February 16, 2005
20.4.215
The employee grieved the failure of management to provide a safe and healthy working environment and, in particular, its failure to offer an alternate work site during a power outage when office temperatures fell below levels prescribed by the National Joint Council Directive on Use and Occupancy of Buildings. The employee also grieved being obligated to use sick leave or vacation leave for time missed on the day of the outage and on the following day as a result of this situation. The employee requested to be fully compensated for all time missed without deduction of vacation or paid sick leave credits, and that all physical records regarding this grievance be struck from her personal files.
The Bargaining Agent representative explained that the grievor works as an agent in City Y. On October 16, 2003, the office was without power or heat from 5:00 a.m. until shortly after 10:00 a.m. According to instructions from Regional Headquarters, staff were apparently initially directed to remain in the office. The grievor reported for work at 7:00 a.m. and was told to wait in the lobby which was a cold area with people, wind and rain coming and going through sets of glass doors. At approximately 7:45 a.m., the grievor and other employees were moved into the general public waiting area. At 8:20 a.m., the grievor went to her workstation. The grievor sat in the cold for over 3 hours and was exposed to gusting winds for approximately one hour.
According to the grievor, as the thermostats in the office are electrical and have timers, there was not heat for some time after the power resumed. The entire building was cold for in excess of five hours. Given that there have been ongoing issues with the office temperature that have had an adverse effect on the grievor's health, the grievor regularly monitors the thermostat above his/her workstation. During the power outage, it was noted the temperature remained at 14oC from 8:20 a.m. until 10:10 a.m.
The Bargaining Agent representative stated that the grievor advised the Team Leader on three occasions that the temperature in the office too cold and no alternative was provided. At 9:15 a.m., staff were advised by the employer that if they were finding the office too cold, they could go to the mall and take an extended break. Due to the effect the cold office temperature was having on the grievor's physical well being, she left work that day at 10:30 a.m. and was also absent from work the following day, Friday October 17, 2003. The grievor's absence was a direct result of the effects of sitting in the cold office in excess of three hours on October 16, 2003.
The Bargaining Agent representative noted that regardless of whether the employer made efforts to remedy the situation, the environmental conditions in the office were not in accordance with the directive. The NJC Directive clearly states at paragraph 17.3.2(b) that "when the air temperature falls below 17oC operations shall be stopped and employees should be released from the workplace if relocation is not practicable". This was not done. The grievor should not be penalized under these circumstances by having to use sick or vacation leave due to environmental conditions in the office.
It was indicated that the NJC Directive on the Use and Occupancy of Buildings incorporates the minimum requirements of Part II of the Canada Labour Code. Paragraph 17.3.2 of the Directive states that "temperatures in the office during working hours should be maintained within the 20oC-26oC range". It further indicates that "temperatures between 17oC and 20oC and above 26oC can be uncomfortable and occupancy should not exceed 3 hours daily".
The employer refused to grant leave with pay for other reasons under Article 53.01 of the collective agreement. Therefore, the grievor was required to use annual leave credits for the period of work missed due to medical reasons which are directly attributable to the power outage on October 16, 2003.
The Bargaining Agent representative concluded by saying that according to the Directive on the Use and Occupancy of Buildings, no employee shall use, or be required or permitted to use, any building in a manner likely to endanger the safety or health of that employee or any other person.
Clearly the circumstances which led to the absence from work on October 16 and 17 were not directly attributable to the grievor. The grievor has a history of health issues relating to the office temperature. The employer was in contravention of the Directive on the Use and Occupancy of Buildings.
In addition to the facts presented by the Bargaining Agent representative, the Departmental representative noted that the employee submitted a Workers' Compensation claim for the lost time, but that the claim was rejected as the grievor failed to reply to requests for supporting information.
The Departmental representative also stated that the Union Co-Chairperson of the local health and safety committee was consulted by management at the local level, and it was confirmed that employees were advised of the option to take an extended break at the Y Centre. The Co-Chairperson advised that management's response was prudent and it was not found that the building was to be extremely cold. The grievor had not brought any concerns to the attention of the Co-Chairperson at the time in her capacity as a Health and Safety representative.
The Departmental representative indicated that at the second level of the grievance process, a note was presented from the grievor's chiropractor dated January 31, 2001 supporting the position that the temperature in the office caused a medical condition rendering the grievor unfit for work. The note was obtained by the employee in relation to an earlier incident of a similar nature where the grievor believed the temperature in the building was unsatisfactory. It is inappropriate to give this 2½ year old document any weight in relation to the current circumstances.
While the temporary situation resulting from the power outage did not conform the provisions of the NJC Directive, management was dealing with an exceptional situation and monitoring the status on an ongoing basis. Clearly, this situation was extraordinary and beyond management's control. It would have been premature to close the office and release staff as information indicated that power would be restored within a short time period. Advising staff to stay on site and offering the option of an extended break at a location nearby was prudent under the circumstances.
The Departmental representative noted that the decision to leave work was in relation to the grievor's own health status and management was prepared to authorize either sick or annual leave. Given that the grievor did not raise any concerns with the Health and Safety representative at the time of the incident, this was an appropriate use of leave.
The corrective action requested is outside of the scope of the National Joint Council or the intent of the Directive. The employee has grieved under the NJC process and has maintained the Department contravened a NJC directive and is requesting that earned leave credits be reinstated. This is a collective agreement entitlement beyond the authority of the NJC.
In conclusion the Departmental representative submitted that while it could be demonstrated that the grievor was treated within the intent of the Directive, the Committee was without jurisdiction to implement the corrective action; the grievance should be denied.
The Executive Committee considered and agreed with the report of the Occupational Safety and Health Committee which concluded that, despite the good intentions and actions of management, it failed to meet the intent of the Directive on Use and Occupancy of Buildings with respect to prescribed environmental conditions in the workplace and did not take effective steps to provide for the health and safety of the grievor.
The Executive Committee agreed that the grievance be allowed in part, but noted that issues related to the use of vacation or sick leave credits under the collective agreement lay outside NJC jurisdiction. The Executive Committee observed that a common remedial step in situations of this nature would have been to close the building. Had this option be taken by management, a leave form would not have been required from the employee for the period in question.