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HomeMy WebLinkAbout1990-0637.Rigglesworth.97-08-20 . ... t ( ( ,~.. ONrARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'OHrARIO -". - 1111 GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS I- I ' 1 eo DUNDAS STREET WEST, SUITE 2100, TORONTO ON MsG 118 TELEPHONE/TÉLÉPHONE: (41~) 3~-1:J88 180, RUE DUNDAS OUEST, BUREAJJ 2100, TORONTO (ON) MOO 118 FACSIMIL£fTÉLÉCOPfE: (4US) 32ð-139ð GSB # 637/90 OPSEU # 90Cl14 . IB THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BE~EN OPSEU (Rigglesworth) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: B. Fisher Vice-Chair P. Klym Member F. Collict Member FOR THE R. Blair GRIEVQR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors I I FOR THE S. Patterson I EMPLOYER Counsel . Legal Services Branch Management Board Secretariat REARING March 8, 1991 November 5, 1991 - July 8, 1993 October 21, 1993 January 19, 1995 May 3, 1995 Septembe_r_ 8 , 18, 27, 28, 1995 June 11, 1996 - '," ~ 2 ~ ~ -- Introduction i - i This is the final decision In a series of awards that involved a grievance that was filed in 1990 regarding events that began in 1977. In the First Interim' Award, the Board held that the rvlinistry had waived its right to object to the timeliness of the grievance by not raising it in the grievance procedure until just prior to the arbitration hearing. In the I ! Second Interim Award the board ruled that the Grievor was not barred by section 14 of I the Workers Compensation Act R.S.O. 1980, c.58 from seeking monetary relief in the form of lost wages for an injury that was covered under the Workers Compensation Act. In this grievance the Grievor claims that as a result of the Ministry's failure to take -' reasonable steps in ensure that the air quality at his workplace was proper, he developed asthma which necessitated his transfer to a lower paying position within the same Ministry. He seeks monetary damages as a result of having to take this lower paying position. He also became totally disabled in 1990, however this disability was not caused by the asthma but was rather a psychological disability. The Grievor also seeks monetary damages for this period of disability equal to the difference between his L TIP payments and his pre~injury job wage. He does so on the basis that he became psychologically disabled as a result of his lengthy fight to have the Ministry accept responsibility for having caused his asthma in the first place. . - From 1978 to 1984 the Grievor was employed at the East Building of the Head Office of the Ministry in the Reprographic Centre as an Instrument Repair Foreman. - .- ... - 3 - " _u During this time he became exposed to certain chemicals. There was the finding of the Workers Compensation Appeals Tribunal in a decision dated September 29, 1995 - - which held that that his exposure in the workplace to certain chemicals while he was working in the Reproduction Centre was a significant cause of his asthma. I also had the benefit of both reading the report of Dr. David Muir and listening to his testimony at the hearing. In his report for the WeAT, Dr. Muir concludes: U On the balance of probabilities it would appear that Mr. Rigglesworth was free of asthma until he began working with photographic chemicals, including well known respiratory sensitizers. His history is clear and consistent and suggests occupational asthma. He certainly has evidence of welf-controlled asthma at present. Overall I would judge it most likely that this was caused in the first place by sensitization. to - photographic chemicals. " The Ministry presented no contrary medical evidence, and thus I agree with Dr. Muir and with the WCA T decision and find that the Grievor's exposure to chemicals in the Reprographic Centre caused his asthma. I However that does not of course mean that the Ministry is automatically liable under Article 18.1 of the Collective Agreement, as the article states that 'The employer shall continue to make reasonable provisions for the safety and health of its employees - during the hours of their employment". The real issue is therefore whether or not the Ministry made such reasonable provisions in dealing with the issue of air quality at the . -- \lo" M 4 - . .-. . Reprographic Centre between 1977 and 1984. In 1984 the Grievor was transferred to another position, at his request. This other position had a pay rate lower than his - previous position of Instrument Repair Foreman, however he was -no longer exposed to any respiratory sensitizers in this new workplace. . Chronology of Relevant Facts On July 12, 1970 the Grievor commenced employment with the Ministry in the position of Instrument Repair Foreman in the Reprographic Centre. The problems seem to start in 1977 and 1978 when the Grievor's workshop was moved into what was formerly his supervisor's office. The Grievor claimed that the - quality of the air declined because of new partitions (which reduced airflow) and the storage of two old Diazo machines in the room (which gave off chemical fumes). However, the Grievor also claimed that there was a large problem with exposure to ammonia when he performed maintenance on various machines (especially the Diazo machine) which took place in the main area, not his workshop. I shoUld note at this point that there was fairly extensive evidence about the Grievers' exposure to ammonia and the measures taken and not taken by the Ministry to correct this problem. However the evidence of D". Muir makes it clear that ammonia - is an irritant not a sensitizer. What that means is tliat only sensitizers can cause asthma, not irritants, An irritant can cause someone who already has asthma to cough - -- . ·5 . . _. - and wheeze, but in itself it cannot cause asthma. Furthermore, once a person with asthma is no longer exposed to the irritant, its effect quickly goes away, In other words, - even if the Grievor was improperly exposed to ammonia, that exposure could not have caused the asthma, although the actual exposure may have caused him discomfort at the time. . The Grievor first started complaining to his supervisor, Mr. Jeff Hollyman, about the air quality În his work area around 1979 or 1980. At the same time he also complained to Mr. Fred Pledge, the Building Manager, who Worked for the Ministry of Government Services, the owner of the Building. This specific problem related to the backup of ammonia into a certain room, ~hich was caused by the failure of a venting fan to operate properly. The fan motor was replaced shortly thereafter and the problem - was solved. Also in the period of 1977 to 1980, the Grievor was experiencing problems with the poor ventilation in his work shop area. He complained on numerous occasions to Mr. HolJyman. Shortly after that a second air vent was installed, however the Grievor . continued to experience the same breathing problems as before. . In response to these complaints, a series of ventilation tests were carried out in the Grievors' work area by Mr. Shipston, Safety Co-ordinator for the Ministry's - Occupational Heath and Safety Office. In his report of March 4,1980, Mr, Shipston reported that the adding of the vent to the repair area and the other changes recently _ u ':-.. - 6 - . ._T L made by the Ministry increased the airflow in the repair area by about 20 to 25%. The report went on to make the following comment: . - . The ventilation in the room is the minimal required. This standard would be sufficient for a normal physically healthy individual, however the man employed in this area is just returning from a lengthy stay in hospital. It is therefore recommended that if at all possible this employee should be moved out of this room and into another room which has sufficient ventilation. One can assume that prior to these changes , that is from 1977 to 1980, the air supply in the Grievor's workplace must have been 20 to 25% below the minimum standards even for a physically healthy person! Following this report, the Grievor spoke with Mr. Hollyman about moving his repair shop to an empty room beside the transformer room. The Grievor felt that that room would have been acceptable in that there were windows to the outside that he could presumably used for extra ventilation. Mr. Hollyman made inquiries about the rooms availability, but was told that MGS needed the room for storage in the near future. In fact that room was subsequently used to store office dividers. Mr. Hollyman offered the Grievor a space down by the loading dock, however the Grievor felt that that area would also have air quality problems related to truck fumes. - . _ T~ > - 7 - . --. - The Grievor therefore was forced to stay on in the repair room which Mr. Shipston had recommended he vacate. On June 5 1980, the Grievor had to leave work because of continued resp,iratory problems. The Persona/Injury Report signed by Mr. Hollyman provided the following description of the incident: . For several years the employee has been complaining about the adverse effects on his health because of inadequate ventilation in his work area. Recently unsuccessful attempts have been made to improve conditions. Now an alternative location appears to be a possible solution. This is being handled by MGS. Employee has refused to continue working in the area of concern and has been advised that he will not be required to work there until adequate ventilation can be provided or an acceptable' alternative location provided. This report was filed with the Health and Safety Committee. . The comments of the Mr. Peter Cook, Level 1 Health & Safety Rep. were as follows: The main goal of a local ventilation system is to remove contaminated air out of the work area. The existing ventilation system seems to need to be extended._ This consent (he means constant) exposure to uncirculated air has been a health hazard, . It would be useful at this juncture to set forth the extracts from the various . minutes of the Area Joint Heath & Safety Committ~e in relation to this matter triggered by the Grievors' work refusal of June 5, 1980. - ..- \.~ - 8 - . : ..- " June 25, 1980 # 80-90-3-04 Roy Rigglesworth : Doctor said he cannot work in the area due to his health condition. He is not working there at the present - will not be there until some action has been tf!.ken to improve situation. Decision- As man has been removed from the area, and ventilation system is under active consideration for improvement {punching hole into crawl space), the item should be held until meeting when hopefully more information from Special Services is obtained, and perhaps a WCB report. Refer back to manager. July 3D, 1980 # 80-90-3-04 Roy Rigglesworth: Report from Mr. Moase, confirmed that employee is not working in shop area, and won't be assigned to that area until ventilation has been improved. Absence reported on form amounted to one daY, charged to WeB. Since leaving area, or is not in area on continuing basis, his health is I much better, so that it. would appear that the room was ba.d for his health. Special Services is still/ooking into the problem, in order to get him back to the working place, No further comments. Remove from agenda. October 8, 1980 #80-90-4-24 More Ventilation in Shift Supervisors Room: As with the . Reprographic Centre, and other areas, ventilation cannot be increased without first bringing in a fresh supply from outside. A major project~ whole new ~entjJation program, is in the design stages wnh MGS, but not immediately forthcoming. Recommend that Special Services investigate and report back to the Gommittee. - . TO_ " ~ 9 - ~ February 4,1981 # 80-90-3-04 Roy Rigglesworth: The matter is still not settled. However, latest tests show no ak movement in the area, and this is unacceptable. - . July 28, 1982 #80-90-4-11 to 80-90-4-15 Ventilation Problems~ East Building: Ventilation in the area is an admitted problem, with no immediate improvement in sight, Long term improvements are under way, and will eventually be completed. December 9,1982 # 80-90-3-04 Roy Rigglesworth : This matter will remain open until the whole open problem of ventilation in the East Building has been resolved. January 18/ 1983 letter from Mr McQueen / Manager Special Services to the Health & Safety Committee. # 80-90~3-04 Roy Rigglesworth: Upgrading the ventilation in the East Building has been included in the Five Year Accommodation Program, major capital Project. This project will require major design so we do not expect completion untiJ early 1984/1985. February 9, 1983 # 80-90-3-04 Roy Rigglesworth : It was recommended that a memo be forwarded to Leve/III, to explain this item, along with Items Nos. 80-90-4-11 to 80, 90-4-15 , include., although long outstanding, cannot be resolved at present. February 15,1985 # 80-90-3-04 Roy Rigglesworth: This is an ongoing situatíon and at - the present r;me MGS are taking action. Tenders will be addressed ín the spring of '85, " - 10 - - To get back to the chronology, the Grievor refused to work in the repair shop on June 5, 1980, About six months later, an exhaust fan was installed over his workbench - in the repair shop. This fan sucked air out of the repair shop and exhausted it into the crawl space behind his work area. He then returned to his repair room. For a while the exhaust fan wnrked fine, however about a month later the motor to the fan kept cutting off. The Grievor told Mr. Hollyman who requested maintenance to fix it. This took a i couple of months, during which time the Grievor remained in his repair shop. No further improvements or changes were made to the repair shop. However, the Grievors' respiratory problems continued during this period. Then on January 27, 1984 the Grievors' doctor recommended that he be transferred out of the Reproduction area. The Grievor made the transfer request to the Ministry on February 9, 1984. The ,- -' request was granted on March 2,1984 at which time he was assigned the position of Research Technician. His Instrument Repair Foreman rate was applied for a period of six months, as provided for in the Collective Agreement, after which his wage rate dropped to the lower Research Technician rate, For years after the Griever left the Reproduction Centre there continued to be ventilation problems which were not addressed. As late as 1990 the .Grievors' complaint and other ventilation complaints were still coming up before the Joint Health & Safety Committee, , - . . ~~ - - 11 - " -- The only witness called by the Employer was Mr. Malcolm McDougall, who was the Co-ordinator of the Ministrys' Health & Safety Branch from 1982 to 1987, when he I - I retired. Prior to that he had been in the Facilities Management department, a role he held for twelve years. He was intimately involved with the Griever's air quality complaint as well the air~ quality issues affecting the Reprographic Centre. He recounted how they had made some changes to the Grievor's work area, all of which I have outlined in this award. He conceded however that the main problem was a lack of fresh air in the entire ventilation system. The buildings ventilation system was working at its maximum capacity, thus to divert more air to the Grievor's workplace meant depriving another employee of an adequate air supply. The only feasible answer was a major expansion _. of the buildings ventilation system at an estimated cost (in the mid-1980's) of $750,000.00. As Mr. McDougall testified, the decision as to whether to spend this - -' money on improving the ventilation system (and by definition the health and wellbeing of its human occupants) was a political decision regarding spending priorities. By the time he left the Ministry in 1987, this expansion of the ventilation system had not occurred. Mr, McDougall admitted that despite Mr. Shipstons' report of March 4, 1980 . which recommended the immediate removal of the Grievor from the repair room, nothing was done by the Ministry to follow through on that recommelldation. It was only through the action of the Grievor's work refusal some three months later that the Grievor was removed from the repair shop. He also felt that the improvements brought on by - the extra vent were reasonable and should be sufficient. He and the Committee also felt that the chemicals to which the Grievor was exposed were chemicals to which any . "- ~ - 12 - ..- - homeowner would be exposed and thus they were not really concerned anymore about chemical exposure. After t~is study in 1980 the Grievor continued to complain in a non- - specific way about inadequate air supply. However the Committee "was at a loss as to what to do next". . Did the Employer make reasonable provisions for the safety and health of the Grievor? I agree with the submissions of the Employer that one must be careful to assess this question based on the information that was available to the Employer at the time and based on the safety standards at the time. In other words, one must be careful not I to impose 1997 workplace safety standards to a 1980 situation. On the other hand, one ! I must be equally careful to not impose too strict a standard upon employees to prove the I exact nature of the injury or the hazard that the employee is exposed to. For instance, there is no dispute that the Employer was fully aware that there were serious problems with the ventilation system not only in the Griever's repair shop but also the entire Reproduction area and in fact the entire East Building. They may not have been aware that this ventilation problem combined with exposure to certain reprographic chemicals could cause asthma, as it did to the Grievor. However, once they have actual I I knowledge (or reasonably ought to have known) that there existed a real and I substantial health hazard, like a serious ventilation problem, then the obligation to make ~ reasonable provisions to remedy that situation comes into play. It does not matter that the Employer is not aware of the exact medical condition that the problem may give rise -- '. .~ - 13 - ~. -- - to, only that they knew or ought reasonably to have known that an employee's health _ was affected by the situation. - . Applying these principles to the case at hand. I find that the Employer (and by that I specially mean the Provincial Government (as both the Ministry of Transportation and the Ministry of Government Services were responsible for this facility) failed to make reasonable provisions for the safety and health of the Grievor in the following ways: . Once the Employer had the report of Mr. Shipston of March 4, 1980. the Grievor's ", repair shop should have been moved immediately. In fact, the Grievor was returned to the same repair shop and only stopped working there because he exercised his - ~ statutory right to refuse unsafe work. Moreover, the Grievor subsequently identified a suitable area in a vacant room beside the transformer room which had windows to the outside, however MGS denied him the use of that room because they wanted to store office dividers there. This was a completely unacceptable response. In a contest between the health of the Grievor and the need to store excess office . equipment, there should have been no question that the needs of the Grievor should have prevailed. This cavalier attitude towards the health of the Grievor was a gross violation of the employer's obligation under Article 18. . - . Similarly, once the Grievor continued to complain ãbout his health even after the installation of the exhaust vent in early 1981, the Ministry should have taken the , -- .. . ~ - 14 - _r. , initiative and transferred him out of the Reproduction Area as they were not prepared to do what it '!V0u1d really take to solve the building's ventilation problems, - that is to spend $750,000.00. Instead they did nothing and waited for the Griever to request the transfer, which he did not do until 1984. This was exactly what they did after Mr. Shipston's report of March 4,1980, which was to do nothing until the Grievor took job action. . There was an overwhelming amount of evidence which indicated that there were serious problems with the air quality not only in the Grievor's immediate work area but also in the Reprographic area and in fact the entire building in which the Reprographic Centre was housed. Everybody knew this problem existed, however -' there was either a lack of will to correct the problem or a lack of money. There seems to have been a conscious decision by The Ministry of Transportation, and perhaps even more by the Ministry of Government Services to continually ignore (under the bureaucratic excuse of "deferring") the recommendations of a series of experts that what was needed was an expansion of the East Building's ventilation system at a cost of $750,000.00, Clearly, from the evidence, the MOT representatives knew of the air quality problem. However, the MGS would not or did not take corrective action to improve the air quality in the facility for the health and benefit of the employees. - Liability for damages during the L TIP period . -- · - - 15 - - __. L From December 1, ~ 991 to the present the Grievor has been totally disabled, not - because of his asthma, but ratt:1er because of depression. It is clear from the report of his psychiatrist, Dr. Erika Lautenschlaeger of The Credit Valley Hospital, that it was the lengthy process involving the processing of his grievance and the protracted hearings before the GSB (the first day of hearing in this case was in early 1991) that caused the Grievor to become psychologically disabled. Thus, it was not the actions of the Employer that caused this medical problem, rather it was as a result of systemic problems involving the inordinate amount of time it has taken to finish this case. It should also be noted that the Grievor waited until 1990 to file his grievance, which was a full 13 years after he first brought the ventilation problem to the attention of the Ministry and 6 years after he was transferred to the lower paid position. The Grievor - was not ignoring the problem during this time, as he was filing complaints with The Ombudsman as well as continuing to have this matter addressed by the Joint Health & Safety Committee. However for some inexplicable reason, he did everything during this period other than file a grievance. Article 18.1 was not intended to cover losses incurred as the result of a particular Grievor's reaction to the delays in the arbitration system. Nor was it reasonably foreseeable in. 1984 that as a result of the Employer's failure to properly ventilate the Grievors' workplace, the Grievor would be involved in a lengthy arbitration some 6 years - later and as a result become psychologically disabled. - ..- · '. - 16 - ':" .-. , I therefore find that the Employer is not liable for any extra damages after the Grievor went on L TIP, but that damages should continue to be assessed 'on the same - basÎs as for the period from 1984 to 1990, that is, on the wage differential between the two positions pre and post September 1, 1984. However, as the Grievor was on L TIP during this period, the differential is actually the differential between the L TIP he received and the L TIP he would have received had he been receiving the Instrument Repair Foreman rate prior to going on L TIP - Summary of Damages The Grievor is only asking for monetary damages so only that remedy will be - considered. I have already ruled in the Second Interim Award that a breach of Article18- can give rise to monetary damages in the nature of a wage loss, In this case, it is appropriate to award damages in the nature of the lost wages and benefits, however one must carefully examine the actual recoverable loss in light of the delay by the Griever in filing his grievance combined with the fact that the Griever ultimately was awarded weB payments for the same injury throughout the period in question. The Grievor is asking for the difference between his wage rate as an Instrument Repair Foreman and the wage that he received in his subsequent positions, commencing on September 1 st 1984.However, the grievance was not filed until March 3, - 1990. I see no reason to deviate from the 20-day rule, which would limit his damages to the period 20 days ·prior to the filìng of the grievance. There was no evidence that the .- ! r . . ;¡ - 17 - I -: -- - I Employer was lulling the Grievor into a false sense of security as to whether or not they would pay him compensation, In fact, throughout this period, the Employer consistently - resisted his claims before the Ombudsman in 1987 and 1988. I therefore only award damages from February 11,1990 on the difference between his actual wage and the wage that he would have received if he had remained at the Repair Technician rate until he went on L TIP on November 30,1991. This comes to $3,194.55. From the date that he went onto L TIP (December 1,1991); he is only entitled to the difference between the L TIP that he actually received and the L TIP he would had received had he occupied the position of Instrument Repair Foreman during this period. This payment comes to $122.00 per month or a total of $8;052.00 up to May 30; 1997. This payment will continue until the earlier of when the Grievor retires, returns to work or dies. If he returns to work, then he shall be paid at the then current rate for Instrument Repair Foreman. His pension payments are also to be adjusted so that he receives the same pension he would have had, if he had retired in the position of an Instrument Repair Foreman. During this entire period the Griever was also receiving a Permanent Disability Pension from WeB of approximately $122.00 per month. At first glance, there appeared to be good reason to deduct these amounts from the wage loss claim, for to do otherwise would result in the Grievor receiving more compensation than he would - have, had he not been required to take the lower paying position in 1984. I was also concerned that the Grievor is claiming that the Employer caused his injury by not taking - .- ~ , . ; . - 18 - .. --- . reasonable precautions for his health, and thus he lost income, however the same monetary loss is being covered in part by his weB pension. There is a valid argument - - that is not fair or just that the same Employer be required to compensate the injured worker twice for the same injury, once under a statutory no fault scheme such as the Workers Compensation Act and second under a contractual fault based scheme, as in the Collective Agreement. However, I am advised that the nature of the Permanent Disability Pension from WeB is that it is paid regardless of the claimant's actual income. In other words, even if the Grievor would have obtained a job after his injury that paid the same or even more than his pre injury job, he still would have been entitled to his Permanent Disability Pension. Given that fact, it is proper to not deduct the WeB permanent Disability Pension payments from this award' because the Griever would -' have been entitled to that payment whether or not he incurred an income loss. In summary the grievance is allowed. The Grievor is awarded the following amounts: 1. The Grievor is entitled to an award for lost wages in the sum of $11,247.00 as of May 30, 1997, plus a monthly amount of $122.00 per month commencing June 30,1997 and continuing until the earlier of the Grievor's return to work, retirement or death. If he returns to work, then he shall be paid at the then current rate for Instrument Repair Foreman. . - L on ~ " 'õ . . - 19 - .- -- - 2. He is also entitled to interest on the sum of $11,247.00 based on the principle that he would have received these payments over an extended period of time. For the - purpose of finality, I have fixed the interest at the sum of $ 4,500.00. 3. The Grievor's pension is to be calculated based on the premise that he is deemed to have received the Instrument Repair Technician rate from February 20,1990 up to the date that he retires. Dated at Toronto this 20day of August 1997. n p . Peter Klym. níon Nominee 9~J Fred Collict, Employer Nominee . . - . ...