University accused of negligence in dealing with strong smell
The Memorial University of Newfoundland Faculty Association raised a stink over the university’s alleged negligence in responding to an odour problem.
The union filed a grievance on behalf of Sue Ghazala, an associate professor in biochemistry for the university’s faculty of science. Ghazala specialized in food research and the union claimed the university was unduly negligent and slow in responding to odour problems in her laboratory.
Efforts to solve the odour issue resulted in Ghazala being deprived of proper lab and office facilities for two extended periods — first between January and August 2010, and again between May 2011 and July 2012.
Ghazala was hired by the university in 1991. She occupied a suite of rooms in the science building which include laboratories, storage areas and her office. Ghazala’s lab shared both a ventilation system and an effluent drainage system with a neighbouring lab. For several years Ghazala’s lab experienced "strong noxious odours." There is no dispute about the severity of the odour or the legitimacy of Ghazala’s requests it be addressed.
Tony Dawe — a mechanical engineer employed by the company providing consulting services to the university — testified the initial problem was believed to be related to ventilation as it did not appear the odour originated in Ghazala’s lab.
As a result of investigations a number of ventilation upgrades were recommended and carried out. The shared ventilation system was demolished and a new one featuring separate exhaust systems for each lab was installed. The odour problem persisted.
Dawe explained he then turned his attention to the plumbing system. A shared dilution pit collected drainage from both labs and treated them before discharge.
By inserting a camera into the dilution pit Dawe discovered the effluent drainage piping had collapsed under Ghazala’s lab. Soil samples were extracted to determine whether it was safe to open the floor. When it was deemed safe to do so, a second renovation was undertaken to replace the underground piping and install a new dilution pit.
Following the renovation of the laboratories’ plumbing system, there were no further odour problems.
In addition to preventing Ghazala from making use of her lab or office during the lengthy periods of construction, the renovations resulted in significant damage to her equipment and the destruction of some working samples.
The university claimed it made all reasonable efforts to resolve the odour issue in Ghazala’s lab — doing so at a substantial expense — and denied any violation of its duties under the collective agreement. The university also said Ghazala had an obligation to mitigate her situation given the disruption of her lab, suggesting she could have pursued research through other means.
The union submitted the renovations — paid for by government funding — were done because they were necessary to comply with mandatory orders from the Occupational Health and Safety Inspections Branch of the government of Newfoundland and Labrador. The union also noted the earliest of these orders extended as far back as 2007, asserting a four-year period with no effort by the university to fix the problem constituted an extraordinary lag in response time.
The union requested the arbitration board order the university to repair and/or replace all of the damaged or missing equipment and provide Ghazala with an office space independent of her lab.
Following the second renovation, the university argued, there had been no further air quality or odour problems and therefore no grounds to provide an alternative office space. During the renovations there were no functioning laboratories with the equipment Ghazala needed to continue her work, the university testified. While unfortunate, her displacement during the renovations was unavoidable and was not in violation of the collective agreement.
The board of arbitration agreed, ruling, "We are not persuaded that the period of time that Dr. Ghazala was effectively deprived of the use of her laboratory was unreasonable or excessive, or in violation of the university’s obligation under… the collective agreement. Nor, absent any meaningful evidence of the availability of similar laboratory facilities, can we conclude that the university improperly failed to provide equivalent facilities to Dr. Ghazala during the renovation periods."
Because Ghazala’s current office is, for all practical purposes, safe and free of unacceptable odours, the board found no grounds to order the university provide her with new accommodations.
The board did, however, find the university had a duty of care with respect to the protection of Ghazala’s materials and equipment during the course of the renovations.
The grievance was allowed, in part, with the board ordering the university to compensate Ghazala for the damage to her equipment and the loss of her working samples.
Reference: Memorial University and the Memorial University of Newfoundland Faculty Association. Michel G. Picher, Geoff Williams and Gail Blair Storr — Board of Arbitration. Darren C. Stratton for the employer and Sheila H. Greene for the union. Feb. 25, 2014.
