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Home My WebLink About1984-0712.Elliot.86-01-03Between: OPSEU (C. Gar;h Elliot) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD . Before: For the Grievor: and The Crown in Right of’ontarib (Ministry of Correctional Services) P. M. Draper Vice-Chairman S. Hennessy Member K . Preston Member __ ---- Cri evor Employer M. Farson Counsel Cornish EC Associates Barristers & Sqlicitors For the Employer: N. Robinson Staff Relations Office, Staff Relaticns Branch Civil Service Commission L. Horton Staff Relations Officer, Staff Relations Branch Civil Service Commission Hearing Monday, September 30, 1985 DECISION The Grievor, Garth Elliot, grieves that the Employer is contravening Article 18 (I) of the collective’agreement between the parties by falling to prohibit smoking during meetings which he is required to attend in the course of his employment. (‘-;l i We note that it is not the case that the Grievor has, in fact, suffered harm to his health from, or even that he is unllsually sensitive or allergic to, -. tobacco smoke. Rather, it is simply that he regards it, from what he~has heard and read, as potentially injurious to his health, a not uncommon view in these times. Article 18 (1) reads: 18.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the EmpIoyer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. The Grievor is a Probat~ion Officer 2 who works out of the Dufferin Street, Toronto, Probation and Parole Office of the Probation Service of the Ministry. For a considerable time he has been concerned about the smoking that takes place during staff meetings, normally held in the office boardroom, which he is required to attend. In June, 1984, although he had not raised the subject for several years, he quickly brought it up following the appointment of a new Area ; i ,---‘: .- ..~. c: ,: C -3- Manager, David Freedman, who is his immediate superior. Shortly thereafter, Freedman initiated discussions with members of the staff as a result of which a voluntary agreement was reached to refrain from smoking during staff meetings. Smoking breaks are called or individual smokers are permitted to leave meetings to smoke. The ‘Voluntary ban’(has been faithfully observed by both staff and guests attending some twenty meetings since its inception in July, 1984. The Grievor filed his grievance with Freedman on July 18, 1984, because he decided that a voluntary agreement did not give him the assurance he wanted that he would not be exposed to secondary tobacco smoke at staff meetings. i It is argued for the Employer, by way of preliminary objection, that the remedy sought by the Grievor has been provided in that there is no smoking at meetingshe is required’to attend; that it is unnecessary for the Board to consider the applicability of Article 18 (1); and that the voluntary agreement having removed the grounds on which the grievance is based, it should be dismissed. i It is argued for the Grievor that he is entitled to a declaration of his rights under Article 18 (I); and that while the voluntary agreement has ended the smoking complained of by the Grievor , it is not a sufficient response to the grievance because it could break down at any time. We are satisfied that the matter cannot be resolved without reference to Article 18 Cl), if only because the article is cited in the grievance. Further, although the Employer does not concede that the article is appiicable here, its response to the grievance tacitly recognizes the Griever’s concern that secondary , ---: - 1 . ’ ( -4- tobacco smoke may have the potential to endanger his health, and the desirability of removing a possible source of danger. c However, since the Grievor’s health is not currently at risk and since the Employer has not attempted to evade any responsibility it might be thought to have under Article 18 (1) in the circumstances, we are of the opinion that this is not a proper case in which to make broad findings of fact concerning the relationship of secondary tobacco smoke and health, or on which to base a declaration of employee rights with respect to secondary tobacco smoke under the article. Moreover, this is not a union policy grievance. Nor have the Griever’s fellow employees joined with him in a group grievance. The grievance ls individual in fam and its subject-matter is personal to the Grievor. It is narrow in scope in that the~Grievor seeks relief only in respect of meetings which he is required to ._ attend and over which Freedman exercises authority and control. ; Assuming, but not deciding, that the Griever’s health may, as he believes, be affected by exposure to secondary tobacco smoke, and that that possibility gives rise to an obligation of the Employer under Article 18 (I), we consider that the means chosen by the Employer in this particular case to bring ~. about the elimination of smoking at staff meetings - a voluntary agreement of the persons who attend those meetings to refrain from smoking - constitute reasonable provisions for the health of the Grievor at this time. On the date of the grievance a majority of the members of the staff were regular smokers. Freedman faced inevitable complaints from them if he imposed a prohibition on smoking at staff --: -5- meetings, to say nothing of the question of hi authority to do so. A balance had to be struck between the “right” of employees to smoke and the “right” of non- smoking employees (in this case one such employee) not to be exposed to secondary tobacco smoke. Clearly, the logical first solution to be sought was to secure a consensual arrangement not to smoke at staff meetings, and this Freedman succeeded in doing. As to the durability of the voluntary agreement, it seems to us that provisions may be made for the health of employees that, in time, prove to be ineffective or inadequate. That does not mean that they are not initially reasonable provisions. They are not carved in stone and obviously can be changed, or challenged by way of fresh grievances, if future conditions so dictate. We conclude, on the evidence, and taking into account the nature of the grievance, that the action taken by the Employer to abate any possible effect of secondary tobacco smoke on the health of the Grievor while he is in attendance at staff meetings, may properly be said to be reasonable provisions for his health. The grievance is dismissed. -6- DATED in Toronto, Ontario this 3rd day of January, 1986. (jj&iJ hi- w P. M. Draper, Vice-Chairman .i Sk< S. Hennessy, Member AazsLf* . K. Preston, Member ;