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Home My WebLink About2001-1093.Group Grievance Andersen et al.02-06-27 Decision ~M~ om~o EMPLOYES DE L4 COURONNE _Wi ii~~;~~T DE L ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FA CSIMI LEITELECOPI E. (416) 326-1396 GSB#1093/01 Unlon#01 C792 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public Service Employees Union (Group Gnevance, Andersen et al) Grievor - and - The Crown In Right of Ontano (Ministry of Correctional Services) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Susan Ballantyne Counsel Raven, Allen, Cameron and Ballantyne Barnsters & SoliCitors FOR THE EMPLOYER Fenna MUrjl Counsel Legal Services Branch Management Board Secretanat HEARING June 10, 2002 2 DECISION ThIS group gnevance was filed on behalf of seven correctIOnal officers employed at the RIdeau CorrectIOnal Centre The gnevors claimed compensatIOn for vandahsm to theIr velucles whIch occurred m the parkmg lot at theIr workplace The umon contended that the damage was done by persons lOItenng m the parkmg lot wlule aWaItmg admIssIOn to serve mtennlttent sentences Accordmg to tlus hne of argument, the employer dId not take reasonable precautIOns to protect the automobIles m the lot By way of a prelllnmary obJectIOn, counsel for the employer submItted the facts alleged by the gnevors would not constItute a vIOlatIOn of the collectIve agreement Counsel argued the matter gneved IS not covered by the agreement I was urged to conclude the dIspute does not fall wltlun the purvIew of artIcle 22 1 whIch provIdes for the adjustment of "complamts or dIfferences ansmg from the mterpretatIOn, apphcatIOn, admmlstratIOn or alleged contraventIOn of tlus Agreement" Counsel cIted the followmg decIsIOns m whIch an arbItrator dechned to entertam a gnevance deahng wIth a subject not governed by the collectIve agreement between the partIes to the arbItratIOn McDonnell Douglas Canada Ltd. and Canadzan Automobzle Workers (1992),27 L.A C (4th) 294 (FOISt), York ReglOn Roman Catholzc Separate School Board and OntarlO Englzsh Catholzc Teacher' AssoczatlOn (1995), 49 L.A.C (4th) 123 (Keller), York ReglOn Roman Catholzc Separate School Board and OntarlO Englzsh Catholzc Teacher' AssoczatlOn (1995),52 L.A.C (4th) 285 (Kaplan), Durham Dlstrzct School Board and OntarlO Secondary School Teachers' FederatlOn (2000), 87 L.A.C (4th) 249 (DavIe), and General Motors of Canada Ltd. and CA W-Canada (2000) 93 L.A.C (4th) 329 (Marcotte) 3 In response to thIS prehmInary obJectIOn, counsel for the umon contended the facts alleged would constItute a vIOlatIOn of artIcle 2 1 and artIcle 9 1 of the collectIve agreement I I begIn my analysIs wIth artIcle 2 1 entItled "Management RIghts" The relevant portIOn states For the purpose oftlus Central CollectIve Agreement and any other CollectIve agreement to whIch the partIes are subJect, the nght and authonty to manage the busIness and dIrect the workforce, IncludIng the nght to make reasonable rules and regulatIOns shall be vested exclusIvely In the Employer It IS agreed that these nghts are subJect only to the prOVISIOns of tlus Central CollectIve Agreement and any other CollectIve agreement to whIch the partIes are subJect Counsel for the umon submItted the employer contravened tlus artIcle by failIng to enforce eXIstIng "rules and regulatIOns" In a manner whIch would have prevented the property damage for whIch compensatIOn IS claimed. ArtIcle 2 1 was mentIOned by counsel dunng her openIng statement but she dId not return to It In argument The essence of the management nghts artIcle IS an acknowledgement that "the nght and authonty" to do certaIn tlungs IS "vested exclusIvely" In the employer, so long as the dOIng of these tlungs does not vIOlate any other prOVISIOn of the collectIve agreement In my VIew, there IS notlung In the language of tlus artIcle to suggest It places the employer under any sort of posItIve obhgatIOn to protect the property of employees 4 II The umon rehes pnmanly upon artIcle 9 1 deahng wIth health and safety whIch states The employer shall contInue to make reasonable prOVISIOns for the safety and health of ItS employees dunng the hours of theIr employment It IS agreed that both the Employer and the Umon shall co-operate to the fullest extent possIble In the preventIOn of accIdents and In the reasonable promotIOn of safety and health of all employees ThIS artIcle IS IdentIcal to the contract prOVISIOn apphed In two decISIOns of tlus Board upon whIch the umon rehes OPSEU (Gonneau) and Mlnzstry of Attorney General, FIle 227/81, decIsIOn dated February 1, 1982, (Tephtsky), and OPSEU (Kelly) and Mlnzstry of Cor rectlOna I Servlces, FIle 371/84, decIsIOn dated Apnl 99, 1987 (Saltman) The facts In Gonneau and Kelly are remarkably sllnIlar In each case, the gnevor's velucle was damaged when she or he was Involved In an accIdent on the employer's property, comIng to or leavIng work, and the accIdent was caused by the employer's failure to adequately remedy poor dnvIng condItIons caused by Ice or snow In neIther case dId the gnevor suffer any personal InJury as a result of the accIdent Both gnevors were awarded compensatIOn for property damage The central part of VIce-chair Tephtsky's reasomng In Gonneau was SUCCInctly stated. It IS clear that the property damage flowed dlrectly from the employer '51 fazlure to make reasonable prOVlSlOns for the safety and health of the grzevor Fortunately she was not InJured In the accIdent I am aware of no prIncIple whIch would dIsentItle a party to recover a loss of property whIch flowed dIrectly from such a breach of contract Rather, It seems clear that the loss IS not too remote (page 7, emphasIs added) 5 ThIS passage was quoted by VIce-chair Saltman In Kelly and endorsed by her on the grounds that It was not "mamfestly In error" (page 10) The chaIn of reasonIng reflected In the above excerpt from Gonneau ments elaboratIOn The employer had not made "reasonable prOVISIOns for the health and safety of the gnevor," In as much as she was at nsk of bodIly InJury on the poorly maIntaIned road, even though good fortune kept her from harm In the end. Management's failure to adequately protect the employee herself was a "breach" of the artIcle deahng WIth the health and safety The gnevor was entItled to be compensated for the damage to her car because that loss "flowed dIrectly" from the foregoIng breach of contract In short, as noted by counsel for the employer In her wntten submIssIOn, compensatIOn for property damage was awarded In Gonneau and Kelly because It flowed dIrectly from carelessness whIch vIOlated the collectIve agreement by placIng the gnevor at nsk of bodIly InJury The language of artIcle 9 1 leaves no doubt that It creates an obhgatIOn to protect employees The absence of any reference to property IndIcates thIS artIcle does not place the employer under an Independent obhgatIOn to protect theIr belongIngs ArtIcle 9 lIS vIOlated whenever management does not adequately safeguard the workforce, even If no actual harm IS suffered by those exposed to unnecessary hazard. A failure to protect property, In a sItuatIOn where people are not In Jeopardy, would not constItute a vIOlatIOn of the employer's contractual duty to safeguard employees To recover compensatIOn for damage to an employee's property, the umon must demonstrate the loss resulted from carelessness whIch contravened the agreement by placIng the employee In penl In a scenano of thIS sort, artIcle 9 1 IS vIOlated and, accordIng to the decIsIOns In Gonneau 6 and Kelly, the employee IS entItled to compensatIOn for property damage floWIng dIrectly from such a vIOlatIOn TurnIng to the case at hand, I agree wIth counsel for the employer that the facts alleged are sIgmficantly dIfferent than the scenano addressed In Gonneau and Kelly Here the umon dId not suggest the seven gnevors themselves were endangered by any failure on the employer's part to take reasonable precautIOns In the parkIng lot Indeed, there was no suggestIOn that any employee was In the vlclmty of the lot when the vandals were there Rather, the umon alleges only that adequate measures were not Implemented to protect the gnevors' automobIles Any failure to provIde appropnate safeguards for property, standIng alone, could not constItute a vIOlatIOn of artIcle 9 1 III In summary, the facts alleged would not constItute a vIOlatIOn of eIther artIcle 2 1 or artIcle 9 1 NeIther of those artIcles confers upon me the JunsdlctIOn to grant the rehef sought by the umon It remaInS to be detennIned whether such JunsdlctIOn flows from the prIncIples enunciated by the Supreme Court of Canada In Weber V OntarlO Hydro (1995), 125 D.L.R. (4th) 583 Dated at Toronto, tlus 2ih day of June 2002 RIchard M. Brown, VIce-Chair