HomeMy WebLinkAbout1995-0131.Latimer.04-03-05 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 1995-0131 1995-0132, 1995-2132
UNION# 95A500 95A501 96C063
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(LatImer) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Susan D Kaufman Vice-Chair
FOR THE UNION Nelson Roland
Ryder Wnght Blair & Doyle
Barnsters and SOlICItorS
FOR THE EMPLOYER Greg GledhIll
StraffRelatIOns Officer
Mimstry of Commumty Safety and
CorrectIOnal ServIces
HEARING August 13 2003 and February 4 2004
2
IMPLEMENTATION DECISION
The DecIsIOn on the ments In thIS matter was Issued on May 24 2001 An
ImplementatIOn heanng concermng remedy was held on August 13 2003
The undertakIngs gIven by the employer on August 13 2003 regardIng ItS
ImplementatIOn of certaIn dIrectIOns gIven In the DeCISIOn dated May 24 2001 and other
Orders respectIng dIsclosure and dIrectIng Mr Roland and Mr GledhIll to hold certaIn
InfOrmatIOn In stnct confidence were set out In an Intenm rulIng dated August 28 2003
I receIved the folloWIng Items from the Gnevance Settlement Board subsequent to
the August 28 2003 Intenm rulIng
1) October 6 2003 copy of a letter dated October 2, 2003 from Mr
Roland to Mr GledhIll and a copy of a FunctIOnal AbIlItIes Form dated
Sept. 22/03
2) November 4 2003 letter from Mr GledhIll dated November 4 2003
(copy to Mr Roland, Ms Ravensdale, Mr Chenard) pertaInIng to
Umon's wntten response to Employer's August 13 2003 submIssIOns
3) November 6 2003
a) letter from Mr Roland to me wIth a copy of a medIcal
specIalIst's report dated October 8 2003
b) copy of letter dated October 22, 2003 from Mr Roland to Mr
GledhIll and 4 pages pertaInIng to the calculatIOn of lost wages,
benefits, Interest and damages on behalf of the Umon,
4) November 26 2003 letter from Mr Roland dated November 6 2003
wIth copy of a medIcal speCIalIst's report dated November 6 2003
5) December 10 2003 letter from Mr Roland dated November 28 2003
requestIng reconvemng of ImplementatIOn heanng;
6) December 4 2003 letter from Mr GledhIll dated December 4 2003
regardIng Mr Roland's request.
A further ImplementatIOn heanng was held on February 4 2004
1. Compensation for Economic Losses.
The May 24 2001 DecIsIOn dIrected, among other thIngs
The gnevor IS to be compensated for all wages, Interest, benefits and
credIts lost as a result of the ImpOSItIOn of dIscIplIne floWIng from Supt.
Chevner's letter dated May 17 1995 and Mr March's letter dated
October 1995 (DecIsIOn, page 208 numbered para. 8)
3
The gnevor IS to be compensated and made whole, wIth Interest, for
all loss of salary benefits and semonty she Incurred (wIth the
exceptIOn of the claim for overtIme anSIng out of the employer's decIsIOn
not to send her on the refresher course In March 1998 and 1999),
IncludIng but not lImIted to the dIfference between her regular pay and the
Short Term SIckness Plan benefits she receIved folloWIng the Jan. 15 and
Jan 16 1997 IncIdents and the May 9 1999 IncIdent, and for losses anSIng
as a result of the ImpOSItIOn of dIscIplIne I wIll remaIn seIsed wIth
respect to quantum (DeCIsIOn, page 212-213 numbered para. 2)
The employer IS to compensate the gnevor for paIn and suffenng, loss of
dIgmty and mental angUIsh as a consequence of ItS actIOns I wIll remaIn
seIsed wIth respect to quantum of the partIes are unable to agree
(DecIsIOn, page 213 numbered para. 6)
The partIes have been unable to agree as to quantum.
On August 13 2003 the employer proposed that the folloWIng calculatIOns
represent the gnevor's entItlement under the May 24 2001 DecIsIOn
Pre - May 9,1999 Liability
LTIP 473489 (to top up the LTIP payments the Gr receIved)
SuspenSIOn 1796 76 (to replace the salary Gr lost due to her
suspenSIOns
OvertIme 1925 10 (to compensate the overtIme the Gr lost)
VacatIOn CredIts 1061457 (62 03 credIts x 8 x 21 39/per hour)
Comp Leave credIts 119784 (to replace 7 stat days the Gr mIssed)
Total 20269 16
May 9 - March 24, 2000
May 9/99 left early USIng 5 5 hrs TIL 11880 (5 5 x 8)
(TIL = tIme In lIeu)
May 12 to Oct 8 USIng credIts to supp sIck 418349 (24.21 vacatIOn credIts)
Oct 8 to Nov 7/99 on sIck leave (75%) 1035 07 (25% lost pay)
Nov 8 - Dec 31/99 lost pay 691200 (21 60 x 8 x 40 days)
Jan 1 - Mar 24/00 lost pay 10407.20 (21 89 x 8 x 60 days)
Total 22756 56
Grand Total 20269 16 + 2275656 = 43025.72
Damages $5 000 00
4
In the fax I receIved on November 6 2003 and on February 4 2004 the
umon accepted the employer's figure of $22,756 56 to compensate the gnevor for her lost
pay between May 9 1999 and March 2000 and accepted the baSIS of the employer's
calculatIOns, provIded on August 13 2003 as follows
May 9 5 5 hrs of tIme In lIeu
5 5 hr x $21 60/hr $ 118 80
May 12 - Oct. 8/99
24 21 8-hr days x $21 60/hr $ 4 183 49
(Gnevor used 2421 8-hr vacatIOn
credIts)
Oct. 8 - Nov. 9/99
6 25 8-hr days x $21 60/hr $ 1 035 07
(Gnevor on SIck leave benefits
and used 6 25 8-hr day SIck
credIts In thIS penod to top up)
Nov. 8 - Dec. 31/99
40 days x 8hr/da x $21 60/hr $ 691200
(Gnevor was not paid dunng thIS penod)
Jan. 1 - Mar. 24, 2000
60 days x 8hr/da x $21 89/hr $10,507.20
Total $22,756 56
The partIes stated theIr pOSItIOns regardIng the follOWIng Issues
a) Loss ofWa2es While in Receipt of Short Term Sick Benefits.
On August 13 2003 the employer advIsed that for the penod pnor to May 9
1999 under the headIng "VacatIOn CredIts," It was propOSIng to compensate the gnevor
for the dIfference between the short term SIck benefits she had been paid (75% of her
regular pay rate) and her regular pay rate It stated that It calculated that she had taken
the follOWIng numbers of SIck days In the follOWIng years and was entItled to be
compensated for them (at 25% of her regular pay rate) under the Award
Year Number of SIck days
1995 10955
1996 0
1997 123 56
1999 15
Total compensable SIck days 248 11
5
It stated that It arnved at the figure of $10 614 57 by the folloWIng calculatIOn
248 11 days x 25% = 62 03 8-hour days to be compensated at $21 39 per hour
6203 days x 8 x $21 39 = $1061457
The employer advIsed that It had used the term "VacatIOn CredIts" to descnbe Its
calculatIOn of the dIfference between the gnevor's short term sIckness benefits and her
regular pay because the gnevor had used her vacatIOn credIts In 1995 1997 and 1999 In
order to receIve her regular rate of pay whIle on sIck leave The fax whIch I receIved on
Nov 6 2003 IndIcates that the umon accepted the employer's calculatIOn that the
gnevor was entItled to be compensated for the loss of 62 03 days whIle In receIpt of short
term sIckness benefits pnor to May 1999 The umon's figure for that loss was
$1063000 The umon provIded no explanatIOn for the dIscrepancy between ItS and the
employer's figure
I conclude that the gnevor was entItled to be compensated for 62 03 8-hour days
for lost wages whIle In receIpt of sIck benefits pnor to May 9 1999 AccordIng to the
CollectIve Agreement effectIve January 1 1994 to December 31 1998 gnevor's hourly
rate from 1995 untIl Jan. 1 1999 was $21 39 The CollectIve Agreement effectIve
January 1 1999 to December 31 2001 IndIcates that from Jan. 1 1999 to December 31
1999 her hourly rate was $21 60
b) Lost Wa2es While Suspended.
The partIes were agreed that the gnevor was entItled to be compensated for
havIng been suspended for two 12-hour shIfts (24 hours at $21 39 per hour) In 1995 and
five 12-hour shIfts (60 hours at $21 39 per hour) In 1998 The umon dId not dIspute the
employer's calculatIOn of $1 796 76 for that loss
c) Lost Wa2es While on LTIP Benefits.
The employer submItted that the gnevor was entItled to be compensated for the
dIfference between her regular wages and the amount she receIved on L TIP In 1997
AccordIng to ItS records the gnevor had been on L TIP In 1997 for the folloWIng pen ods
of tIme
July 2 days
6
August 19 days
September 21 days
October 22 days
November 19 days
Total 83 days
It advIsed that as L TIP pays 66 2/3 of the employee's regular rate, the gnevor was
entItled to be compensated for one-thIrd of 83 8-hour days 1 e 83 /3 = 26 39 days x 8
hours x $21 60 per hour for a total of $473489 In Its fax whIch I receIved November 6
2003 the umon accepted the employer's figure for thIS loss In 1997 the gnevor's hourly
rate was $21 39 per hour 83/3 = 27666 I calculate her loss for thIS penod whIle In
receIpt ofLTIP benefits to have been 2766 days x 8 hours x $21 39 per hour = $4734 32
d) Loss of Statutory Holiday Pay:
The employer advIsed that the gnevor had mIssed two 8-hour statutory holIdays
In 1995 and five 8-hour statutory holIdays In 1997 for whIch she was entItled to be
compensated at $21 39 per hour for a total of $1 197 84 The umon agreed wIth the
employer's final figure for thIS loss
e) Loss of Overtime Pay:
On August 13 2003 the employer proposed that the gnevor was entItled to
compensatIOn for 90 hours of mIssed overtIme between 1995 and 1999 at $21 39 per hour
(90 x $21 39 = $1925 10) By fax whIch I receIved Nov 6 2003 the umon accepted the
employer's figures regardIng overtIme On February 4 2004 the employer IndIcated that
the gnevor had worked overtIme 45 55 hours In 1998 and that It had credIted her wIth
45 55 hours for each of 1999 and 2000 It stated that that was the basIs upon whIch It had
concluded that It should compensate her for 90 hours of lost overtIme for 1999 and 2000
at $21 39 per hour The umon IndIcated that It questIOned the number of overtIme hours
the employer credIted the gnevor NeIther the umon nor the employer was able to
proVIde the actual number of hours the gnevor or C02s on average had worked overtIme
between 1995 and 1999 The umon subsequently stated that It was ready to stIpulate that
the gnevor was entItled to be compensated for 45 56 hours of overtIme per year and dId
not request that the employer present eVIdence to establIsh the basIs upon whIch It had
concluded that the gnevor had lost 90 hours of overtIme In 1999 and 2000 It submItted
7
that the gnevor should be compensated for 45 56 hours of lost overtIme on a "go-
forward" basIs from May 9 1999
In matenal I receIved by fax on November 6 2003 the umon and the gnevor
claimed a loss of twenty-four 8-hour overtIme ShIfts In each of 1999 2000 2001 and
2002 The onus IS upon the umon and the gnevor to prove any loss that she claims On
February 4 2004 the umon and gnevor agreed ImplIcItly that she had lost 45 56 hours of
overtIme In each of 1999 and 2000 No eVIdence was presented to support the
proposItIOn that If the gnevor had been at work In 2000 2001 and 2002, In each of those
years she probably would have had twenty-four opportumtIes to work 8-hour overtIme
ShIfts, and that she would have worked those ShIftS, and that therefore she should be
compensated for those lost opportumtIes, whIch total 192 hours per year
On February 4 2004 the employer submItted that as the gnevor dId not have to
work after March 24 2000 she was not entItled to compensatIOn for lost overtIme after
that date
I conclude, on the InformatIOn agreed to by the partIes, that the gnevor was
entItled to be compensated for 45 56 hours of overtIme for each of 1999 and 2000 Art.
32 7 of the CollectIve Agreements In effect from January 1 1999 to December 31 2001
and from January 1 2002 to December 31 2004 states
The overtIme rate shall be one and one-half tImes the employee's basIc
hourly rate
No reason was proVIded as to why the gnevor was not to be compensated for lost
overtIme at tIme-and-a-half her regular rate The gnevor IS to be made whole for her
reasonably foreseeable losses floWIng from her InabIlIty to attend at the workplace and
perform her dutIes after May 9 1999 Because she was unable to work after May 9
1999 It was reasonably foreseeable that she would lose the opportumty to work overtIme
and the hourly rate assocIated wIth that overtIme I therefore conclude that the gnevor
should be compensated for lost overtIme opportumtIes In 1999 2000 2001 2002 and
2003 at the rate of 45 56 hours per year at tIme-and-a-halfthe hourly rates of $21 89 per
hour In 1999 and 2000 $2232 per hour In 2001 $2426 per hour In 2002 and $24 85 In
2003
n Difference of E.!..
8
In the fax I receIved on November 6 2003 the gnevor claimed the
addItIOnal amount of $6 765 00 as a loss for the year 1999 ThIS was descnbed as
"dIfference ofE I." The onus IS upon the gnevor to prove any loss that she claims On
February 4 2004 neIther the gnevor nor the umon were able to explaIn the claim for the
"dIfference ofE.I." In the absence of any eVIdence explaInIng thIS claim, I am unable to
JustIfy the $6 765 00 claimed, but wIll reserve on the claim subject to proVISIOn of
eVIdence
2) Claim for Compensation for Use of Accumulated Vacation Credits.
The gnevor claimed compensatIOn for 200 hours In "lost vacatIOn pay" In each of
2000 2001 2002 and 2003
On February 4 2004 the partIes were In agreement that the gnevor had used
62 03 days of accumulated vacatIOn credIts to top up the short term SIck pay she had
receIved In 1995 1997 and up to May 9 1999 However they were In dIspute as to
whether the gnevor was entItled to compensatIOn at thIS tIme for the 62 03 days vacatIOn
credIts she used In addItIOn to compensatIOn for the dIfference between her regular rate of
pay and the short term SIck benefits she had receIved.
The employer submItted that It was proper and that It was prepared to compensate
the gnevor for 62 03 days of lost wages, but that the gnevor was not entItled to
compensatIOn for havIng used up her accumulated vacatIOn credIts, and that the remedy
to whIch she was entItled was that she be re-credIted her vacatIOn credIts The gnevor It
submItted, was not entItled to be paid out for the lost vacatIOn credIts, as to do so would
be to pay her tWIce for the same loss
The umon submItted that the gnevor IS entItled to compensatIOn for two separate
losses, whIch are two dIfferent heads of damages It submItted that the gnevor was
underpaid by 25% whIle on Short Term SIck Leave benefits, and, In addItIOn, was
Improperly forced to use up her vacatIOn credIts to top up her Income The employer
should restore the gnevor's vacatIOn credIts, and the gnevor should be able to cash them
out. ThIS approach would make her whole, as dIrected
9
The employer submItted that the gnevor's vacatIOn credIts would eIther be
paid out on termInatIOn of her employment, or at thIS tIme, dependIng upon the Board's
order
AccordIng to the employer's records, wIth whIch the umon dId not take Issue
pnor to May 9 1999 the gnevor had 62 03 8-hour vacatIOn day credIts whIch she used to
top up her short term sIckness benefits, and from May 12 to October 8 1999 she used
24 21 vacatIOn credIts to top up her short term sIckness benefits Thus, It would appear
that the gnevor used a total of 86.24 vacatIOn days to supplement her Income between
1995 and October 8 1999 On August 13 2003 the employer submItted that the gnevor
had accumulated a further 6.25 vacatIOn credIts, and that she had a total of 9249 credIts,
whIch she should use up over a two year penod.
The purpose of vacatIOn pay put SImply IS to enable an employee to be absent
from work on vacatIOn tIme wIthout loss of pay 1 e to have a paid vacatIOn. The gnevor
may be entItled under the CollectIve Agreement to earn e g. 25 vacatIOn credIts per year
whIch, If she were at work, would enable her to theoretIcally take 25 paid vacatIOn days
off work each year The benefit IS realIzed In paid tIme off from work. However the
gnevor has not been at work SInce May 9 1999 In March, 2000 the employer was
ordered to pay the gnevor' s salary In full pendIng a final resolutIOn of thIS dIspute or a
further Intenm order of the Board, or the anSIng of other stated CIrcumstances (see FIfth
Intenm RulIng, p 31-32, para. 3)
There IS no eVIdence before me that SInce March, 2000 the Gnevor has not been
reCeIVIng her full salary for 52 weeks each year whIle not at work. Has a loss of her
vacatIOn benefit for whIch she IS entItled to compensatIOn at thIS tIme emerged?
The CollectIve Agreement In force January 1 1999 to December 31 2001 and the
subsequent Agreements proVIde a system whereby an employee accumulates vacatIOn
credIts In accordance WIth the number of years of contInUOUS servIce (Art. 46 1) Art.
46 7 proVIdes
An employee WIth over (6) months of contInUOUS servIce may WIth the
approval of the Deputy Mimster take vacatIOn to the extent of hIS or her
vacatIOn entItlement and hIS or her vacatIOn credIts shall be reduced by
any such vacatIOn taken.
10
The CollectIve Agreement does not contemplate that an employee wIll
receIve pay In lIeu of vacatIOn tIme not taken, except In very speCIfic cIrcumstances Art.
46 11 states
An employee who has completed SIX (6) or more months of contInUOUS
servIce shall be paid for any earned and unused vacatIOn standIng to hIS or
her credIt at the date he or she ceases to be an employee or at the date he
or she qualified for payments under the Long Term Income Protection
plan as defined under ArtIcle 42, (emphaSIS added)
There IS no doubt that the gnevor had to use up her vacatIOn credIts, and In dOIng
so Incurred a kInd ofloss Those credIts were removed from her "vacatIOn credIts bank."
However the credIts had no actual cash value In the "vacatIOn credIts bank" untIl she
ceased to be an employee or qualIfied for LTIP She has lost the abIlIty to realIze the
benefit of paid vacatIOn tIme off, preCIsely because she IS not workIng. She has remaIned
an employee, and the partIes adVIse me that SInce May 9 1999 her last day at work, the
Insurance carner has not found her qualIfied for payments under L TIP
Because she IS to be compensated for the dIfference between her regular wages
and amounts she receIved whIle on STSB and L TIP the gnevor has Incurred no actual
monetary loss In havIng used her vacatIOn credIts to supplement her short term SIck
benefits and L TIP benefits Further If her vacatIOn credIts are restored to her she wIll be
returned to the same pOSItIOn she would have been In had she not had to use them up and
therefore wIll be "made whole" In that regard. As well, It appears from ArtIcle 46 11
that as she remaInS an employee, she IS not entItled to cash out those credIts except In the
CIrcumstances agreed to by the partIes
It remaIns to be seen whether the gnevor wIll be able to return to work In the
future and realIze the benefit of the accumulated vacatIOn credIts In the form of paid
vacatIOns In these Intenm and unusual cIrcumstances, I conclude that the gnevor IS not
entItled at thIS tIme to receIve compensatIOn for the vacatIOn credIts
I also conclude that In these unusual cIrcumstances, to be "made whole" the
gnevor IS entItled to accumulate vacatIOn credIts annually from May 9 1999 WIthout the
applIcatIOn of Art. 46 5 Art. 46 5 states
11
An employee may accumulate vacatIOn to a maXImum of tWIce hIS or
her annual accrual but shall be reqUIred to reduce hIS or her
accumulatIOn to a maXImum of one (1) year's accrual by December 31 of
each year
h) Claim for Statutory Holiday Pay:
In the matenal faxed to me on November 6 2003 the umon and gnevor claimed
compensatIOn for seven days of statutory holIday pay In 1999 and for eleven days of lost
statutory holIday pay In each of2000 2001 2002 and 2003
On August 13 2003 the employer's submIssIOns IndIcated that the gnevor was
entItled to compensatIOn for lost pay for statutory holIdays whIch arose dunng the her
absences from work In 1995 and 1997 On February 4 2004 the employer submItted
that "statutory holIdays are Included" In the regular salary It had been paYIng her
pursuant to the March, 2000 Intenm rulIng. No eVIdence was provIded In support or In
dIspute of the employer's statement on February 4 2004
I conclude that had the gnevor been at work after May 9 1999 she would have
been entItled to statutory holIday pay for seven holIdays, and that In 2000 2001 2002
and 2003 she would have been entItled to statutory holIday pay for eleven holIdays The
gnevor IS to be made whole for her losses, whIch Includes statutory holIday pay If she
Incurred that loss It IS pOSSIble that the employer has compensated the gnevor for
statutory holIday pay SInce the March, 2000 Intenm rulIng, and has, thus, made her whole
In regard to that loss to date The onus IS upon the umon and the gnevor to establIsh that
she was not compensated for seven holIdays In 1999 and that she was not compensated
for eleven holIdays In each of2000 2001 2002 and 2003 The umon and the gnevor can
reVIew her records for those pen ods and can request the employer's records of ItS
payments to the gnevor and reVIew them I will reserve on the issue of statutory
holiday pay pending receipt of further evidence from either party and will remain
seised in respect of it.
i) Miti2ation of Dama2es.
On August 13 2003 the employer submItted that the gnevor was oblIged to
mItIgate her damages and that she had faIled to cooperate and proVIde medIcal
12
InfOrmatIOn to ManulIfe FInancial, the L TIP carner and that had she provIded that
InfOrmatIOn she would have receIved LTIP benefits from November 14 2001 The
employer submItted that It would not have been lIable to make the gnevor whole after she
went on L TIP The employer claimed reImbursement for the dIfference between the
gnevor's L TIP entItlement and what It had paid her or alternatIvely the dIfference
between the gnevor's L TIP entItlement and the losses for whIch It must compensate her
It submItted that It was Incumbent on the gnevor to apply for L TIP as L TIP was referred
to In numbered paragraph 21 on p 221 of the May 24 2001 DecIsIOn.
The umon submItted that the Intenm rulIng pursuant to whIch the employer was
paYIng the gnevor's salary was made for reasons set out In that order and that the
employer could have challenged the rulIng at any tIme by seekIng JudIcIal reVIew or by a
request for a reconSIderatIOn. Without admIttIng that the employer's claim was a
legItImate one, It submItted that the employer's complaInt that the gnevor should have
applIed for L TIP agaIn would only be legItImate from today the day It was first raised. It
submItted that the medIcal InfOrmatIOn produced pursuant to the Board's orders pertaIn to
commumcatIOn between the gnevor and the employer and was not produced for a new or
contInuIng applIcatIOn for L TIP benefits It was produced to permIt the arbItrator to craft
a final remedy IncludIng a possIble return to work and Job locatIOn. The employer's
submIsSIOns as to whether the gnevor would have qualIfied for L TIP or any form of
Income maIntenance are speculatIve
The onus IS upon the employer to prove that the gnevor faIled to mItIgate her
damages The partIes have advIsed me that the gnevor applIed for L TIP In 1999/2000
and that the Insurer carner dId not consIder her qualIfied for L TIP payments As no
dIrect eVIdence was presented In support of the employer's allegatIOns regardIng her
actIOn or InactIOn and the pOSItIOn that the carner would have taken as to whether the
gnevor would have qualIfied for L TIP benefits If she had re-applIed, I am unable to
conclude that the gnevor has faIled to mItIgate her damages
j) Interest:
13
On August 13 2003 the employer stated that It would pay Interest on the
compensatIOn It proposed to pay to the gnevor
In the fax receIved November 6 2003 the umon and the gnevor claimed
$2,275 65 In Interest on compensatIOn of $22,756 56 proposed by the employer for the
penod from May 9 1999 to March, 2000 I conclude that 10% Interest was claimed on
$22,756 56 for that entIre penod. NeIther the gnevor nor the umon were able to explaIn
the baSIS of that aspect of the gnevor's claim of further losses In 1999 The pre-judgment
Interest rates for 1999 under the s 127 of the Ontano Courts of Justice Act RS 0 1990
Ch. C 43 were 5 3% for the 1st Quarter 5 3% for the 2nd Quarter 48% for the 3rd Quarter
and 4 8% for the 4th Quarter The rate for the 1st Quarter of 2000 was 5 0% The
gnevor's claim of 10% Interest on $22,756 56 wIll not be accepted.
The employer has had the use of the money compensable to the gnevor SInce her
losses were Incurred, startIng In 1995 In VIew of the approxImately mne years whIch
have passed dunng whIch the gnevor began to Incur vanous losses, I conclude that the
"rough and ready" approach to the calculatIOn of Interest In Halloyt,ell House Ltd and
S.E.I U Loc 183 [1980] O.L.RB Rep Jan. 35 (PIcher) IS not sUItable to the
CIrcumstances of thIS case
In Gibson, 1478/89 the Board stated
In Canadian Broadcasting Corp and NR.P.A. (1995) 45 L.AC (4th) 444
(Burkett) payment had not been made from "March 26 1989 to Apnl 1993" a
penod of 4 years Compound Interest, as opposed to annual Interest was awarded,
for the follOWIng reasons
I start by confirmIng that I am not actIng under nor bound by the
Courts of Justice Act I take my jUnSdIctIOn from the collectIve agreement
and from the Canada Labour Code RS C 1985 c L-2 In thIS regard I
have a remedIal power to respond to any breach of the collectIve
agreement WIth the ObjectIve of makIng the aggneved party/person whole
CollectIve agreements, whIch contaIn freely negotIated terms and
condItIOns of employment, are the underpInmng of the statutonly
sanctIOned system of labour relatIOns In thIS jUnSdIctIOn. It IS only by
provIdIng full and effectIve remedIes to breaches of a collectIve agreement
that thIS system of labour relatIOns can be made to functIOn as parlIament
Intended It IS for thIS reason that an aggneved party/person IS
compensated for any losses occasIOned by a breach of a collectIve
agreement and, In the more recent past, has receIved Interest on the
14
compensatIOn OWIng. In Re Canada Post Corp and C UP W
(retroactIvIty ImplementatIOn) November 19 1992 (Burkett) I
dIscussed the awardIng of Interest In the folloWIng terms
The reqUIrement to pay Interest IS not tnggered by employer
recalcItrance Rather It IS tnggered by the remedIal ObjectIve of
makIng the aggneved party whole The corporatIOn has had the
use of thIS money from the date as of whIch It was reqUIred to be
paid to the aggneved employees and, conversely these employees
have suffered the loss of thIS money from the date as of whIch It
was reqUIred to have been paid The dIfficultIes posed In
InterpretIng the collectIve agreement, whIle gIVIng nse to the
Issues In dIspute, do not In some way lessen the effect of a findIng
of a breach nor should the InterpretatIve dIfficultIes cause an
arbItrator to do other than attempt to make the aggneved party
whole It IS not open to the party that has breached the collectIve
agreement to argue that even though It has been found to have
vIOlated the collectIve agreement the gnevors should not be made
whole because the collectIve agreement was dIfficult to Interpret or
apply
The ObjectIve must always be to make the aggneved party/person whole
regardless of whether or not the breach can be charactenzed as a breach of
trust or otherwIse egregIOus
AgaInst thIS backdrop I turn to the questIOn of whether the Interest
In thIS case where payment was not made for a penod of years, should be
sImple Interest or compound Interest. In thIS regard I am drawn to the
analysIs of Lord Denmng M.R. In Wallersteiner v Moir (No 2) [1975] 1
All E.R. 849 (as referred to In Brock v Cole supra) The learned judge
reasoned as follows [at p 856]
In eqUIty Interest IS awarded whenever a wrongdoer depnves a
company of money whIch It needs for use In ItS busIness It IS
plaIn that the company should be compensated for the loss thereby
occasIOned to It. Mere replacement of the money --- years later ---
IS by no means adequate compensatIOn, espeCIally In the days of
InflatIOn. The company should be compensated by the award of
Interest But the questIOn anses should It be sImple Interest or
compound Interest? On general pnncIples I thInk It should be
presumed that the company (had It not been depnved of the
money) would have made the most beneficIal use open to It
AlternatIvely It should be presumed that the wrongdoer made the
most beneficIal use of It. But, whIchever It IS, In order to gIve
adequate compensatIOn, the money should be replaced at Interest
WIth yearly rests 1 e compound Interest.
15
I can see no reason why I should not apply the same reasomng. The
corporatIOn breached the collectIve agreement whIch, even assumIng
that It was unaware at the tIme, had the effect of depnvIng the gnevors of
the payments reqUIred under theIr respectIve contracts ApplYIng the
ratIOnale of Lord Denmng M.R. In Wallersteiner supra, to the ObjectIve
of makIng the gnevor(s) whole I am compelled to clanfy my ImtIal award
to the extent of dIrectIng that compound Interest be paid on the amount
OWIng
We find the above reasomng compellIng and applIcable to the
CIrcumstances of thIS case, where the delay In compensatIng the gnevor has been
much longer
The length of tIme In whIch the amounts compensable to the gnevor have
remaIned outstandIng are In excess of those In C.B C supra, and In Gibson supra and
the same approach to Interest as a means of makIng the gnevor whole IS JustIfied She IS
entItled to Interest compounded annually at the Interest rate at the end of each of the years
to whIch her losses are attnbutable, 1 e from the end of 1999 to the end of the most recent
year 2003 I conclude that the grievor is entitled to receive interest on the losses she
incurred in each of those years, at the Prejudgment Interest Rate under the Ontario
Courts of Justice Act for the average of the rate at the 4th Quarter of the end of each
year and the 1st Quarter of the following year, compounded annually
k) Potential Loss Due to Increased Tax Rate in Year of Receipt:
No award for monetary loss wIll compensate the gnevor for the losses she
Incurred to the penny However the amounts, as calculated, are Intended to restore the
gnevor to the approXImate posItIOn she would have been In finanCIally but for the
actIOns of the employer whIch were found to be In breach of the CollectIve Agreement.
If the gnevor declares for tax purposes all the compensatIOn she receIves for
losses of wages Incurred In the past years In the year In whIch she receIves the
compensatIOn, she wIll lIkely be taxed at a hIgher rate on her Income In that year than the
rate that would otherwIse have applIed If she had receIved and declared the amounts In
the years In whIch the losses were Incurred. That tax Impact IS a further loss The Impact
of an Increased tax rate In the year of receIpt of the compensatIOn awarded In lIeu of
losses In prevIOUS years has been conSIdered by the Board In Grinius 1495/89 to have
16
been a reasonably foreseeable loss anSIng from the conduct of the employer and
therefore compensable The amounts of compensatIOn for lost wages to whIch the
gnevor was entItled In each year may retroactIvely Impact upon the rate upon whIch she
may be taxed In each year
At page 14 In Grinius supra, ArbItrator FIsher stated " any such payment In
Itself wIll be taxable Income" and that payment must be grossed up by the employer so
that the total amount IS sufficIent to compensate the gnevor for any tax dIfferentIal
ansIng from payment of a lump sum The reasomng In Gnmus IS persuasIve and
compellIng and I conclude that It IS applIcable to the gnevor's sItuatIOn, In order to make
her whole
I therefore conclude that the grievor is to be compensated by the employer
for any additional income taxes imposed upon her as a result of receiving a lump
sum in lieu of her losses over about nine years, in the year she receives them, subject
to the following considerations.
Fairly recent amendments to the Income Tax Act and regulatIOns may enable the
employer to report to the Canada Customs and Revenue Agency (CCRA) the years to
whIch the wage losses for whIch the gnevor IS beIng compensated are attnbutable, and
the amounts for each such year whIch may result In the gnevor's tax lIabIlIty for each of
the pnor years beIng recalculated. That would have the effect of makIng her whole In
terms of tax Impact In each of those years It would aVOId ImpOSIng upon the gnevor the
tax dIfferentIal In the year of payment, 2004 If the employer provIdes that InfOrmatIOn
(and any other InformatIOn reqUIred) to the CCRA promptly and If the CCRA
recalculates the gnevor's taxes for the years to whIch each amount IS attnbutable, the
employer wIll not be reqUIred to compensate the gnevor by groSSIng up the amount It
must compensate her
I) Calculation of Monetary Losses to end of 2003.
On the eVIdence before me, and for the reasons stated above, I calculate the gnevor's
monetary losses and Interest thereon by the year In whIch the loss was Incurred
17
1995
Lost Wages whIle on Short Term SIck Benefits.
1095 days x 25% = 27 375 days x 8 hr/da x $21 39/hr = $ 468441
Lost Wages Dunng SuspensIOns.
two 12-hr ShIftS = 24 hrs x $21 39/hr = $ 513 36
Lost Wages for Statutory HolIdays.
two 8-hr ShIftS = 16 hrs x $21 39/hr = $ 342.24
Total lost wages for 1995 $ 5 54001
Interest.
4th Quarter '95 rate 66% 1996 Interest ($5 54001 x 0635) 351. 79
1 st Quarter ' 96 rate 6.1% pnncIpal and Interest $ 5 891 80
Total 12 7% 1997 Interest ($5 891 80 x 0635) 374.13
pnncIpal and Interest $ 6,265 93
Average 635% 1998 Interest ($6,26593 x 0635) 397.88
pnncIpal and Interest $ 6 663 81
1999 Interest ($6 663 81 x 0635) 423.15
pnncIpal and Interest $ 708696
2000 Interest ($708696 x 0635) 450.02
pnncIpal and Interest $ 7 536 98
2001 Interest ($7 53698 x 0635) 478.60
pnncIpal and Interest $ 8015 58
2002 Interest ($8015 58 x 0635) 508.99
pnncIpal and Interest $ 8 524 57
2003 Interest ($8 52457 x 0635) 541.31
pnncIpal and Interest $ 9 065 88
Total lost wages in 1995 and interest to end 2003 $9,065.88
1996
No monetary loss
18
1997
Lost Wages whIle on Short Term SIck Benefits.
123 5 days x 25% = 30 875 days x 8 hr/da x $21 39/hr = $ 5,283 33
Lost Wages whIle on LTIP.
83 days x 1/3 = 2766 days x 8 hr/da x $21 39/hr = $ 4 734 32
Lost Wages for Statutory HolIdays.
five days x 8 hr/da x $21 39/hr = $ 855.60
Total Wage Loss for 1997 $10,873.25
Interest.
4th Quarter' 97 rate 35% 1998 Interest ($10873 25 x 0375) 407.75
1 st Quarter' 98 rate 4.0% pnncIpal and Interest $11,281 00
Total 75% 1999 Interest ($11,281 00 x 0375) 423.04
pnncIpal and Interest $11 70404
Average 375% 2000 Interest ($11 70404 x 0375) 438.90
pnncIpal and Interest $12,13294
2001 Interest ($12,132 94 x 0375) 455.36
pnncIpal and Interest $12,58830
2002 Interest ($12,58830 x 0375) 472.06
pnncIpal and Interest $13 03036
2003 Interest ($13 03036 x 0375) 489.76
pnncIpal and Interest $13 520 12
Total lost wages in 1997 and interest to end 2003 $13,520 12
1998
Lost Wages Dunng SuspensIOns.
five 12-hr shIfts = 60 hrs x $21 39/hr = $ 1,283 40
Interest.
4th Quarter 1998 rate 60% 1999 Interest ($1,28340 x 0565) 72.51
1 st Quarter 1999 rate 5.3% pnncI pal and Interest $ 1 35591
Total 113% 2000 Interest ($1 35591 x 0565) 76.61
pnncIpal and Interest $ 1 432 52
Average 565% 2001 Interest ($1 43252 x 0565) 80.94
pnncIpal and Interest $ 1 513 46
2002 Interest ($1 513 46 x 0565) 85.51
pnncIpal and Interest $ 1 598 97
2003 Interest ($1 598 97 x 0565) 90.34
pnncIpal and Interest $ 1 689 31
Total lost wages in 1998 and interest 1999 to end 2003 $1,689.31
19
1999
Lost Wages whIle on Short Term SIck Benefits pre-May 9, 1999.
15 days x 25% = 3 75 days x 8 hr/da x $21 60/hr = $ 648 00
Lost Wages May 9 - Dec. 31, 1999.
May 9, 1999 5 5 hrs x $21 60/hr = $ 118 80
May 12 - Oct. 8, 1999
loss of 25% of regular wages
2421 days x 8-hr/da x $21 60/hr = $ 4 183 49
(24.21 days of vacatIOn credIts used to supplement)
Oct. 8 - Nov. 7, 1999.
loss of 25% of regular wages
used 6 25 8-hr/da sIck credIts
625 x 8hr/da x $21 60/hr $ 1 080 00
Nov. 8 - Dec. 31, 1999.
Gnevor not paid
40 days x 8hr/da x $21 60/hr $ 691200
Lost OvertIme.
45 56 hrs/yr x $21 60/hr x 1 5 = $ 1,476.14
Total Wage Loss for 1999 $14,418.43
Interest.
4th Quarter 1999 rate 48% 2000 Interest ($14 418 43 x 049) 706.50
1 st Quarter 2000 rate 5.0% pnncIpal and Interest $15 12493
Total 98% 2001 Interest ($15 12493 x 049) 741.12
pnncIpal and Interest $15 86605
Average 49% 2002 Interest ($15 866 05 x 049) 777.44
pnncIpal and Interest $16643 49
2003 Interest ($16 643 49 x 049) 815.53
pnncIpal and Interest $17 459 02
Total lost wages in 1999 and interest 2000 to end 2003 $17,45902
20
2000
January 1 to Mar. 24, 2000.
60 days lost wages
60 da x 8 hr/da x $21 89/hr = $ 10507.20
Lost OvertIme.
45 56 hrs/yr x $21 89/hr x 1 5 = $ 1,495.96
Total Wages Lost in 2000 $12,003 16
Interest
4th Quarter 2000 rate 6 0% 2001 Interest ($12,003 16 x 06) 720.19
1 st Quarter 2001 rate 6 0% pnnCI pal and Interest $12,723 35
2002 Interest ($12,72335 x 06) 763.40
Average rate 60% pnncIpal and Interest $13 486 75
2003 Interest ($13 48675 x 06) 809.21
pnncIpal and Interest $14,295 96
Total lost wages in 2000 and interest 2001 to end 2003 $14,295.96
2001
Lost OvertIme.
45 56 hrs/yr x $22 32 /hr x 1 5 = $ 1 52535
Interest
4th Quarter 2001 rate 43% 2002 Interest ($1 52535 x 034) 51.86
1 st Quarter 2002 rate 2 5% pnncI pal and Interest $ 1 577.21
Total 68% 2003 Interest ($1 577.21 x 034) 53.63
pnncI pal and Interest $ 1 630 84
Average 34%
Total lost wages in 2001 and interest 2002 to end 2003 $1,630.84
2002
21
Lost OvertIme.
45 56 hrs/yr x $24.26 /hr x 1 5 = $ 1 657 93
Interest.
4th Quarter 2002 rate 3% 2003 Interest ($1 65793 x 03) 49.73
1 st Quarter 2003 rate 3% pnncI pal and Interest $ 1 707 66
Average 3%
Total lost wages in 2002 and interest to end 2003 $1,70766
2003
Lost OvertIme.
45 56 hrs/yr x $24 85 /hr x 1 5 = $ 1 698.25
Total lost wages in 2003 $1,698.25
Review and total of monetary compensation and interest to end 2003
Total lost wages in 1995 and interest to end 2003 $ 9,065.88
Total lost wages in 1997 and interest to end 2003 $13,520 12
Total lost wages in 1998 and interest 1999 to end 2003 $ 1,689.31
Total lost wages in 1999 and interest 2000 to end 2003 $17,45902
Total lost wages in 2000 and interest 2001 to end 2003 $14,295.96
Total lost wages in 2001 and interest 2002 to end 2003 $ 1,630.84
Total lost wages in 2002 and interest to end 2003 $ 1,70766
Total lost wages in 2003 $ 1.698.25
Total lost wages and interest to end 2003 $61,067 04
R Other Issues.
a) Disclosure of Medical Information and Eli2ibility for LTIP:
With reference to paragraphs 18 19 and 20 of the DecIsIOn, on August 13 2003
the partIes were In dIspute as to whether the gnevor was reqUIred to provIde further
medIcal InformatIOn as It was alleged that the tIme-lInes In those paragraphs had not been
complIed wIth The August 13 2003 Intenm rulIng dIrected the gnevor to provIde
22
certaIn medIcal reports, and the partIes' representatIves to hold the InformatIOn
contaIned In the gnevor's specIalIst(s)' wntten OpInIOn(s) In stnctest confidence, and that
the contents of those OpInIOnS are to be dIsclosed only to me, pendIng the Issuance of a
further order or untIl the partIes agree In wntIng to other arrangements The gnevor has
SInce provIded the reports Mr Roland and Mr GledhIll are dIrected to contInue to hold
the InformatIOn contaIned In the speCIalIsts' reports In stnctest confidence pendIng the
Issuance of a further order or untIl the partIes agree In wntIng to other arrangements
On February 4 2004 the umon stated that It was seekIng the Board's dIrectIOn
wIth respect to the gnevor's future entItlements, In VIew of the medIcal OpInIOnS It had
provIded. It stated that the purpose of the May 24 2001 DecIsIOn was to mItIgate the
CIrcumstances In the work envIronment whIch caused the gnevor to go off work and
necesSItated an OpInIOn as to a date of return. It submItted that one of the maj or
detoxIficatIOn efforts ordered only occurred In October of 2003 and that the Umon
cannot advIse the Board of the effect of such measures on whether the gnevor could
return to work, as It could not tell the doctors who provIded the reports of those efforts,
not havIng been Informed of them It submItted that untIl the Board's dIrectIOns have
been entIrely complIed WIth and the doctors' further Input IS obtaIned, It IS premature to
deal WIth the gnevor's return to work. Consequently It submItted, the Intenm rulIng
requmng the employer to pay the gnevor her salary should contInue untIl the employer
provIdes the InformatIOn regardIng complIance, and ItS true effect has been determIned.
ThIS IS a contInUatIOn of the enforcement mechamsm of the May 24 2001 DeCISIOn and
the arbItrator should remaIn seIsed.
The employer submItted that the Intenm rulIng requmng the employer to pay the
gnevor her salary should be termInated at thIS tIme It stated that It IS prepared to pay the
gnevor short term SIck benefits (STSB) for SIX months It stated and that at the fourth
month, It IS suggested that the employee complete an applIcatIOn for L TIP so that by the
end of SIX months, L TIP has all the pertInent InformatIOn. The proVISIOns In the
CollectIve Agreement contemplate an employee applYIng for Employment Insurance SIck
benefits and/or Canada PenSIOn Plan dIsabIlIty benefits In case of a lapse between STSB
23
and L TIP The employer submItted that It would pay the gnevor STSB
notwIthstandIng that Art. 44.2 states
An employee IS not entItled to leave of absence wIth pay under ArtIcle
44 1 untIl he or she has completed twenty (20) consecutIve workIng days
of employment.
and the gnevor had not worked for 20 days SInce 1999 and had used up her sIck benefits
In that year The employer submItted that It was not prepared to Waive Art. 44 2 for the
gnevor but was prepared to pay her 124 days of sIck benefits relYIng on the medIcal
InformatIOn she had provIded. The employer submItted that eIther the gnevor was
elIgIble for LTIP at the end of 124 days, or she was not, and that the arbItrator should not
remaIn seIsed.
The employer submItted that the gnevor had not complIed WIth a reqUIrement In
the May 24 2001 DeCISIOn to proVIde medIcal InfOrmatIOn untIl 2003 and that to
contInue paYIng her regular salary would be a vIOlatIOn of the CollectIve Agreement. It
submItted that the gnevor has nghts to benefits under the CollectIve Agreement If she IS
not capable of workIng, and that she should be ordered to be placed on Short Term
SIckness Benefits The employee's medIcal condItIOn wIll play out as It wIll It wIll be
determIned by the Insurer
The umon submItted that due to the employer's faIlure to carry out the
detoxIficatIOn orders gIven In 2001 It would be premature to put the gnevor on benefits
It submItted that the employer receIved medIcal InformatIOn In July 2001 and that
detoxIficatIOn was to take place by then. Both partIes are at fault. However
detoxIficatIOn should occur before any determInatIOn of whether the gnevor can return to
work. The arbItrator should remaIn seIsed.
I am satIsfied that although tIme lInes proVIded In the May 24 2001 DeCISIOn
were not followed by both partIes, the employer receIved a Form B completed by Dr
Pnnce In the summer of 2001 (Ex. 7 August 13 2003) In 2001 and was Informed thereby
that the gnevor was not able to return to work and would not be able to work for the
foreseeable future, If at all If the employer wanted more medIcal InformatIOn and/or
wanted the gnevor to re-apply for LTIP after It had receIved the Form B and the umon
24
and gnevor had been unforthcomIng, It was Incumbent upon the employer to
promptly request an ImplementatIOn heanng and a dIrectIOn from the Board that the
gnevor provIde more medIcal InformatIOn and/or re-apply for LTIP
I am satIsfied, on the eVIdence and on the basIs of the medIcal reports before me,
that the employer's conduct on May 9 1999 exacerbated the gnevor's condItIOn and on
balance of probabIlItIes, was the ImmedIate cause of the gnevor's absence from work
SInce May 9 1999 I conclude that the employer knew or should have known that the
gnevor would not be able to return to work untIl the employer had Implemented the
dIrectIOns Intended to remedIate or detoxIfy the pOIsoned work envIronment In the May
24 2001 DecIsIOn, and would result In CIrcumstances whereIn It would not be possible
for the gnevor's specIalIst to assess whether the gnevor could return to work. ThIS IS an
unfortunate set of CIrcumstances for both partIes _
Based on the medIcal OpInIOnS provIded In November 2003 I am satIsfied that
the gnevor remaInS unable to return to work at thIS tIme Whether she wIll be able to
return to work after the dIrectIOns In the May 24 2001 DecIsIOn aimed at detoxIficatIOn
of the workplace have all been Implemented remaInS unknown. As the employer has
been dIrected that the gnevor be made whole, and as the employer would have to pay
both her short term sIck benefits and the dIfference between them and her regular salary
there appears to be no economIC benefit to the employer by paYIng the gnevor on STSB
I direct that the employer is continue to pay the grievor's regular salary pursuant to
the March 2000 Interim Ruling, along with compensation of 45.56 hours per year
for lost overtime, pending the issuance of a further order by the Board or until the
parties agree to other arrangements.
Three months after paragraph 15 has been fully Implemented, IncludIng but not
lImIted to commumcatIOn of the detaIls of same to the umon and the gnevor Mr Roland
IS to request a report from the gnevor's famIly physIcIan and from her specIalIst, Dr I.
InformIng them of the pOSSIbIlItIes of employment descnbed In the May 24 2001
DecIsIOn at p 220 - 221 requestIng theIr VIew of those pOSSIbIlItIes, adVISIng If they are
not appropnate requestIng them to address the Issues set out at p 221- 222, and Mr
Roland IS to provIde the reports at the earlIest pOSSIble date to Mr GledhIll AgaIn, Mr
25
Roland and Mr GledhIll are to hold the contents of the medIcal reports In stnctest
confidence and the contents of the medIcal reports at thIS pOInt are to be dIsclosed only
to me, pendIng the Issuance of a further order or untIl the partIes agree In wntIng to other
arrangements
b) Remediation of the Poisoned Work Environment
The May 24 2001 DecIsIOn determIned that on a number of occaSIOns the
employer's conduct had pOIsoned the work envIronment for the gnevor To remedy the
envIronment, the DeCISIOn dIrected the employer to do certaIn thIngs and provIde certaIn
apologIes and acknowledgments The DecIsIOn IndIcated that those dIrectIOns were
Intended to enable some degree of trust and respect to grow between the partIes and
detoxIfy the workplace for the gnevor wIth a VIew to enablIng her to return to work In an
envIronment that would hopefully no longer be tOXIC to her
An employer IS reqUIred to provIde an envIronment for all ItS employees whIch
they can enter wIth trust and confidence that they wIll be respected as IndIVIduals and not
subject to harassment and dISCnmInatIOn. Where, as In thIS case, the employer falls to
proVIde such an envIronment, It cannot reasonably expect or reqUIre an employee to
report to work In such an envIronment.
On August 13 2003 and February 4 2004 the employer's progress In
ImplementIng those dIrectIOns was revIewed.
The May 24 2001 DecIsIOn dIrected, at p 213
3 The employer IS to remove from the gnevor's personnel file and from
any other files pertaInIng to the gnevor now In ItS possessIOn and
control, all letters, memoranda, papers, reports and documents, whether
wntten or In computenzed form, pertaInIng to dIsCIplIne of or warmngs
to the gnevor In relatIOn to these gnevances
4 The employer IS dIrected to take steps to ensure that the gnevor IS not
assIgned to A area In order to see how she wIll react, or for any other
Improper motIve ThIS order and dIrectIOn shall not preclude the
employer from assIgmng the gnevor and other female full-tIme CO s
from the male schedule to A area for admInIstratIve and busIness
reasons, when no female casual C 0 has been scheduled, proVIded
26
a) that the employer has taken all steps possIble short of
Incurnng overtIme to schedule a female casual C 0 to
cover A area and
b) that assIgnments from the male schedule to A area are shared
eqUItably among all female full-tIme C 0 s on the male
schedule and
c) that In extended penods of tIme dunng whIch there IS only
one female full-tIme CO workIng on the male schedule
such that there are no other female full-tIme CO s among
whom the assIgnments from the male schedule to A area can
be dIstnbuted eqUItably the employer shall gIve pnonty to
schedulIng female casual C 0 s to A area, IncludIng
Incurnng overtIme, If necessary
5 The employer shall notIfy ItS SchedulIng Officers and ShIft SupervIsors
and ActIng ShIft SupervIsors, In wntIng, to comply wIth the order and
dIrectIOn In the prevIOUS paragraph.
6 The employer IS to compensate the gnevor for paIn and suffenng, loss
of dIgmty and mental angUIsh as a consequence of ItS actIOns I wIll
remaIn seIsed wIth respect to quantum If the partIes are unable to agree
Paragraphs 4 and 5 above, are of course, predIcated on the assumptIOn
that the Gnevor wIll be returnIng to work at the Sudbury JaIl The partIes are
urged to address, In a local E.R.C meetIng, the most efficIent method of
ImplementatIOn of paragraph 4 above, IncludIng the Impact and feaSIbIlIty of
hmng more female casual C 0 s They are also encouraged to reVIew theIr
records and determIne the actual number of tImes per month or year that
IndIVIdual female full-tIme CO s on the male schedule have been asked to work
A area over the past three years, and determIne, wIth Input from those female full-
tIme C 0 s, whether the dIstnbutIOn of such assIgnments has been eqUItable ThIS
InfOrmatIOn should be shared wIth the gnevor so that she wIll know the
approXImate number of occaSIOns that she can reasonably expect to be aSSIgned to
work A area.
On August 13 2003 the employer advIsed that It had complIed wIth para. 3
above It submItted that paragraphs 4 and 5 were predIcated upon the assumptIOn that the
gnevor was returmng to work at the Sudbury JaIl, and that as the gnevor had not returned
to work, "thIS has not been fully Implemented. It has been Implemented for others A
hIgh percentage of unclassIfied staff are females" No eVIdence was proVIded or
submISSIOn made that the InformatIOn as to the approXImate number of tImes the greIvor
can expect to be aSSIgned to A area If she returns to regular dutIes as a C02, has been
27
shared wIth the gnevor However no eVIdence was provIded or submIssIOn made
that that InformatIOn had not been provIded to her
The May 24 2001 DecIsIOn dIrected, at p 214
7 The employer IS to provIde the wntten apologIes descnbed In
paragraphs F 3 and H. 5 above
8 The employer IS to provIde the gnevor a further wntten
acknowledgment and apology statIng that on May 9 1999 It knew or
ought to have known that by
a) statIng to her after she reported that she was sIck and requested
a relIef, that she was not sIck, but was only upset, and that she
would only be relIeved temporanly and by
b) requmng her to remaIn at her post and by faIlIng to proVIde her
relIef for a penod of approxImately 45 mInutes,
1) It was engagIng In a course of conduct that vexed,
harassed, annoyed and provoked her and
11) exacerbated the symptoms the she was expenenCIng and
111) pOIsoned the workplace envIronment for the gnevor
For ease of reference, paragraphs F and H of the May 24 2001 DecIsIOn are
reproduced
F. Re March 31, 1998.
1 I conclude that Mr MroczynskI's dIsclosure of health InformatIon pertaInIng
to the gnevor In the presence of a thIrd party constItuted a breach of
confidentIalIty
2 I conclude that Mr MroczynskI's decIsIOn not to authonze the gnevor to
attend the refresher course wIthout seekIng the OpInIOn of her phYSICIan was
based on a presumptIOn of dIsabIlIty and constItuted dISCnmInatIOn.
3 I dIrect that the employer proVIde the gnevor a wntten apology for Mr
MroczysnkI's dIsclosure of personal medIcal InformatIOn In the presence ofa
thIrd party on March 31 1998 and for not havIng requested the OpInIOn of her
phYSICIan wIth respect to her attendance at the Refresher Course In 1998 pnor
to deCIdIng that she would not attend the Course I dIrect that the employer
acknowledge In the wntten apology
a) that Mr MroczynskI's dIsclosure was IndIScreet and a breach of the
confidentIalIty whIch the employer was oblIged to maIntaIn regardIng
health InfOrmatIOn pertaInIng to ItS employees and
28
b) that the decIsIOn to not send her on the refresher course wIthout
first havIng requested the OpInIOn of her physIcIan was based on a
presumptIOn of dIsabIlIty and was dISCnmInatory
H. Re March 27, 1999.
1 On March 27 1999 the employer through the actIOns ofMr MroczynskI and
Mr Chenard, by declImng to send the gnevor on the CnsIs NegotIator
refresher course wIthout seekIng the OpInIOn of her physIcIan, dIscnmInated
agaInst the gnevor on the basIs of presumed dIsabIlIty
2 I conclude that the employer knew or ought to have known that It was oblIged
to request further medIcal Input from the gnevor's physIcIan before decIdIng
whether the gnevor would attend the spnng 1999 refresher course
3 In faIlIng to request the OpInIOn, It demed the gnevor the respect and dIgmty of
equal treatment regardIng traInIng opportumtIes In relatIOn to other C 0 s
ThIS constItuted a VIOlatIOn of s 5(1) of the Human Rights Code and a breach
of Art. 3 1 of the collectIve agreement.
4 The remedy for the employer's breaches of Art. 3 1 In 1998 and 1999 wIll be a
declaratIOn of those breaches
5 In addItIOn, I dIrect the employer to provIde the gnevor a wntten apology
statIng that In faIlIng to make a wntten request to the gnevor of her doctor's
OpInIOn, pnor to decIdIng that It would not send her on the CnsIs NegotIator
refresher course In 1998 and 1999 the employer dIscnmInated agaInst her on
the basIs of presumed dIsabIlIty and statIng that such actIOns constItuted a
VIOlatIOn of s 5(1) of the Human RIghts Code and a breach of Art. 3 1 of the
CollectIve Agreement.
On August 13 2003 the employer stated that If the gnevor IS prepared to return to
work, the employer IS prepared to provIde the apologIes The purpose of the apologIes
was explaIned to the employer on that occaSIOn. The employer thereafter undertook
uncondItIOnally to provIde the apologIes by September 30 2003
On February 4 2004 the umon acknowledged that the employer had Issued the
wntten apologIes dIrected In paragraph 7 of the DeCISIOn (at page 214 and pages 210 and
211)
The May 24 2001 DeCISIOn dIrected
9 The employer shall take steps to ensure that management staff refraInS
from makIng determInatIOns regardIng the gnevor's health
29
a) partIcularly as such determInatIOn pertaIns to provIdIng
her prompt relIef when requested, wIthout seekIng the
OpInIOn of the most semor medIcal person on staff at the
InstItutIOn at the tIme, and beIng gUIded by that OpInIOn, and
b) as to whether she wIll be authonzed to attend certaIn traInIng
programs, wIthout seekIng the OpInIOn of her phYSICIan, pnor
to deCIdIng whether to authonze her to attend the programs
On August 13 2003 the employer stated that para. 9 above "does not apply as the
gnevor has not returned" to work, "but semor management have had meetIngs WIth
regard to the dIscuSSIOn of employee health InfOrmatIOn."
The May 24 2001 DeCISIOn dIrected
10 WithIn four weeks of the date of thIS deCISIOn, the employer wIll
proVIde the gnevor WIth a wntten undertakIng that In future, If she
IndIcates that she IS SIck and reqUIres a relIef, and If the employer
belIeves that the gnevor IS not SIck, that It wIll so adVIse the gnevor
and eIther the employer or the gnevor may request the ImmedIate
attendance of the most semor medIcal personnel then at the gnevor' s
place of employment to assess the gnevor and relay that assessment
and hIs/her recommendatIOns to the employer and that the employer
wIll follow the recommendatIOn of the attendIng medIcal staff member
11 The employer shall follow the recommendatIOn of the attendIng
medIcal staff member In such CIrcumstances
On August 13 2003 the employer advIsed that the wntten undertakIng In
paragraph 10 above was "not done, as she hasn't returned" and the "employer wIll
proVIde It If and when she returns" After It was explaIned to the employer that It had
been concluded, In the May 24 2001 DeCISIOn, that certaIn of the employer's actIOns had
created a tOXIC work enVIronment for the gnevor and that fundamental to detoxIfYIng the
workplace for her was the acknowledgment by the employer to the gnevor of ItS actIOns
and an IndIcatIOn that they would not be repeated, but Instead, that the process set out In
para. 10 would be followed, the employer IndIcated It was prepared to proVIde the wntten
undertakIng by September 30 2003 The employer advIsed that paragraph 11 had "not
ansen yet"
The May 24 2001 DeCISIOn, at p 215 dIrected
30
12 WithIn four weeks of the date of thIS decIsIOn, the employer wIll
provIde the gnevor a wntten undertakIng that If there are certaIn
programs she wIshes to attend, whIch It belIeves may be restncted by
any Return-to-Work Plan/AccommodatIOn Plan she may be under It
wIll provIde the gnevor substantIally In advance of the program, wIth a
detaIled letter InVItIng her to obtaIn the wntten OpInIOn of her physIcIan
as to whether her Return-to-Work Plan/AccommodatIOn Plan or her
medIcal status would restnct her from attendIng such program. The
employer IS dIrected to comply wIth ItS wntten undertakIng.
On August 13 2003 the employer advIsed that It had provIded the gnevor wIth a
letter dated July 5 2001 (Ex. 9 Aug. 13 2003) to the above effect. The gnevor stated
that she had not receIved It. The letter IndIcated that a copy had been sent to Ms Marney
Campbell, OPSEU Local 617 PresIdent. The umon dId not dIspute that It had been
receIved by the umon. The gnevor receIved a copy on August 13 2003 I conclude that
the content of the letter (Ex. 9 Aug. 13 2003) was In substantIal complIance wIth the
reqUIrements of paragraph 12 of the DecIsIOn. The partIes were In agreement that
paragraphs 13 and 14 of the May 24 2001 DecIsIOn would apply If the gnevor returned
to work wIth accommodatIOns and wIshed to attend certaIn programs
The May 24 2001 DecIsIOn, at p 217 dIrected
15 WithIn two months of the date of thIS decIsIOn, the employer IS to
provIde a detaIled traInIng program(s) regardIng the symptoms of
emotIOnal InstabIlIty and severe anxIety and the nature and type of
behavIOur wIth extenSIve examples, whIch wIll aggravate or
exacerbate those condItIOns and shall reqUIre the attendance of all
management staff at the Sudbury JaIl, IncludIng the Supenntendent and
ActIng ShIft SupervIsors at the program(s) The employer IS to provIde
the attenders wntten matenal regardIng the content of the program and
to Instruct them that behavIOur whIch wIll aggravate or exacerbate
those condItIOns may constItute a dIscIplInable offence and to Instruct
them not to engage In such behavIOur The employer shall provIde the
gnevor and the umon WIth a copy of an outlIne of the program and of
the wntten InfOrmatIOn and Inform them of the date(s) upon whIch the
program(s) took place WithIn two months of the date of thIS deCISIOn,
the employer IS to provIde a detaIled traInIng program(s) regardIng the
symptoms of emotIOnal InstabIlIty and severe anXIety and the nature
and type of behavIOur WIth extenSIve examples, whIch wIll aggravate
or exacerbate those condItIOns and shall reqUIre the attendance of all
management staff at the Sudbury JaIl, IncludIng the Supenntendent and
ActIng ShIft SupervIsors at the program(s) The employer IS to provIde
31
the attenders wntten matenal regardIng the content of the program
and to Instruct them that behavIOur whIch wIll aggravate or
exacerbate those condItIOns may constItute a dIscIplInable offence and
to Instruct them not to engage In such behavIOur The employer shall
provIde the gnevor and the umon wIth a copy of an outlIne of the
program and of the wntten InformatIOn and Inform them of the date(s)
upon whIch the program(s) took place
On August 13 2003 the employer advIsed that the above dIrectIOn had not been
Implemented. It stated that It had lIned someone up and that person had declIned and had
"said they weren't appropnate to do that" It then stated "We'll do that If she returns"
The umon responded that the above paragraph IS a detoxIficatIOn measure and that It
must be done before the gnevor can be assessed to determIne whether she can return to
work. It submItted that the employer must proVIde eVIdence of due dIlIgence, and that It
was not enough to say that they could not find someone An Informal dIscussIOn
followed, In whIch Supt. Chenard stated that the employer had not done anythIng because
the dIrectIOn reqUIres a specIfic course outlIne and the doctors approached cannot proVIde
a course outlIne The suggestIOn was made that the outlIne of the program could have
been prepared by a person who attends the program, that the purpose of the outlIne and
provIsIOn of It and any wntten matenal for the program to the gnevor and the umon was
to Inform the gnevor and the umon of the content of the program, so that they could
determIne If the program's content had been dIrected toward the past conduct of certaIn
management staff toward the gnevor The employer undertook to comply wIth the above
paragraph by September 30 2003
The May 24 2001 DecIsIOn, at p 217 also dIrected
16 WithIn two months of the date of thIS decIsIOn, the employer IS to
prepare and delIver to the umon a wntten detaIled statement IndIcatIng
the pnontIes, pnncIples and polICIes whIch management staff follow In
the schedulIng of casual employees, and the pnontIes, pnncIples and
polICIes regardIng the schedulIng of the staffing of A area and the
assIgnment of full-tIme female CO s to A area, havIng regard to the
pnontIes, pnncIples and polICIes attested to In thIS proceedIng, and
havIng regard to paragraph 5 above If any of the pnontIes, pnncIples
and polICIes change In future the employer should proVIde the umon
the busIness reasons behInd such changes at an ERC commIttee
meetIng and engage In dIscuSSIOns wIth the umon regardIng such
changes, and proVIde the umon an amended statement. EIther party
32
may post the statement In a conspICUOUS place for all staff to read,
and/or may dIstnbute IndIVIdual copIes of It to staff Hopefully
thIS wIll enable the staff to read and understand the lOgIC and reasomng
behInd the assIgnments of casual and full-tIme C 0 s, partIcularly to A
area.
On August 13 2003 the employer said that "some of the reqUIrements" of the
above dIrectIOn had been done at local ERC meetIngs It undertook to proVIde the
wntten detaIled statement of the pnontIes, pnncIples and polICIes IndIcated In paragraph
16 above by October 30 2003
On February 4 2004 the employer advIsed that It had proVIded the wntten
apologIes dIrected In paragraph 7 the wntten acknowledgment and apology dIrected In
paragraph 8 and the wntten undertakIng dIrected In paragraph 10 of the May 24 2001
decIsIOn. It produced a letter from Ms Ravensdale of Human Resources to the gnevor
dated September 18 2003 and letter from Supt. Chenard dated September 29 2003
pertaInIng to proVIdIng relIef If she becomes Ill, to whIch was attached a document tItled
"Female AssIgnment Protocol" and Minutes of a September 17 2003 ERC MeetIng,
whIch dealt wIth the female assIgnment protocol The employer submItted that the
"Female AssIgnment Protocol" and Minutes of the September 17 2003 ERC MeetIng
were Intended to comply wIth paragraph 16 of the May 24 2001 DecIsIOn. It submItted
that the umon could post the documents It had proVIded. The umon IndIcated that It was
satIsfied that the employer had complIed wIth paragraph 16
On February 4 2004 the gnevor objected that Ms Ravensdale's letter had not
acknowledged that the employer had breached what the partIes have referred to as a
"Consent Order" whIch was theIr sIgned agreement dated August 6 1997 I reVIewed
the reqUIrements of paragraph F 3 a) and b) of the May 24 2001 DecIsIOn, and Informed
the gnevor they dId not reqUIre the employer to acknowledge the breach to whIch she
referred. I concluded that Ms Ravensdale's letter substantIally complIed wIth the
reqUIrements of paragraph F 3 a) and b) of the May 24 2001 DecIsIOn.
On February 4 2004 the employer advIsed that wIth respect to paragraph 15 of
the May 24 2001 DecIsIOn, SInce August 13 2003 some management staff had attended
a four-hour program tItled "OccupatIOn Stress ReductIOn and Management" and had
33
receIved a certIficate denotIng completIOn (a copy of one certIficate was produced
and shown to the umon) The gnevor and the umon stated that they had no knowledge of
the program havIng taken place or Its content. The employer dId not dIspute that It was
reqUIred to provIde the gnevor and the umon an outlIne and wntten InfOrmatIOn
pertaInIng to the content of the program and the dates upon whIch the program was to
take place and dId not dIspute that It had not commumcated any InfOrmatIOn about the
program to the gnevor or the umon, and stated that It would provIde the doctor's power
pOInt slIdes, whIch would provIde an outlIne of the course Supt. Chenard stated that the
course Instructed those attendIng that behavIOur whIch wIll aggravate or exacerbate the
condItIOns of emotIOnal InstabIlIty and severe anxIety may constItute a dIscIplInable
offence He said that a record of those InstructIOns can only be found In O.M. meetIngs,
whIch are held every SIX weeks He IndIcated that the employer would provIde the umon
the mInutes, and the dates upon whIch thIS had been commumcated to management staff
and names of those In attendance at those meetIngs
AgaIn, thIS IS an unfortunate set of CIrcumstances To say that the employer has
been dIlatory or "foot-draggIng" In remedIatIng the pOIsoned work envIronment would be
an understatement. It has proVIded no persuaSIve busIness explanatIOn for not havIng
proVIded the apologIes and Implemented the dIrectIOns toward remedIatIOn untIl more
than 2 years had elapsed SInce the May 24 2001 DecIsIOn. At thIS pOInt, It IS has not
been establIshed that the dIrectIOn In paragraph 15 has been Implemented.
The employer's lack of prompt attentIOn to these matters strongly suggests that It
places lIttle pnonty on ImplementIng the dIrectIOns and attemptIng to neutralIze or
detOXIfy the pOIsoned work envIronment for the gnevor and on pOSSIbly enablIng her to
return to work. I conclude that the employer's lack of complIance wIth the dIrectIOns for
over two years SInce the May 24 2001 DecIsIOn constItutes a contInuIng breach of Art.
3 1 of the CollectIve Agreement.
3) Compensation for Pain and Sufferin2. Loss of Di2nity and Mental An2uish.
On August 13 2003 the employer submItted that It saw the folloWIng paragraphs
In the May 24 2001 DecIsIOn as "lInked"
34
1 It IS declared that on Jan. 15 and 26 1997 March 31 1998 and
March 27 1999 and May 9 1999 the employer's conduct In
relatIOn to the gnevor constItuted harassment and dISCnmInatIOn and
vIOlated Art. 3 1 and 3.2 of the collectIve agreement.
6 The employer IS to compensate the gnevor for paIn and suffenng, loss
of dIgmty and mental angUIsh as a consequence of ItS actIOns I wIll
remaIn seIsed wIth respect to quantum If the partIes are unable to agree
It submItted that there was no quantum Involved anSIng from the conduct of the
employer on January 15 and 26 1996 and March 27 1999 and that the Board had only
dIrected the employer to provIde an apology It submItted that there was no quantum
amount to be assocIated wIth the conduct of the employer on March 27 1999 and that a
declaratIOn had been gIven In respect of that conduct. It stated that the compensatIOn for
the employer not havIng permItted the gnevor to go home on May 9 1999 should be
$1 00000
In support of ItS submIssIOn regardIng quantum of damages for paIn and suffenng,
loss of dIgmty and mental angUIsh, the employer cIted Simon #2568/96 In whIch the
gnevor was of Afncan descent. RacIst graffitI had appeared In two locatIOns In the Jail,
the gnevor's workplace, and the employer's response to the gnevor's requests that It take
certaIn actIOns to ensure that the graffitI dId not reappear was found to have been "done
In a haphazard and half-hearted manner" It noted that In that case the gnevor had been
awarded $1 000 00 In damages for mental and emotIOnal suffenng he had to endure as a
result of the employer's breach and compensatIOn for loss of earmngs
As well, the employer dIrected the Board to HOYf,e Dalton Loach #3155/92 etc
specIfically at pages 60 to 63 and pages 90-92 It noted that In that case, the employer
was to pay Ms Dalton $500 00 for paIn and suffenng as a result of the sexual harassment
and the pOIsoned work enVIronment she was made to endure Ms Loach was awarded
$5 00000 as compensatIOn for paIn and suffenng. Ms Howe was awarded $2,000 00 as
compensatIOn for paIn and suffenng. The employer submItted that It saw the gnevor' s
CIrcumstances the closest to Ms Dalton's and that the amount awarded to Ms Dalton
was the appropnate amount to award the gnevor In thIS case for damages
35
The umon submItted that neIther of the employer's cases apply to the
unusual CIrcumstances of thIS case In Simon supra, the employer's conduct was a
paSSIve lackadaiSIcal breach. In HOYf,e Dalton Loach the employer allowed certaIn
conduct to occur In thIS case there are two dIStIngUIShIng factors On several occaSIOns
the employer acted In an aggressIve manner The pOIsoned work envIronment came from
the top where management thought that the gnevor was "fakIng It" and acted from there
ThIS had a cumulatIve effect whIch contInues to thIS day The employer has not
apologIzed In two years
The umon submItted that the employer's conduct goes to the exacerbatIOn of the
gnevor's paIn and suffenng whIch contInued over years, and to the exacerbatIOn of her
damages A declaratIOn IS not exclUSIve of damages, unless the award so states Both the
employer's cases show that the determInatIOn of the quantum of damages IS not a
SCIentIfic process There IS no magIc formula. Weare tryIng to assess mental angUIsh
gIven the delay Part of the gnevor's damages have ansen from the delay of the
employer In complYIng wIth the orders Intended to detoxIfy the workplace
HOYf,e Dalton Loach was decIded In 1997 The dollar was worth more when those
amounts were awarded. Consequently the umon IS askIng for a far greater amount. A
greater vanety of Improper actIOns were taken by the employer In thIS case The
employer mIsused medIcal InfOrmatIOn. Consequently the Board should award more
money and the gnevor IS requestIng $100 000 00 and Interest.
The employer submItted that the functIOn of a remedy IS to educate, not pumsh,
and that an award of$100 000 00 would be pumshment. The amounts awarded In HOYf,e
Dalton Loach were In response to the most egregIOUS aspects of behavIOur nght through
management's acts There IS a need to detoxIfy the workplace In thIS case but there IS no
companson between the conduct In thIS case and the extent of egregIOUS conduct In the
other cases The amount claimed by the gnevor IS outrageous The amounts In HOYf,e
Dalton Loach are more appropnate
The functIOn of an award for mental angUIsh IS to restore the aggneved employee
as closely as pOSSIble, to the posItIOn of dIgmty he or she enjoyed pnor to the events or
conduct whIch resulted In that angUIsh. No precIse amount can compensate for angUIsh.
36
CertaInly the determInatIOn of compensatIOn for paIn and suffenng, loss of dIgmty
and mental angUIsh IS not a SCIentIfic process At best, such an award IS a symbol of the
Board's recogmtIOn of the paIn and suffenng, loss of dIgmty and mental angUIsh suffered
by a gnevor as a consequence of the employer's actIOn or InactIOn, and IS Intended as
such to assuage the gnevor's hurt feelIngs
In thIS case, the folloWIng IncIdents resulted In paIn and suffenng, humIlIatIOn
and loss of dIgmty and mental angUIsh to the gnevor
1) On March 1 1995 the gnevor expenenced humIlIatIOn and loss of
dIgmty as result of a dISCnmInatory remark by a member of
management staff, and her condItIOn was aggravated and exacerbated
such that she expenenced physIcal symptoms whIch left her unable to
carry out her dutIes and she had to leave work and take tIme off
subsequently
2) The employer's conduct on January 15 and 26 1997 constItuted
harassment, and aggravated and exacerbated the gnevor' s condItIOn,
such that she expenenced physIcal symptoms whIch left her unable to
carry out her dutIes and she had to leave work on both occaSIOns
3) On March 31 1998 the gnevor was embarrassed and humIlIated and
expenenced great stress and mental angUIsh as a result of the dIsclosure
by a member of management staff of personal medIcal InfOrmatIOn
about her In the presence of a thIrd person.
4) On March 27 1999 she was subjected to dISCnmInatIOn on the basIs of
presumed dIsabIlIty whIch resulted In a loss of dIgmty and mental
angUIsh.
5) On May 9 1999 she was demed the dIgmty and respect of a member
of management staff to whIch employees who become III at work are
entItled, and expenenced great stress and loss of dIgmty and mental
angUIsh. The conduct of the employer aggravated and exacerbated the
gnevor's condItIOn, such that she agaIn expenenced physIcal symptoms
whIch left her unable to fulfil her dutIes and she has been unable to
work SInce that date
The conduct of the employer on each of these occaSIOns has a common thread on
each occaSIOn the employer knew or ought to have known would ItS conduct would
aggravate the gnevor's vulnerable condItIOn, result In physIcal symptoms whIch would
leave her unable to perform her dutIes, and would "push her over the edge" caUSIng her
to leave work. The events of May 9 1999 were the culmInatIng IncIdent, the final "coup
37
de grace" to an already vulnerable employee rendenng her unable to return to a
pOIsoned work envIronment untIl It was remedIed.
The steps dIrected m May 2001 to detoxIfy the pOIsoned work envIronment for
her have not been completely Implemented. As a result, the gnevor's expenence of
havmg bemg demed the dIgmty of a workplace m whIch she feels she wIll not be
subjected to sImIlar dIsrespect contmues It wIll not be pOSSIble for the gnevor's
physIcIans to assess the pOSSIbIlIty of her returmng to work for the employer m thIS or
any other Mimstry m any capaCIty untIl ImplementatIOn IS complete and untIl the detaIls
have been conveyed to both the gnevor and the umon.
I do not find the gnevor's expenences comparable to those of the gnevors m
Hall Dalton Loach supra. There IS some sImIlanty to Simon supra, m the employer m
thIS case havmg been slow to Implement the dIrectIOns mtended to remedIate the
workplace for her The gnevor's mental angUIsh as a result of the conduct of the
employer m thIS case should not be tnvIalIzed by a token amount of compensatIOn.
However the amount that she has claimed IS exceSSIve, partIcularly as she has contmued
to receIve her regular salary and benefits pursuant to the mtenm rulIng.
In view of all of the foregoing, I conclude that the Grievor is entitled to
damages of $7,50000 for pain and suffering, loss of dignity and mental anguish.
To Summarize:
The Board orders and directs that the employer is to pay the grievor
forthwith
1) $61,067 04 for lost wages and interest up to the end of 2003, and
2) $7,50000 as compensation for pain and suffering, loss of dignity
and mental anguish,
38
The employer shall pay interest on the above amounts at the average
post-judgment interest rate for the first and second quarter of 2004 to the date of
payment.
The grievor is to be compensated by the employer for any additional income
taxes imposed upon her as a result of receiving a lump sum in lieu of her losses, in
the year she receives them, subject to the considerations set out at p. 16 above.
The employer is continue to pay the grievor's regular salary pursuant to the
March 2000 Interim Ruling, along with compensation of 45.56 hours per year for
lost overtime, pending the issuance of a further order by the Board or until the
parties agree to other arrangements.
I wIll remam seIsed wIth respect to the matters reserved on m thIS DecIsIOn and
wIth respect to the ImplementatIOn of the dIrectIOns and orders m thIS and the May 24
2001 DecIsIOn and prevIOUS RulIngs
Dated at Toronto Ontano thIS 5th day of March, 2004