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HomeMy WebLinkAbout1992-1685.Pitirri.94-03-10 f ( \ ONTARIO EMPLOYES DE LA COURONNE ,v CROWN EMPLOYEES. DE L'ONTARJO IF . .. GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELI=PHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS. OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPJE (416) 326-1396 1685/92, l686/92, 1687/92, l688/92, 1689/92, 1690/92, 1691/92, l692/92, 2374/92 IN THE MATTER OF AN ARBITRATION Under ~ THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD \ BETWEEN ~ OPSEU (pitirri) Grievor - and - The Crown in Right of Ontario (Ministry of Co~rectional Services) i Employer , I W. Kaplan Vice-Chairperson 'BEFORE : j H O'Regan Member I J. Miles Member ) I J I IFOR THE P Munt-Madill UNION Counsel Ryder, Whitaker, Wright Barristers & Solicitors ! , , I FOR THE D strang EMPLOYER Counsel I Legal Services' Branch I Management Board Secretariat , I 1 HEARING / April 6, 1993 1 October 27, 1993 February 4, 7, 1994 i I ( ! 2 \. ( \~ :0 I Introduction This matter, involving nine different _grievances, first came before the Board on April 6, 1 993 At that time, and at the request of the p~rties, all of these grievances except for the one dated October 5, 1992, were adjourned sine die In the grievance dated Qctober S, 1992, Joseph Pitirri, formerly a Correctional Officer 1 at the Hamilton-Wentworth Detention Centre, grieves that he has been unjustly dismIssed from employment. On April 6, 1992, Mr Jim BenedIct, who was then representing the employer, raised a preliminary objection with respect to the arbitrability of the October 5, 1992 discharge grievance Some evidence was heard for the sole purpose of resolving the preliminary objection On May 3, 1993, the Board issued a preliminary decision dismissing the employer's preliminary objection On October 27, 1993, the Board reconvened to hear evidence with respect to the October 5, 1992 grievance. At this time, Mr David Strang appeared on behalf of the employer Several more days of hearing then ensued In brief, it is the union's position that the employer, among other things, failed to exercise its duty to accommodate the grievor The employer takes the position that it acted properly in every respect. A number of facts were not in dispute The grievor was a contract employee who first began to work at the Hamilton-Wentworth Detention Centre (hereafter "the Centre") in December 1989 He was not rehired following the expiry of his last contract on September 30, 1992 Contract Correctional Officers, such as the grievor, are employed on an as-needed basis --.---"-- ~---,--=----,--=-,-----------=-- \. 3 ( .1" Q The Union's Case Evidence of Joseph Pittiri The grievor testified on his own behalf In general, over the course of his employment at the Centre, the grievor was scheduled for approximatefy three shifts per week He was also required to work on an on-call basis, and he testified that these ca"sgen~ra"y came early in the morning or late at night, and that the duration of theon-call shifts was determined by the Centre's particular needs. When called in at 18 45, the grievor would either work until approximately 21 1 5 or until 07 1 5 Sometimes the g-rievor would be advised about the length of his shift when he arrived at 18 45, other times, he would not be told that he was working through the night until later /in the evening. As already "noted, the grievor began work as an unclassified Correctional Officer on contract in December 1989 From the outset, he experienced certain difficulties when working the night shift. In 1985 or 1986 the grievor had a fissure operation He testified that when he worked nights he would regularly develop cramps, and that these cramps would often become more severe over the course of the night. Sometimes the grievor would develop diarrhoea and a feeling of nausea, and he would end up with blood in his stool For the first six months of his employment, the grievor did not mention this problem to anyone, but after working for approximately six months at the Centre, he began to mention it to his' commanding officers, and he specifically advised all of the sergeants that night shifts made him ill In the result, the grievor was able to generally avoid working night shifts ------.- ( 4 \VI f:'> In July 1991, the grievor went away on his honeymoon While traveling in Cape Cod he suffered a serious attack of cramping, bleeding, and diarrhoea After returning to. Hamilton, the grievor consulted his family physician, Dr Allen Greenspoon, and Dr Greenspoon referred the grievor to a specialist, Dr Trevor Seaton Various tests were administered to the grievor, and in March or April 1992 he was advised that he was suffering from a condition ( called ulcerative colitis. The grievor testified generally about his condition, and about the drugs he used to control it. The grievor testified that he was only required once, in all of 1992, to work (overnight. On May 8, 1992, no one else could be found, and the grievor worked overnight. He felt fine until about 1 00 a m. when he began to experience pain, bloating and cramping As the night progressed his I symptoms worsened He testified that his previously normal bowel movements turned into diarrhoea, that blood appeared in his .bowel movements and that he felt severe pain and nausea The grievor completed the night shift and went home to bed. He soon woke up in severe pain, and proceeded to the hospital where he was treated for several days. Following this incident, thegrievoJ was off work for ten days. The grievor testified that prior to this incident he generally kept hiS condition to himself This attack made him realize,however, that he could no longer work nights. Accordingly he went to see Ms Joan McLellan, the scheduling officer, to request accommodation Ms. McLellan did not know anything about the Centre's accommodation obligations The grievor also approached Lieutenant Theren Beecroft, who was also unfamiliar with the Centre's duty to accommodate. Eventually, the grievor obtained a copy of the Accommodation Directives and Guidelines issued by Management Board } \ ) ( i C,. 5 \.i1 n Secretariat, and he forwarded copies of these documents to various individuals. Ms. McLellan advised the grievor to obtain a doctor's note At some point he provided the Centre with a note from Dr Greenspoon dated June 17, 1992 This notes states that the grievor suffers from ulcerative , colitis "and requires stability in his life to avoid flare-ups" The note goes on to state that the grievor "should avoid shift work." Copies of this note were provided to Ms McLellan and Mr Raymond Kalmins, the Assistant Superintendent of Operations~ On July 15, 1992, the grievor signed a release authorizing the Ministry's Chief Medical Practijtioner, Dr Humphries, to communicate with Dr Greenspoon for the purposes of obtaining information about the grievor's c'ondition The grievor did not hear anything about his request for accommodation until September He did not work any night shifts during this period On September 23, 1992 the grievor was working on the day shift when Mr Kalmins summoned him to a meeting The. grievor was then working under the terms of a contract scheduled to expire on September 30, 1992 Mr Kalmins advised- the grievor that he had a new contract ready for him This contract was identical to all of the other contracts that the grievor had received expect that it also stated th~t "in an effort to accommodate the employee's medical condition, the hours of work will always fall between 18 45 hours and 07 15 hours the next day" The grievor testified that he advised Mr Kalmins that there must have been a misunderstanding between doctors, and that the accommodation he requested was that he not work the night shift. Mr Kalmins told the grievor that he would look into it and get back to him. When the grievor left this meeting he felt that he had made it quite clear that he was not able to work between 10 00 P m. and 7 00 a m. 1 ( 6 ( ,', ~~ He did not anticipate any difficulties in obtaining the accommodation he wished I The grievor was next scheduled to work on September 30, 1992 at 18 45 However, he received a telephone call earlier that morning summoning him to a meeting with Mr Kalmins. He was again presented with the same contract he had been earlier provided with, and the grievor testified that he again suggested to Mr Kalmins that there must have been a misunderstanding He asked Mr Kalmins if the Centre required a more . precise doctor's letter The grievor testified that Mr Kalmins advised him that he was aware of the grievor's medical condition, and that this was the accommodation that the employer was prepared to offer with respect to it. The grievor asked for additional time to obtain a more precise doctor's letter, but Mr Kalmins rejected that request. He did, however, agree to the grievor's request that he be provided with union representation. A union steward and another member of management soon arrived on the scene, and after the grievor had availed himself of the opportunity to privately brief the steward, Rusty Selkirk, the meeting resumed The grievor again asked for more time to obtain a more precise medical letter, and that request was again rejected Mr Selkirk pointed out that there was no prejudice to the employer as the grievor had plenty of time prior to the start of his shift to attend at his doctor's office in order to obtain another letter It was also pointed out to Mr Kalmins that the grievor had, in the past, worked for considerable periods of time after his contract had expired, and that, in the circumstances of this particular case, it was not necessarily essential that a new contract be immediately signed Mr Kalmins refused the request for additional time He advised the grievor ..-,._-_.. --.------ ,-- . .,-.- - -- ~ -. -.,-'....... - (, 7 ( 'ii, \I~ that this was the contract he was being offered, and that he could either - accept it or reject it. According to the grievor, Mr Kalmins advised him that he had a problem accommodating any casual employee, and that this was the extent of the accommodation the -employer was prepared to grant. Even when it was pointed out that the grievor haq requested accommodat.ion some months earlier, and that the employer had waited until the day his contract expired to make an accommodation offer to him, Mr Kalmins refused a request from the grievor and Mr Selkirk that some additional time be granted to resolve this problem. When the grievor refused to sign the new contract, he was paid for his last scheduled shift and escorted out of the Centre Several days later the grievor provided the Centre with a more detailed letter from Dr Greenspoon This letter, dated October 4, 1992, states This is to confirm that, after further discussion, it is apparent that Mr Pittiri is fit for only day-shift work. As stated in my previous report, Mr Pittiri suffers from ulcerative colitis which has been exacerbated by an '\ irregular shift pattern Furthermore, he has attempted to work steady night-shifts in the past, negatively effecting his condition He has suffered an exacerbation of his ulcerative colitis as a result and therefore, at this time, requests, day-shift only work. He feels that during day-shift work he may be in the best possible position to stabilize his lifestyle and eating pattern This shift would therefore provide the least amount of stress on him and provide him the most amount o'f stability for his ulcerative colitis ( The grievor t~stified that no one at the Centre ever responded to this \etter with another accommodation offer He also- told the Board that since his ( ;: 8 l > ";11; ~, ~ termination he has sou9ht employment elsewhere but has been unsuccessful in finding it. The grievor believes that his needs could have been accommodated since, in his experience, the Centre requires the largest number of Correctional Officers between 6 45 a m. and 1 0'00 P m Th~ grievor also identified a full-time day position which the Centre could have provided him if it had wished In his view, there would have been no undue hardship to the Centre in accommodating him by assigning him only to day shifts Cross-Examination of Mr. Pitirri Mr Pitirri was asked a number of questions in cross-examination He agreed that it was the nature of an unClassified Correctional Officers position to be on call around the clock. While some of his shifts were scheduled up to one week in advance, on other occasions he was called at the last minute and asked to report to work. With respect to his illness, \ the grievor testified that he was, despite his diarrhoea and other 'symptoms, able to work, .and that he was never sent home because he was sick. He noted that employees who regularly call in sick find their hours I reduced, .and by and large, the grievor learned to live with the various I symptoms of his disease, which he described in some detail to the Board Over time the grievor became. increasingly convinced that shift work and shift lag either contributed to or exacerbated his symptoms. The gnevor agreed, however, that while he worked two nights in a row in 1 990, he did not doi so in either 1991 or 1992 The grievor never felt sick when he was ) required to work different day shifts, he only felt sick when he was required to work the night shift. In May 1992; the grievor suffered his worst attack ever ( ( \ 9 c' it Following this illness, the grievor began his efforts to obtain accommodation He obtained the June 17, 1992 note from Dr Greenspoon and provided it to the Centre A stamp on this note indicates that the Centre received the .note on July 8, 1992 The grievor testified that he provided it to the Centre sometime between June 22nd and June 30th. The grievor assumed that the Centre understood that the shifts he was to avoid were the night shifts because he had repeatedly let member$ of management know that his medical condition precluded him from working nights The grievor was asked a number of questions about his meetings with Mr Kalmins. He reiterated his earlier evidence that he advised Mr Kalmins on Septemb_~r 23, 1992 that he could not work night shifts Mr Kalmins then told the grievor that he would look into it. The grievor testified that this meeting was cordial The grievor did not go and see his doctor after the meeting, and he testified tha.t he was never asked by Mr -Kalmins to obtain any further information with respect to his illness and the appropriate accommodation of it. 'The grievor could recall a conversation, although not its exact date, with Dr Greenspoon in which they summarily discussed the information that Dr Greenspoon had provided to Dr Humphries. The grievor was asked whether he told Mr Kalmins on September 30, 1992 that he had spoken with his doctor and that the doctor has again indicated that he, the grievor, could not work nights. The grievor testified that what \ he told Mr Kalmins was that there had been a misunderstanding In his view, it was not necessary, between September 23rd and September 30th to obtain any additional information because he was of the view, following the meeting on the 23rd, that everything would work out. ( , 10 \, 'l..., ~ .;., Evidence of Dr. Robert Goodacre Dr Goodacre testified. He is a staff gastroenterologist at St. Joseph's Hospital in Hamilton He is also a Associate Professor at the McMaster University Department of Medicine and has written numerous articles on ulcerative colitis He has' more than 1 50 patients suffering from this condition, and it was agreed by the parties that he could provide expert evidence with respect to it. ) Dr Goodacre testified generally as to this illness He told the Board that its causes are unknown, and he described in some detail the various symptoms that occur as well as the methods available for their treatment. In Dr Goodacre's expert opinion, stress was one factor associated with the reoccurrence of the condition. There was no doubt but that the grievor was suffering from ulcerative colitis involving the rectum and sigmoid colon Dr Goodacre, who examined the grievor on September 14, 1993 for the purposes of preparing an expert opinion, had not previously been associated with his Gare However, he had the chance to review Dr Seaton's file, the specialist previously in charge of the grievor's care, and had also had the benefit of his own examination of the grievor as well as several subsequent telephone conversations with him. He wrote in his expert opinion, dated October 1 2, 1 993 that: On review of Mr Pitirri's history it appears that he did experience significant problems with abdominal pain, bloating, diarrhoea and bleeding for three or four days following working on his night shifts in 1991 As you I can appreciate, it is difficult to be dogmatic in this 0 situation and to say that there is a definite cause and effect relationship between his bowel function and shiJt work but I have recognized this association in a number of other patients It is important that his schedule be as >>.i.....- ;:'1 _ .. :... -- - ~ '- ( 1 1 ( :5 .' regular as possible as there are well recognized physiological changes that occur during the change to night shift work which could potentially contribute to the exacerbation of his colitis It would also be anticipated that there would be some disruption of his normal daily routine with respect to dietary measures which may also aggravate his gastrointestinal condition Dr Goodacre was asked to provide his professional opinion whether the ) accommodation offered to the grievor was more likely than not to have aggravated his condition In response to this question, he testified that it was possible that it would have aggravated his condition, but he could not say for sure given a general lack of medical knowledge with respect to the factors leading to the onset and flare-up of the disease Cross-Examination of Dr. Goodacre In cross-examination, Dr Goodacre testified that while there were some known triggers for the disease such as super-added infection and antibiotiC treatment, in general there was no received view as to cause and effect. While there has been a recognition of stress as one factor contributing to flare-ups, there is presently no scientific evidence t<;> support this view Dr Goodacre was also asked about whether working the occasional night shift might lead to a flare-up, and he testified that there would likely be more severe consequences in the case of a regularly changing shift pattern than. an intermittent one such as would occur where someone was required to work overnight two or three times a year Biological changes would, however, occur in either case I Dr Goodacre agreed with the suggestion that there was no way of knowing what exactly caused a flare-up, and there was, accordingly, no reason to believe that a single flare-up following one irregular overnight shift was ~. __h_ ( ( 12 , " .i\ the result of that shift. The fact of the matter was that that flare-up might have been caused by any number of things. It might have been caused by'taking an aspirin, by diet, by stress or by something else Very simply, one isolated incident does not give any medical basis for making a finding of cause and effect, and this conclusion was reinforced when other flare-ups were not associated with working through the night. Dr Goodacre did testify, however, that notwithstanding a general lack of scientific knowledge about this disease, a pattern of consistent association with a particular event and a subsequent flare-up would provide some basis for reaching conclusion~ about cause and effect~ Re-examination of Dr. Goodacre In re,.examination, the witness was asked whether limiting the grievor to working during the days and evenings would, given his disease, be a safe and appropriate accommodation for him. Dr Goodacre testifi~d that this was possible He also testified that notwithstanding alack of scientific knowledge about the disease, if a patient was in a position to associate a certain cause and effect, this was enough reason to, whenever possible, eliminate the cause in the hope of also eliminating the effect. Evidence of Dr. Allen Greenspoon l Dr Greenspoon testified, and also filed a report dated October 15, 1993 Among, other things, this report states On September 30, 1992, I again reassessed Mr Pitirri with regard to ongoing problems with his ulcerative \ colitis. A t that time he was requesting steady days because he found shiftwork was too stressful on his ~ system He was afraid that shiftwork would exacerbate his ulcerative colitis. He 'stated that he was having - -- .~,.. ( ( \ 13 I- ii difficulty adjusting to night shifts and this would disrupt his family life, as well as his diet schedule He felt that his ulcerative colitis was exacerbated during these times and he was not prepared to take that chance ) My experience with ulcerative colitis is limited, asl am a family physician, not a gastroenterologist~ However, I note that Mr Pitirri was relatively well prior to his job involving shiftwork Furthermore, it appeared that undue stress, particularly from his job, appeared to exacerbate or cause a flare-up of his colitis, which settled down in January 1993 It is my opinion that Mr Pitirri has been affected by difficult shift changes and stress from work It is my feeling that a steady day shift would probably give this gentleman his best chance for continuing to work on a regular basis with the avoidance of flare-ups of his colitis as much as possible This, of course, would not guarantee that he would not have any problems, but he would be less likely to have flare...ups of this condition Cross-Examination of Dr. Greenspoon In cross-examination, Dr Greenspoort testified that Dr Seaton has been the grievor's primary care giver with respect to his colitis Dr Greenspoon ha~ however, been aware of the grievor's condition, and the various flare-ups which have occurred Dr Greenspoon testified that he discussed the grievor's condition with him in June 1992, and at that time the grievor expressed concerns with respect to shifts and flare-ups. Steady night shifts was not the answer because they presented additional problems relating to diet, family life, exercise and so on, all of which had the potential to cause distress. According to Dr Greenspoon, the grievor told him that these factors were affecting him, and this is why he wished to work steady day shifts. I Dr Greenspoon agreed that regularity in diet, exercise and family life were important to everyone, not just persons r . .. -. ~ ( ( 14 ",-"" ~ suffering from ulcerative colitis Dr Greenspoon was asked' if he was aware that the grievor was not working shifts, and he testified that he knew that the grievor had worked nights In the past. Even if the grievor was not working steady nights, occasional nights could still cause stress and lead to a flare-up. On September 30, 1992, Dr Greenspoon met With the grievor, and some time was spent discussing whether it would be appropriate for the grievor to work steady nights Dr Greenspoon testified that the grievor expressed concerns, at his time, about the effect of steady evening-night shifts on his family and on his colitis Dr Greenspoon and the grievor also discussed whether the position of Correctional Officer was the best job for the grievor, and the grievor expressed the view that he liked his job and did not feel that the work was a threat to his health. Following this discussion, Dr Greenspoon was ,of the view that steady day shifts were in the grievor's best interest, and he prepared the letter dated October 4, 1992, which is set out above. Dr Greenspoon agreed that steady nights would be better for the grievor than an irregular shift, but that, given the circumst~nces of the grievor's case, they still left a lot to be desired The Employer's Case Evidence of Raymond Kalmins Mr Kalmins testified At the time in question he was the Senior Assistant Superintendent of the Centre in charge of Operations He has fourteen years of experience in .Corrections Mr Kalmins described the Centre It has room for approximately 400 adult offenders and 50 young offenders. Every type of adult offender can be found in the Centre ranging from murderers, rapists - -_. - . -- - c ( 15 \ '('!i, '.)..) and arsonists, as well as, individuals convicted of lesser offenses Mr Kalmins described the atmosphere as confrontational Correctional Officers are regularly subjected to verbal abuse, and often must intervene directly to break-up inmate disturbances Many inmates have behavioural problems, and this too places demands on the staff Mr Kalmins described the shift schedule at the Centre Pursuant to an I agreement worked' out between the parties, most classified Correctional Officers work a twelve-hour shift. Given the manner in which these shifts are organized there is a three-hour gap in the early evening hours, and unclassified Correctional Officers such as the grievor are generally used to fill in this gap Unclassified Correctional Officers are also ,used to maintain minimum compl~ment on an "as required" basis such as when classified staff call in sick, go away on vacation, or are otherwise unavailable Unclassified Correctional Officers agree, as part of their employment contract, to be available on a 24 hour basis, and to fill in as necessary In preparation for this case, Mr Kalmins prepateda chart indicating the various shifts the grievor has worked. This chart largely corresponds with \ ....,. thegrievor's own evidence of his shift patterns Mr Kalmins also prepared a document recording the number of times the grievor has applied for a full-time classified position Between December 1989 and March 1992, the grievor applied for such a position on six occasions Suffice it to say that each time the grievor was either ranked last or close to last. On each occasion at least fifteen staff including the grievor were interviewed \ i (- ( 16 \ Mr Kalmins was the chair of the interview panel in each of these '--- competitions, and he testified that the grievor performed extremely poorly He also testified that at no time, in any of these competitions, did the grievor raise his medical condition or refer to the difficulties he experienced in working nights In June 1992, M$. McLellan advised Mr Kalmins that the grievor was requesting accommodation Mr Kalrnins advised Ms McLellan to instruct the grievor to obtain a medical report. He testified that he received Dr Greenspoon's note in July 1992 After receiving this note, Mr Kalmins consulted with the Superintendent and with Ministry personnel officials According to Mr Kalmins, this was the first time that a permanent accommodation for an unclassified officer had been requested, although one unclassified employee was, for religious reasons, not scheduled for work on Saturdays The Centre has a formalized process in place for the accommodation of classified employees In any event, after engaging in consultations, Mr Kalmins asked the grievor to sign a medical consent form which he did Mr Kalmins was subsequently advised that the grievor's ,medical condition was confirmed, and that the grievor could be accommodated by providing him with steady shifts Mr Kalmins then reviewed the Centre's operational needs and .offered the grievor the specific accommodation indicated above He. testified that the process of consultation, as well as the medical liaison between the grievor's and Ministry's physician, were responsible for the apparent delay between the accommodation request and the accommodation offer ~ - - - --- - ) ( ( 17 \ ;. u"\ Mr Kalmins presented the grievor with the accommodation offer on September 23, 1992 He testified that he was quite surpnsed by the grievor's response to it. Mr Kalmins tes~ified that the grievor told him that he could not work nights, and that he needed to work days in order to have a more regular life. Upon being advised by the grievor that he could not, for medical reasons, work the night shift, Mr Kalmins agreed to double-check his information and get back to him Mr Kalmins also testified that, in response to a question from the grievor, he advised him '\ that another reason why he -had suggested the specific accommodation he had was because he was aware that the greatest need for unclassifi,ed staff was in the evenings and at night, and that he was sensitive to the grievor's desire for work. A letter from the grievor dated September 24, 1992 raising concern about the number of hours available for unclassified staff was introduced into evidence. Also introduced into evidence was a written request from the grievor dated September 7, 1992 that he not be scheduled for work on Tuesday and Thursday evenings because he would be attending a university class Mr Kalmins testified that after receiving this second request he instructed Ms. McLellan to accommodate the grievor whenever possible Mr Kalmins testified that at this time there were approximately 28 unclassified Correctional Officers seeking hours; and that they wete in all in competition for the prime 1 2 hour day shifts According to Mr Kalmins, the Centre attempted, inasmuch as possible, to fairly divide the available work among all employees. Following the meeting on September 23rd, Mr Kalmins engaged in further consultations On September 30, 1992, he again met with the grievor and advised him that the Centre's initial understanding as to the necessary accommodations had been confirmed In the result, the accommodation ( /-\ ( \" 18 '" offer had not changed Mr Kalrriins was again surprised by the grievor's reaction and by the fact that he did not present him with any additional information in support of his request. Mr Kalmins advised the grievor that his contract was expiring that night, and that he could not and would not - permit the grievor to continue to work unless an accommodation arrangement Was in effect. Mr Kalmins testified that he was cognizant of the fact that if he authorized the grievor to continue in employment without addressing the grievor'S medical condition, should something happen while the grievor was at work, then he and the Centre would bear some of the responsibility for it. According to Mr Kalmins, the grievor again advised him that he could not work nights, and asked that he be limited to working the evening hours only This did not make sense to Mr Kalmins given that the grievor had recently expressed concern about not receiving sufficient hours. Moreover, operationally it did not make sense to have an unclassified Correctional Officer who was only available .for a three-hour evening shift. In any event, the grievor refused the offer and as his contract expired that evening, his employment came to an end. Cross-Examination of Mr. Kalmins In cross-examination, Mr Kalminsagreed that while he may have, in July 1992, instructed Ms. McLellan to tell the grievor to obtain a medical report, \ he was not aware of exactly what Ms. McLellan told the gnevor was required. MJr Kalmins also agreed that he never discussed the grievor's medical condition with Dr Humphries. Rather, he relied on the information provided by a Ministry personnel official who had spoken to Dr HumphriE;!s. '_.__ __~ n_ _ _ _. _ _ ..- n -- ( 19 '. Mr Kalmins agreed that the grievor advised him on several occasions that he could not work nights However, Mr Kalmins testified that he could only go by the advice he received, and that advice was to the effect that the grievor could not work shifts. Mr Kaln1ins also could not understand why someone who said in early September that he needed more hours would say at the end of the month that he wanted to limit the hours he worked Mr / Kalmins ~greed that the grievor had, in the past, worked after one of his contracts had expired He testified that he rejected the ,grievor's September 30th request for additional time because he felt that the gnevor had already been provided with sufficient time to advance any relevant medical information. He testified that' he implied in his September 23rd conversation with the grievor that while he would double check, unless he obtained some new inforrnation, then he would continue to rely on the advice he had already received According to Mr Kalmins, the grievor told him on September 23rd that he would go and see his doctor, and 'he ,noted that it was obviously in his interest to do so Mr Kalmins agreed that he did not mention thi~ in hisexamination-in-chief Mr Kalmins also testified that during the meeting on September 30th he asked the grievor if he had gone to see his doctor The grievor replied that he had. Mr Kalmins then made a gesture to him and said "well?" The grievor did not; however, offer any additional information. Mr Kalmins agreed that the grievor made several requests at this meeting for additional time to see his doctor Mr Kalmins did not recall Mr Selkirk's suggestion, as reported by the grievor in his evidence, that since the September 30th meeting was in the morning and since the grievor was not scheduled to work until the evening, that the grievor be given the opportunity to obtain additional medical information that afternoon He did, " ........ -.-~ ( 20 ( '" ,. however, recall Mr Selkirk approaching him after the meeting to suggest an extension of thirty days. Mr Kalmins felt that since the grievor had a disability, he should only work subject to an accommodation agreement, and since there was no such agreement he did not think that the grievor 'should be allowed to continue to work The evidence having been completed, the case proceeded to argument. Union Argument In the union's position the Centre had, in this case, breached Article A of the Collective Agreement in that it failed to accommodate- the grievor His termination was, in addition, without just cause The union also took the position that the Centre had breached its obligation to exercise its duties in good faith, and had also failed to adhere to applicable principles of procedural fairness .. Union counsel argued that Article A imposed an obligation on the Centre to accommodate the grievor on the basis of disability, and that the Centre had not only failed to exercise its obligation, it had discriminated against the grievor in the process of not doing so In counsel's submission, there was no issue between the parties that the grievor was suffering from a disease He was, therefore, suffering from a disability, and the Centre was, accordingly, obligated under the Collective- Agreement a-nd in law to accommodate the grievor to the point of undue hardship. In counsel's .submission, the evidence supported the conclusion that working nights has an adverse impact on the grievor's medical condition Counsel noted that the evidence was lJncontradicted that the grievor had, over a - - -- -- ( ( 21 '" ". period of several years, made his. supervisors aware that ne could not work nights. It wassi~nificant, in this regard, that the Centre had informally accommodated the "grievor in this respect. The- grievor only worked one or two nights in the .period prior to his termination There was, counsel argued, a de facto accommodation of no nights, and this accommodation met the grievor's stated medical needs. With respect to the medical evidence, counsel noted that Dr Goodacrehad opined that it was possible that the accommodation offered by the Centre in I September 1 992 could result in flare-ups. Dr Goodacre further testified that the concerns about working nights which the grievor had expressed to him were entirely consistent with current medical understanding about ulcerative colitis. Dr Gooda.cre also testified that ulcerative colitis was an individual condition, and that if something bothered an individual then he or she should (ivoi.d it regardless of whether that particular cause and effect had been sCientifically proved Counsel pointed out that Dr Greenspoon's evidence was entirely consistent with that of Dr Goodacre, and that his opinion that the grievor should not work nights should also be taken into account. Counsel conceded that there was no way, given the medical literature, that the union could prove a cause and effect between working nights and a flare-up of the grievor's condition However, in the union's view, it had established that, on the balance of probabilities, there was a connection, and that being the case, the Centre was obliged to accommodate the grievor When the Centre's proposed accommodation was examined, it was clear that not only would that accommodation have an adverse impact on the grievor, it did not meet the legal obligation that the grievor be accommodated to the ( 22 ( ,. point of undue hardship With respect to undue hardship,counsel noted that ~ all the evidence established was that the Centre had the greatest need for unclassified employees in the evening hours There was no evidence that it would cause the Centre undue, or any hardship for that matter, to restrict the grievor's schedule to day and evening hours. Counsel also argued that there was no way that the grievor could have or should have known, following the meeting on September 23, 1992, that the Centre requirf;!d additional information with respect to this needs Indeed, given the fact that the grievor had been informally. accommodated for some considerable length of time, there was no reason for him to believe that this informal accommodation would not continue Counsel noted that Mr Kalmins admitted that he never asked the grievor to provide him with additional information Instead, Mr Kalmins left the grievor believing that he would look into the confusion himself There was no doubt, counsel pointed out, but that the grievor made it clear to Mr Kalmins on September 23, 1992, that he could not work nights. In counsel's submission, if there was a lack of information on September 23rd, and then on September 30th, that was neither the fault nor the responsibility of the grievor Counsel argued that the Centre was obligated to accommodate the grievor, and that all that accommodation entailed was the formal continuation of the effective status quo. Instead of continuing with a practice that met both parties needs, the Centre offered the grievor an accommodation that was directly contrary to his stated medical requirements This, counsel argued, was not what the duty to accommodate was all about. __ n ( ( , -~~ 23 '~ , Moreover, there was, counsel argued, nothing to preclude the Centre from agreeing on September 30, 1992 to giving the -grievor some additional time to provide it with more specific medical information This failure was inconsistent with the Centre's past practice of allowing the grievor to work after his contract had expired Counsel argued that the Centre was obligated to exercise its discretion in good faith, and the facts of this case indicated that it had failed to do so Counsel asserted that the Centre was also obligated to act in a procedurally fair manner, and here too the union took the position that the evidence indicated that it not -done so In all of these circumstances, counsel argued that the evidence established that the- grievor's Article A rights had been breached, and that he had been unjustly dismissed By way of remedy, counsel asked that the grievor be put in the position he would have been in but for' the various breaches of the Collective Agreement and applicable legal standards Counsel argued that this would be 'an appropriate case for the Board to exercise its discretion to appoint the grievor directly to the classified service In the alternative, counsel as~ed that the Board direct the Centre to offer the grievor a new contract with appropriate accommodation terms together with backpay for all missed opportunities to work. Counsel also asked the Board to direct , the Centre to compensate the grievor for the cost of counselling services he and his family have required as a result of the Centre's failure to accommodate him and his unjust termination Employer Argument Employer counsel began his submissions by arguing that the Board was without legal authority to appoint the grievor to the classified service, but I that even if it was, this would not be an appropriate case to do so in that I --- ------ ,-_. .........;--;..,.....".,. ( (' I 24 I -.. /' the grievor had failed every job competition he had participated in Referring to the Board's preliminary decision, counsel noted that the Board. took jurisdiction with respect to this case on the basis that the grievor's Article A rights had allegedly been infringed. Counsel argued that for an accommodation obligation to arise an employee must be' entitled to accommodation, and he suggested that the evidence before this Board indicated that the grievor was not suffering a disability requiring accommodation in the workplace Accordingly, in counsel's view, the union's case must fail There was no doubt in this case but that the grievor suffers from ulcerative colitis. That was not the issue in this case What was the issue, counsel argued, was whether working evenings and -nights would cause a flare-up of this disease In counsel's view, there was no evidence indicating a connection between the two, and the union's own evidence on this point was not sufficient to create an accommodation obligation Counsel pointed out that. Dr Goodacre testified that there was no proven medical connection between working an occasional overnight shift and a flare-up of the disease. The best tl1at could be said about Dr Goodacre's evidence was that certain stresses appear to be associated with flare-ups, but that a single instance of a flare-up following an overnight shift was not sufficient to establish a relationship between a cause and a effect. Counsel noted that the grievor first suffered the onset of his disease while on his honeymoon, not when he was working an overnight shift. Indeed, the shift schedules I introduced into evidence indicate that the grievor worked nights without apparent incident upon his return from his honeymoon in July 1991 . - -. -..>- . - -- -- - , ( ( ( 25 ;Oil. ~ Counsel pointed out that the grievor worked on other night shifts without incident, and that the medical records indicated that he had flare-ups at other times when he was not working, nights. All of this evidence was to be contrasted with the fact that on one occasion, in May 1992, the grievor worked.a night shift, had a flare-up, and then sought accommod~tion Counsel argued that considered in its entirety, the evidence was simply not sufficient for the Board to draw a nexus between night shifts and the flare-up of the grievor'scondition leading to an accommodation obligation on the part of the Centre Accordingly, there being no disability requinng accommodation, the grievor'~Article A rights had not been violated and counsel asked that the grievance be dismissed In the alternative, and assuming that the Centre did have an accommodation obligation to this employee, counsel~ argued that that obligation had been \ met. Counsel pointed out that the grievor was responsibte for providing the Centre with sufficiently detailed information about his disability and the accommodations required, and that he had failed to do so It was noteworthy, in this regard, that the Board never heard from the specialist who was directly responsible for the treatment of the grievor's disease at the relevant time Instead, it heard from another expert who was retained long after the fact. In any event, counsel argued that there was a palpable lack of diligence on the part of the grievor in informing the Centre of his condition and his needs In counsell,s view, the Centre was entitled to rely on the medical information it had received While an employer has a duty to accommodate, an employee has, counsel suggested, a duty to provide the employer with sufficient information beyond a hand-scrawled note that shifts should be ...-'- ( C" 26 'a " avoided Dr Greenspoon's June 1992 note did not say no nights Counsel argued that the Board could infer from the facts that Dr Humphries was also not told otherwise The Centre properly relied on the information that it had received, and that information indicated that thegrievor was not to -~ work shifts. In the result, and partly because of the grievor's previously expressed desire for more hours, the Centre agreed to put him on steady evening and night shifts. Counsel urged the Board to prefer the evidence of Mr Kalmins to that of the grievor, and pointed out that Mr Kalmins testified to being left with the impression followrng the meeting on September 23, 1992, that the grievor was going to ,go and see his doctor and obtain additional information with respect to his inability to work nights When no additional information was produced, (and counsel noted in passing that it was not until these proceedings were well advanced that the Centre was provided with any real medical opinions which, he hastened to add, were equivocal at best) the Centre reverted to Its original accommodation offer There was, counsel argued, no breach, no unfairness, and no discrimination Instead, the Centre had, counsel argued, granted the requested accommodation, and in the result, the grievance shoLild be dismissed Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance should be dismissed As noted in our preliminary decision, we took jurisdiction in this case on \ the basis that the grievor's Article A rights had allegedly been infringed / Having heard all of the evidence, and in when he was an employee particular the evidence of an expert witness and that of the grievor's _ _ _ _ n __ _ _ _ + _." .. ,----- ./ C 27 ( '. -, family physician, we are left with little choice but to conclupe that while the grievor does suffer from ulcerative colitis, this disease does not, in the circumstances of this case, constitute a disability which in turn imposes on this employer a duty to accommodate to the point of undue hardship Simply put, while there is no doubt but that the grievor suffers from an unfortunate and periodically painful condition, we heard no evidence that could lead us to conclude that this condition impairs the ability of the grievor to fully perform at work, or that this disease is somehow affected by conditions at work. If some nexus had been drawn our decision would have been otherwise The evidence indicates that any of a- number of factors could lead to a reoccurrence of the disease, as is indicated by the fact that the grievor suffered flare-Lips at times other than when he was required to work an overnight shift. The union's expert, Dr Goodacre, testified that one could not confirm a connection between overnight shifts and a flare-up of the disease based on one particular incident. This conclusion is reinforced by the fact that other flare-ups occurred at other times Indeed, when asked about the specific accommodation requested by the grievor, Dr Goodacre, the union's expert, testified that in his expert view that accommodation might possibly make a difference Similarly, when asked about the accommodation offered by the employer, Dr Goodacre testified that it was possible that that accommodation might have aggravated the grievor's condition. In either case, Dr Goodacre told the Board that the causes of ulcerative colitis, and the factors leading to Its reoccurrence, were not scientifically established He was not, however, of the view, that a single night shift would lead to a reoccurrence of the ) ( I 28 ( .. 8- disease We can hardly find, in these circumstances that the employer was obligated to accommodate this employee on the basis of disability Had the union been able to establish a connection between night shifts and flare-ups, we would have found that the grievor was suffering a disability and that the Centre was required to accommodate this disability to the point of undue hardship Based on the evidence we heard, we would have, in \ - these circumstances, likely found that the Centre could have accommodated the grievor by restricting him to day and evening shifts, and that doing so would not constitute an undue hardship in this particular case And had we made these findings, we would have found that the Centre failed to accommodate the grievor, and we would have directed an appropriate remedy to restore the grievor to the position he would have been in but for - ~ the breach However, because no persuasive conr1ection was established between the onset ofa flare-up, and the occasional overnight shift, we cannot and do not find that the grievor's condition was a disability covered ~ by Article A requiring the Centre to accommodate him to the point of undue hardship. There is nothing about the grievor's medical condition, at least - during the relevant period of time, that would render him incapable of performing the full range of his essential duties and responsibilities as an I tmclassified Correctional Officer at the Centre And there Iwas nothing about the conditions of his employment that would cause a reoccurrence of the grievor's disease That being the case, there was no accommodation / obligation on the part of this particular employer In our view, the conclusion that this was not a necessary medical ---- accommodation but was simply the grievor's preferred choice is reinforced I by the documentary evidence which "'(as introduced Dr Greenspoon's June ---- ( 29 ( :0- "- 1 7, 1 992 letter is not helpful in any respect. However, his October 4, 1992 letter is revealing, and it reveals that it is the grievor, not his treating physician, who feels that night shifts should be avoided Dr Greenspoon's October 15, 1993 letter is hardly unequivocal, and the same can be said with respect to the expert evidence and opinion of Dr Goodacre However, and for whatever these findings are worth, even if we did find that the grievor's condition was a disability, and that the Centre was required to accommodate it, we do not find, in the circumstances of this case, any .Article A breach. On the evidence before us, we find that the' Centre responded reasonably to the medical and other information it obtained, and that the accommodation proposal which it advanced fulfilled its obligations under Article A A review of the evidence indicates that the grievor provided the Centre with a simple statement from his family physician, Dr Greenspoon, that he \ should not work shifts The grievor was not working shifts The grievor also signed a consent to the release of medical information. We did not hear any direct evidence from either union or employer witnesses with respect to medical. discussions between the Ministry's physician, Dr \ Humphries, and either of the grievor's physicians, Dr Greenspoon or Dr Seaton. We did hear evidence from Mr Kalmins to the effect that he relied, in making the accommodation offer, on information he had received with respect to the content of these discussions. That these discussions took place is confirmed by the grievor's own evidence that he was advised 'of them by Dr Greenspoon. c- 30 Ii(; '.-i .. 0' Employer counsel invited us to infer from Mr Kalmins's evidence that whatever the content of these discussions was, the accommodation offer which Mr Kalmins ultimately presented was consistent with the medical information the Ministry had received Union counsel argued that there was no basis for any such inference, and noted that she had objected to this evidence as hearsay While not necessary for our finding in this case, it seems to us that had the union wished, and had the evidence been available, it could have led evidence indicating that Dr Humphries was advised that the grievor's medical condition was such that he could not work night shifts. It did not do so In addition, the expert witness which it ultimately called, Dr Goodacre, was not prepared to say so. We can only conclude that this was not a necessary medical accommodation, but was instead simply the grievor's preferred choice It is also our view that while the Centre, as the employer, bears the primary burden in obtaining the relevant information in order to properly respond to an accommodation obligation, employees also bear some I responsibility in this process. The grievor testified that he left the Septem~er 23, 1992 meeting satisfied that the misunderstanding would soon be cleared up. Mr Kalmins testified that the grievor advised him, at this meeting, that he would attend at his doctor's office .to obtain further information, and that he was surprised on September 30, 1992 when the grievor indicated that he had no further information to provide On balance, , we must prefer Mr Kalmins's evidence in this respect, and one reason for doing so is the fact that even at this hearing, when the grievor's family \ doctor and an expert testified on his behalf, they were not able to state that there was a connection between the grievor working an occasional night shift and the flare-up of his disease We can only conclude that the ( 31 ( ,'" ~,~ .r;-, grievor did not present any additional information about the restrictions on his activities necessary to accommodate his disability because there were, in fact, no such restrictions -In this case, assuming that there was an accommodation obligation, we must assess the Centre's behaviour with a view to determining whether it met its obligation. Obviously, the Centre could have done things differently It might have, for instance, given the grievor additional time to provide further medical information However, having heard the evidence, we are satisfied that this additional information would not have affected the accommodation offer Indeed, the likely result would have been for the Centre to withdraw its accommodation offer There is no basis, on this ground, for finding an Article A breach \ Accordingly, and for the foregoing reasons, we find that there was no duty to accommodate this employee, and there was, therefore, no Article A ( breach We further find that even if the medical evidence had established that the grievor was suffering from a disability which precluded him from performing his essential duties and responsibilities at work, or that there was something about his working conditions that caused a reoccurrence of his disease, that the employer's accommodation off~r, presented on September 23, 1992, discharged its obligations under Article A as it appropriately responded to the medical information it had obtained that the grievor was not to work shifts. The grievance is, therefore, dismissed i ~ ( - --..- (" 32 ( .'IL1": ~ - DATED at Toronto this , n t- h day of Karch, 1994 /l/~ -------------- William Kaplan Vice-Chairperson ~~~Q~tbr-=+ H. 0' Regan f Member ~~~ ~ --- ---------- J Miles Member I ~ .---c- j~