HomeMy WebLinkAbout2012-0185.Harrison.15-10-29.DecisionCrown Employees
Grievance Settlement
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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#2012-0185
UNION#2010-0252-0012
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Harrison) 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 Nick Mustari
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Greg Gledhill
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING October 22, 2015
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Decision
[1] The Employer and the Union at the Niagara 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 respectively will rely upon. This decision is issued in accordance with the Protocol
and with Article 22.16 of the collective agreement; and it is without prejudice or
precedent.
[2] The grievor, at the time of the incident that gave rise to the grievance, was a
Food Services Officer.
[3] On August 4, 2010, the grievor was supervising work performed by inmates in
the kitchen. She climbed onto a two-step ladder in an effort to fix or adjust a fan. The
grievor fell from the ladder; and because of the fall, broke her wrist.
[4] The grievor received benefits pursuant to the provisions of the Workplace Safety
and Insurance Act (WSIA) with respect to her workplace accident.
[5] The grievor subsequently discovered there was a “household use only” sticker on
the kitchen ladder from which she fell.
[6] The Employer asserted that the grievor had been previously advised, prior to the
August 4, 2010 incident, not to try to fix or adjust the fan in question because of the
physical restrictions associated with her workplace accommodation.
[7] The Employer additionally submitted that the referral to arbitration was untimely
and on that basis the grievance should be dismissed.
[8] The gist of the grievance is that the Employer allegedly breached its obligations
under the Occupational Health and Safety Act (OHSA) by requiring employees to use
an improper and unsafe piece of equipment – the two-step “household” ladder. The
remedy sought is that the Employer compensate the grievor the difference between
monies she received as benefits under the WSIA and her normal wages.
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[9] Pursuant to the provisions of the WSIA, an employee who is entitled to receive
benefits, pursuant to the provisions of the WSIA, is precluded from bringing an action, or
seeking additional relief from his/her employer, over and above the employee’s
entitlement to benefits under that Act. Specifically, Section 26 (2) of the WSIA
stipulates:
26 (2) Entitlement to benefits under the insurance plan is in lieu of all
rights of action (statutory or otherwise) that a worker, a worker’s
survivor or a worker’s spouse, child or dependant has or may have
against the worker’s employer or an executive officer of the employer
for or by reason of an accident happening to the worker or an
occupational disease contracted by the worker while in the employment
of the employer.
(emphasis added)
[10] As confirmed in Ontario Public Services Employees Union (Monk et al) and the
Crown in Right of Ontario (Community Safety and Correctional Services and Ministry of
Children and Youth Services) GSB #1995-1694 (Gray) Section 26 (2) of the WSIA
constitutes the statutory codification of the “historic trade-off” of workers giving up the
right to bring an action in the courts against employers for negligence in exchange for a
statutory “no fault” benefits scheme with respect to workplace injuries or illnesses. In
particular, Vice-Chair Gray, in that decision, offered the following comments as to the
“historic trade-off”:
Early in the twentieth century, Ontario (and other jurisdictions) enacted
legislation to provide for no-fault compensation of workers for
workplace injuries, out of a compensation scheme funded by
mandatory employer contributions. Such legislation involves what is
commonly described as a “historic trade-off.” The right of workers to
take legal proceedings against their employers to recover
compensation for workplace injuries was extinguished and replaced
with a right to compensation that did not depend on the employer’s
being solvent or proven to be “at fault,” and was not affected by
questions of their own voluntary assumption of risk or contributory
negligence. In turn, employers were protected from liability to their
employees for workplace injuries, in return for their mandatory
contributions to the compensation fund. As is typical in such
legislation, the Ontario legislation created an administrative agency
with exclusive jurisdiction to administer the fund, assess entitlement to
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benefits and determine the precise boundaries of the “historic trade-
off,” removing those questions from consideration by courts.
[11] In accordance with the decision in OPSEU (Monk et al), Section 26 (2) of the
WSIA precludes the GSB from awarding the type of relief sought by the grievor, even if
it was concluded that the Employer had, in some manner, breached the provisions of
the OHSA with respect to the grievor’s workplace accident.
[12] Prohibited from being able to award the relief sought, there is no need to address
the grievor’s assertion that there was a breach of the provisions of the OHSA by the
Employer; accordingly, the grievance is, hereby, dismissed.
Dated at Toronto this 29th day of October 2015.
Brian P. Sheehan, Vice-Chair