mr.
Hyland to a post with a smoke free environment. This has not always been the case when
Mr. Hyland had been employed at other correctional facilities. Although the Union takes the
view that the Employer is still not adequately enforcing the smoking policy, there is some
indication that there has been some improvement in this area. The closing of the Servery
courtyard for a time and the imposition of discipline for some employees who contravened
the policy is a step in the right direction. The attention the smoking issue now has at the
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Joint Health and Safety Committee, the concerns raised by other employees about violations
of the smoking policy and the recent focus of the Union and the Employer to address
accommodation issues suggest a greater likelihood that Mr. Hyland’s accommodation issues
at the CECC can be resolved.
[10] As Union counsel noted, the matter of exposure to cigarette smoke is no longer the
main focus of the Employer’s failure to accommodate Mr. Hyland. I am not convinced that
the other accommodation issues facing Mr. Hyland cannot be remedied while he remains
employed at the CECC. In other words, even in the circumstances portrayed by the
particulars, I am not prepared to conclude that the Employer cannot properly accommodate
Mr. Hyland at the CECC. The situation at the CECC is not like the one Mr. Hyland faced at
the Toronto East Detention Centre when I directed the Employer to find a position in a
different correctional facility. Such a direction was issued only after a finding that the
management team at that institution had failed to properly accommodate Mr. Hyland and it
subsequently became evident that Employer was not able to comply with the direction to
properly accommodate him by providing him with a smoke free environment.
[11] The decision dated January 15, 2014, is the first occasion when the management
team at the CECC was found wanting in its efforts to accommodate Mr. Hyland. On the
basis of certain findings set out in paragraph 37 of that decision, I directed the Employer to
find an appropriate placement for Mr. Hyland at the CECC in accordance with its duty to
accommodate him to the point of undue hardship. I also awarded Mr. Hyland $18,000.00 in
general damages and $12,000.00 in damages for mental anguish for the Employer’s failure to
reasonably accommodate him. The particulars relied upon by the Union as a basis for the
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remedial request at issue here deal with circumstances that occurred prior to the release of the
decision dated January 15, 2014. Hopefully, both parties will benefit from the analysis in the
decision regarding the accommodation of Mr. Hyland. The Employer going forward will be
in a better position to properly address his particular need for accommodation. Apart from
other reasons for refusing the Union’s remedial request, I am of the view that the Employer
should have the opportunity to address the accommodation of Mr. Hyland having had the
benefit of the conclusions and the reasons in the decision dated January 15, 2014. There is
already some basis for concluding that the decision has had a positive impact on how the
Employer will now approach the accommodation of Mr. Hyland.
[12] For the foregoing reasons, the circumstances for the period covering July 15, 2009
to January 25, 2014, do not warrant the conclusion that Mr. Hyland should be placed in a
position in the OPS outside of the Ministry of Community Safety and Correctional Services,
or alternatively, outside of the CECC. The Union’s motion for a remedy of this sort is
denied.
Dated at Toronto this 7th day of April 2014
Ken Petryshen, Vice-Chair
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Appendix “A”
GSB File Number OPSEU File Number
2011-1125 2011-0368-0101
2011-3196 2011-0368-0211
2011-3197 2011-0368-0212
2011-3748 2012-0368-0019
2012-0203 2012-0368-0031
2012-0204 2012-0368-0032
2012-1291 2012-0368-0081
2012-1295 2012-0368-0086
2012-1296 2012-0368-0087
2012-2955 2012-0368-0160
2012-2956 2012-0368-0161
2013-0742 2013-0368-0058
2013-1158 2013-0368-0080
2013-1159 2013-0368-0081
2013-1160 2013-0368-0082
2013-3189 2013-0368-0166
2013-3190 2013-0368-0167
2013-3191 2013-0368-0168
2013-3392 2013-0368-0183
2013-3585 2011-0368-0252
2013-3586 2011-0368-0253
2013-3587 2011-0368-0254
2013-3588 2011-0368-0255