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HomeMy WebLinkAbout1990-0637.Rigglesworth.92-03-30 ... ~\ .----,.. " , (1 ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO . 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS· 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE ITELEPHONE: (415) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2/00, TORONTO (ONTARiO). M5G lZ8 FACSIMllEITIËLECOPIE: (416) 326-1396 637/90 IN ~BE MATTER OF AN ARBITRATION Under TBB CROWN BMPLOYEBS COLLECTIVE BARGAINING ACT Before. THE GRIEVANCE SETTLEMENT SåARD BETWEEN OPSEU (Rigglesworth) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) . Employer BEFORE: B. Fisher Vice-Chairperson P. Klym Member F. Collict Member FOR THB R. .Blair GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE B. Smeenk EMPLOYER Counsel' . Winkler, Filion & Wakely Barristers & Solicitors HEARING March 8, 1991 November 5, 1991 ~ r .'. .'-". ,r-- , I , (} 1 INTERIM DECISION NO.2 In an earner Interim decision dated April 19, 1991, the Board dealt with a preliminary objection regarding timeliness and waiver. We are now being asked to deal with a second preliminary objection of the Employer relating to whether or not the subject matter of the grievance Is solely within the jurisdiction of the Workers Compensation Act. . For the sole purpose of dealing with this preliminary ·obiection the Board will assume the - following facts to be true. 1) From 1970 - 1984 the Grievor worked as an Instrument Repairer Foreman during which . time he spent considerable time In the repair shop. 2) The Grievor filed a claim in 1980 with the Workers Compensation Board that he had i developed health problems due to the use of certain chemicals at the work site. This claim was denied by the Workers Compensation Board. I 3) In January 1984 he filed a second WCB claim which was allowed on an aggravation basis and compensated him only for the short time he was off work. . 4) Subsequent to 1984 he accepted a transfer to another position which did not involve exposure to these chemicals. However this new position has a lower wage rate than the one he --... .'"\ "' i 2 , held as an Instrument Repairer Foreman. 5) On May 3, 1990 the Grievor filed this grievance, which states as follows: STATEMENT OF GRIEVANCE III grieve that I have been subjected to·unwarranted mental and physical stress and Injury due to the Inability, unwillingness and negligence of my employer to provide me with a safe working environment that has resulted In a permanent respiratory disability. Due to reclassification at a lower salary I was further subjected to physical Injury and mental torment. As a result future prospects for promotion have been seriously affected.: STATEMENT DESIRED III claim financial compensation for past and future losses In wages together with financial compensation for the mental stress and physical hardship I have had to endure.. The employer claims that this Identic~1 issue has been decided In a previous decision of the GSB entitled Lister (340/89 Samuels). The following excerpts from that decision are relevant: "The grievor Is a nurse at 'he Huranla RegiOflal CeRlre, a tacUi" for the developmentally handicapped. In the early afternoon on October 9, 1988, during her shift, she was sexually assaulted by a male resident on the premises of the Centre. She suffered physical, psychological, emotional and financial damage. The grlevar filed a claim with the Workers' Compensation Board immediately fallowing the assaull, and she has received compensation under the Workers' Compensation Act In addition, she filed the grievance before us. The grievar alleges that the Ministry violated Article 18.1 of the collective agreement, which reads: The Employer shall continue to make reasonable provlsiotS for tbe safety and bealth of its employeeS: during the hours of Ihelr employment. II is agreed Ihat both Ibe Employer and Ihe Union sball co-operate to the lullest extent possible in Ihe prevention 01 accidents and In the reasonable promotion of safety and health or all employees. And she claims damages 10 compensate her far the physical, psychological, emotional and financial harm she suffered as a result of the assault These damages Include oul·of-pockellosses, and general damages. As well, she requests an order obligating the Ministry to take various steps to ensure that reasonable provision Is made tor her health and safety. -- ...----'. , i"'. ~l . 3 The claim for damages is expressed as follows: (a) Payment to the Grievor of the difference between what the Grievar would have received if she had workød for the Employer from October 10, 1988 to May " 1989, In effect being the difference between Worker,' Compensation benetit' actuaUy received and the amount .lllcllwould have been received from the Employer. (b) Prior to the assaull, the Grlevor's sons's Income was made available to the Grlevor. Following the Incident, when the Grlevor's son moved oul of the family home, thè Grlevor lost the benefit of her son's income. As a resuh of the Injuries, the Grlevor became the sole support mother of seven children and Is claiming the amount of losllncome from the Employer. (c) Since March 1989 Ihe Grievor has been attending the Barbara Schmel Clinic in Toronto. This has necessitated the Grlevor renting a car once per week In order. to Iravel from Orilla to Toronto to attend the Clinic and the Grlevor is claiming 'he amount of the car rental costs from the Employer. . (d) The Grlevor' has been receiving pl\yslotherapy at the cost of $20.00 per session and is claiming the amount of the physiotherapy costs from the Employer. (e) The Grievor Is claiming from the Employer In addition, general damages for physical and mental distress suffered. 9n Damaaes and the WDrkers' Compensation Act With respect to the matter of damages, in our view, we are constrained from awarding damages by sectiDn 14 of the Workers' Compensation Act, RSO 1980, c. 539, as amended. This provision re~ds: . Provision 0' 14. The provisions of Ihll Par are In lieu of all rights of action, stalutory or Act In lieu olherwile, 10 wbicll a worker or 1he memberl of hll family are or may be entitled of all rightl against 111e employer 0' lucb worker, or any executive officer 1hereo', for or by 01 action "aun 0' .ny accident happening to him or any industrial dlselse contracted by against him on or .ner the 1st day O. January, 1915, while in Ihe employment 0' lucll employer, etc. employer, .nd DO action lieslD relpect thereof. R.S.O. 1980, c.539, s.14; 1982, c.61, 1.2; 1984, c.5B. 2.6. Thi' se~\\OS\ sa..,s \\\at \\\e compensaUon scheme provided in 'he Ac' 1$ "11\ Ueu ot an ria"ts and rights oi actions, statutory or otherwise, to which a worker....may be entitled against the employer of such worker........Þy reason of any accident happening to him" (emphasis added). Thus, the legislative compensation scheme takes the place Df bDth riahts and rlahts of action. And this applies to these rights whethet they are statutory or otherwise; This section says that the compensation scheme provided In the Act Is "in lieu DI all riahts and riahts of actions, statutory Dr otherwise, to which a worker... may be entitled against the employer of such worker....by reason of. any accident happening to him" (emphasis added). Thus; the legislative compensatiDn scheme takes the· place of both rights and rights 0' action. And this applies to these rights whether they are statutory or otherwise. The grievor claims a right to the remedy of damages under the collective agreement This is a right against the employer which arises because of the "accident". Such a right is replaced by the compensatiDn provided by the Wòrkers' Compensation Act. Section 14 0 the Act says that the legislative compensation scheme Is "in lieu Qf" such a tlghl Section 3(1) of the Workers' Compensation Act provides for the basic right to compensation In the event of /\ -- . 4 l personal injury by accident arising out and in the course of employment It reads: Compen- 3.-(1) Wherein any employment, to which thil Pa" appU8" persoDal injury by accident arising out IIIloD of and In tbe cour.. of employment II caused to a worker, tlie worker alld the worter's dependantl to worter are entitled to benefits in Ihe manner and to lite uteat provided under lite Act. aad dependants Seclion 1 (1 )(a) of the Act defines the word -accidenr, and - says that It Includes -(I) a willul and intentional act, not being the act of the worke,.. In our case, the assault on the grlevar was an -accident- In this sense. . Section 8(1) of the Act allows an injured worker to take legal action against some person other than the worker's employer, when this other person bears some responsibility for the injury to the worker. But, the compensation scheme under the Act governs the legal relationship between the worker and the worker's employer with respect to the worker's rights against the employer as a result of the personal InJury by accident arising out of and In the course of employmenL This is the effect of section 14 of the Act The workers' compensation system Involves a historical trade-off. Employees gave up the right to oblaln damages from their employers - a right which may have enable Injured employees to be compensated fully for out-of-pocket losses and general damages, when 'hey could establish that 'he employer was at faulL In return, employees w8Ie guaranteed a measure of protection against income losses due to Injuries at work, irrespective of faulL We were referred 10 WeUand County General Hospital ånd Ontario Nurses' Association, Worters' Compensation Appeals Tribunal, 53187 (Bradbury), reported at (1987), 5 WCAT Reporter 97. In that case, the Hospi'al applied to the Tribunal under section 15 of the Worker's Compensation Act for å determination of whether, In the circumstances of the case, a nurse's right to grl,ve under the collective agreement had been taken away by the AcL Section 15 of the .Act provides: Determi- 15. Any party to an actio. may apply to tbe Appeall Tribunal for adjUdication and determination.of the question Dation 01 tbe plaintin's right to compenlation under tbll Par, or as to wbetber tbe action Is one tbe right to bring wbicb of right is taken away by tbls Part, or wbetber tbe adloD II one In whicb the right to recover damages, contribution, to bring or indemnity Is limited by tbil Part, and such adjudication and determination Is linal and conclusive. adlol 1984, c.58,s.7. The Tribunal was asked to answer two questions: 1. Whether the Hospital was a -arty to an action- as required by section 15 of the AcL . 2. Whether the Appeals Tribunal can make a determination on i worker's right of action pursuant to section 15 of the Act after an award has been Issued by an arbitrator. The nurse had been kicked by a patient at work, and had left the Hospital for the balance of the shift after reporting the incident to the head nurse. She was also nol able fa wOlk the faJJowing dav. She made no claim to the Workers' Compensation Board, because she considered her problem to be related to an earlier non-work-related injury. The Hospital filed Its Report of Accidental Injury to the Board, and the Board - responded that It would pay no benefits because the nurse did not receive medical attention. The grievor did ask the Hospital to pay the sick benefits provided in the collective agreement The Hospital refused, and the nurse grieved. The matter went to arbitration before Mr. Weatherrill, and he decided that the provisions in the collective agreement were not in conflict with the Workers' Compensation Act, because the WCB had . determined that the worker's injury was not compensable. The Hospital then applied '0 the Tribunal for Its ruling. ~.. .-... . rt 5 The Tribunal held that (Parties to aeollectlve agreement) ....can provide for additional benefits or for recall or job modification for workers who have had compensable accldenl 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 workers' compensation. (at pages 5-& In the unreported version, and In the middle of page 103 In the reported version, emphasis added.) The Tribunal then went on to decide that the term -action- in sections 8, 14, and 15 of the Workers' Compensation Act does nót Include a grievance arbitration (at page 6 In the unreported version, and at page 103 In the reported version). this conclusion was reached ~ the follOWing reasoning: · Section 31 of the Interpretation Act provides that "The Interpretation section of the Courts of Justice Act, 1984 extends to all Acts relating to legal maUers-. · Section 1 (1) of the Courts of Justice Act, 1984 says that: (a) . "action" meanl a civil proceedln, tbat II not aD appllcatioD aad IDcludel a proceeding commenced in tile Supreme Court of the District coun by: fi) statement of claim, 00 Notice of aelion, (iii) counterclaim, (iv) croSlclaim, . (v) third or IlIblequent party claim, (vi) divorce petition or counterpetition, and a ,roceeding commenced In the Provincial Court (Civil Division) by claim; (b) "application" means a civil proceeding In the Supreme Court or the Dlltrlel Court that II commenced by notice of application or I. civil proceeding in the Unified Flmily Court, a surrogate court or tile Provincial Court (Family Divilion) that is commenced by application. I . · A grievance procedure under a collective agreement does not fall within the term "action-, as defined In the I Courts of Justice Act I Thus, the Tribunal concluded that the Hospital was "not a party to an 'action' the right to bring which is aUected by the Workers' Compensation Act" (at page 8 in the unreported .version, and at page 105 in the reported version). The Union argues that, In like vein, a proceeding before the Grievance SeUlement Board is not an "action". We agree. But the orievar is attempting 10 enforce a -righi- which has been replaced by Ihe legislative compensation scheme in the Workers' Compensation Act. this case Is not like Gonneau, 2~7/81 (Teplitsky), where the Board awarded damages for loss to the arievor's vehicle. Nor is this case like Weiland County General Hospital, whe.re the injury suUered was not compensable and the claim was for sick benelits not covered by workers' compensation. Here the grlevor Is claiming damages for personal injury arising out of compensable accident. This Is precisely the type of loss for which, pursuant to section 14 of the Workers' Compensation Act, the legislative scheme has r.eplaced other "rights", "statutory or otherwise". This grlevor'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 otherwlse-. The Union argues that the Grievance Settlement Board and the Workers' Compensation Board have concurrent· jurisdiction here. But this cannot be so in light of section 14 of the Workers' Compensation ACl We have to abide by the legislative structure which is made clear In the legislation. We cannot make an award which would be contrary to section 14 of the Workers' Compensation Act. We cannot enlorce a "right" which has ..' been taken away section 14 of the Act. . -----: (', ~ , 6 t The Union argues that -A claim under the WCA Is different from the remedy requested for the breach of Article 18.1 of the Collective Agreement. The remedy requested for the breach of the Collective Agreement is one for damages. The WCA provides 'or limited compensation for lime lost due to personallnjury-. But this Is an aUempt.to draw a distinction which Is meaningless In light of section 14 of the Workers Compensation Act. The compensation provided under the Act is -In lieu of all rights .... statutory or otherwise, to which a worker may be entitled against the employer of such worker... by reason of any accident happening to him... while In the employment of such employer". The claim 'or damages under Article 18.1 Is a right which the grievor has against the damages under Article 18.1, the heads of damage and the quantification of damages would dltfer from the way In which the grievor's compansatlon Is calculated under the Workers' Compansation Act. But section 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 right, statutory or othèrwise, have been replaced by the legislative compensation scheme. The Employer urges this Board to follow the Lister decision and dismiss the grievance on the basis that the Grlevor in our case is only seeking finl!lncial compensation. . In light of the Blake decision we are certainly inclined to follow past GSB decisions unless good reasons can be shown as to why the previous decision Is wrong. . It Is the Union's submission that lister Is wrongly decided and that we should not follow It. The error in the Uster case consists of bow they Interpreted and applied the relevant provisions of the Worken Com panes Act. It should be noted that where another panel of this Board makes a decision based on their interpretation of a statute outside thel, particular area of expertise like Ihe W.CA, there Is less reason for this panel to give them the usual deference fhaf we would where they were Interpreting th.e collective agreement, C.E.C.BA 0' the Public' Service Act, where the GSB's expertise is recognized. . In order to p,operly understand the Weiland County General Hospital decision (referred to in lister), it is necessary to quote extensively trom tbeir reaSORs. The paoel has considered the arguments. presented. We are grateful to counsel for the parties and to Tribunal counsel for their assistance. . According to tbe Ill1erprelatlon Act, tbe Courts 01 Justice Act definition of action would apply unl8$' ills.hown tbat it is Inconsi.teø1 wltb tbe intent or object of Ibe Workers' Compensation Act or it is inconsistent witbln the context of the Act. On tbls polDl, althougll we agree witb cOURsel for tbe employer tbat s. 14 of tbe Workers Compen.atloD Act .etl ollt 'lie ge.eralscheme of tbe Act, we cannot agree that s. 15 II Inconsistent witll tbe scbeme. In our view, it II aollncoaslstent willa tile Intent or Ihe wording of tile Workers' Compensation Act to find Ihat a worker lIa. no rigid to bring a civil action against Ills employer in certain cases but tbat bis ualon coatinues to baD the rigid to pursue the workers grievance un~er IlIe terms of a collective agreement. We would note tbat a collective agreement could not waive a worker'. right to Workers' Compeøsation bene.its(2.16 d. the Act). A worker will, regardless d. tbe terms of any collective agreement Dr Ihe steps be or she may bave taken In a grievance procedure, bave the right to claim from the Board wbatever benefits lie or she is entitled to UDder the Ad. There is, however, nolhlng In tile Workers' Compen.ation Act wbicb would preclude a union and an employer from including additional provisions In a collective agreemelll They could, for example, provide for additional benefits or for recall or job modification for workers who bave had compensable accident. There Is also nothing to preclude them from making Ibe type of agreement that WII made in Ihis case - that is, providing for sick benefits In cases nol covered by Workers' Compensallon. Collective agreements· are voluntary agreements whlcb do nol affed workers' rlghls under the Worker,' Compensation Act. Any sucb provisions in colledive agreements would be enforced by Ihe grievance procedure. Such provlsloDS are Dol, 10 our view, whal was contemplated by Ibe historical "trade-air which is em bodied iD ss.S, 14 and 15 0' tbe Workers' Com pensation Act. These were aot the types 01 · actions- or "rig his I . .t -~....'. .. ~, " v'~ "" .. '-, (-~ ,- . .' t} 7 of action which workers gave up In return lor a statutory no-fault accl~ent compeasaUon system. Thus, In our view, tbe reference to "action" or "rigbts of action" In II. 8, 14 aId 15 of tbe Act was Int intended to prevent Ibe union and tbe employer Irom usillg tbe grievance procedure to enlorce rlgbts under the collective agreement. In tbis context, tben, tbe type 01 "adlon"" contemplated by tbe Coarts 01 Justice Act appears to us to lie conslstellt with the mnaillf allhe word "action"i. 11.8, 14 aad 15 of rile Womrs' Compaosafion Act TlII panel concludes, tllerefore, tbat the term "action" In s.15 01 tbe Act does not Include a grievance arbitration. Furtber support lor tbls conclusion Islound In tbe Labour Relatlonl Act, R.S.O. 1980, c. 228, which provides a mandalory mecbanism lor determining a grlevor's rlgbls. Sectlo. 44 01 tbal Ad states tbat all di"erences respecting tbe Interpretation, application or aay violation 01 a collective agreement must be determined by arbitration. Thus, In order 10 Interpret tbe provlllon of Ibe laboar Relations Act so al not to conflld with Ibe provlsloas of Ibe Workers' Compensatlol Act, tbe lerm "action" II I. 15 Sbould not be Interpreted as encompassing tbe grievance and arbitratiol procedare IIDder tbe Labour Relations Act. In this regard Mr. Goldblaft aoted the decllloll oIlrbitraUon J.F. Weatberlllln Re Bendix Automotive of Can. LId. and United Automobile Workerl, Local 195 (1973), 3 LAC. (2d) 21 (ant). In conSidering tbe company's obJection that the grievances In question In tbat case were problbited by reason of the provisions of Ihe Workers' Compensation Act, 1.8(9), Mr. Weatherrill stated at pp. 22-3 as lollows: "The Act prollibitl tile bringing 01 an action for damlgesll clrcumstancessucb IIthoSl which, it will be seen, haveglveß rise to tbe present grievances. In my view, where tbe statute refers to a 'rigbt of action' it relers to the right to bring all action, that Is, a civil proceeding commenced In accordance witb Ibe Rules 01 Court whicb certain persons would have had were it not lor the provisions of the Act. Tbe Workmen's Compensation legislallol II is gellerally known, replaced an employee's Irequently Ine"lcacloul rigbt to sue his employer or 1111 lellow workmen lor Injuries . suUered In tbe course of his work witb a system 01 compensation Dot based on lault. The instant case, boWever, is one of a grievance .against tlli company lor benafÍls.sald to be payable under a collective agreement as slchessand accident benefits. EveD ahllougll an arbitration award could be enforced al an order of tbe Court, a grievance Is not tb. same as all action, and, more substantially, a grievance seeking benelits payable i. the event of lickness or accident and raisin, no question 01 fauh, cannot properly be characterized as an 'adloD lor damages...lor an injUry.' The Workmens' Compensation Ad might be considered 81 providing, Inter alia, a lorm of Insurance In cases of indultrial accidents or illnesses. Tile provision 01 the Act to whlcb I was referred does not, in my view, bavetbe eDect of prohibiting otber insurance being taken out in respect of tbe same. riskl. In this respect, tbls situation may be contrasted with tbat under tbe Ontario Heahh Services legi.laUol under which extra Insurance for risks IlIsured UDder tbe Act Is expressly prohibited. In the Instant case, the grievance felates simply to a claim lor Insurance benellts ,lIegedly provided 'or under tbe collective agreement. The preliminary objection tllerefore, 'ails.· We agree with Mr. Wealherrlll that a grievance Is not the same as an action and that two comprehensive schemes - in this case, the Worters' Compensation scheme and the collective agreement scheme -' can co-exist Here, the grievor/worker sough sick pay for an event that she considered to be a non-employment rølatéd -illness or inju,,-. The arbitrator, looking only at the collective agreement, as he was required to do, and stating clearly that h~ was· not reviewing the WeB decision to deny compensation, determined that the worker was entitled to sick pay. The em'ployer has not appealed the arbitrator's decision nor has it appealed the WeB decision to deny compensation. Having delermined that the applicant Is not a party to an -action- as required by s.15, it Is not necessary for this panel to decide the second issue as to whether the arbitrator's decision extinguishes any -right of action- under s.15.' ~ ! 8 t Tbe Decision The applicant hospital Is not a party to In -action- the right to bring which Is affected by the Worker's Compensation AcL It follows therefore that the Workers' Compensation Appeals Tribunal, which is the specialized tribunal for matters under the W.C.A. have decided that: a) It is not Inconsistent that a worker may be prevented from bringing a civU action but that his union can file a grievance for the same matter before. a board of arbitration. b) there Is nothing In the WCA which prevents a Union and an employer from negotiating additional benefits over and above those benefits which a worker is entitled to receive under the WCA even if those additional benefits relate to compensable Injuries. c) A grievance is not an Aacti9nA within the meaning 01 Article 14 and 15 of the WCA and therefore is not the type of right which workers gave up In exchange for their WCA rights. Applying the logic of the Weiland County case, could it not be said that Article 18.1 of the ·collectlve agreement was a benefit negotiated by the parties over arid above the worker's- rights under the WCA? It is not meant to replace the WeA, but rather to supplement It. So, for instance, if as a result of an injury caused by the Employer's failure to make reasonable provisions for the health and safety of its employees, the employees suffer a wage loss, could not Article 18.1 cover a claim for the difference between what the employee would get from WCB and what his pre-injury wage was? I If we change the facts a little, we can see the errors In Lister. Assume that the parties negotiated a clause in their collective agreement as follows: "If the employee is injured as a result of the employers negligence, the employee shall receive a payment equal to the difference between his pre-iniury wage and his WCA benefit.1I Accordingly to Lister the Union could not even file a grievance in respect to an alleged violation of that provision, as s.14 of the WCA ~eplaces this clause. However as long as the negotiated benefit Is in addition to the workers right under the WCA, the Weiland County Hospital case says that it doesn't offend s. 14 of the W.C.A. .t .\ , ~ ,,' 9 Mr. Samuels in Lister emphasized the portion of the reason~ng in the Weiland county Hospital case which referred to "cases not covered by workers compensation'· (see page 8 of Lister). However he failed to properly appreciate the preceding sentences which read as follows: ØYhere 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 accldents.1I (Emphasis added) - . Thus upon our reading of the. Weiland case, It would be open to. the parti~s to negotiate a clause similar to the one stated above, which would allow a worker to file a WCB claim and a . grievance under his collective agreement claiming financial payments from his employer. As the Lister dec~sion is based entirely on Its understanding of an statute outside the Boards area of expertise, and as this panel feels that Lister panel Incorrectly interpreted a decision of the Tribunal which is expert on those matters, (WCAT) we do not feel constrained by the Blake decision to follow Lister. . In our opinion the correct Interpretation of the WCA, as decided by its own specialized tribunal in the Weiland case, is that unions and employers are free to negotiate clauses In collective agreements which may provide additional financial benefits to workers who have had compensable Injuries. We note in passing that even if we had not found Lister to be wrongly decided, it can be distinguished from this case because in Lister the grievor had clearly had a compensable. accident (her claim was accepted and paid by the WCB) while in this case Mr. Rigglesworth's claim has been rejected by the WeB as non-compensable. Needless to say we are not determi~ing at this point whether or not Section 18 (1) of the Collective Agreement was Intended by the parties to cover claims for compensation of the nature ~ 10 L put forth by Mr. Rigglesworth as we have only decided that Section 14 of the WCA is not a jurisdictional bar to our deciding this case. This preliminary objection Is therefore dismissed. The parties are to contact the Board to set up new hearing dates. Dated at Toronto this 30 t h day of Karch, 1992. j 1l . ". j ~ B. FISHER . . Vlce-C~alrperson ;; . f? <~¿~ . PETER KL Y . Union Member 11·1 Dissent" (di ssent at tached) F. COLLlCT . Employer Member . 'I ' .1 j -..... . ./ ,j DISSENT RE: G.S.B. #637/90 (RIGGLESWORTH) This Member is not in agreement with this award, for the following reasons: 1. The grievance cites no specific violation of the Collective Agreement ançj is clearly a claim for damages associated with alleged mental stress and physical hardship associated with his employment. 2. Such a claim for damages is an attempt. .....to enforce a "right" which has been rep.laced by the legislative compensation scheme in the, Workers' Compensation Act... . This is precisely the type of loss for which, pursuant to Section 14 of the Workers' Compensation Act, the ~gislative scheme has replaced other "rights", "statutorv 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". . (p. 9, G.S.B. #340/89, Lister) 3. This Member can agree with the findings of the Workers· Compensation Appeals Tribunal as set out in Weiland County General Hospital. However, just as Weiland County General Hospital can stand for the proposition that the Workers' Compensation Act can co-exist with additional benefits negotiated in a Collective Agreement for employees, so also can Weiland County General Hospital co-exist with Lister (G.S.B,), . . " . . . . . ·2· That is, Lister (G.S.B.} does not stand for the proposition that additional benefits cannot be negotiated for employees within a Collective Agreement; and that the right to such benefits cannot be pursued through the grievance procedure. Rather, what Lister stands for is tnat where such negotiated benefits are in conflict with Section 14 of the Workers' Compensation Act, the provisions of the Workers' Compensation Act will override the negotiated provisions of the Collective Agreement owing to the $tatutory legislative compensation scheme. It is precisely for this reason that in Weiland County General Hospital" that the followi ng was stated, "There is aJ~o nothing to preclude them (the parties to the collective agreement) from making the type of agreement that was made in this case . that is, providing for sick benefits in cases not covered by . Workers' Compensation~ (po 103, Decision #53/87, W.C.A. T. Reporter) Obviously, the negotiations of a sick benefit provision into a - Collective Agreement would not offend Section 14 of the Workers' Compensation Act, and therefore is !1Q1 in conflict with Lister. 5. Weiland County General Hospital also stated the following: "There is, however, nothing in Workers' Compensation Act which would preclude.a union and an employer from including additional provisions in a collective [lJreement. They . . I . -, "I - 3 - could, for -example, provide for additional benefits or for recall orjob modification for workers who have had compensable accidents." (ibid) From the above, one miaht be able to draw the 3 conclusions made at page 8 of this Rigglesworth award. However, the above is very broad in context and can in no way be found to override the statute as set out at Section 14 of th~ Workers' Compensation Act. . . 6. Further, with reference to., the excerpt in #5 above, one must recognize that Section 14 of the Workers' Compensation Act does not state that "all rights" are encompassed or constrained by the Workers' Compensation Act as related to an accident or industrial disease associated with the employment relationship. Rather, Section 14 of the Workers' Compensation Act states, "14'- The provisions of this Part are in lieu of all rights... " (underscoring added) Accordingly, one must look to "this Parfl of the Workers' Compensation Act to determine how any negotiated provisions of a Collective Agreement would be impacted. Presumably, matters not embraced by "this Part" of the Workers" . Compensation Act would not be constrained by the statute. 7. In the view of this Member, therefore, a) G.S.B. #340/89 (Lister) was not decided improperlYI and, b) both Weiland County Hospital ar Id Lister can co-exist. . . . , .' . ~ - 4 - 8. In aecordance with the Blake (Shime) decision, the Rigglesworth award should follow Lister. Not on-Iy is the Lister award not in error, but there are no "exceptional circumstances" in Rigglesworth - as required by. the Blake jurisprudence - to warrant deviation from the Lister award. As further support in -this respect. pages 8, 9, 10 of the Bateman decision (G.S.B. #2177, Pritchard) are appended to this dissent. . 9. . In summary, therefore. a) The subject Rigglesworth grievance is clearly a claim for damages arising out of the employment relationship (financial compensation for mental stress and, physical hardship). . b) In the subject grievance there is no specifically identified violation of the Collective Agreement. c) This is not a case like Weiland County General Hospital where the issue was associated with a "right" (sick benefits) negotiated between the parties. Rather, it is a case involving a claim for damages which has been displaced by the legislative scheme of the Workers~ Compensation Act. d) G.S.B. #340/89, Lister does not stand for the proposition that "all rights" associated with accidents or industrial diseases are constrained by the Workers' Compensation Act. Rather. it contends that "The provisions of this Part (of the W.C.A.) are in lieu of all rights..." (ie. Section 14 of the w.e.A.) . I .' ..: ... I~ - 5 - e} Weiland County General Hospital (W.C.A.T.) stands for the proposition that additional benefits and arrangements may be negotiated by the parties to a Collective Agreement; and that grievances concerning these matters may be processed through the grievance procedure. However, this case is completely silent upon the way in which such negotiated . benefits might interlere or conflict with Section 14 of the Workers' Compensation Act. It is for this reason, as well as (d) above, that both Weiland County ,General Hospital (W.C.A.T.) and Lister (G.S.B.). can . co-exist. 10. In conclusion, this Member would allow the preliminary objection and dismiss the subject grievance. t./1 -1 ~ Q/c /"a/e7· , .~ F.T. Colliet ;J}¡ aJ¡ 1:;/1 Z- . . . " ~ i G.S.B. #2/77 CR. BATEMAN) - 8 -' VI A panel of this Board is not bound by the doctrine of stare decisis and previous decisions should not always be treated as binding authorities. At the same time, however, there are significant advantages to gaining . . . . . . . ,. . - 9 - , . .J . consistency in subsequent interpretations of the collective agreement. As Professor Laskin (as he then was) stated in the context of the private sector: It i." not good policy for one soard of Arb.i tratJon to refU5e to follow the award of another BOard. i.n a sim!lar dispute between the same parties arislng out of the soUte Agreement where the dispute involves the interpretation of the Agreement. Nonetheless, .if the second Board. has the clear conv.ict.ion that the first award J.s tirong, it i.s its duty to determine the case before J.t on principle.. that i.t believes are appli.cable. (Brewers' Warehousing Co. Ltd. (1954), S L.A.C. 1191 (Laskin) at 1'. 1198; see also Wickett . & Craig Ltd. (1963), 13 L.A.C. 363 (Arthurs)) The applicability of these views to decisions.of the Grievance Settlement Board is clear; the collective agreement and the parties - the Ontario Public Service Employees Union and the Management Board of Cabinet - remain the same for all decisions issued by the Board. While· the ·particular employment situations covered by the agreement vary widely, the parties must assume comprehensive responsibility for- the negotiation, administration and interpretation of the collective agreement. Therefore, we are of the vi ew :that thi s pane 1 of the Board shou 1 rj not accept or advance a wholly contradictory interpretation of the relevant provisions of the collective agreement 1n the absence of a demonstration that the interpretation arrived at by an earlier ·panel is lIclearly wrongll (Re RCA Ltd. (1973), 2 L.A.C. (2d) 143 (Rayner)). That is to say we are of the conviction that where one panel of this Board has adopted an interpr.etation of a particular clause in the ~ . , ,; , - 10 - ¡ agreement, the parties can not be permitted and should not be encoura9~d to relit1gate that determination unless the prior award is manifestly erroneous. Were it otherwise and were this panel, or any other', to simply disregard earlier determinations made by this Board, the parties would be precluded from ever being able'to rely upon our decisions with any sense of certainty or .final1ty. To the contrary, such a practice would actually encourage an unsuccessful party in one case to seek such further hearings before different panels of this Board in the context of other grievances until such time as it secured a result it considered just and proper. Needless to say this Board does not intend to pursue such a pOlicy. Rather, both ~ommon sense and the arbitral jurisprudence recognize that if issues between the parties are, pursuant ,to Section 18 of Tbe Crown Employees COllective Bargaining Ace, to receive a final and binding determination, the parties must accept. in the first instance and subject to judicial review the interpretations placed on their agreement by this Board. In the event those interpretations are· unacceptable to either or both of .th~ parties their recourse for relief lies in the negotiation of the succeeding collective agreement and not by way of the re-adjudication of the same issue before a different panel of this Board. I