Alcock v. MCS
The Divisional Court has overturned a decision of the GSB which had allowed the Ministry of Corrections to save money by paying a disabled employee lower wages.
Neil Alcock is a Correctional Officer (“CO”) working at the Kenora Jail. He suffered an injury which required that he have no inmate contact. For a number of years, the Ministry accommodated Alcock by assigning him to work only in the control room. He remained classified as a CO.
When it was determined that his injury was permanent and that he would therefore require permanent accommodation, the Ministry placed Alcock in the control room on a permanent basis, but reclassified him as a Security Officer, with a resulting 20% pay cut.
Except for Alcock, no one but COs work in the control room. When Alcock is not at work, the control room is staffed by a CO at all times. CO’s are assigned to the control room on a shift by shift basis.
Alcock does the full range of CO duties within the control room and he does not require any accommodation within the control room. As a result, there is no extra expense to the Ministry to have Alcock work in the control room instead of a CO.
The effect of the Ministry’s action was that it was able to cut its labour costs by 20% for the hours Alcock worked in the control room, while getting the exact same duties performed.
The GSB had ruled that the Ministry was entitled to take this action because Alcock could not do CO duties outside the control room and therefore could not perform “the essential duties” of a CO. As such, the GSB ruled that there was no need for the Ministry to accommodate him in a CO position.
OPSEU, represented by David Wright and Ed Holmes of Ryder Wright Blair & Holmes, was able to convince the Divisional Court that the GSB reached an unreasonable decision and that, based on the evidence before the GSB, it was clear that control room duties were CO duties and that as such Alcock was in fact able to perform the essential duties of a CO. The
Divisional Court ruled that, since there would not be undue hardship imposed on the Ministry to accommodate Alcock in the CO position, it was required to accommodate him in that position. The Court ordered Alcock reinstated to a CO position with full retroactivity.
The Ministry is seeking leave to appeal the decision to the Court of Appeal.
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