Halifax airport screener grieves refusal to provide access for smoking breaks

No evidence ‘addiction to nicotine a disability’: Arbitrator

Because of the unique layout at the Halifax Stanfield International Airport, some airport screeners were unable to have smoke breaks, which precipitated with one grievance filed.
Linda Burns, who worked at the airport for eight years, was denied from having cigarette breaks because she worked in the non-passenger vehicle screening (NPVS) area that was strictly non-smoking for any personnel.
Burns worked for Securitas Transport Aviation Security, which was under contract to the Canadian Air Transport Security Authority. In the NPVS area, vehicles were screened by Burns and other screening officers.
The airport only provided one area for persons to smoke, which was located directly across from the main passenger entrance area. 
During a normal workday for screeners, the employees were greeted by a manager who would drive a van to pick them up. The van followed a precise route back to the NVPS area and had to pass through a screening area that was operated by another contactor, G4S security.
After the screening was done, employees were driven to the NVPS area to work their shifts. 
If anybody, including screening officers, was found smoking on the property, their restricted area identity card would be confiscated and they would have to leave the property immediately and wait for a suspension to be lifted to return to work.
Under the Canadian Aviation Regulations, persons were allowed to smoke on airport property but only “located on an apron where such smoking is not likely to create a fire hazard that could endanger persons or property.”
Halifax airport did not provide any such site for smoking.
On Feb. 23, 2017, Burns and the union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), Local 5319, filed a grievance that she “be able to return to building during shift @ NPVS.”
The grievance alleged the employer breached the collective agreement and that Burns’ human rights were also violated by the airport’s no-smoking policy and lack of smoking facilities. It argued that because nicotine dependence was an addiction, Burns must be accommodated.
Arbitrator Augustus Richardson disagreed and dismissed the grievance. 
“There is nothing in the collective agreement expressly requiring the employer to provide the remedy sought by the union. That being the case, the union must establish a duty to accommodate what the union says is a disability — an addiction to nicotine. The difficulty here is that there was no evidence establishing, first, that addiction to nicotine was a disability within the meaning of the arbitral jurisprudence; and, second, that the grievor had any such addiction,” said Richardson.
Even though the union argued that nicotine addiction was “well-known,” it was not proved by any evidence and, as such, it was simply “an assertion,” said Richardson. “An arbitrator cannot act on the basis of assertion alone. In the matter before me, I would have needed evidence from the grievor and, more importantly, from medical and addiction experts before I could make a finding that the grievor suffered from an addiction that triggered the employer’s duty to accommodate.”
Burns could have remedied her need to smoke by bidding for a position inside the terminal, which would have allowed her easy access to the smoking area.
“Any such option would have addressed the employee’s needs without imposing any — or at least any undue — burden on the employer. Absent good reason, neither the grievor nor the union would have been able to refuse such an accommodation. But here again there was no evidence of any attempt on the part of the grievor or the union to request such an accommodation. Indeed, what evidence there was suggested that the grievor had in fact bid for work at the NPVS facility. To find a breach of a duty to accommodate on such evidence (again, assuming the duty had been triggered) would have been to permit the grievor to bootstrap herself into an accommodation where none was necessary,” said Richardson. 
Reference: Securitas Transport Aviation Security and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), Local 5319. Augustus Richardson — arbitrator. Jack Graham for the employer. Michael Clark for the employee. March 29, 2019. 2019 CarswellNS 246

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