HomeMy WebLinkAbout1996-1598.Smith & Bergounhon.97-12-01EMPLOY& DE LA COURONNE
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COMMISSION DE
RkGLEMENT
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GSB # 1598196
OPSEU # 96C635-8,96C646-9
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTTVE BARGATNTNG ACT
Before
THE GRTEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Smith and Bergounhon)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE Randi Hammer Abramsky
FOR THE
GRIEVORS
Jo-Ann Seamon
Counsel
Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE
EMPLOYER
Liane Brossard
Counsel
Legal Services Branch
Management Board Secretariat
Vice-Chair
HEARING September 22,23 and 24, 1997
INTERIM AWARD
The Employer has raised a preliminary objection to the jurisdiction of the
Grievance Settlement Board (GSB) to award the grievors any monetary damages as a
result of incidents that occurred at work on February 28, 1996. Instead, it asserts that any
and all claims for damages arise exclusively under the Workers ’ Compensation Act and
cannot be independently grieved under the collective agreement The Union strongly
opposes this motion.
Facts
This case involves two grievors, Michelle Bergounhon and Daryl Smith, both
Correctional Officers at Monteith Correctional Centre. Both have filed four grievances,
which have been consolidated, stemming from incidents that allegedly occurred at work on
February 28, 1996 during the OPSEU strike. Specifically, the grievances allege that they
were harassed and assaulted by management in violation of Article A. 1.2 of the collective
agreement and that their supervisor’s consumption of alcohol violated Article 18.1,
endangering their health and safety. There is also an allegation that the Employer violated
Article 54.1 and A. 1.2 by not continuing their full salary for thirty (30) days while their
workers’ compensation claim was pending, and that the Employer’s actions towards the
grievors violates the Return To Work Protocol.
Article A. 1.2 states that “There shall be no discrimination or harassment practised
by reason of an employee’s membership or activity in the Union,”
Article 18.1 states, in pertinent part, that “The Employer shall continue to make
reasonable provisions for the safety and health of its employees during the hours of their
employment.”
Article 54.1 states as follows:
Where an employee is absent by reason of an injury or an industrial disease
for which a claim is made under The Workers’ Compensation Act, his
salary shall continue to be paid for a period not exceeding thirty (30) days.
If an award is not made, any payments made under the foregoing
provisions in excess of that to which he is entitled under sections 54.1 and
52.6 of Article 5 2 (Short Term Sickness Plan) shall be an amount owing
by the employee to the Employer.
In terms of remedy, the grievors are seeking the following:
1. a declaration that the Employer’s actions violated the collective agreement and the
Back to Work Protocol.
2. an order requiring mandatory training regarding harassment because of union activity.
3. accommodation for Ms. Bergounhon when she is able to return to work.
4. the removal of all documents from the grievors’ personnel files related to February 28,
1996 and any resulting attendance issues.
5. an order that the two supervisors involved not supervise the grievors in the future.
6. the monetary difference between their short-terms sick benefits and their regular salary.
7. the monetary difference between Long Term Income Protection (LTIP) benefits and
their regular salary.
8. the loss of shift premiums, statutory holidays and overtime.
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9. the return of vacation benefits and credits used to top-up their salary.
10. for Mr. Smith, the lost value of his private assets used to support himself
11. travel expenses for medical treatment.
12. damages for pain and suffering.
The grievors assert that as a result of management’s actions at work on February
28, 1996, they were unable to work. They filed stress-related claims under the Workers’
Compensation Act, but both claims were denied by the Workers’ Compensation Board
(WCB). In its letter denying benefits to Mr. Smith, the WCB stated, in part, as follows
(emphasis in original):
The Board does recognize claims for psychiatric disability related to acute
stress, that is exposure to stressors that can be characterized as chance
events. The necessary connection to the workplace is established by
requiring that the provoking work incident (the stressor) be sudden,
shocking, d life threatening.
. . .
The Board, however, does not accept claims for stress where the worker
relates the condition to work in general or harassment on the job.
. . .
As you are claiming that your disability is related to your work in general
and harassment on the job, there is no entitlement to compensation
benefits.
The same reasoning formed the basis of WCB’s denial of Ms. Bergounhon’s claim.
Arguments of the Parties
The Employer argues that the GSB has no jurisdiction to award monetary damages
that allegedly flow from a work-related injury. It does not dispute the Board’s authority
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to order declaratory relief, training, accommodation or other non-monetary relief, but
asserts that any and all requests for damages are within the exclusive jurisdiction of the
WCB. In its view, the source of the grievors’ claim - that they suffered an injury at work -
falls solely within the jurisdiction of the WCB, and asserts that whether or not they were
granted benefits is immaterial to this Board’s jurisdiction to award damages for an alleged
workplace incident.
In support of its contention the Employer cites to OPSEU (zister) andMinistry of
Community & Social Services, GSB No. 340189 (Samuels, 1989); OPSEU (I;homson) and
Ministry of the Solicitor General and Correctional Services), GSB No. 16 12192 (Stewart,
1996); Welland County General Hospital and Ontario Nurses’ Association, No. 53/87,
(1987), 5 WCAT Reporter 97 (Bradbury) and OPSEU (FlemingI and Ministry of the
Solicitor General and Correctional Services, GSB No. 46 l/95 (Knopf, 1996). .
The Employer further argues that Article 18.1 and Article A.1.2 should not be
used to supplement the Workers ’ Compensation Act and do not, on their face, provide a
right to damages if there is a breach. It argues that if an employee is injured at work but is
denied WCB, the employee is only entitled to sickness and accident benefits as well as
LTIP.
The Union submits that while the Workers’ Compensation Act may create a
comprehensive scheme for work place accidents, there are injuries which occur at work
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which are not covered by the Act, including many stress-related injuries. In this case, it
asserts that the grievors’ injuries were not covered by workers’ compensation, and their
grievances cannot be precluded by that legislative scheme. In this situation, particularly,
the Union argues that a collective agreement may supplement the Workers ’ Compensation
Act. In support of its contention, the Union cites to OPSEU (Rigglesworth) and Ministry
of Transportation, GSB No. 637190 (Fisher, 1992) and Welland County General
Hospital, supra.
In addition, the Union argues that the grievors’ have independent, enforceable
rights under the collective agreement under Article A.1.2 and Article 18.1, and that a
breach of those provisions may result in an award for damages. It submits that if the
Board finds a violation of Article A. 1.2, Article 18.1 or the Back to Work Protocol and
determines that as a result of that violation the grievors suffered an injury, the Board has
full jurisdiction to award make-whole damages. It acknowledges that there can be no
duplication of benefits awarded under the Workers ’ Compensation Act, but contends that
just because an injury happened at work does not oust the GSB of jurisdiction to award
damages when there is a violation of the collective agreement.
Decision
An examination of the cases cited by the parties reveals that there is some conflict
within the jurisprudence of the GSB on the issue of whether the Board has jurisdiction to
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award damages for an injury arising out of a work-related accident. A review of the case
law illustrates this conflict.
In OPSEU (Lister) and Ministry of Community & Social Services, GSB No.
340/89 (Samuels, 1989), a female nurse was sexually assaulted by a male resident at work
and suffered physical, psychological, emotional and financial damage. She filed a workers’
compensation claim and received compensation under that Act. In addition, she filed a
grievance alleging a violation of Article 18.1 of the collective agreement, seeking damages
as well as an order obligating the Ministry to take various steps to ensure her health and
safety. In terms of damages, the grievor sought, among other things, the difference
between her regular salary and her workers’ compensation benefits, her travel costs for
treatment, her physiotherapy costs, and damages for physical and mental distress.
At the outset of the hearing, the employer objected to the board’s jurisdiction to
award damages in light of Section 14 [now Section 161 of the Workers ’ Compensation
Act. That section states as follows:
The provisions of this Part are in lieu of all rights and rights of action,
statutory or otherwise, to which a worker or members of his family are or
may be entitled against the employer of such work, or any executive officer
thereof, for or by reason of any accident happening to him or any industrial
disease contracted by him on or after the 1 st day of January, 1915, while in
the employment of such employer, and no action lies in respect thereof
The board ruled that while the the grievor could pursue a non-monetary claim under
Article 18.1, her claim for damages was precluded by s. 14 of the Workers ’ Compensation
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Act. It reasoned that “[tlhis section says that the compensation scheme provided in the
Act is ‘in lieu of all rights and rights of actions, statutory or otherwise, to which a
worker. ..may be entitled against the employer of such work...by reasons of any accident
happening to him. “’ and determined that the “[tlhe grievor’s ‘right’ to damages under
Article 18.1 of the collective agreement is encompassed by this language.“(Decision, pp.
$9) It explained at p.9:
[T]he grievor is attempting to enforce a “right” which has been replaced by
the legislative compensation scheme in the Worker’s Compensation Act.
. ..Here the grievor is claiming damages for personal injury arising out of a
compensable accident. This is precisely the type of loss for which,
pursuant to section 14 of the Workers’ Compensation Act, the legislative
scheme has replaced other “rights”, “statutory or otherwise”. The
grievor’s “right” to damages under Article 18.1 of the collective agreement
is encompassed by this language. The collective agreement falls within the
rubric “or otherwise.”
What mattered to the board was that the grievor’s claim under Article 18.1 was based on a
compensable injury - an “accident” at work as defined by the Workers ’ Compensation Act.
It acknowledged that the quantification of damages under the collective agreement might
differ than under the Act, but concluded as follows, at p. 10 (emphasis in original):
[Slection 14 is concerned with the source of the right to damages, not the
way in which the damages are calculated. If the “right” to damages against
the employer is “by reason of any accident happening to him...while in the
employment of such employer”, such rights, statutory or otherwise, have
been replaced by the legislative compensation scheme.
In so ruling, the board distinguished a decision by the Workers’ Compensation
Appeals Tribunal in Welland County General Hospital and Ontario Nurses ’ Association,
Workers’ Compensation Appeals Tribunal, 53/87 (Bradbury), reported at (1987), 5
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WCAT Reporter 97, on the basis that the injury suffered there was not compensable and
the claim was for sick benefits not covered by workers’ compensation.
In Welland County General Hospital, supra, a nurse was injured by a patient at
work but did not seek workers’ compensation benefits. Instead, she claimed sick pay
benefits under the collective agreement for the one day of work she missed. The sick pay
provision stated: “If you become totally disabled from illness or injury, excluding
compensable accidents such as those covered by workers’ compensation, you will receive
sick pay benefits which are firlly paid by your employer.” The Hospital, however, had
filed a Form 7, an Employer’s Report of Accidental Injury or Industrial Disease, with
WCB which treated that form as an application for benefits. The claim, however, was
denied because the employee did not receive medical treatment. No appeal was taken, and
the Union successfully arbitrated the employee’s sick pay claim.
Thereafter, the Hospital asserted before the Workers’ Compensation Appeals
Tribunal that the grievor’s right to the arbitration process had been taken away because
she was in the course of her employment at the time of the work incident and should have
applied for benefits under the Act rather than under the collective agreement. The
Employer, relying on then Section 14 of the Act, argued that the intent of the legislation
was to create a comprehensive no-fault insurance scheme to replace private action where a
worker is involved in a work accident, and that it included grievance arbitration. It
asserted that it would be inconsistent with the statutory scheme of the Act to prohibit a
9
worker from privately pursing a remedy against his /her employer in the courts but to
permit such action through grievance arbitration.
The Appeals Tribunal disagreed, stating at p. 103 that “[i]n our view, it is not
inconsistent with the intent or the wording of the Workers’ Compensation Act to find that
a worker has no right to bring a civil action against his employer in certain cases but that
his union continues to have the right to pursue the worker’s grievance under the terms of
a collective agreement.” (emphasis in original) It noted that a collective agreement could
not waive a worker’s right to workers’ compensation benefits, and continued at p. 103:
There is, however, nothing in the Workers’ Compensation Act which
would preclude a union and an employer from including additional
provisions in a collective agreement. They could, for example, provide for
additional benefits or for recall or job modification for workers who have
had compensable accidents. There is also nothing to preclude them from
making the type of agreement that was made in this case - that is, providing
for sick benefits in cases not covered by Worker’s Compensation.
Nor, in the Tribunal’s view, were rights under a collective agreement part of the
historical trade-off under the Act. The Tribunal stated at p. 103:
These were not the types of “actions” or “rights of action” which workers
gave up in return for a statutory no-fault accident compensation system.
Thus, in our view, the reference to “action” or “rights of action” in ss. 8,
14 and 15 of the Act was not intended to prevent the union and the
employer from using the grievance procedure to enforce rights ,under the
collective agreement.
The Weiland COUMY General Hospital case was also considered by the board in
OPSEU (Rigglesworth) and Ministry of Transportation, GSB No. 637190 (Fisher, 1992).
In that case, a grievance was filed by an employee alleging mental and physical stress and
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injury due to the employer’s failure to provide him with a safe working environment,
specifically, from the employer’s failure to address his exposure to certain chemicals at
work. In 1980, ten years before the grievance, the employee had filed a workers’
compensation claim which had been denied by WCB. Thereafter, in 1984, he flied a
second WCB claim which was allowed on an aggravation basis and compensated him for
the short time he was off work. The grievance sought compensation for past and future
losses in wages and compensation for his mental stress and physical hardship. The
employer raised a preliminary objection on the basis that the subject matter of the
grievance was solely within the jurisdiction of the WCB.
Relying on its reading of Welland County General Hospital, a majority of the
board determined that the Lister board had misinterpreted that decision as well as the
Workers ’ Compensation Act. It concluded that under the Welland case, unions and
employers are free to negotiate clauses in collective agreements which provide additional
financial benefits to workers, even those who have had compensable injuries. It opined
that Section 18.1 of the collective agreement could be viewed as a benefit negotiated by
the parties over and above the worker’s rights under Act, and thereby cover a claim for the
difference between what the employee would get from WCB and his pre-injury wage.
(Decision, p. 8) Thus, in its view, an employee could seek additional damages under
Article 18.1 for a compensable injury under the Act. The board, however, distinguished
Lister on the basis that, in that case, “the grievor had clearly had a compensable accident
11
(her claim was accepted and paid by the WCB) while in this case Mr. Riggleworth’s claim
has been rejected by the WCB as non-compensable.” (Decision, p. 9)
Recently, two other boards have considered Lister and Rigglesworth. In OPSEU
(FlemingI and Ministry of the Solicitor General h Correctional Services, GSB No.
461/95 (Knopf, 1996), the grievor alleged that the employer’s denial of her right to work a
compressed work week discriminated against her on the basis of disability in violation of
Article A. The grievor had been injured at work and was awarded workers’ compensation
benefits. She was off work for a few months, and her re-integration to work was arranged
by the employer and the WCB. The grievor started working two hours per day and
gradually built up to eight hours per day, five days per week. Her subsequent requests to
work a compressed work week of 12 hour shifts were denied by the employer and
reviewed by the WCB, which ruled that the employer had met its re-employment and
accomodation obligations under the Act.
Arbitrator Knopf reviewed the Lister and Rigglesworth decisions as well as
Johnston and A4inistry of Health, GSB No. 1225191 (Tacon). The board found the
jurisprudence to be of limited assistance, noting that in the case before it, there was “no
claim for additional compensation or damages beyond those available under the Workers’
Compensation Act. Instead, the sole is issue is whether under the present circumstances,
the grievor has a contractual claim, enforceable before the GSB, to be returned to the
twelve hour compressed work week.” (Decision p. 7-8) The board held that an employer
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has an obligation to accommodate a disabled employee under both the Workers’
Compensation Act and the collective agreement, with the employee’s rights under the
collective agreement to be determined by the GSB. The board then stated at p. 9:
Unlike the Lister and the Johnson cases, this is not a situation where the
grievor is seeking compensation for a work related injury. The GSB has no
jurisdiction over that type of claim. This is a claim for enforcement of a
collective agreement work schedule and a claim for a remedy (other than
compensation) under the parties’ contract. As such, these limited claims fall
within the jurisdiction of the GSB.
In OPSEU (Thomson) and Ministry of Solicitor General & Correctional Services,
GSB No. 1612/92 (Stewart, 1996), a grievance alleging a violation of Article 18.1 was
filed, alleging that the employer failed to provide her with proper footwear which caused
her injury. In terms of damages, the grievor sought, among other things, the difference
between her WCB benefits and her regular pay, payment for lost time to attend medical
appointments, payment for hours that she would otherwise have worked, general damages
for pain and suffering, and compensation for permanent foot damage. The grievor had
also applied for and was granted benefits from the WCB.
The board reviewed the decisions in Lister, Rigglesworth and Fleming, and
concluded that although the board in Fleming did not specifically indicate its preference
for Lister, its “characterization of a claim for compensation for a work related injury as a
claim over which the Grievance Settlement Board has no jurisdiction is a clear indication
of its preference for the analysis of Lister.” (Decision at p. 9). The 7homson board,
likewise, preferred the analysis of Lister and found no inconsistency between the decisions
13
in Welland County and Lister. It agreed that Welland County held “that the parties may
negotiate benefits for employees who may be injured at work in addition to the benefits
provided for personal injury under the Workers’ Compensation Act” and determined that
Lister agreed with that analysis. (Decision, p. 9) The board, however, distinguished
Rigglesworth from Lister on their individuals facts, and concluded: “Here, where a claim
for damages for personal injury arising from an accident in the course of employment has
been made before and accepted by the Workers’ Compensation Board, it is our view that
the Grievance Settlement Board cannot award additional damages for personal injury on
the basis of providing a remedy for a breach of Article 18 of the Collective Agreement.”
(Decision, pp. 9-10) Consequently, the employee’s claim for replacement damages,
general damages and damages for a permanent disability, were held to be within the
exclusive jurisdiction of the WCB.
The Thomson decision appears to adopt the Lister rationale but limit it, as in
Fleming, to cases where additional damages are sought for an injury compensable under
the Workers ’ Compensation Act. Other types of benefits or rights, including the duty to
accommodate, remain within the jurisdiction of the GSB to address.
Based on my review of the cited cases and the facts of this case, I conclude that I
need not decide which analysis is preferable - Lister or Rigglesworth or Thomson.
Regardless of their views as to whether additional damages may be awarded under a
collective agreement for a compensable injury under the Workers ’ Compensation Act, they
14
all appear to agree that the Board is only ousted in cases where workers’ compensation
benefits have been awarded. In Lister, the board relied on the fact that “the grievor is
claiming damages for personal injury arising out of a compensable accident.” (Decision, p.
9) In Rigglesworth, the board noted that Lister was distinguishable on the basis that “in
Lister the grievor had clearly had a compensable accident (her claim was accepted and
paid by WCB) while in this case Mr. Rigglesworth’s claim has been rejected by the WCB
as non-compensable.” (Decision, p.9). In Thomson, the board based its decision on the
fact that the employee’s “claim for damages for personal injury arising from an accident in
the course of employment has been made before and accepted by the Workers’
Compensation Board.. .” (Decision, p. 9)
In the case before me, the grievors’ seek compensation for a work-related incident
which they allege resulted in their inability to work due to stress, but the WCB denied
their claims on the basis that their disability was “related to your work in general and
harassment on the job.. .” Their injuries were not deemed to be compensable injuries under
Act, even though their source was the workplace.
The WCB’s determination demonstrates that not every injury which allegedly
occurs at work is covered by the Workers ’ Compensation Act. To be covered by
workers’ compensation, the injury must be the result of an “accident” as defined by that
statute, or the result of industrial disease. Accordingly, as the Union argues, there are
gaps in coverage - injuries which allegedly occur at work which are not governed by the
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workers’ compensation scheme. In this situation, even if Lister and iThomson are correct,
the Workers’ Compensation Act does not pre-empt the entire field of work-related
injuries. Contrary to the Employer’s contention that whether or not workers’
compensation benefits are actually awarded is immaterial to the GSB’s jurisdiction, I
conclude that it is critical because the Workers ’ Compensation Act cannot preclude claims
which fall outside of its scope. Section 16 of the Act states that “[tlhe provisions of the
Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker
. . . may be entitled against the employer...by reason of any accident happening to
him.. .while in the employment of such employer...” While that provision may, or may not,
bar grievances which seek additional compensation for work-related injuries covered by
the Act, it cannot bar claims which the Act does not cover, claims which are not the result
of an “accident happening to him...while in the employment of such employer.” Since the
grievor’s claims for compensation in this case were not covered by workers’
compensation, the jurisdiction of the GSB is not, and cannot, be affected.
In so ruling, I further note that Article 18.1 and Article A. 1.2 are enforceable
contract rights, for which damages may flow if breached. In Gonneau, GSB No. 227181
(Teplitsky) at p.6, cited in Lister, supra at p. 4, the board held that Section 18.1 “imposes
an obligation on the employer, the breach of which may attract a remedy in damages.”
The provision was not merely directory. Likewise, the non-discrimination provisions in the
collective agreement are independently enforceable. See, Fleming, supra.
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In this case, if it is established that action was taken against the grievors for their
union activity during the strike and, as a result, injury was caused to the grievors, that
claim may be pursued under Article A. 1.2 and damages awarded. Similarly, under the
facts of this case, the grievor’s claim for monetary damages under Article 18.1 may
proceed.
Accordingly, for all the reasons set forth above, the grievors’ claim for damages as
a result of what allegedly occurred at work on February 28, 1996 may proceed, and the
Employer’s preliminary objection is denied.
Decided this 1 d aY 0 f’a%mToronto. er, , ’
/fhbrnfi
Randi #ammer Abramsky, Vic
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