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HomeMy WebLinkAbout1992-1612.Thomson.92-02-04 ~ ta \ I ~ .- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTAAIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREETWESr; SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # l612/92 OPSEU # 92G136 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Thomson) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & correctioual Services) Employer BEFORE: S Stewart vice-Chairperson S Urbain Member F. Collict Member FOR THE S. Philpott GRIEVOR Counsel Koskie & Minsky Barristers & policitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING November 13, 1996 ~ I ~ DECISION Thegrievor, Ms A. Thomson, is employed as a Correctional Officer with the Ministry of Correctional Services. Ms Thomson suffers from a condition which has been diagnosed as bilateral plantar fascitis. It is alleged that the Employer failed to provide her with institution issued footwear within a reasonable period of time and that she sustained injury to her feet as a result of carrying out her duties without proper footwear A number of grievances have been filed. The Union claims that the Employer has not acted in accordance with its obligation to make reasonable provisions for Ms. Thomson's health and safety in t accordance with Article l8.l of the Collective Agreement, and that the Employer has failed to accommodate her disability. Harassment and discrimination are also alleged. Ms. Thomson applied for and was granted entitlement to benefits from the Workers' Compensation Board. The Workers' Compensation Board has dealt with issues of accommodation in the context of determining the suitability of modified work that was offered to the grievor The manner ~n which the Workers' Compensation Board has dealt with the grievor's claim is presently the subject of an appeal by the Employer to the Workers' compensation Appeals Tribunal Mr Mously, on behalf of the Employer, has raised the issue of jurisdiction of the Grievance Settlement Board in relation to that of the WCB Counsel were in agreement that the interests of ~ 2 both parties would be served by having the Board deal with this issue in a preliminary manner. Ms Philpott, on behalf of the Union, specified the relief sought by the Union on behalf of the grievor as follows (i) replacement wages for the damages suffered by the Grievor as a result of the Employer's breach of the collective agreement, including: - payment for lost work time to attend medical appointments; - payment for hours that the Grievor would otherwise have worked, but for her injury/condition; - the difference between the amount of any benefits paid by the Worker's Compensation Board and the amount of pay the Grievor would have received had she been working regularly and but for the Employer's breach of the collective agreement; (ii) declaration of breach of the collective agreement including, but not limited to, Article 18.1 and Article A; (iii) accommodation from the Employer to place Thomson in the same position as other unclassified correctional officers (in terms of both hours worked and rate of pay); (iv) general damages for pain and suffering, (v) opportunity to compete for past C02 positions or award of C02 classification through the job competition grievances; (vi) compensation for permanent foot damage; (vii) order the Employer to immediately comply with Article l8 1 of the collective agreement and to take all reasonable precautions to ensure the health and safety of the Grievor I ~ \ 3 It was the position of the Employer that while the relief sought in paragraphs (ii) and (vii) was within the jurisdiction of the Board, the other grounds of relief sought were in relation to matters exclusively within the jurisdiction of the Workers' Compensation Board Reference was made to s 14 of the Workers'. Compensation Act, which provides as follows: l4. The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to him or any industrial disease contracted by him on or after the lst day of January, 1915, while in the employment of such employer, and no action lies in respect thereof. It was the position of the pnion that the Grievance Settlement Board has jurisdiction with respect to these claims and that s l4 of the Workers' Compensation Act does not have the effect of restricting that juriSdiction In support of its position, the Employer relied on Ministry of Community and Social Services and Ontario Public Service Employees' Union (Lister) 340/90 (Samuels) The grievor in that case was assaulted by a resident at her place of employment The grievor sought and obtained workers' compensation benefits As well, a grievance was filed on her behalf alleging that the Employer had failed to make reasonable provisions for her health and safety As in this case, the grievor claimed the difference between the amount paid by the WCB and her regular wages as well i". \ 4 as general damages for pain and suffering The Board ruled that the grievor was not entitled to pursue these claims and was limited to the benefits provided by the WCB At pp. 9-lO of the decision the Board states as follows: ... the grievor is attempting to enforce a "right" which has been replaced by legislative compensation scheme in the Workers' Compensation Act. This case is not like Gonneau. 227/8l (Teplitsky), where the Board awarded damages for loss to the qrievor's vehicle [emphasis in the original] Nor is this case like Welland County General Hospital, where the injury suffered was not compensable and the claim was for sick benefits not covered by workers' compensation. Here the grievor is claiming damages for personal loss for which, pursuant to section 14 of the Workers' com~ensation Act, the legislative scheme has replaced other "rights", "statutorv or otherwise". The grievor's "right" to damages under Article 18.l of the collective agreement is encompassed by this language The collective agreement falls within the rubric "or otherwise" The Union argues that the Grievance Settlement Board and the Workers' Compensation Board have concurrent jurisdiction here But this cannot be so in light of section 14 of the Workers' compensation Act We have to abide by the legislative structure which is made clear in the legislation. We cannot make an award which would be contrary to section l4 of the Workers' Compensation Act We cannot enforce a "right" which has been taken away by section 14 of the Act. The Union argues that "A claim under the WCA is different from the remedy requested for the breach of Article 18 1 of the Collective Agreement The remedy requested for the breach of the Collective Agreement is one for damages. The WCA provides for limited compensation for time lost due to personal injury" But this is an attempt to draw a distinction which is meaningless in light of section 14 of the Workers' Compensation Act. The compensation provided under the Act is "in lieu of all rights . statutory or otherwise, to which a worker may be entitled against the employer of such worker by reason of any accident happening to him. while in the employment of such employer" The claim for damages under Article 18 1 is a right which the grievor has against the employer by reason of an accident at work It may be that, if we were to award damages under Article l8 1, the heads of damage I ~ ' 5 and the quantification of damages would differ from the way in which the grievor's compensation is calculated under the Workers' Compensation Act But section 14 is concerned with the source of the right to damages, not the way in which the damages are calculated. If the "right" to damages against the employer is "by reason of any accident happening to him ...while in the employment of such employer", such rights, statutory or otherwise, have been replaced by the legislative compensation scheme. The Union relies on Ministry of Trans~ortation and ontario Public Service Employees' Union (Riqqlesworthl 637/90 (Fisher) in support of its position In that case the grievor had filed a claim with the -WeB alleging that he had developed health problems due to the presence of certain chemicals in the workplace. The WCB denied his claim but allowed a subsequent claim on an aggravation basis. A grievance was filed claiming compensation for the grievor's financial losses The Board rejected the argument that the claims made by the grievor fell within the exclusive jurisdiction of the WCB and concluded that Lister was wrongly decided The decision states as follows at p 9 Mr Samuels in Lister emphasized the portion of the reasoning in the Welland County Hospital case which referred to "cases not covered by workers compensation" (see page 8 of Lister) However, he failed to properly appreciate the preceding sentences which read as follows There is, however nothing in the Workers' compensation Act which would preclude a Union and an Employer from including additional provisions in a collective agreement They could. for example, provide for additional benefits or for recall or job modification for workers who have had compensable accidents II (Emphasis added) [in the original] .' { 6 Thus upon our reading of the WeIland case, it would be open to the parties to negotiate a clause similar to the one stated above, which would allow a worker to file a WCB claim and a grievance under his collective agreement claiming financial payments from his employer As the Lister decision is based entirely on its understanding of a statute outside the Boards area of expertise, and as this panel feels that Lister panel incorrectly interpreted a decision of the Tribunal which is expert on those matters, (WCAT) we do not feel constrained by the Blake decision to follow Lister. In our opinion the correct interpretation of the WCA, as decided by its own specialized tribunal in the Welland case, is that unions and employers are free to negotiate clauses in collective agreements which may provide additional financial benefits to workers who have had compensable injuries. We note in passing that even if we had not found Lister to be wrongly decided, it can be distinguished from this case because in Lister the grievor had clearly had a compensable accident (her claim was accepted and paid by the WeB) while in this case Mr Riggleworth's claim has been rejected by the WCB as non-compensable The Board went on to state: Needless to say we are not determining at this point whether or not section 18(l) of the Collective Agreement was intended by the parties to cover claims for compen- sation of the nature put forward by Mr Rigglesworth as we have only decided that section l4 of the WCA is not a bar In Ministry of the Solicitor General and Correctional Services and ontario Public Service Emplovees' union (Fleming) 461/95 (Knopf), these decisions, along with another decision, were analyzed by the Board in the following manner: The case law is of some limited assistance In the Lister case, the Grievance Settlement Board (GSB) , dealt with a grievance seeking both damages and enforcement of the employer's health and safety obligations under the collective agreement as a result of a work place accident The GSB ruled that it had no jurisdiction over the claim . ( \ 7 for dam~ges. However, it did take jurisdiction over the question of the enforcement of the health and safety obligations under the collective agreement. In the Rigqlesworth case, the grievor had filed a claim with the Workers' Compensation Board and was awarded short term compensation due to health problems arising from the use of chemicals at work. The grievor subsequently filed a grievance under the collective agreement claiming financial compensation for past loss of wages and physical hardship. The Lister case was raised by the employer and considered by the Grievance Settlement Board The Riqglesworth decision interpreted the provisions of the Workers' Compensation Act differently than were done in Lister and concluded that Unions and employers are free to negotiate clauses in collective agreements which provided additional financial benefits to workers' compensation injuries The Johnston case involved a claim for "compensation for excessive workload and overtime". The employer objected to the GSB taking jurisdiction over the matter. In an interim preliminary decision, the GSB ruled that it is "constrained from awarding damages for work related injuries which are compensable under the Workers' Compensation Act." However, it also noted "its acceptance of the notion that benefits under the collective agreement may well be capable of co-existing with compensation under the workers' compensation Act." These cases are of some assistance but none are completely applicable to the facts at hand In the grievance before the Board at this time, there is no claim for additional compensation or damages beyond those available under the Workers' com~ensation Act Instead, the sole issue is whether under the present circumstances, the grievor has a contractual claim, enforceable before the GSB, to be returned to the twelve hour compressed work week. It is clear that Workers' Compensation has decided consistently to date, despite several appeals by the grievor, that the employer's insistence on the eight hour schedule does not offend the Workers' Compensation Act. It is easy to understand the employer's concern that it may face an arbitral ruling requiring reinstatement to a twelve hour work week which may be inconsistent with the WCB. Workers' Compensation certainly has the exclusive jurisdiction to determine whether or not there has been compliance with the Workers' Com?ensation Act. Compliance with that Act includes the employers obligation to re- ~ I ( 8 employ an injured worker to a suitable position which does not cause undue hardship to the employer According to the Workers' Compensation Board, the employer has complied with the Act However, the employer also has an obligation to comply with the collective agreement. This collective agreement requires [that] the employer not discriminate on the basis of handicap. This latter obligation brings with it the duty to accommodate someone in the grievor's position The question as to whether there has been reasonable accommodation in accordance with the collective agreement is a question that is enforceable and arbitral before the Grievance Settlement Board. It has jurisdiction to determine whether reasonable accommodation has been made. . . It must be acknowledged that there appears at first blush to be some possibility of inconsistent rulings if the GSB were to take jurisdiction over the accommodation issue, given that the Workers' Compensation has already ruled that there has been compliance with the Workers' Compensation Act. But, it is conceivable that the employer has complied with the Workers' Compensation Act, yet still be in violation of the collective agreement. However, the law is capable of operating on a common sense basis. The Grievance Settlement Board has jurisdiction over the issues of discrimination and accommodation. This does not necessarily interfere with the Workers' compensation Board's exclusive jurisdiction over whether or not there has been compliance with that Act The rights under the collective agreement between these parties are concurrent and at times greater' than the rights available under the Workers' Compensation Act. The rights in the collective agreement are enforceable through the arbitration provisions The determination of the grievor's individual case will be based on the facts and medical evidence filed. Unlike the Lister and the Johnston cases, this is not a situation where the grievor is seeking compensation for a work related injury The GSB has no jurisdiction over that type of claim This is a claim for enforcement of a collective agreement work schedule and a claim for a remedy (other than compensation) under the parties' contract As such, these limited claims fall within the jurisdiction of the GSB Of course, the chances of success for the remedy being sought depends entirely upon the strength of evidence available for examination Under these circumstances, it is concluded that the ~ ( ( ~ 9 Grievance Settlement Board does have jurisdiction over the grievance as filed While the Board in Fleminq does not specifically indicate its preference of the analysis in Lister to that in Riqqlesworth, the characterization of a claim for compensation for a work related injury as a claim over which the Grievance Settlement Board has no jurisdiction is a clear indication of its preference for the analysis in Lister. We are also of the view that the analysis in Lister is preferable In our view, there is no inconsistency in the decisions in Wel1and county and in Lister. The Welland County decision specifically contemplates collective agreements providing for benefits not covered by workers' compensation. We agree with the Tribunal's decision in WeIland County to the effect that the parties may negotiate benefits for employees who may be injured at work in addition to the benefits provided for personal injury under the Workers' Compensation Act Lister does not reject the analysis in Welland County, but, rather, also appears to agree with it. As is noted in Rigglesworth, however, that case can be distinguished from Lister on the basis of its different facts The facts of this case are similar to those in Lister. Here, where a claim for damages for personal injury arising from an accident in the course of employment has been made before and accepted by the Workers' Compensation Board, it is our view that the Grievance Settlement Board cannot award additional damages ..;~ .. ( 10 for personal injury on the basis of providing a remedy for a breach of Article 18 of the Collective Agreement Accordingly, it is our conclusion that the Employer is correct in its position that in certain respects the claims before us relate to matters that are properly within the exclusive jurisdiction of the tribunals established pursuant to the Workers' Compensation Act. In particular, those matters are the claims for replacement damages, general damages and damages for a permanent disability As the Employer has acknowledged, the claims for a declaration and a compliance order are matters that clearly fall within this Board's jurisdiction. We make no decision at this point as to the other claims asserted by the Union on behalf of the grievor and will address those matters as necessary upon determining the merits of the dispute before us Dated at Toronto, this 4thday of February, 1997 ~~{' S L Qe~e-Chair F Collict - Memhp.r I UJr-ttVr- \~ _./ S Urbain - Member