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HomeMy WebLinkAbout2013-2085.Grievor.17-12-08 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#2013-2085 UNION# 2013-0108-0105 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Joseph D. Carrier Arbitrator FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING DATES November 30, 2016, February 1, May 3 and September 26, 2017 - 2 - DECISION [1] In the matter before me, Correctional Officer, WA, a formerly unclassified employee at the Elgin Middlesex Detention Centre (EMDC), filed his grievance on August 2, 2013 alleging that the Employer had violated his rights pursuant to the collective agreement between his Union, OPSEU, and the Employer. In particular, he complained that the Employer had failed to provide him with a harassment free work environment. ANONYMITY [2] It will be seen throughout this Award that the names of the Grievor, WA, and his co-worker, LK, have either been left blank or replaced with initials only. That effort to keep them anonymous was based upon agreement of the Parties at the outset of proceedings. [3] This Board has expressed its view that, being a public adjudicative body, its process is subject to the “open court principle” which presumes that the identities of the participants in proceedings before it will be known and published except in “exceptional” or “compelling” circumstances. (( See OPSEU (Cull) and the Crown in Right of Ontario (Ministry of Health and Long Term Care) , September 5, 2017, ( Abramsky), GSB #2016-0770 ; 2017, CANLII 71798)). [4] However that may be, it is my view that where, as here, the Parties have expressly agreed to anonymize some of the participants, parties, witnesses or third parties, that agreement merits serious consideration. - 3 - [5] I have, before releasing this decision, revisited the issue with counsel. Both confirmed the Parties’ intent to abide by that agreement and urged that this Board honour that agreement. I have considered the issue and submissions of both counsel and am satisfied that the Parties’ agreement should be honoured in this case for the reasons which follow: 1. The Parties’ agreement merits serious consideration. 2. There are significant human rights elements involved here. Among those is the Grievor’s concern that he was a victim of a human rights offence which had been embarrassing for him and the subject of ‘talk’ in the workplace. The poisoned atmosphere he then experienced would be rekindled by the publication of either his or his assailant’s name in a Decision such as this. 3. The original incident did not occur on the employer’s premises nor was there any dispute between the Grievor and his assailant as to the elements of the incident itself. There is no credibility issue and no issue as to false allegations between the two of them. Accordingly, the mischief of accusations being made “behind a veil of anonymity” does not arise in this case. 4. In the circumstances, it would be counter-intuitive to identify the Grievor and/or his assailant by name in this Decision. To do so would risk the rekindling of that talk in the workplace concerning the incident which the Grievor felt was contributing to the poisoned work environment. That possibility could constitute a source of further anxiety. - 4 - 5. In conclusion, I have chosen to honour the Parties’ agreement in this case and have provided initials only for the Grievor and his co-worker. THE INCIDENT [6] To put the matter before me as simply as possible, the Grievor was assaulted and racially slurred by a co-worker, LK, a nurse who also worked at EMDC. The incident had taken place on March 26, 2013 in a bar at a work-related function for another co-worker. The Grievor’s complaint was not that the incident had taken place that day; rather, it was his concern that upon reporting the event to management, the Employer did not respond either quickly enough or significantly enough to protect him from exposure in the workplace to LK and the poisoned environment which ensued. I have set out below a redacted copy of the Grievor’s Occurrence Report regarding the incident which was dated and submitted by him on March 29, 2013 to Ms. D. Scrivano, then Superintendent of the facility. The details of the Report are important to this matter only insofar as they demonstrate the demeaning and serious nature of the assault on the Grievor. Occurrence Report To Superintend D. Scirvano On Tuesday March 26, 2013, approximately 2330 hours at Tiger Jacks Bar & Grill, I attended a gathering after a fund raiser, which was held for a co worker. I was there for approximately 15 minutes, when my co worker _______ came over to the area I was seated at. During this time there was some conversation between the party members. I was then slapped in the face by ________, at first I laughed it off, thinking hey ok, very funny. However I was then slapped again. She walked away from my area laughing and my co workers commented to her asking why she did that. She responded oh that’s how me and _______ play, however that is not the case. She then came back to my area and slapped my face again for the third time. I tried to get out of the area however she was becoming pretty aggressive and tried to slap my face again - 5 - however she missed. At this point I grabbed a hold of her wrist to prevent her from putting her hands on me again. She requested that I let go of her hands. I said on several occasions for her not to touch me. As I let go of her hands she struck the left side of my face again for the Fourth time. I again grabbed her hands and held them to restrain her from striking my face. She again asked me to let go of her hands. I stated to her that if you slap me again, she would be a very angry at me in 30 seconds. Sure enough when I let go of her hands, she slapped my face again. At this point I grabbed a hold of her purse and emptied the contents of her purse to the floor and kicked her materials throughout the bar. I then walked away from the area, at this time she was throwing racial slurs [n…] in a derogatory manor about me to my co workers. I paid my one drink tab, went outside to smoke a cigarette and waited for her to leave the bar so I may enjoy the rest of the night as planned. While I was waiting for her to leave the bar, I noticed that I had several scratches on my arm from her aggression. Let the record show that I was not under the influence of alcohol myself for I had only been in the establishment for a short period of time before this transaction between her and I took place. The next morning I received a text message from ________asking what had happened last night and that people from work are talking about it. I stated to her “you are a fucking drunk, that’s what happened. Call you union rep and tell them what an idiot you are. Don’t text my phone. I came into work the next day on overtime and I had my co workers apologizing to me even though they were not there. Some were giving me looks, as I can tell they were talking about the situation and others made jokes of the situation making me feel uncomfortable in my work environment. [7] Details of the Report were not significantly challenged. He presented his Report in person to the Superintendent on March 29th and expected that some action would be taken to deal with LK in the workplace as well as any fallout he might experience there as a result of the incident. [8] As matters unfolded, no action whatsoever was taken by the Employer until Mr. Scott Large on or about April 29, 2013 transferred from Hamilton to EMDC as Programs Deputy. In this role, Mr. Large had responsibility for “the soft side of corrections” which included non-officer staff such as social workers, program - 6 - secretaries, rehabilitation officers and more importantly the nurses and their manager. Within a couple of weeks of his appointment the new acting Superintendent of EMDC, Dan Smith, handed off to him the issue concerning the Grievor’s Occurrence Report. He was to investigate the allegation and take or recommend appropriate action. In the circumstances, no action or investigation had been implemented by the Employer following receipt of the Grievor’s Report on March 29, 2013. Thereafter, the first step took place on May 24, 2013 when Mr. Large met with the Grievor and his union representative, Ryan Speller. There was no explanation whatsoever for the delay by the Employer from March 29th until the issue was handed to Mr. Large. Furthermore, Mr. Large himself was unable to offer any explanation for the delay up to the time he himself was assigned the task. THE MEETING MAY 24, 2013 [9] During the meeting Mr. Large had the Grievor elaborate on his earlier Report. There was additional information provided then which included the following: 1. The Union and Grievor indicated that they could identify other witnesses to the event but unless required preferred not to aggravate further or exacerbate the issue. The Grievor did, however, offer the name of one of his co-worker, AT, to corroborate his story. 2. During the course of the incident, while other co-workers were confronting her and encouraging her to stop striking the Grievor she stated “this is how WA and I play”. Apparently that was a reference to an earlier occasion during which she had also struck the Grievor. The Grievor testified that he had not complained or reported that incident since it did indeed appear to him have been a friendly slap whereas on this occasion he felt the nurse, who stood at approximately five feet eleven inches and weighed in the neighbourhood of 200 pounds, was striking viciously. Indeed, he reported during the meeting that he not only received strikes on his face but noticed scratches on his arms following the incident. 3. The Grievor did not report the incident to the police but understood that management had an obligation to do so. - 7 - 4. Finally the Union and the Grievor made his requests clear during that meeting as follows: (a) the nurse be removed from working in the EMDC facility; (b) that his status as an unclassified correctional officer be upgraded to that of classified as a preferable shield from the nurse who enjoyed classified status herself; (c) that management somehow contain information about the issue to avoid spreading it amongst more staff perhaps to the Grievor’s jeopardy. 5. In addition to the foregoing, it was suggested during the meeting that the Grievor had kept a log of some kind of co-workers’ reactions in the institution following the incident. That log was not produced during the hearing and, although Mr. Large did ask for details of such conduct, no particulars were provided. WA did however testify that he had run into the nurse while on shift on regular occasions between the incident and the May 24th meeting. On those occasions there was no interaction between them although the Grievor felt her facial expressions seemed smug and that her effort to stare straight ahead rather than to look at him was somehow demeaning. [10] Following the interview of the Grievor on May 24, 2013 there was no further progress in the investigation until Mr. Large received an e-mail inquiry from the Grievor on June 12 concerning the status of his investigation. Finally, on June 13th, Mr. Large interviewed the Grievor’s assailant, LK. She acknowledged having consumed a considerable amount of alcohol the night of the incident and that she had little if any recollection of her interaction with the Grievor. On the other hand, she did not deny information of the event she had received from her co-nurses all of which was consistent with the Grievor’s description. She confirmed that she and the Grievor had been mutual contacts on the blackberry messenger texting service and that they had occasionally had smokes together prior to the incident outside the facility. However, following the incident when she had attempted by text to review the matter with WA, and provide an apology, he had dismissed her as an “idiot”, advised her to contact her union representative and to not talk to him - 8 - again. She told Mr. Large that she had tried to message him again to apologize but found that she had been deleted as a contact by WA from his service. [11] As to continuing contact with WA in the facility, the nurse occasionally had overlapping shifts with the Grievor who for some time had been consistently assigned to admitting and discharge duties. As a nurse in the facility her duties would occasionally bring her to that department. Mr. Large suggested that she arrange for another nurse to take shifts that might involve admitting and discharge. In the meantime LK was scheduled off for twelve shifts (approximately three (3) weeks) of vacation beginning the next day. [12] Following that interview with the nurse, Mr. Large spoke with the other Corrections Officer, AT, who had been with the Grievor during the incident at the pub and had been offered by him as a witness of the event. The witness, one AT, provided a written report to Mr. Large on or about June 24, 2013. That document outlined the details of the occurrence in the pub much as the Grievor had described them. He also noted that he and the Grievor following the altercation had backed away from the nurses’ group and kept a distance until LK was escorted outside the bar by her friends. [13] On July 2, 2013 Mr. Large, having spoken with and received reports from LK and AT, again met with the Grievor and his union representative. He confirmed that the Grievor’s complaint had been substantiated through his investigation and that appropriate action including discipline of the nurse was under consideration although the precise nature of that would not be shared with the Grievor. As to the Grievor’s request from an earlier meeting, Mr. Large responded as follows: - 9 - 1. He could not see how the request to be fully classified flowed from the incident; and 2. It would not be necessary to remove the nurse from the building since she had taken a three month secondment to the Sarnia Jail and would have little if any contact with the Grievor from there. (That temporary move was reported to start July 25, 2013.) [14] Neither the Grievor nor the Union were satisfied with those responses. There was continued concern that LK could return to the building after her secondment and that she could have temporary or occasional re-assignments to EMDC on an ongoing basis. These possibilities would perpetuate what for the Grievor was a poisoned work environment. Although requested by Mr. Large, there were no further details provided by the Union or the Grievor respecting ongoing issues in the workplace besides those several encounters already reported between the Grievor and LK. Further, Mr. Large confirmed that LK’s move to Sarnia was not disciplinary since that had yet to be imposed; rather, it was her own decision in order to minimize contact with the Grievor. Finally, Mr. Large advised the Grievor and his union representative that he would be contacting the police concerning the original incident. He testified that he in fact did so shortly thereafter. [15] Following that meeting, the nurse did in fact start her secondment at the Sarnia jail on or about July 25, 2013. On July 26, 2013 Mr. Large met with LK and her Union Representative. That was an “allegation” meeting to discuss the events between LK and the Grievor as well as to consider and decide upon her discipline. [16] According to LK she had tried to reach out to the Grievor to apologize but he had cut off contact with her and had spread word to that effect. Although she had no issue with him and would work with him, she had taken the Sarnia secondment to - 10 - avoid further contact with him as per his wishes. She was embarrassed with the event and was taking steps to avoid the personal causes which had precipitated her conduct. [17] It was at or shortly after that meeting that LK was disciplined (a ten day suspension served while at the Sarnia facility); however, the Grievor was not told of that discipline although Mr. Large had told him earlier that discipline would be imposed on LK. [18] In addition to the several encounters with LK which the Grievor had early on after the incident, he also testified that there were later incidents which involved LK working in the Elgin Middlesex Detention Centre. On two such instances the Grievor found it necessary to “book-off sick” from his shift due to her attendance in his facility. On another occasion, he had declined to accept a shift when he understood LK would be working in the facility at the same time. To the best of his recollection, the Grievor believed those incidents occurred after LK’s secondment in Sarnia which ended in October, 2013. [19] The following year, on or about September 8, 2014, LK took a permanent transfer to the Sarnia facility. There was little if any evidence of any encounters between the Grievor and her following that transfer up to and including the final day of evidence in this matter. [20] In the circumstances, the Grievor testified that the employer’s delay in responding to his concerns and lack of support resulted in what for him were negative interactions with LK and a state of anxiety. As a result he experienced intense stress and a continuing sense of humiliation often culminating in headaches. - 11 - [21] Once Mr. Large took the matter in hand, aside from meeting with the Grievor and his union representative on May 24th, his continued investigation began on or about June 12th and concluded on or about July 2nd when he again met with the Grievor to advise that he found the complaint had been substantiated. He also told the Grievor and his representative that an appropriate level of discipline for LK was under consideration. With respect to specific requests previously made by the Grievor he took the position that: 1. With respect to the Grievor’s request that his status be upgraded from unclassified to classified, Mr. Large did not appreciate how that related to the incident; 2. With respect to the Union’s position that LK should be permanently removed from the facility, Mr. Large was of the view that the incident itself had not occurred within the facility. Rather, it was alcohol related and occurred off site in a bar. In the circumstances, he did not feel there was any likelihood of a recurrence in the workplace or rather any danger or significant risk to that effect. Furthermore, within the facility itself work assignments could be made such that there would be little if any likelihood that they would work together. In fact, LK had already taken the opportunity to be reassigned at least temporarily to the Sarnia facility and there was little likelihood that she would continue to harass the Grievor. Finally, the original incident had occurred in March and there was no information or evidence of any subsequent incidents between the two. The only details with which he was provided related to a couple of occurrences early on after the incident during which the Grievor and LK had briefly past each other in the facility. Mr. Large understood from the Grievor that LK had averted her eyes and ignored him during those encounters. Although the Grievor having been ignored in this way felt demeaned, Mr. Large did not consider this to signify a poisoned work environment. This was especially so in that the Union and the Grievor did not share any other incidents after March 26th suggesting that the facility posed a poisoned work environment for the Grievor. [22] Finally, the Union and the Grievor were concerned that information concerning the March 26th incident had been “getting out” within the facility. They preferred to limit or contain the spread of the story. There were however no additional details or witnesses identified to substantiate the suggested “poisoned work environment”. - 12 - Accordingly, Mr. Large had nothing further to pursue in that regard and rather than exacerbating the situation by interviewing other employees in the facility without specific details to pursue, Mr. Large did not expand his investigation. [23] With respect to the time frame after which Mr. Large took charge of the investigation, he did not feel there was any significant risk of the Grievor and LK running into each other in the facility for several reasons: 1. The Grievor was temporarily running a work crew to scrape and paint within areas of the facility and on shift assignments which were not likely to overlap with those of LK 2. Additionally, Mr. Large did have discussions with the Health Care Manager in charge of nurse scheduling to avoid assigning LK to the admissions and discharge area while the Grievor was assigned to that function. 3. Finally, during a portion of this timeframe, LK had taken three weeks of vacation. Submissions of the Parties and Discussion [24] Both counsel clarified that the issues here did not involve the March 26, 2013 incident itself since it did not occur within the workplace. Rather, the concern was with the Employer’s response to that incident in the workplace including the timing within which the Employer began its investigation and the adequacy or inadequacy of the remedial action taken by the Employer within the workplace. Equally important, in my view, is whether or not the continuing presence and/or occasional presence of the Grievor’s assailant in itself created a hostile or unsafe working environment for the Grievor. - 13 - [25] With respect to the timeliness of the Employer’s response, both counsel referred to the Employer’s own policies and procedures for dealing with matters of discrimination and harassment. Mr. John Brewin on behalf of the Union referred to provisions suggesting that there should be an immediate response to any such complaint and that investigations should begin within fifteen days thereafter. On behalf of the Employer, Mr. Suneel Bahal pointed to provisions dealing with the duration and conclusion of an investigation taking the position that, once Mr. Large had begun his investigation, it had been concluded and remedial action taken within the recommended timeframes in those policies. [26] I have considered the evidence and the submissions of counsel regarding this aspect of the case and I am satisfied that common sense, let alone the Employer’s policies dictated that the Employer ought to have acted expeditiously not only in starting its investigation but ensuring in the meantime, that the Grievor was shielded from potential fallout or recriminations within the workplace stemming from the incident. Although it did not occur in the workplace itself, the incident entailed a significant physical assault which was racially charged of one co-worker against another in a setting involving numerous workers from the institution. In my view, common sense dictates that the Employer ought to have taken immediate steps to ensure the safety of the workplace and commence its investigation to assess the veracity of the Grievor’s complaint and its significance within the workplace. There is no question that the then superintendent of the facility was apprised of the Grievor’s complaint and spoke with him about it within days of the incident. However, there was no explanation whatsoever available for the fact that no action was taken to ensure the safety of the workplace nor was there evidence - 14 - that any managerial person was assigned to pursue the matter until the responsibility was handed to Mr. Large by the new acting superintendent, Mr. Dan Smith. That was in mid-May and, although only weeks after Mr. Large had started work at the institution, almost two months after the incident had been reported. It is my finding that the Employer’s failure to act in the timeframe between March 29, 2013 when it received the Grievor’s Incident Report and the assignment of responsibility for the matter to Mr. Large sometime in the middle of May was excessive. Indeed, in my view, some action ought to have been taken immediately to isolate the Grievor’s assailant from contact with the Grievor until an investigation could be completed and a formal course of action undertaken. Although the evidence did not indicate that the Grievor and his assailant were in regular contact during that timeframe, there were occasional encounters, albeit innocuous, which were, nonetheless and understandably, distressing for the Grievor. This was especially so since, insofar as the Grievor was aware no action had been taken by the Employer during that timeframe to protect him from the emotional stress he might suffer from such encounters. He worked in an atmosphere in which they might occur at any time. [27] As to the timeframe after Mr. Large took responsibility for the matter, no remedial action was taken until he had completed his investigations in June. On July 2nd he confirmed to the Grievor and the Union that the allegations had been substantiated, however, he was not prepared then nor was he earlier to ensure the isolation of LK from the Grievor at work. In fairness, although he did not feel the two would come into contact during that timeframe due to the Grievor’s assignment to a painting crew and LK’s scheduled vacation, it was clear that his concern from - 15 - the time he took on the task was solely with whether or not a further incident between them might occur within the workplace itself. He did not appreciate that the very presence of LK in the workplace and the possibility that the Grievor might encounter her was in itself an intimidating situation for the Grievor. Although there was no clear evidence of any encounters between them after he took charge, that was little consolation to the Grievor who was obliged to continue working in what he considered an intimidating environment. It is my view that the Employer erred in not recognizing, from the start and thereafter until LK transferred to the Sarnia facility, that a poisoned environment existed for the Grievor in the workplace. [28] During LK’s three month assignment in Sarnia and thereafter until her permanent transfer to that facility there was scant evidence of any direct encounters between her and the Grievor. However, the Grievor did testify that at least on one occasion he refused an offered shift since he understood LK would be working that same shift at his workplace. On two other occasions, when he became aware that LK was coming on shift while he was at work, he booked off sick to avoid any chance encounter with her. Insofar as the Grievor was concerned, the possibility of his assailant’s presence represented an uncomfortable situation, and a poisoned environment in his workplace. There was insufficient evidence introduced to indicate that, aside from the very presence of LK in the workplace, or at least that possibility, there were other elements flowing from the incident in the bar March 26, 2013 which could be considered to constitute a hostile environment for the Grievor. THE REMEDY - 16 - [29] In the circumstances Mr. Brewin for the Union argued that the remedy in this case should be two-fold: Damages For Delay 1. In the first place, the Grievor should receive monetary damages for the Employer’s failure to act swiftly and adequately to provide the Grievor with a safe working environment after he had been racially slurred and physically assaulted by a co-worker in a bar during a work related function. I have already dealt with the merits of the “delay” issue earlier in this award. I will deal more specifically with the consequences and remedy with respect to my findings later. Continued Workplace Environment Safeguards 2. Thereafter and continuing even now the Employer should be obliged to continue to provide a safe, non-poisoned working environment for the Grievor. Issues with respect to ongoing protection have remained an impediment to any resolution between the Parties themselves. They have however, agreed upon some elements going forward while others remain outstanding. 3. To assist in my deliberations, prior to the last hearing day, Mr. Brewin and Mr. Bahal provided the following synopsis of their respective positions: Joint Submission re LK Assignments to EMDC (* Items in dispute are in italics) [30] The parties are asking the Board to determine the terms that are to be applied to govern in respect of LK’s assignments to EMDC as long as the Grievor works at that institution. As indicated, some are agreed to by the parties; others are in dispute. 1. LK is not to be assigned to EMDC while the Grievor is on staff at EMDC except when it is required that she be assigned to EMDC to provide nursing services for inmates at the institution i.e. that there is no reasonable alternative for providing necessary nursing services to inmates at the institution. (mutually agreed) 2. In the event she is assigned to EMDC on this basis, the Employer will make its best efforts to assign her duties so that she and the Grievor will have minimal contact during her assignment. (mutually agreed) - 17 - 3. * The Employer proposing adding the underline words. Otherwise the language is agreed to. If LK is assigned to EMCD when the Grievor is on duty, he will be advised of her assignment and will be provided details about what duties she is to be given, when she will be working there and where in the institution she will be during her shifts at EMDC. 4. *(Union proposal, rejected by Employer): (a) If, in the Grievor’s view, there is a risk that he will come in contact with LK while he is performing his duties at the institution, he may take sick leave with full entitlement to benefits under Article 44 of the Collective Agreement and will not be required to provide a certificate from a medical practitioner in support of his request for leave. Leave taken in these circumstances will not be charged against his sick leave entitlements under Article 44.1(a) or (b). (b) If LK is assigned to EMDC for more than six days in any calendar year the Union may ask the Vice-Chair to review the question of whether the leave referred to in subparagraph (a) is to be charged to the Grievor’s entitlements under Article 44 or whether while on leave under subparagraph (a) he is to be paid his regular salary over and above any benefits under Article 44. The Vice-Chair will retain jurisdiction to determine the question. 5. “(Union proposal) The terms will be in effect for three years from the date of the Board’s award in this matter. The Union may apply on behalf of the Grievor for extensions; the Vice-Chair will retain jurisdiction to determine whether extensions are to be granted. The Employer will cover the reasonable costs of the Grievor seeking medical advice as to whether an extension is medically necessary. (Employer proposal) The terms will be in effect until March 25, 2018. Financial Redress [31] Before addressing the totality of the remedial issues raised by counsel, both under the rubric of “delay” and “Continued Workplace Environment Safeguards”, I must consider the impact, if any, of a decision of this Board by Arbitrator Nimal Dissanayake which was issued as recently as September 21, 2017. - 18 - [32] During the final hearing day before me on September 26, 2017, counsel Bahal in addressing the issue of continued safeguards referred to the Dissanayake decision which was between the Ministry of Natural Resources and Forestry and the Association of Management Administration and Professional Crown Employees of Ontario (the “Wilson” case/award) pursuant to GSB File #2016-1556. [33] That decision related amongst other things to a claim for reimbursement and/or damages in respect of mental distress arising in the course of employment. In that Award, Arbitrator Dissanayake determined that this board, the GSB, had no jurisdiction to provide a financial remedy in the circumstances before him. Rather, the “medical condition” of the Grievor was such as to be properly considered an insured condition/injury pursuant to the Workers Safety and Insurance Act of Ontario (WSI Act). [34] To reach that conclusion Arbitrator Dissanayake was of the view expressed in two prior decisions of the Workers Safety and Insurance Appeals Tribunal (WSIAT) to the effect that a restrictive provision in the WSI Act respecting payment for conditions such as those claimed by the Grievor before him was unconstitutional. In his reasoning, the Arbitrator remarked that the legislature has adopted legislation to come into effect in January, 2018 which would remove the offending restriction. [35] Notwithstanding those decisions, Mr. Brewin advised that the finding of unconstitutionality was being challenged through judicial review. Be that as it may, I am persuaded by the decision of Arbitrator Dissanayake to the effect that the proper forum for financial relief of the Grievor before me is pursuant to the WSI - 19 - Act. I am, therefore, without jurisdiction to provide the financial relief I might otherwise have awarded here. [36] Before addressing that relief which I view to be within my jurisdiction, it should prove helpful to address the scenario in the Wilson case and excerpts from that award with respect to the WSI Act which were dealt with by the WSIAT and which the Arbitrator followed. [37] There, the Grievor, Wilson, grieved that management had taken reprisal action against him when he had reported theft by a safety officer who he was obliged to monitor. He sought relief for the poisoned work environment created by management. The Grievor claimed for damages as well as significant unpaid lost time resulting from chronic stress caused by management’s actions. [38] I have quoted the Wilson Award at length below as it deals comprehensively with the financial redress now sought before me. At paragraph [8] et. seq. of his award, Arbitrator Dissanayake identified relevant provisions of the WSI Act and the issues under review. “[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: - 20 - 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 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 1 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 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 - 21 - 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. 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 (sic) 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. Then at paragraph 27, the Arbitrator reasoned as follows: [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 - 22 - 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. [39] I have considered the submissions of counsel with respect to the award of Arbitrator Dissanayake in reference to the matter before me. It is clear that the issues there are similar to those currently before me. The Grievor here, WA, did not suffer from a traumatic event at work. Rather, the remedy claimed by the union here flows from the employer’s “decisions or actions related to the worker’s employment…”. In this case, it was the employer’s inaction and delay in responding to the Grievor’s plight such that he was obliged to work and continue to work in what for him was a poisoned work environment. [40] In the circumstances, make whole remedies and damages for any proven and resulting illness or injury in the form here of mental stress are beyond my jurisdiction. The WSI Act provides the appropriate forum for those claims. [41] Of course, that finding leaves the Grievor, WA, in the same conundrum as was the Grievor in the Wilson case with respect to time limits for claims pursuant to the WSI Act. At para. [28], Arbitrator Dissanayake suggested that there may be relief for his Grievor given the discretion in the WSI Board to extend the six month time limit if “in the opinion of the Board, it is just to do so”. More precisely he voiced his views as follows: - 23 - [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 tiling 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. [42] I regret that I too am unable to provide financial relief to the Grievor, WA, here and can only provide for him solace similar to that offered by Arbitrator Dissanayake. However, I am satisfied that I am, indeed, without jurisdiction to grant the financial relief he seeks for the reasons set out above. [43] That, however, is not the end of the matter since, here, the Parties did address issues relating to the poisoned work environment and concerning which I do have jurisdiction to provide declaratory relief as well as make directions or orders, if warranted, to ensure a safe working environment for the Grievor. That view is consistent with the view of Arbitrator Dissanayake in the Wilson case who retained jurisdiction to deal with such matters on agreement and request of the Parties there. Declaratory Relief and Directions 1. Re. Delay [44] There was little arbitral precedent available with respect to the Union’s submission that the Employer’s delay impacted upon the Grievor in the workplace. As I noted earlier, the Grievor was victimized by a co-worker racially and physically. Although that incident occurred away from the workplace, the failure of the Employer in the - 24 - aftermath of the occurrence and upon receiving the Grievor’s account of the incident on March 29, 2013 to act promptly constituted a failure to comply with its obligations pursuant to its own WDHP Policy let alone its responsibilities pursuant to the Human Rights Code. In the circumstances, the Grievor was obliged to work in what for him was a poisoned work environment due to the continued risk that he would not only encounter but also be obliged to work in the same vicinity as his assailant. [45] In a somewhat similar case before this Board [See Ontario Public Service Employees Union (Williams) and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, GSB 2010-1815, Union #2010- 0530-0108, January 14, 2015 (Albertyn)], the Grievor had complained of racial discrimination by a co-worker in the workplace. Although the Employer there acted promptly to investigate the matter and found, in its view, that the complaint had been substantiated, she, the Grievor, did not get a reply to her allegations for nearly fifteen months. At paragraphs 28, 29 and 30 of his Award, Vice-Chair Albertyn reasoned as follows: [28] The Employer ought to have dealt with what had become a complaint as expeditiously as possible, as it is required to do under the WDHP. It failed to meet its own standards by a large margin. The Grievor suffered frustration and inconvenience as a result. When a complaint has been upheld, and action is to be taken to implement a remedy, the Employer ought to have consulted with the Grievor to consider any particular relief she required. [29] To determine the appropriate remedy, I note that there was no failure to investigate by the Employer, unlike in the cases cited by the Union. The deficiency was the Employer’s failure to respond promptly or in a timely manner to the Grievor’s wish to obtain an outcome to her complaint. As a result of the long delay the Grievor suffered some injury to her dignity and to her feeling of self-respect. She explains a deteriorating interest and enthusiasm for her work as a result. There was, however, no additional public humiliation - 25 - for her as a result of the delay, as there was in Ibrahim v. Hilton Toronto, above, at para 186, where $5,000 was awarded for delay of two months in investigating a complaint. Here the delay, not of an investigation, but of advising of its outcome, was 15 months. Human rights damages are remedial in nature, not punitive: Koroll v. Automodular Corp., above, at para 122; Tulul v. King Travel Can Ltd., above, at para 104: “the focus is on the experience” of the complainant, “and not on the party responsible for infringing his or her rights”. [30] In all the circumstance, I find the Grievor is entitled to $3,500 in general damages on account of the Employer’s procedural faults in handling her issues regarding Mr. Ball. [46] Presumably, the WSIAT Awards were not provided or referred to before Arbitrator Albertyn since he did award monetary relief. However, I have already disposed of that issue here and refer to Vice Chair Albertyn’s decision in reference only to his finding that delay by an employer in acting, investigating, and/or in advising a complainant of its outcome may warrant some form of relief. [47] On the facts before me, the Employer did not begin any investigation whatsoever until May 24, 2013, that is, almost two months after receiving the Grievor’s Occurrence Report. It was only then that Mr. Large who had recently been assigned the responsibility to pursue the matter, finally interviewed the Grievor. Throughout that period no steps had been taken to isolate the Grievor from contact with his assailant notwithstanding that he had asked then Superintendent Scrivano when he had first submitted his Occurrence Report in March that LK not be assigned to work in the facility. [48] Additionally, although the investigation by Mr. Large did not take an excessive time from May 24th to when it was concluded on July 2, 2013, the Grievor had been left in limbo throughout a period of over three months before there was any confirmation of his issues or action taken to ameliorate his concerns. - 26 - [49] In the July 2nd meeting with the Grievor and his union representative, Mr. Large explained that LK would indeed be disciplined for her conduct during the incident. However, the degree of discipline had yet to be determined. With respect to her continued presence in the workplace, Mr. Large did explain that she would be taking a three month secondment to a facility in Sarnia to run from July 2013 to October 2013. However, there was no assurance that she would not be assigned from time to time on overtime to cover an occasional shift in the Grievor’s facility. After the first interview of the Grievor, Mr. Large advised LK’s Supervisor to ensure she was not assigned to the same shift or location as the Grievor. However, that information was not communicated to the Grievor. In the circumstances, the Grievor’s only consolation was that as of mid-July, LK would be primarily working in the Sarnia facility. In summary, I am satisfied that no positive steps were taken to assure the Grievor that he would not be obliged to work in a poisoned work environment for several months following the incident with a co-worker during which he was racially slurred and physically assaulted. The Grievor suffered humiliation not only from the incident itself but also from his concern that other co-workers had been present to observe that humiliation and were likely discussing it at work. He was frustrated with the Employer’s delay in acting to ameliorate his concerns. He suffered anxiety due to that delay, his concerns regarding the potential spread of information and most importantly due to the ongoing chance of and actual encounters with LK in the work facility. [50] In the circumstances, I find that there existed for the Grievor a poisoned work environment which was perpetuated due to management’s delay in addressing the concerns raised by the Grievor in his March 29, 2013 report and in - 27 - subsequent meetings with the Employer. I declare that the Employer failed in its obligations to ensure a safe work environment for him and contributed in the perpetuation of that poisoned atmosphere. 2. Re. Continued Safeguards [51] This brings me to a consideration of the second leg of the Union’s remedial request, that is, that there be an ongoing obligation on the Employer to ensure that LK not be assigned there to work at EMDC, except in limited circumstances, while the Grievor is on staff there. [52] The Employer did not object to the restrictions set out in paragraphs 1, 2 and 3 of the Joint Submission provided they were operative only “when the Grievor is on duty”. Additionally, the Employer would limit the restrictions to end March 29, 2018, that is, five (5) years from the actual incident in 2013. Further, the Employer would have me reject the remaining proposals in paragraphs 4 and 5 including that provision which would extend the restrictions and provide make whole remedies for three (3) years from the date of this Award. [53] It is my view that any restrictions beyond those as agreed by the Employer as noted earlier would not be warranted in this case. Specifically, with respect to the “make whole” aspects. I have already determined that issues relating to financial remedies are matters for consideration pursuant to the WSI Act and that I have no jurisdiction to assume those insurance powers granted to the Board there. [54] With respect to the other elements sought by the Union beyond March 25, 2018, I am satisfied that they are not appropriate to be awarded at this time for the reasons outlined below: - 28 - a. It is my view that any such future scenario(s) which entail encounters between the Grievor and LK after these five (5) years would constitute fresh events and factual situations which ought properly to be the subject of a new grievance if warranted at that time. Questions such as whether or not the presence of LK in the workplace and in what circumstances after these five (5) years would then constitute a poisoned work environment would need to be addressed as well as its impact upon the Grievor at that time. It would, in my view, be precipitous to assume those elements in making such determinations today. The Board ought not to award prospective remedial relief beyond that to March 25, 2018 as it was agreed upon by the employer here. [see OPSEU (Hunt et al) and the Crown in Right of Ontario (Ministry of Attorney General), GSB# 2001- 0534, 2003-2944, 2008-3397, December 4, 2009 (V.C. Randi H. Abramsky)]. b) In addition to that consideration, I have the following reservations some of which are reflective of my concern regarding prospective relief: 1. It is now late 2017, almost five (5) years after the incident occurred. The Employer’s responsibility flows not from the incident itself but from the impact it had or has had on the workplace environment with respect to the Grievor. After five years, it is doubtful that the work environment would be poisoned simply by the reintroduction on occasional assignment of LK to the facility. Surely, enough time has gone by that the edge felt by the Grievor would have been softened or smoothed. 2. The Grievor is now a classified employee such that his credibility in the workplace and his job security is similar to that of LK. Among his original concerns was that she might have been favoured by co-workers and believed by management more easily than he who was at the time an unclassified Corrections Officer. 3. Following the incident LK herself took a secondment to Sarnia to avoid contact with the Grievor and as soon as possible thereafter took a - 29 - permanent transfer to that location in 2014. Although there is no specific evidence on this point, it is doubtful that she would now seek assignments to the Grievor’s facility. There was no clear evidence, if any at all, of any instances of LK working at EMDC since her permanent transfer to Sarnia. 4. There was no medical evidence provided to indicate that the Grievor continues to suffer ongoing emotional stress with respect to the incident or that there is likelihood that he would suffer such in the event that LK should return to work in the facility. 5. The Grievor is aware of the Employer’s Employee Assistance Programs and that support is available for him should he feel in need of it. In fact he did seek counselling pursuant to the program following the incident but testified that he pursued assistance no further than one meeting since he felt he could not connect with the counsellor provided. It is my view that should the Grievor feel he is still in need of such support, it is incumbent on him to pursue available resources pursuant to the EAP. If the counsellor does not suit him, surely he could request another. 6. Any continuing anxiety or stress experienced by the Grievor regarding LK at this late date does not in my view flow from the Employer’s procedural failures or delay but from the incident itself. Should LK return to the facility either upon assignment or otherwise it is always open to the Grievor to again file a grievance should he find that the work environment has been poisoned by reason of her reintroduction into the facility. [55] In the circumstances, aside from my Declaration above concerning its delay in addressing the Grievor’s poisoned work environment, I see no reason to restrict the Employer beyond March 25, 2018 from providing LK with future assignments to EMDC. [56] In Summary, the following comprises my disposition of this matter: 1. Delay (a) I declare that the Employer failed in its obligation to ensure a safe work environment for the Grievor and contributed through its inaction to the perpetuation of that poisoned atmosphere. - 30 - (b) I am without jurisdiction to provide the Grievor with financial relief for his stress. The appropriate forum for that is the WSI Board. 2. Continued Safeguards (a) The Grievor is entitled to those continued safeguards up to March 25, 2018 which were agreed to by the Employer as noted in the “Joint Submission” set out earlier in this Award. (b) I, therefore, order compliance with those provisions in paragraphs 1, 2, and 3 of the Joint Submission with the addition in para. 3 of the underlined phrase “when the Grievor is on duty”. (c) I also order compliance with that portion of paragraph 4 of the Joint Submission which does not entail financial relief beyond that ordinarily available to the Grievor pursuant to the Collective Agreement. [57] Accordingly, I order the following provision in addition to paragraphs 1, 2, and 3: If there is a reasonable risk that the Grievor will come in contact with LK while he is performing his duties at EMDC, he may request sick leave and will not be required to provide a certificate from a medical practitioner in support of his request for leave. Such leave shall not be unreasonably withheld. (d) The foregoing safeguards shall be operative up to and including March 25, 2018. [58] I retain jurisdiction in the event there are any difficulties in implementation of this Award. Issued in Toronto this 8th day of December, 2017. “Joseph D. Carrier” ___________________________ Joseph D. Carrier, Arbitrator