Loading...
HomeMy WebLinkAbout2020-1788.Thibideau.2024-08-08 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-1788; 2021-3325 UNION# 2020-0290-0021; 2022-0290-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Thibideau) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Kathleen G. O'Neil Arbitrator FOR THE UNION Jorge Hurtado Morrison Watts Hurtado Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING May 24, 2024; written submissions finished by June 11, 2024 - 2 - Decision [1] This decision deals with the employer’s motion requesting a limitation on the remedies available to the grievor in a grievance dated January 20, 2022, which complains that the employer’s efforts to return her to work after a workplace injury were inadequate. The employer seeks a declaration that the Board does not have jurisdiction to award any compensatory damages, or reimbursement for lost time because the grievor received benefits under the Workers Safety and Insurance Act [WSIA]. This motion was referred to by the parties as a “Monk motion”, in reference to the oft-cited decision: Ontario Public Service Employees Union (Monk et al.) v. Ontario (Community Safety and Correctional Services and Ministry of Children and Youth Services), 2010 CanLII 28621 (ON GSB). [2] By contrast, the union argues that the Board has jurisdiction as it is a grievance seeking compensation flowing from a breach of separate obligations under the collective agreement, the Human Rights Code, and the Occupational Health and Safety Act, such as the duty to accommodate, and the duty to take reasonable precautions for a worker’s safety, all of which are squarely within the Board’s jurisdiction. The union asserts that this is not a claim for a remedy for the consequences of a WSIA compensable illness or injury. [3] This preliminary decision assumes that the assertions underlying the claims for damages are true and provable, but the evidence at an eventual hearing may find otherwise. In any event, the following facts necessary to this decision are not in dispute. Ms. Thibideau was granted benefits from the Workers’ Safety and Insurance Board based on work-related stress arising from her work as a Youth Services Officer and has been in receipt of partial or full Loss of Earnings benefits since 2018. She was recently approved for LOE benefits to age 65. [4] Ms. Thibideau has two grievances which are scheduled before me, the first one pertaining to impacts on the grievor’s pension, which is not included in the current motion. Further, the employer does not challenge the Board’s jurisdiction to award - 3 - damages under the Human Rights Code. The focus here is on the second grievance, making various claims about the employer’s actions and omissions after May 2021 when she was cleared to return to work. [5] In respect of the collective agreement, the grievance asserts that the employer violated articles 2, 3 and 9. These articles relate to management rights, discrimination, and health and safety, and are set out in the appendix to this decision. A statement of details appended to the grievance summarizes the union’s claims based on these articles. The assertions include that, when the grievor was cleared to go back to modified duties in 2021, not enough information and time was available to get necessary approvals and for the grievor be ready for the necessary training. This is said to have had the result that the grievor missed the training in the spring and fall of 2021, and in early 2022, so that she was held out of work unnecessarily. Nearly a year of lost earnings and pension is mentioned as the result of these delays. The grievance seeks remedies to make the grievor whole for alleged failures to accommodate the grievor’s disability and provide a safe workplace in this period of time, rather than prior to the workplace accident. Considerations and Conclusions [6] To start my consideration of the employer’s motion, I agree with employer counsel’s observation that the difference between the parties is fairly narrow. The employer does not contest the Board’s jurisdiction to provide declaratory and directory remedies for proven contraventions of health and safety provisions in the collective agreement, nor does it contest its ability to award damages under the Human Rights Code. Nor does the employer object to the Board’s jurisdiction over another grievance filed by the grievor concerning her pension entitlements. Thus, both grievances will proceed if they are not settled by the parties. [7] The nub of the dispute is whether the “make whole” claims in the grievance relating to the efforts to return the grievor to work are in essence claims for - 4 - compensation for the work-related injury which must be pursued under the WSIA rather than at the Board. The employer argues that the grievor’s claim for nearly a year of lost earnings during the unsuccessful return to work process indicates that she is indeed claiming compensation for the workplace injury, which is a subject removed from this Board’s jurisdiction. [8] As can be seen from the jurisprudence referred to by the parties in argument, cited in the appendix, adjudicators have struggled to define the border between the exclusive jurisdiction of the WSIA and factual situations which are associated with a workplace injury, but are nonetheless permissible subjects of complaints in other fora. The Board’s jurisprudence has been consistent that there is room for some grievances which involve facts associated with a workplace injury, but which make claims which cannot be pursued under the WSIA. The seminal decision in Monk mentioned some of these, but did not attempt an exhaustive list. This was expressed at paragraph 109 of that decision as follows: Where a claim for damages is made on behalf of a worker who has suffered a compensable injury or illness as a result of the breach, they can be awarded in respect of the breach if and to the extent that the worker would have been entitled to them even if she or he had not suffered a compensable injury or illness as a result of the breach. [9] The collective agreement provision in issue in Monk was the health and safety provision, which reflects obligations under the Occupational Health and Safety Act. At para. 114, the Monk decision concludes by saying that "assuming that awarding a grievor "general damages in compensation for this violation" is otherwise appropriate, the WSIA would preclude it only to the extent that the damages claimed are for the consequences to the grievor of compensable injuries or illnesses that the grievor says he or she suffered as a result of the violation. Thus, the Monk decision did not rule out damages for proven violations of the health and safety provisions of the collective agreement altogether. Nor have the subsequent decisions of the Board or other arbitral decisions. - 5 - [10] Where the claims are based in contractual or statutory provisions other than the WSIA, the question becomes one of determining the substance of the claim - whether it is a disguised claim for the consequences of the workplace accident itself, or whether it has a legal life of its own, separate from the matters within the exclusive jurisdiction of the WSIA. In Monk, the alleged breach related to second hand smoke, the same circumstances that had caused the compensable injury, making it potentially more evident. However, many of the cases referred to in argument, and in the facts of this case, the claim relates to the results of events following the compensable injury, and thus not said to have caused the compensable injury itself. If the claim is nonetheless "for or by reason of the accident", the grievor is limited to the processes and remedies available under the WSIA. Further, if the nature of the claim is with respect to entitlements or benefits under the WSIA, such as loss of earnings related to the accident, arbitration under the collective agreement is not the proper forum. [11] On the other hand, where it is concluded that the claim is for something other than the consequences of the accident, the claim is allowed to proceed. See, for example, the decision in Bell Technical Solutions, cited in the appendix, where Arbitrator Anderson concluded that a claim for damages for a managerial order to climb a ladder in breach of the grievor's medical restrictions was not ruled out by the WSIA. He found the claim to be one of a discriminatory practice, rather than a claim "for or by reason of" the grievor's workplace injury, and the manager's order to be an action independent of the consequences of the workplace injury. [12] In Parrack, also cited in the appendix, a decision of the Public Service Grievance Board, where there was a dual focus, one on an allegation of inadequate training, and another on industrial disease related to asbestos exposure, the latter was clearly to be dealt with under the WSIA, even though the employee had not yet contracted an industrial disease. The separate allegations about training and failure to warn about hazards, recognizable as complaints of breaches of the Occupational Health and Safety Act, were allowed to proceed. That Board determined that it was premature to rule out the possibility of any damages for - 6 - those claims, but cautioned that if breaches were found, any monetary recovery would have to respect the divided jurisdiction and avoid double recovery. [13] The union relies on the Parrack decision, as analogous to Ms. Thibideau’s situation, as well as Unity Health, a decision of Arbitrator Luborsky, cited in the appendix. In the latter, as here, the grievor suffered from a disability compensable under the WSIA. The union grieved that the employer had failed to accommodate the grievor in a timely and appropriate manner. That portion of the grievance was allowed to proceed, as the arbitrator concluded that, applying the principles from the Monk decision, the employer’s alleged misconduct, if proven, may independently warrant contractual and/or general damages. In so doing, the arbitrator noted that drawing the line between facts which are purely for the WSIB, and those where there is mixed jurisdictional authority is not always easily done, a comment with which I agree. [14] In the cases relied on by the employer, also applying the Monk principles, claims essentially related to the consequences of the compensable injury, were found not to be within the jurisdiction of the GSB, although declaratory and other remedies not related to the consequences of the compensable injury were acknowledged to be permissible. For example, in Mohamed, Rosati and Adams, all cited in the appendix, claims for remedies such as lost wages, lost opportunity for overtime, repayment of credits, special and general damages including for pain and suffering which were found to a arise only as a result of having suffered a compensable injury, were ruled out. Similarly, in Wilson and Foley, claims that would have been compensable if claims had been filed under the WSIA were not allowed to proceed. [15] Applying the principles outlined in the above authorities to the facts of this case, it is clear that, to the extent the claims are, in essence, expressions of dissatisfaction with the amount of compensation, or extent of services, available under the WSIA, the Board does not have jurisdiction. Further, the Board does, as described above, have jurisdiction to consider the allegations of breach of the Human Rights - 7 - Code, as well as those alleging breach of the health and safety provisions of the collective agreement, as noted in Monk. However, if these claims are eventually successful, and if damages are awarded, the question of what might constitute double recovery in light of compensation afforded under the WSIA will have to be decided. [16] Having carefully considered all of the jurisprudence cited, I am persuaded that the approach to similar claims adopted in the Parrack decision, and the jurisprudence discussed therein, remains sound. I find that the aspects of the grievances which deal with accommodation and health and safety matters during the return to work period invoke rights separate and severable form those under the WSIA, and are therefore within the jurisdiction of the Board, and may proceed. If a breach is found, full argument is available on the question of whether the remedy should include anything beyond declarations and directions, and if so, in what amounts, in light of the jurisprudence as it stands at the time. As in Parrack, I find it premature to rule out the possibility of damages at this stage, where the factual basis before me does not make it clear that the claims of breach of the statutory and collective agreement health and safety provisions intrude on territory reserved for the processes under the WSIA. [17] Employer counsel emphasized the observations of the Board in the Adams decision to the effect that there must be some “evidentiary daylight” between the monetary claims in the grievance and the broad remedial jurisdiction under the WSIA. In that decision, with which I agree, the Board found that the grievor’s claims for compensation for the fear she had developed that her workplace was no longer safe was not distinguishable from the injuries from which she had already been compensated under the WSIA. What is different in the case before me, is that the disputed claims derive from separate incidents than the workplace accident itself, and at this stage of the proceedings, appear much more similar to the facts of the cases relied on by the union, than the facts considered in the Adams decision. - 8 - [18] As well, it is common ground that the claims under the Human Rights Code may proceed. In the circumstances of this case, I find little distinction between the factual basis for those claims, which are conceded to be within the Board’s jurisdiction and those under the rubric of health and safety obligations for which remedies are disputed. Both strands of the union’s allegations appear to be primarily based on the same sequence of events involved in the grievor’s attempts to return to work, years after the compensable accident. As I understand the union’s claims, the contention is that the employer’s acts and omissions during the failed efforts to return the grievor to work constituted breaches of both the duty to accommodate under the Human Rights Code and the obligation to take every reasonable precaution to protect the safety of a worker under the collective agreement and the Occupational Health and Safety Act. In these circumstances, it is appropriate that they be considered together, with argument about remedy reserved until the conclusion of this matter, if any breach is made out. [19] For the above-noted reasons, the employer’s motion is dismissed, and the grievances may proceed. Continuation dates will be set through the Registrar. Dated at Toronto, Ontario this 8th day of August 2024. “Kathleen G. O'Neil” Kathleen G. O'Neil, Arbitrator - 9 - APPENDIX “A” Authorities cited by the parties Cited by the Union: 1. Ontario Public Service Employees Union (Monk et al.) v. Ontario (Community Safety and Correctional Services and Ministry of Children and Youth Services), 2010 CanLII 28621 (ON GSB) (Gray) 2. Unifor Local 1996-O v Bell Technical Solutions Inc., 2019 CanLII 38207 (ON LA) (Anderson) 3. Unity Health Toronto v Canadian Union of Public Employees, Local 5441, 2021 CanLII 95115 (ON LA) (Luborsky) 4. Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance) (2004), 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Shime) 5. Parrack v. Ontario (Community Safety and Correctional Services), 2008 CANII 70546 (ON PSGB) (O’Neil) 6. Ontario Provincial Police Associtaion v. Ontario (Provincial Police), 2018 CANLII 82193 (ON LA) (Abramsky) Cited by the Employer: 1. OPSEU (Mohamed) and Ministry of the Attorney General, 2017 CanLII 47186 (ON GSB) (Gee) 2. AMAPCEO (Wilson) and MNRF, 2017 CanLII 71789 (Dissanayake) 3. OPSEU (Rosati) and Ministry of Community Safety and Correctional Services, 2018 CanLII 7264 (ON GSB) (Anderson) 4. OPSEU (Foley et al) and MCSCS, 2018 CANLII 119566 (Williamson) 5. OPSEU (Khan) and Ministry of the Attorney General, 2020 CanLII 32582 (Hewat) 6. OPSEU (Adams) and Ministry of Health, 2021 CanLII 95708 (Lynk) 7. ATU Blake et al v. Ontario (Toronto Area Transit Operating Authority), GSB No. 1276/87, (May 3,1988), unreported (Shime). - 10 - APPENDIX “B” Excerpts from the Collective Agreement MANAGEMENT RIGHTS 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss, or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workforce, the kinds and locations of equipment, the merit system, training, development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. NO DISCRIMINATION / EMPLOYMENT EQUITY 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). 15 3.2 There shall be no discrimination or harassment practiced by reason of an employee’s membership or activity in the Union. 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace 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. 3.4 It is recognized that in accordance with section 14 of the Ontario Human Rights Code, the Employer’s employment equity program shall not be considered a contravention of this article. HEALTH AND SAFETY Article 9.1 The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union 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.