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HomeMy WebLinkAbout1984-0371.Kelly.87-04-09Between: Before: For the Griever: For the Employer: IN THE MATTER OF AN ARBITRATION THE'CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD Hearing: OPSEU (David Kelly) -. -and- The Crown in Right of Ontario (Ministry of Correctional SerQices) Employer N. K. Saltman Vice-Chairman t4. H. Perrin Nember L. Turtle Member L. Rothstein Gowling & Henderson Barristers 6 Solicitors J. Benedict Nanager of Staff Relations and Compensatian Uinistry of Correctional Services June 24. 1985 October 28. 1985 2 DECISION The'grievance in this case involves a claim for damages sustained in an accident which*occurred on Ministry property on February 25, 1984. The facts which led to the grievance are as follotis: The Griever, David Kelly; is a Correctional Officer, classified as CO2, at the Guelph Correctional Centre. On February 25, 1984, he was scheduled to report for work on the 8:Oo a.m. shift. ~According to his usual custom, the Grievor drove to work in his own car. He left home at about 6:50 a.m. Although there was. some dispute a&to whether it was snowing at the.time, (the Griever said that it was: a Management witness said that it was not), all of ~the witnesses agreed that there were three to four inches of snow on the ground. The Grievor followed his usual route along the municipal roads in the City of Guelph to Highway 7 an,d along Highway 7 to the Ministry road leading to the institution. According to the Grievor, there was snow along the route. As the Griever. drove along, the snowploughs were attempting to clear the municipal roads and the highway. There was no indication that the Ministry road had been ploughed. 3 The Grievor turned south onto the-Ministry road and drove down the road, crossing over two bridges. Just beyond. the 11 second bridge, the road inclines slightly (which some of the 0 witnesses referred to as a "hill"). The Griever drove up the hi to the fork in the road and.turned onto the west fork (the east fork was closed off).. Just past the fork, the surface suddenly became slippery, indicating the presence of ice beneath the snow. There is no doubt on the evidence (which was corroborated by all but the Management witness who testified on the matter) that road conditions were extremely hazardous. ' -~ Atthis point, the~Grievor's car began to skid. The Grievor immediately attempted evasive action, but could not avoid hitting the speed limit sign on the right hand side of the road. The car came to rest at right angles to the road, facing in the direction of the man-made lake. As a result of the accident, the sign post'-was bent over approximately 45 degrees and the Grievor's car sustained damage.to the alignment at the front end. The Grievor e,stimated his speed at the time of the accident at approxima.tely 20 to 25 kilometers per hour, although he admitted that he was not looking at his speedometer. His evidence was corroborated by the driver of the car behind.him, who said that he was looking at his speedometer. The driver, Clifford Coddington, testified that both he and the Grievor were travelling at a sp,eed of 15 ‘miles per hour. There was no independent confirmation of this evidence.. ‘i .i, 4 Although the Grievor was shaken, he sustained no injury as a result of the accident. However, he slipped on the ice as he got out of the car to survey the damage. When he got back into a the car, he attempted to reverse onto the road but the car _ continued to skid. It took the efforts. of five other drivers to push the vehicle back onto the* road. However, the Grievor was unable to ascend the hill. Finally, he, drove in.reverse to the bottom of the hill where he gained enough momentum to climb the hill and drive into the employee parking lot. There were no other accidents reported on the Ministry road on the day in question.although there were other drivers who apparently experienced difficulty with the road conditions. For instance, after stopping to assist the Grievor, Correctional Officer, Miles Marshall, attempted to drive into the employee parking lot. .Almost immediately, his car spun around a full 180 degrees and came to rest facing in the opposite direction. Mr. Marshall was forced to drive into the parking lot in reverse. '. Correctional Officer, David Picard, also experienced problems. Just before the hill, Mr. Picard's car began to skid. He was able to drive into the parking lot only after bringing the car under control. Notwithstanding the difficulties encountered by the Grievor and others, the Employer did not find out about the road and/or weather conditions until the Shift Supervisor was notified by one of the employees reporting for work on the day shift between ?:15 a.m. and 7~36 a.m.. Apparently, there was no report of inclement weather or poor road conditions from any of the employees reporting .for duty on' the 6:00 a.m. "auxilia.ry" shift. Furthermore, although there were two Correctional Officers (referred tom as "Picket Officers") posted in picket boxes, which are security posts along the Ministry road, neither of these Officers was responsible for advising the Employer of changes in weather and/or road conditions. While in practice changes of this sort were often reported, no such report was made on the day in question. -. There was also a Sergeant who supervised the activity ,of the Picket Officers.. .Although his primary responsibility and.that ~of the Picket Officers was for the security of the. institution,., he, too, repor~ted on changes in road and weather conditions. But there was no report from the Sergeant on the day in question. Immediately upon being notified of the weather conditions, the Shift Supervisor arranged to have a Snowplough Operator called in to clear the road. Evidently, there were Snowplough Operators on duty from Monday to Friday on the day shift, from .7:30 a.m. to 4:00 p.m. At all other times, including 'weekends, there were Snowplough Operators on call. As the accident in this case occurred on a Saturday, it was necessary to call in,a Snowplough Operator. The practice was to call in the - ---__ r, c\,: I 6 senior.Operator, Conrad Thibault, and leave it to his discretion to call in otheroperators, as required. On the day in question, Mr. Thibault was called in around 7:30 a.m. He arrived at work 0 about 45 minutes later, accompanied by another Operator to assist with the ploughing. r The issue in this case revolves around the interpretation of Article 18.1, which reads as follows: "18.1 .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 promotionof safety and health of all employees." The Union submitted (11 that the Employer breached its obligation under Article 18.1 to make reasonable provisions for the health and safety of its employees by failing to keep the Ministry road free from ice and snow; and (21 that the damage to the Grievor's vehicle was directly attributable~ to the Employer's breach.. The Employer submitted that t,he Board has no jurisdiction in.this matter as Article 18.1 does not refer to the maintenance of Ministry roads. Further, with respect to the Board's jurisdiction, the Board submitted that Article 18.1 does not apply (1) because the Grievor sustained property damage rather than personal injury; and (2) because the damage occurred outside the Grievor's hours of work. In the alternative, if the Board has jurisdiction, the Employer submitted that Article 18.1 doesnot require the Employer to guarantee the health and safety of its employees but only to take reasonable precautions. In this case, the.Employer took reasonable precautions to protect the health and safety of its employees by having the road ploughed at the earliest opportunity. Furthermore, the damages,suffered by the Grievor were not attributable to any action or inaction on the part of the Employer but to the Grievor~'s decision to drive to -. work, with its attendant risks, rather than take public transportation, and also to the manner in which the Grievor _ operated his vehicle in light of 'the weather conditions. In response to the Employer's submissions,ythe Union took the position (1) that the~obligation 'under Article~l8.1 extends outside working hours; and (2,) that Article 18.1 applies to property damage as well as personal'injury. Furthermore, in the Union's submission, there was noth-ing in the evidence to indicate that the Grievor was in any way responsible for the accident which occurred. The issue before the Board is twofold: (11 whether the Employer was in breach of its obligation under Article 18.1 of the collective agreement by failing to keep the Ministry road free from ice and n snow: ‘and (2) if so,,whether the damages incurred were a d irect result of the,Employer's breach. Article 18.1 imposes an obligation on the Emp make reasonable provisions for the safety and health of loyer "to its employees". Included within this obligation is the requirement to take reasonable steps to provide for the removal of ice and snow from those routes over which the Employer has control and to which ,employees have a right of access: see Re Gonneau 227/81. Contra~ry to the Employer's submission, it is not necessary t0 specifically mention access routes in ~the collective-agreement in order to have them covered. The genera1 obligation in Article, 18.1 covers a wide range of circumstances, including the maintenance of access routes. Furthermore; in the Board's view, the Employer's obligation is'not limited to an employee's hours of work under the collective agreement but extends to those times when the employee is legitimately on the Employer's property in connection with his employment obligations: ibid. This would include a period of time both before an< after the hours of work set out in the collective agreement when it is reasonable to assume that employees would be reporting for work or.leaving the institution. That is not to say that an employee who was scheduled to report for tiork at 8:OO a.m. would be covered if the employee for some reason decided to arrive at.work at 5:00 a.m. But an employee, ~such as' the Grievor, who reported. for work an hour or so before the start of his shift would be'covered. In this case, there was no personal injury although the Grievor sustained property damage to,his car. The Employer submitted that property damage is not covered by Article 18.1 and that the Grievor'sremedy is to institute a civil action under the Occupiers' Liability Act. A similar issue was dealt with by another panel of the Board in the Gonneau case, suora. In that case, the Ministry of the Attorney General provided a parking lot for its employees, including the grievor, Ms. Gonneau. Due to an accumulation of ice and snow on an access route to the parking lot, Ms. Gonneau was unable to avoid sliding onto a municipal road, where she collided with another vehicle. She filed a grievance for damages under Article 18.1.of'the collective agreement. In defending the grievance, the Employer made many of the same arguments as in the instant.case, including the argument that property damage is not covered under Article 18.1. At page 7 of the award, the Board dismissed the Employer's argument as follows~: ,‘r 10. II I reject these submissions. It is clear that the property damage flowed directly from the employers (sic) failure to make reasonable .provisions for the'safety and health of the grievor. Fortunately she was not injured in the accident. I am aware of no principle.which would disentitle a party to recover a loss of property which flowed directly from such a breach of contract. Rather, it seems clear that the loss is not too remote. This loss both arose "naturally" or was, in the contemplationof both parties.at the time the collective' agreement was made. In other words both of the alternative conditions in Hadley vi Baxendale (1854) 9 Exch. 341 are satisfied in this case." Although the Gonneau case is not binding on us/in our view, the -. decision of a previous panel ought to be followed unless we‘are satisfied that the dec~ision of that panel was clearly wrong.- In this case, as we are not,satisfied that the Gonneau decision was manifestly .in error, we ought to follow it. Accordingly, with respect to what was referred to as the jurisdictional argument, the Board finds (11 that removal of ice and snow from access routes over which the Employer has control is covered under Article 18.1 of the collective agreement; (21 that the Employer's obligation under Article 18.1 is not limited to an employee's hours of work under the collective agreement but extends to those times when 'the employee is legitimately on the Employer's property in connection with his employment obligations: band (3) 'that Article 18.1°covers property damage as well as personal injury. With respect to the matter of liability, the Employer submitted (1.) that, pursuant to Section 12 of The Ministry of 'Correctional Services Act, the Ministry was protected from liability for acts done in good.faith; and (2) that the Employer is not required,to guarantee the health and safety of its -. employees, but only to take reasonable precautions, which was done in this case by calling in the Snowplough Operator at the earliest opportunity. In the Board's view, The Ministry of Correctional Services Act has no application iti the circumstances of this case. Section 12 protects officials of the Ministry from personal liability for acts done in good faith in the execution of their lawful duties. There is nothing in Section 12 or elsewhere in,% Ministry of Correctional Services Act which establishes a standard .of care for the Employer to adhere to in relation to its employees. However, there is such a standard in Article 18.1 of the collective agreement. Under, Article 18.1, the Employer is required to make reasonable provision for the health and safety of its employees. This does not mean that the Employer must I- guarantee the health and safety of its employees although it does mean that the Employer must take reasonable precautions in this regard. Whether or not reasonable precautions were taken is a question of factwhich depends 'on the circumstances of each case. In this case, the Emp,loyer made adequate provision for snow removal once it became aware of the weather conditions. The difficulty is that the means by which the Employer became aware of the weather conditions was somewhat haphazard. Although either the Picket Officers or the Sergeant who monitored their activities might notify the Employer of changes in the weather conditions, the evidence suggests that this was not their responsibility:. In fact, it would appear that there was no one charged with this ' responsibility. If the Employer happened to find out about ,the weather conditions (as in this case, from an Officer reporting for duty),,then prompt action was taken. However, there ‘was no system in place for reporting on weather conditions. Nor in this case did the Employer become aware~of the weather conditions in time to take effective action. Nevertheless, the Employer claimed that there was'no violation of Article 18.1 as it acted with due dispatch in arranging to have the Ministry road ploughed. In fact, the municipal roads and the highway were only being ploughed shortly before~ the Employer made arrangements to have the Ministry road cleared. In the alternative, the Employer submitted that it cannot be concluded that there was an unreasonable delay in arranging for the snowplough operation as there was no evidence. as to when the road conditions became hazardous. Finally, the Employer submitted that even if ,jt had been advised of the road conditions earlier in the morning, there is no guara’ntee that the road would have been ploughed by the time the Grievor drove along it. In the Boa,rd’s view, the Employer’s arguments cannot prevail. Although it is not clear precisely when the Ministry road became a sa~fety hazard, the presence of ice beneath the snow -. indicates that the danger had existed for some period of time pr,ior to the accident. Therefore, had there been a proper reporting system in place, the Employer would have been aware of the weather conditions at an earlier time and could have -arranged to have the road ploughed well before the start of the Grievor’s shift. The uncontradicted evidence is that it took the Gnowplough Operator 45 minutes to respond to the call-in. Based on. this evidence, it is reasonable to assume that, had the Employer.been given timely advice as to the weather conditions, the KOad would have been ploughed by 7:25 a.m. when the Grievdr drove along. The fact.that the highway and the municipal roads were being ploughed at about the same time as arrangements were being made to have the Ministry road cleared does not prove that the Employer acted reasonably because there was no indication as to how long the snowploughs had been out or as to the.condition of the highway and/or the municipal roads in relation tom the Ministry road. It may well be that the snowploughs had been outfor hours or that there was no ice formation on the highway and the municipal roads (which some of, the evidence,suigests). Therefore, there is no basis of comparison with the snowplough operation on the highway and/or the municipal.roads. In these circumstances, the Board finds that the Employer breached its obligation under Article 18.1 to make reasonable provision for the safety of its employees, including the Grievor, who were required to use the Ministry road in order to gain access to the institution. -. As a direct result of,this breach, the Grievor was involved in an accident which caused property damage to his- vehicle. 'Nevertheless, it was submitted that the Employer'ought not to be held responsible for the damage because .the Grievor assumed the risk of driving to work and/or operated h,is vehicle in an imprudent manner. Xnthe Board's view, the decision to drive to work was entirely reasonab,le fin the ci~rcumstances. Apparently, it was the practice of most of the'employees, including the Grievor, to drive to work. On the day in question, there was nothing to,indicate that the Grievor was aware before he left for work that road conditions were hazardous and, therefore, that he ought to depart from his usual practice of driving to work and take public transportation. Furthermore, once on the road, he was obliged to continue driving as it might have been more dangerous to have abandoned hi s vehicle. Under the circumstances, there is -. no basis for concluding that the Grievor assumed an unreasonable risk by driving to work. In any event, there was no clear evidence to indicate whether the institution was accessible by public transportation. n The Grievor.testified that he drove along then Ministry road at 15 miles per hour, which was the speed limit at the relevant time. His evidence was corroborated by Mr. Picard. U,nfortunately, however, there was no independent confirmation of .this speed. Given the degree of damage to the speed.limit sign, which was encased i_ncement, it seems improbable that the Grievor was only driving at 15 miles per hour. However, the police were not called and at thi,s point there .is no.way of'establishing the speed of the Grievor's vehicle. In any event, even if the Grievor was driving at 15 miles per hour, given his evidence that the road conditions were hazardous, the Board finds that the speed was excessive. It is recognized that the speed limit is a maximum speed in optimum conditions. On the day in question, the conditions were well below optimum and so,'absent any other explanation; the Grievor was obliged to drive at a slower speed, as did at least one of his co-workers. In view of the fact that the Grievor was driving at an excessive speed for the road conditions as they existed at that time, he must assume some of the responsibility for the accident which occurred. After careful. consideration, the Board is of the view that it is appropriate to attribute 20% oE the accident to the Grievor and 80% to the Employer. The claim in this case is for $576;73, which is the amount the insurance company was prepared to accept from the Employer in,order to restore the Grievor's premium and.insurance rating as' it stood prior to'the accident. It is not clear that the Board h~as jurisdiction to order the Employer to make payment to a third party, i.e. the insurance company. Therefore, the Board awards that the Employer 'pay the Grievor 80% of.the amount claimed. It is expected that the Grievor will remit this payment to the insurance company. The Board will remain seized ins the event that difficulties arise in the application of~this award. DATED AT TOBONTO, this grh day of ,.,,,,..l 1987. M. K. Saltman Vice-Chairman hfiifkkkP& )I. H. Perrin Member "DISSENT TO FOLLOW" L. Turtle Member ADDENDUM I am in agreement with the Board’s decision to t~he end of page 14. However, 1 dissent with respect to the finding of contributory negligence. I would have awarded the full amount of damages to the grievor, without interest. Marion M. Perrin