Loading...
HomeMy WebLinkAbout2016-1556.Wilson.17-09-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2016-1556 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (Wilson) Association - and – The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE ASSOCI ATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING September 5, 2017 - 2 - Decision [1] The Board is seized with a dispute dated March 21, 2016, filed by Mr. Tyler Wilson (“complainant”). The nature of the dispute is captured in the following portion of the written dispute: We file this in order to resolve our complaint that the Employer has breached Article 2 and 3 of the AMAPCEO Collective Agreement, and the Employer’s Workplace Discrimination and Harassment Prevention Policy and any other provisions of the AMAPCEO Collective Agreement that are relevant. In particular, the Association alleges the Employer has violated its duty to take every precaution reasonable in the circumstances to protect Mr. Wilson from personal harassment and to protect Mr. Wilson from reprisal. Moreover, we allege the Complainant was subjected to a poisoned work environment as a result of management’s comments and conduct, following which, the Complainant has suffered harm and injury to his health. [2] The following redress is sought: . A declaration that the Employer has violated the Collective Agreement. . General damages. . Reimbursement of vacation credits. . Any other redress required to make the complainant whole. [3] By way of a preliminary motion the employer requests that the Board find that it has no jurisdiction to award the complainant any damages or monetary “make whole” remedies with respect to the alleged harm and injury because those would have been compensable under the Workplace Safety and Insurance Act. (“WSIA”) The Association opposed the motion. [4] For purposes of the motion only, the employer was prepared to accept the assertions in the particulars to be true. Very briefly summarized, the allegation is as follows. As part of the complainant’s position of Aviation Security & Safety Coordinator, he was required review and approve expense claims submitted by safety officers. The complainant noticed irregularity in expense claims - 3 - submitted by a safety officer (“X”) and began to monitor X’s claims. When he was convinced that X was using government resources for his personal benefit and was stealing, he brought this to the attention of management. It is asserted that management, instead of following up, took no action to investigate. When the complainant persisted, reprisal action was taken against him in a number of ways, while protecting X. It is asserted that management’s action created a poisoned and toxic work environment. [5] The impact of management conduct on the complainant is described in the concluding paragraphs of the particulars as follows. 26. The cumulative actions and inactions of the Employer including the creation of a toxic work environment, management’s inaction to address the toxic work environment, and management’s retaliation against Mr. Wilson for bringing forward a concern that another employee was stealing caused Mr. Wilson to become ill beginning in October 2015. Prior to becoming ill in October 2015, Mr. Wilson had no more than 3 sick days per year. His first 2 years with the Ministry he did not use any sick days. 27. Since August 2014, Mr. Wilson’s health has deteriorated including having difficulty sleeping and experiencing dizziness. In November, 2014, during a Safety Officer call, the stress of the call caused him to fall over into filing cabinets in the office. In late November 2014, during lunch away from the hotel, thinking about the investigation and the Employer’s failure to properly address his concerns made him so dizzy that he began staggering while walking down the street in Ottawa. 28. As a result of Employer’s compounding failures, Mr. Wilson has suffered an ongoing loss of income from October 2015 to the present day. [6] The parties agree that regardless of the disposition of the instant motion, the Board would have jurisdiction to hear the dispute on its merits, and if violations are found, to make declarations to that effect. Therefore, the Board was asked to remain seized regardless of the outcome of the motion. [7] The Board was advised that due to chronic stress caused by the alleged conduct of management, the complainant was off from work for significant periods. He exhausted his sick and vacation time, and was denied LTD - 4 - benefits. While he has since returned to work, his claim for lost time is substantial. [8] It is also to be noted that the complainant has not to date filed a claim under the WSIA. That Act includes the following provisions: 22 (1) A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease. . . . (3) The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so. [9] As of the time the instant dispute was filed, the WSIA also included the following provisions: 13(4) Except as provided in subsections 5 and 14 (3), a worker is not entitled to benefits under the insurance plan for mental stress. 13(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. [10] If the foregoing statutory provisions are applied to this dispute, the Board would clearly have jurisdiction to provide the redress sought. Under those provisions the only stress related injury that is compensable under the WSIA scheme is “mental stress that is an acute reaction to a sudden and unexpected traumatic event” (s. 13(5)), and the complainant’s injury is not of that type. Nor do his circumstances fall within any of the exceptions set out in s. 13(5) or s.14(3). Therefore, he would not be entitled to benefits for mental stress by virtue of the application of s. 13(4), and therefore, would be entitled to seek compensation before this Board for violation of his collective agreement rights. [11] However, there is a complicating factor. In a decision dated April 29, 2014, Decision No. 2157/09 [2014] O.W.S.I.A.T.D. No. 1048, the Workplace Safety - 5 - and Insurance Appeals Tribunal (“Tribunal”) declined to apply s. 13(4) and the first sentence of s. 13(5), on the grounds that they infringed the Canadian Charter of Rights and Freedoms. At paragraph 312 the Tribunal concluded as follows: 1. Subsections 13(4) and (5) of the WSIA and the related TMS policy infringe the worker’s right to equality as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.) 1982 c.11 (the “Charter). This finding applies to subsection 13(4) and the portion of subsection 13(5) of the WSIA which reads: “A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”. 2. The infringement of section 15(1) is not justified by section 1 of the Charter. 3. Accordingly, by operation of section 52(1) of the Constitution Act, 1982, we decline to apply subsection 13(4) and (5) of the WSIA and the TMS policy to this appeal. Therefore, the worker’s claim for initial entitlement for mental stress is granted. The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. [12] In a subsequent decision dated January 27, 2015, Decision No. 1945/10 [2015] O.W.S.I.A.T.D. No. 231, a differently constituted panel of the Tribunal followed its decision in Decision No. 2157/09. At paragraphs 7-8 it wrote: (ii) The issues 7. The issues in this appeal are: 1. Whether the application to the present case of subsections 13(4) and (5) of the WSIA (excluding those provisions relating to employers’ decisions noted above), and the policy developed under those provisions, would infringe subsection 15(1), and not be saved by section 1 of the Charter; 2. Whether the application to the present case of subsections 13(4) and (5) of the WSIA, and the attendant policy, would infringe the Human Rights Code of Ontario; and 3. If so, the appropriate remedy. - 6 - 8. (iii) The decision On the evidence and submissions presented to us, the Panel is persuaded that application of subsections 13(4) and (5) to the present case would result in substantial discrimination against the worker, violating the equality guarantee provided by subsection 15(1) of the Charter. We are also persuaded that the impugned statutory and policy provisions are not justified under section 1 of the Charter. The panel will not apply the impugned statutory provisions and the Board’s policy under those provisions to this appeal. Accordingly, the worker’s appeal is allowed and the worker is entitled to benefits from the Insurance Plan for a stress-related disablement. [13] Reference was also made by the instant parries to amendments to the Workers Safety and Insurance Act, passed by the Ontario Legislature, which repealed s. 13(4) and the first sentenced of s. 13(5) which the Tribunal had found to infringe the Charter. Those amendments would become law effective January 1, 2018. [14] Within that legislative and jurisprudential backdrop, the parties made submissions on the motion. Employer Submissions [15] In support of the motion, employer counsel pointed out that at the time the instant dispute was filed, the statutory bar to eligibility to benefits for mental stress had been effectively removed as a result of the two decisions of the Tribunal declining to apply the statutory provisions that created the bar. Therefore, the complainant would have been able to apply for benefits under the WSIA. Counsel submitted that the Tribunal had, through its two decisions, made it clear that it would not apply the offending provisions. Moreover, the legislature had subsequently accepted the Tribunal’s finding that the provisions denying benefits under the Act for mental stress are unconstitutional. Effective January 1, 2018, those provisions would be legislatively removed. [16] Employer counsel argued that as a result of the Tribunal decisions, mental stress became compensable, subject to only one exception, namely, where the mental stress is caused by the employer’s decisions or actions relating to the - 7 - worker’s employment. Referring to the Association’s particulars at para. 26-28 (supra para. 5) she argued that the complainant’s assertions do not fall within that exception. The allegation is that injury to health resulted from personal harassment and not from the type of employer decisions or actions relating his employment contemplated in s. 13(5), such as changing of work to be performed or working conditions, discipline or termination. Counsel submitted that the Board should, therefore, uphold the motion and find that it lacked jurisdiction to order any of the redress sought other than a declaration, because the complainant’s mental stress was compensable under the WSIA. Association Submissions [17] Counsel for the Association submitted that the amendments to the Workers Safety and Insurance Act are irrelevant in this proceeding since they come into effect only on January 1, 2018. Therefore, the amended provisions may only be applied to injuries that occur on or after that date. The complainant’s claim must be considered on the basis of the statutory provisions as they existed at the time. Counsel submitted that the two Tribunal decisions cannot, and do not, have the effect of amending the WSIA. At the relevant time, the Act itself was unamended, and the Board’s mandate is to apply the Act as it stood at the time. Counsel submitted that the test is whether a particular injury is compensable under the Act, and not whether it is recognized as compensable by the Tribunal. [18] Counsel pointed out that in Re Monk et al, 1995-1694 (Gray), upheld on Judicial Review by the Ontario Divisional Court and by the Ontario Court of Appeal, the grievor had relied on article 9.1 the health and safety provision of the OPSEU Collective Agreement. In the instant case, the Association relies on article 2.2.2 of its collective agreement, which is not about health and safety, but about personal harassment. It reads: The Employer has a general duty to take every precaution reasonable in the circumstances to protect an employee from personal harassment. Personal harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. - 8 - Counsel submitted that this collective agreement prohibits harassment, even where it is not based on discrimination under the Human Rights Code. The complainant’s claim is for wage replacement resulting from the employer`s violation of article 2.2.2, and for general damages. She submitted that the Board is not deprived of jurisdiction to grant this relief because, unlike in Re Monk, this is not a claim based on allegations of violation of a health and safety provision. [19] Counsel submitted that in order to uphold the employer`s motion, the Board would have to find that the two Tribunal decisions have the legal effect of making mental stress compensable “under the Act”. This cannot be the case because at the relevant time the Act and the employer’s policy documents on how it implements the Act remained unchanged. Only the legislature can change the Act. While the legislature has amended the Act, the amendments would only be effective January 1, 2018. [20] Association counsel stated in passing during her submissions that the reprisal action by the employer alleged in the particulars is “a form of discipline without just cause”. The Board intervened and questioned counsel whether she was taking the position that the complainant’s injury would not be compensable because it falls within the second sentence of section 13(5), i.e. that his mental stress was caused by the employer’s “decisions or actions relating to the worker’s employment, including … to discipline the worker”. Following comment by employer counsel, who pointed out that in the dispute itself and the detailed particulars of the Association, there is no mention of “discipline” at all, Association counsel stated that she was not relying on the exception in the second sentence of section 13(5). Employer Reply [21] In reply, employer counsel reiterated that the Tribunal has clearly stated through its decisions that it would not enforce those aspects of the Act it had found to be - 9 - infringing the Charter. Therefore, at the relevant time, for all practical purposes, the mental stress suffered by the complainant would have been compensable. The Association wants the Board to completely ignore that reality, and to simply continue to rely on and apply the words in the statutory provisions which had been declared to be unenforceable, in answering the question whether the injury would have been compensable. To take jurisdiction when an injury was compensable would be to disregard the historical trade off on which the health and safety insurance scheme is founded upon. DECISION [22] The issue raised by the instant motion itself is clear and straight forward. The Association submits, and the employer does not dispute, that the wording itself of the WSIA as it stood at the relevant time would have disentitled the complainant to benefits under the insurance scheme. There is also no dispute that if the language found by the Tribunal to be unconstitutional, and therefore unenforceable are disregarded, he would not have been so disentitled. Therefore, the task for this Board is to decide whether to continue to apply and enforce language excluding coverage under the WSIA, which have been found by the Tribunal to be unconstitutional, or to consider itself bound by the language of the Act itself and disregard the Tribunal’s decisions. [23] I see no merit in the distinction drawn by the Association of Re Monk, on the basis that there the injury resulted from an alleged violation of the health and safety provision of the collective agreement, whereas here the allegation is one of personal harassment. In dismissing an appeal from the judgement of the Division Court (see, (2013) O.N.A.C. 406) which had dismissed the application for judicial review, the Ontario Court of Appeal cited the following passages from this Board’s decision with approval (Para.4). [4] As explained by the Vice-Chair, at para. 107: This Board cannot award a grievor damages “for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer” if the alleged accident or disease is or was compensable under the WCA or WSIA. - 10 - The Vice-Chair went on to explain, at para. 111: The proper question is whether an injury or illness of the sort alleged by the grievor would be or would have been compensable under the applicable statute if proven. [24] As the Court of Appeal wrote at para. 5, “It is the substance of the claim that matters”, and not how or under what provision of a collective agreement a claim is framed. The test is that set out at para. 111 in Re Monk. Therefore, the appropriate question is whether the complainant’s illness “would be or would have been compensable under the applicable statute if proven”. [25] I agree with employer counsel, that the Tribunal has, through its decisions, made a clear statement that it would not be applying the provisions of the WSIA which disentitle benefits in cases involving mental health issues, as is the case in the instant dispute. It is apparent that the legislature has accepted the finding of unconstitutionality by repealing the offending language to remove the barrier to seeking benefits under the WSIA for mental stress. [26] Paragraph 111 of the decision in Re Monk, quoted in part by the Court of Appeal, reads in full as follows: 111 In determining whether this restriction applies to any particular one of the grievances that allege adverse health effects resulted from exposure to second hand smoke, the question is not whether a claim for compensation was made and granted under the pertinent statute in respect of the injury or illness alleged in the grievance. The proper question is whether an injury or illness of the sort alleged by the grievor would be or would have been compensable under the applicable statue if proven. If that question has been answered in proceedings under the WCA/WSIA, then that answer governs. If that question has not been answered in proceedings under the WCA/WSIA, either because no claim for compensation has been made with respect to the alleged injury or illness or because such a claim was refused for reasons from which it is not apparent whether the tribunal considered an injury or illness of the sort alleged to be compensable in nature, then in any case in which the parties cannot agree on the answer I will have to determine the question myself, as arbitrator Sim did in the University of Saskatchewan matter, subject to - 11 - any contrary ruling that the union or grievor may be able to obtain in proceedings under the WCA/WSIA”. [27] Having regard to all of the circumstances, including the two Tribunal decisions, and the amendments to the WSIA, (although not yet in effect) which makes the statute consistent with the finding of those decisions, in my view it would not be appropriate to conclude that the complainant’s illness would not have been compensable had he applied for benefit at the time. In answering the question whether the illness “would have been compensable under the WSIA”, the WSIA must be seen in light of the Tribunal’s decisions holding that it would not apply the limitations in the Act preventing benefits for mental stress arising out of and in the course of employment. The reality is that the sort of illness, if proven, would have been compensable. It would not be appropriate for this Board to ignore that reality that the Tribunal charged with enforcing and applying the statute has made it clear that it would not be enforcing or applying the provisions which otherwise would have prevented the complainant from seeking benefits. [28] Although there is no evidence in that regard, and no assertions were made that the complainant and the Association were unaware of the Tribunal decisions at the time, if that was the case the result may appear to be harsh. As the Association pointed out s. 22(1) (supra para.8) has a six month time limit for filing claims, and that time limit has long passed. However, s. 22(3) provides that the Workplace Safety and Insurance Board “may permit a claim to be filed after the six month period expires if, in the opinion of the Board, it is just to do so”. It is open to the complainant to file a claim with the Board and seek an extension of the time limit. It would be up to the Board to determine if it would be just to do so in the unique circumstances of this case. [29] In summary, it is not appropriate to disregard the historical trade off, which has been recognized by tribunals, arbitrators and the courts, by reading a statute as including provisions which had been found to be unconstitutional, and which would be repealed in the near future. For all practical purposes, I am satisfied that the complainant’s illness would have been compensable at the relevant - 12 - time. Therefore, this Board is without jurisdiction to award the make whole remedies and damages he seeks in the dispute. [30] It follows that the employer’s motion is upheld. As requested by the Association, the Board remains seized with the instant dispute. Dated at Toronto, Ontario this 21st day of September 2017. Nimal Dissanayake, Arbitrator