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Home My WebLink About2013-2320.Nichols.14-04-16 DecisionCrown 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#2013-2320 UNION#2013-0530-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Nichols) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian P. Sheehan Vice-Chair FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Laura McCready Ministry of Government Services Centre for Employee Relations Employee Relations Advisor HEARING EMPLOYER SUBMISSIONS UNION SUBMISSIONS February 3, 2014 February 24, 2014 March 11, 2014 - 2 - Decision [1] The Employer and the Union, at the Toronto South Detention Centre, agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they would respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement and is without prejudice or precedent. [2] The Mandatory Blood Testing Act (“MBTA”) enables specific workers including Correctional Officers who have been exposed to blood and/or high risk body fluids in the course of their work, to apply to the Medical Officer of Health to seek to have the person who exposed the worker to blood and/or high risk body fluids, provide a blood specimen for the purpose of testing for Hepatitis B (HBV), Hepatitis C (HCV), and Human Immunodeficiency Virus (HIV). The Act mandates that the worker exposed to blood and/or high risk body fluids, such as the grievor, must submit the appropriate application forms within seven days of the date of the incident associated with the exposure. [3] The grievor is a Correctional Officer currently assigned to the Toronto South Detention Centre. On July 5, 2013, while working at the now closed Toronto Jail, the grievor was cut by a homemade weapon while searching an inmate’s cell. Notwithstanding the fact that the grievor was wearing her Ministry issued Kevlar gloves, the razor blade fashioned weapon cut through the glove and the skin of the grievor. . - 3 - [4] The grievor immediately reported the incident to her Operational Manager who, along with the institutional healthcare staff, instructed the grievor to attend St. Michael’s Hospital. At the hospital, the grievor had blood drawn for testing and was started on a HIV medication “cocktail” program, and referred to the hospital’s HIV clinic. The Union claimed that the grievor was initially advised by her Operational Manager that the two inmates who occupied the cell in question had volunteered to provide a blood specimen for testing purposes. [5] Early the following week, the grievor spoke to Operational Manager Croisier. The grievor claimed that Operational Manager Croisier advised her that the Employer was just awaiting the results of the blood tests regarding the two inmates. Operational Manager Crosier has denied ever informing the grievor that the two inmates were tested. [6] On July 26, 2013, the grievor was informed for the first time by healthcare staff that, in fact, the inmates involved in the incident had refused to be tested. The grievor, subsequently that day, spoke to Deputy Superintendent DiNino regarding what had transpired. During that conversation, Ms. DiNino handed the grievor an envelope package containing information and the necessary forms associated with submitting an application for testing under the MBTA. [7] It is the position of the Union that the Employer failed to provide the grievor with the necessary support with respect to a serious health and safety incident. Specifically, the Union submitted that the Employer was obligated to advise the grievor of her rights under the MBTA when the exposure incident occurred, and not three weeks later when the grievor could no longer submit a timely application. It was further asserted that if the Employer had acted appropriately and advised the grievor of her rights under the Act, in a timely manner, she would have not necessarily had to incur the adverse side-effects she experienced as a result of undergoing the - 4 - HIV medication “cocktail” program, and the stress and anxiety associated with not knowing whether she had contracted a blood-borne disease. [8] The position of the Employer is that the grievor knew, or ought to have known, of her right to seek to have the inmates’ blood tested, pursuant to the provisions of the MBTA. It was submitted that the procedures to be followed by Correctional Officers with respect to the MBTA are outlined in the ADIs, and knowledge of the ADIs is a condition of employment for a Correctional Officer. Moreover, it was submitted that a memorandum regarding the MBTA which specifically advised employees of their rights and obligations when an incident of exposure occurs, had been posted at the Toronto Jail. [9] Upon reviewing the relevant documentation and the submissions of the parties, it is my view, that the Employer did not adequately inform the grievor with respect to her rights under the MBTA to seek to have the inmates in question tested. It is important to note, that reliance has not been placed on the Union’s assertion that representatives of the Employer had erroneously advised the grievor and others that the inmates had, in fact, been tested. The issue is not what the grievor was allegedly told by representatives of the Employer, but rather on what she was not told. Specifically, the grievor was not informed, in a timely manner, by any representative of the Employer of her rights under the MBTA. [10] It is acknowledged that the Employer had undertaken certain steps to generally communicate to Correctional Officers the impact of the MBTA. Those efforts, however, were not sufficient given the potentially significant health and safety risks associated with exposure to blood and/or high risk body fluids that may harbour such blood-borne diseases. It is noteworthy that on July 18, 2013, shortly after the incident in question took place, Lynn Kenn the Director of Management and Operational Support Branch forwarded a Memorandum pertaining to - 5 - Significant Exposure to Blood and/or Body Fluids, emphasizing that immediate action was required as set out in the following specific directions: In order to ensure there is no delay in providing the employee with the information that is required before he or she seeks medical attention, Significant Exposure to Blood and/or Body Fluids Information Packages (as referenced in the policy) are to be pre-assembled, placed in envelopes and readily available when a package is required.…. As well, when the sergeant provides the information package to the employee, the sergeant must advise the employee that there are strict timeframes and criteria associated with the application process and that this information is outlined in the package. [11] Turning to the issue of remedy, the Union seeks, on behalf of the grievor, an award of damages. It is accepted that the grievor was adversely impacted, as a result of undergoing the HIV medication “cocktail” program, and the stress she experienced as a result of the uncertainty associated with not knowing whether she had been exposed to one of the relevant blood-borne diseases, as a result of the incident. In assessing the claim for damages consideration, however, has to be given to the fact that even if the grievor had, in a timely fashion, exercised her right under the MBTA to seek to have the two inmates provide a blood specimen, a fair degree of uncertainty would have likely remained for the grievor. The Act does not provide for the mandatory compulsion of an individual to provide a blood sample. Moreover, while the Act sets out an expedited process, if the individual continues to refuse to voluntarily provide a specimen, a number of potentially time-consuming legal steps would have to be followed to attempt to further induce the individual to provide a specimen. Accordingly, the grievor may not have been provided a swift answer or necessarily a definitive answer, as to whether the inmates tested negative for the relevant blood-borne diseases. Consequently, only a modest award of damages is warranted in the circumstances. - 6 - The Employer is, hereby, ordered to pay to the grievor the sum of $250 as damages. Dated at Toronto, Ontario this 16th day of April 2014. Brian P. Sheehan, Vice-Chair