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HomeMy WebLinkAbout1995-0131.Latimer.05-03-07 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# 1995-0617-0001 1995-0617-0002, 1995-0617-0003 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) Union - and - The Crown m RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Susan D Kaufman Vice-Chair FOR THE UNION Nelson Roland Barnster and SOlICItor FOR THE EMPLOYER DavId Strang Actmg Deputy DIrector Labour PractIce Group Management Board Secretanat HEARING December 9 2004 & January 11 2005 CONFERENCE CALL February 11 2005 2 ThIrd ImplementatIOn DecIsIOn The DecIsIOn on the ments m thIS matter was Issued on May 24 2001 That DecIsIOn contamed numerous dIrectIOns wIth respect to remedIes The first ImplementatIOn DecIsIOn was Issued on March 4 2004 It dIrected To Summarize: The Board orders aud 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) $7,500.00 as compensation for pain and suffering, loss of dignity and mental anguish, 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. 15 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 remain seised with respect to the matters reselVed on in tins Decision and with respect to tl1e implementation of tl1e directions and orders in tl1is and tl1e May 24 2001 Decision and previous Rulings. The Board's Second ImplementatIOn DecIsIOn was Issued June 28 2004 That DecIsIOn ordered the employer to compensate the gnevor for lost statutory holIday pay As well, It stated that the employer had adVIsed the Board that the employer had recently complIed WIth thIS Board's dIrectIves regardmg remedIatIOn of the workplace It also stated On June 22, 2004 the employer's representative acknowledged that the most recent medical report indicated tl1at tl1e grievor was unable to work. That report was dated October 8 2003 Since October 8 2003 tl1ere has been compliance with the directions given in tl1e May 24 2001 Decision and witl1 tl1e undertakings set out in tl1e Board s August, 2003 ruling, which may have an impact upon tl1e grievor's ability to work, and which should be canvassed witl1 her doctor(s). The Board had taken a "Wait and see" approach to whether the gnevor would be able to return to work after the dIrectIOns toward remedIatIOn of the workplace had been complIed WIth. Consequently the June 28 2004 Second ImplementatIOn DeCISIOn provIded dIrectIOns regardmg obtammg a further medIcal opmIOn as to whether the gnevor would be able to return to work m thIS context. On December 9 2004 after receIpt of the medIcal opmIOn dated November 2,2004 the partIes met WIth me bnefly m Sudbury On that date, Mr Roland, counsel for the umon and the 3 gnevor advIsed that the gnevor had not yet receIved the statutory holIday pay pursuant to the June 28 2004 Second ImplementatIOn DecIsIOn. Mr Strang, counsel for the employer advIsed that the employer would mvestIgate and determme whether It had compensated the gnevor for statutory holIday pay Mr Roland advIsed that the gnevor was also seekmg compensatIOn for lost ShIft premIUms as a result ofbemg unable to work, under the "make whole" pnncIple MedIcal reports dated October 6 2003 and November 2,2004 had prevIOusly been provIded. I dIrected both Counsel to hold the mformatIOn contamed m the medIcal reports m stnctest confidence The partIes agreed to adjourn and present argument, m January 2005 as to whether the gnevor would be reqUIred to apply for L TIP whether she would be entItled to "top-up" If she receIved L TIP benefits, and whether she was entItled to compensatIOn for ShIft premIUms On January 11 2005 the partIes reconvened before me m Sudbury Ontano For IdentIficatIOn purposes, the medIcal report dated November 2,2004 was marked Ex. 1 and the medIcal report dated October 6 2003 was marked Ex. 2 They made submIsSIOns regardmg payment of statutory holIday pay overtIme pay for 2004 compensatIOn for ShIft premIUms, and future compensatIOn of the gnevor 1) SubmIsSIOns re Statutory HolIday Pay. Mr Roland stated that the gnevor had not yet receIved compensatIOn for lost statutory holIday pay ordered to be paid from May 1999 to the end of 2003 and for five statutory holIday days m 2004 Mr Strang stated that the employer dId not dIspute that statutory holIday pay IS owed to the gnevor and If It has not been paid It should be The employer would consent to an order that the employer provIde Mr Roland confirmatIOn of payment and any delay m payment would be compensated by mterest as well Mr Roland stated that the umon and the gnevor appreCIate that the employer had undertaken to look mto the claim that the statutory holIday pay had not been paid to the gnevor and to pay mterest on It, ansmg from orders thIS Board had already made He stated that thIS IS a matter of complIance WIth the Board's orders and asked the Board to rem am seIsed. On February 11 2005 m a teleconference call WIth Mr Strang and Mr Roland, Mr Strang was unable to adVIse the Board whether the employer had establIshed that It had paid the 4 statutory holIday pay On March 1 2005 by telephone message, Mr Strang advIsed that the employer had not paid the statutory holIday pay 2. SubmIsSIOns re Claim for ShIft PremIUms. Mr Roland submItted that the gnevor had Incurred a loss of ShIft premIUms from May 1999 to the end of 2004 of$10 12800 He provIded a handwntten lIst, of unknown on gIn, whIch stated as follows ShIft PremIUm Totals 1999 1 080 00 2000 1 554 00 2001 1 710 00 2002 1 626 00 2003 1 451 00 2004 1,627.00 $10 12800 + Interest? Mr Strang submItted that damages had been paid for a number of years, and that the first date upon whIch a claim for lost ShIft premIUms had been submItted had been by letter from Mr Roland dated September 2004 He stated that the claim for ShIft premIUms had been made too late, and that the employer should not be called upon to respond to Issues already dealt WIth. He submItted that the claim for lost shIft premIUms was WIth regard to an Intenm relIef order whIch, he submItted, has now been spent. He submItted that In June It had been determIned that the workplace was no longer pOIsoned. He stated that the gnevor had been well-compensated to date, havIng receIved full pay and lost overtIme, and that there IS no InjUstIce In leavIng the order the way It was when It was spent. Mr Roland asked the Board to order the employer to pay the gnevor for lost ShIft premIUms He advIsed that they anse from the regular schedules the gnevor would have worked and have been calculated. He stated that the gnevor and the umon were ready wIllIng and able to prove the amounts claimed. He requested thIS Board to find that ShIft premIUms are a natural part of the "make whole" order He submItted that no prejUdICe arose from the tImIng of the request, and that the employer had had the use of the money In the meantIme 5 3. SubmIssIOns re CompensatIOn for lost OvertIme Pay. Mr Roland stated that the gnevor had not yet receIved compensatIOn for lost overtIme pay for 2004 He requested the Board, on behalf of the gnevor to dIrect the employer to make all outstandIng payments for statutory holIday pay lost overtIme and lost ShIft premIUms, wIthIn thIrty days of thIS heanng. 4. SubmIsSIOns re future CompensatIOn of Gnevor: (A) By Mr. Strang for the employer: Mr Strang referred to the claims for lost statutory holIday pay and overtIme pay for 2004 and submItted that there had probably been an "excess overpayment." He stated that by June 2004 the workplace had been "cleansed" there was "no workplace vIOlatIOn" and the gnevor's absence IS due to Illness He stated that the appropnate payment IS long term dIsabIlIty benefits, and that there IS no reason to compound an exceSSIve damage award by compoundIng It WIth overtIme and lost statutory holIday pay He submItted that based upon the medIcal reports, It had been establIshed that the gnevor IS not able to work, due to her medIcal condItIOn. The Board's orders had been complIed WIth sufficIent to cleanse the workplace and the only outstandIng Issue IS the extent to whIch the gnevor should be reCeIVIng compensatIOn for her Illness Before the Board had found that the workplace had been "cleansed" the workplace was a danger to the gnevor and there were two reasons for her absence, Illness havIng been the first reason, and the employer not havIng made the workplace harassment-free the second reason. He submItted that the second reason was no longer present, and that faIlure to maIntaIn a harassment-free workplace, whIch was a vIOlatIOn of the collectIve agreement, had been removed. He submItted that the GSB does not have the jUnSdIctIOn to compensate for a workplace Illness AlternatIvely he submItted, on a polIcy baSIS, one examInes causatIOn where one compensates for an Injury In thIS case from a contract breach, and questIOns whether the actIOns lead to damage or was there contnbutIOn by the employee If the employer caused It, damages are not owed unless the damages are foreseeable Where a gnevor presented herself for work as a COIn a state of health where beIng asked to remaIn at her pOSItIOn for a relatIvely short penod of tIme would cause her not to be able to return to work Indefimtely IS not In any way foreseeable The employer assumes that the umon IS In a pOSItIOn to establIsh the gnevor's 6 InabIlIty to work In the female umt caused her to be unable to work. The medIcal report suggests that the gnevor was under care well before 1999 The gnevor has had a senous aIlment. It may be argued by her doctor that the 1999 IncIdent was the tnggenng event. It would have to be establIshed wIth some certaInty that her mental state would not have detenorated wIthout that tnggenng effect. The employer would have to move on to the Issue of causatIOn If not successful on thIS motIOn. Explonng the Issue of causatIOn has been rejected In Ontano law because It IS bad polIcy doesn't further anyone's Interests, and can lead to unfairness The arbItratIOn process may not have been good for the gnevor CausatIOn IS complex. It does not always rest wIth one party To have one worker at the Sudbury Jail who becomes totally dIsabled wIthout the employer havIng breached the collectIve agreement reCeIVIng L TIP or Workers' Safety and Insurance Board (WSlB) benefits and to have another worker the gnevor compensated at a dIfferent rate has been rejected In Ontano law It has been replaced by WSIB benefits We don't InqUIre Into causatIOn. The WSIB determInes whether It IS work-related. It IS a specIalIzed tnbunal whIch deals wIth medIcal Issues and eVIdence Its process mImmIzes publIc exposure of that matenal The WSIB retaInS medIcal advIsors who can consult about medIcal Issues It has developed polIcIes, practIces and expertIse necessary for determInatIOn. The GSB's process IS more publIc ThIS Board has not been provIded medIcal advIce and cannot calculate the extent of the Injury and causatIOn. The GSB IS not In the busIness of penodIcally momtonng claims, as IS the WSIB In the context of the Ontano PublIc ServIce and the CollectIve Agreement, we have provIsIOns for compensatIng employees for Illness, meshed wIth the L TD Plan. The gnevor has more than satIsfied the WaitIng penod for L TD and IS entItled to that Plan. The employee must establIsh that they are dIsabled. There IS no Issue of causatIOn. Workers are free to apply for WSIB benefits The contracted supenor benefit IS paid. The appropnate course IS for the gnevor to apply for L TIP The findIng of thIS Board should be suffiCIent for her receIpt ofLTIP and she should be momtored under that programme The umon and the employer have agreed that that IS a satIsfactory level of compensatIOn. The Board should remaIn seIsed. If the Board finds It has jUnSdIctIOn, once It determInes causatIOn, It must deCIde on foreseeabIlIty as stated In the Wagon Mound case The damages must be contemplated before 7 the breach. In Canadian Union of Postal Workers And Canada Post COlp (Perchaluk Gnevance CUPW 856-92-01230 Arb Freedman) [1997] C.L AD No 208 at ~ 231 to 233 reference was made to the gnevor' s "unusual and unreasonable sensItIvIty to matters of thIS kInd." In the case before thIS Board, the gnevor presented herself for work as a CorrectIOns Officer She understands the Job and the duty to stay at her post. If a cnSIS develops, they contInue at theIr post, they do theIr Job when a dIfficulty anses The J ob can be tedIOus or bonng. But the abIlIty to stay on the Job and back up your colleagues IS reqUIred. It would be totally InCOnSIstent WIth that expectatIOn, If she and her doctors thought she was reqUIred to remaIn at her post would result In a dIsabIlIty whIch would InCapacItate her for an Indefimte penod of tIme If neIther she nor her doctor antICIpated It, neIther could the employer So on that basIs, even If the Board could award damages, It would be Inappropnate to do so The Board does not have the JunsdIctIOn to award damages In the 1980' s, thIS Board deferred on the Issue of assessment of damages for workplace InJunes to the Workers' CompensatIOn Board (WCB) In the 1990's, In the Weber and Regina Police Association cases, the Supreme Court of Canada adopted the exclUSIve JunsdIctIOn model as the appropnate model Assessment belongs wIth the WSIB Gibbon 0687/00 deals wIth and sets out the current legIslatIOn. In that case a female C 0 had been attacked by male Inmates S 25(2) (h) of the Occupational Health and Safety Act had not been complIed wIth The collectIve agreement and the Human Rights Code have sImIlar protectIOns The case IS very analagous to thIS one It found a breach of statute or the collectIve agreement. Injury resulted. In Gibbon, the gnevor was reCeIVIng WSIB benefits Lister 340/89 Fleming 461/95 and other cases were conSIdered. S 26(2) of the Workers Safety and Insurance Act (WSIA) prohIbItS a worker from takIng a claim to another board for WSIB damages The gnevor must establIsh that her damages flow from the act of the employer She cannot be makIng a claim before thIS Board unless It falls from that defimtIOn. S 118 of the WSIA deals wIth the JunsdIctIOn of the WSIB and appeals EssentIally GIbbon was seekIng supplementary compensatIOn. That IS what IS beIng asked for here Lister supra, dealt wIth a health and safety VIOlatIOn. ArbItrator Samuels concluded that s 14 of the Workers Compensation Act (WCA) precluded the gnevor's claim for supplemental benefits In RiggleSyt,orth, 63790 the Board entertaIned a claim for such damages In that case, the WCB had determIned that the claim was not compensable under the WCA W S.I.A. T 8 Decisions No 8099812 (McCombie) and 205603 (Nairn) show that the Tnbunal has resolved that Issue and reflect a more thorough and expanSIve vIew of theIr jUnSdIctIOn. At p 14 of Gibbon, supra, ArbItrator KIrkwood stated that ArbItrator Knopf stated In Fleming supra, that the GSB has jUnSdIctIOn to deal wIth human nghts Issues ThIS Board has been dealIng wIth human nghts to thIS pOInt In thIS case The employer has cleansed the workplace All that's left IS someone off work because they are III ThIS Board has dealt wIth the Fleming-related Issues Now the partIes are down to the L TIP or WSIA Issue That's where It should be left. The case has run ItS course ThIS Board has done ItS work. Johnston, supra, states the law at p 9 of the DecIsIOn, that thIS Board has no jUnSdIctIOn to usurp the authonty of the tnbunals created under the WCA In Thomson, 1612 92 the gnevor sustaIned Injunes as a result of carryIng out her dutIes wIthout proper footwear At p 6 the Board CIted Lister supra and Fleming supra The tnpartIte Board In Thomson, supra deCIded unammously that claims for general damages for personal dIsabIlIty are Workers' CompensatIOn matters and not GSB matters He pOInted out that In WSIAT DeCISIOn #809/9812, the claimant was a woman CO who worked In a federal correctIOnal InstItutIOn. Stressors In the workplace resulted In her dIsablement. The Tnbunal stated at ~19 that a CO 'sjob has a tendency to be stressful to begIn wIth. The claimant was In a medIUm secunty InstItutIOn. The Sudbury JaIl IS a maXImum secunty InstItutIOn. The gnevor and her doctor had to antICIpate stress One cannot really see someone sendIng the gnevor Into that. In the case before the WSIAT the Tnbunal stated that there had been no speCIfic IncIdent and at ~31 to 32, that the gnevor Said she could no longer contInue, and set out contents of her medIcal report. He drew attentIOn to the 3rd 7th and 14th paragraphs of the medIcal report In the WSIAT case report, and to the 6th paragraph of Ex. 1 In thIS case He submItted that In the case before thIS Board, "no speCIfic IncIdent tnggered It" and "ours IS a stronger case" Mr Strang noted that at ~39 the Tnbunal stated LeavIng aSIde the polIcy questIOns whIch are dIscussed below the Panel IS satIsfied that the worker meets the Tnbunal test for entItlement to a dIsablement ansIng out of and In the course of her employment. and that at ~ 41It stated 9 Furthermore, we accept the worker's eVIdence that thIS "pOIsoned work envIronment" was a sIgmficant contnbutIng factor In the gradual development of what IS now a senous dIsabIlIty Mr Strang submItted that at ~92 on p 20 of DeCISIOn 809/9812, the Tnbunal was satIsfied that the claimant was entItled to compensatIOn, despIte the Board's "applIcable polIcy" He submItted that the claimant In that case before the WSIA T suffered aIlments of the exact type that the gnevor suffered, for reasons of a pOIsoned workplace, and was entItled to compensatIOn. He submItted that If thIS Board were to deal wIth thIS, the partIes would spend a great deal of tIme cross-examInIng the gnevor's psychIatnsts as to whether the IncIdents thIS Board had prevIOusly found were vIOlatIOns, were responsible for the gnevor's Illness He submItted that the WSIB could handle that. Mr Strang noted that In WSIAT DeCISIOn 2056/03 the Tnbunal stated, at the end of~33 Weare satIsfied that the polIcy does not exclude entItlement to benefits where a worker has expenenced mental stress as the result of "overzealous scrutInY of supervIsors or vexatIOus purSUItS of co-workers" as was the case In the appeal before us At the end of~35 It stated Not only are we satIsfied that the harassment took place, we are also satIsfied that the balance of medIcal eVIdence supports a relatIOnshIp between the harassment and the onset of the worker's aphoma. Mr Strang submItted that psychIatnc Illness from workplace harassment IS compensable, that the GSB IS excluded from dealIng wIth It, and the GSB' s jUnSdIctIOn IS exhausted. He submItted that thIS Board IS open to make the findIng that the gnevor IS dIsabled and would be entItled to L TIP benefits Once on L TIP the gnevor should be entItled to the same scrutInY as other workers DIsputes would go to the JOInt Insurance Benefits RevIew CommIttee (JIBRC) If thIS Board felt It must retaInjUnSdIctIOn, the employer would not object strongly (B) By Mr. Roland for the gnevor and the umon. ThIS IS the first tIme In thIS long heanng that we have heard of any concerns wIth regard to the Board's jUnSdIctIOn In relatIOn to the Worker s Safety and Insurance Act (WSIA) The employer IS attemptIng to relItIgate matters long SInce settled. The employer has never advIsed the gnevor that she should be filIng for WSIB benefits There IS no InformatIOn before thIS 10 Board that the employer ever advIsed the WSIB of a workplace Injury It appears that the WSIB apparatus has not been Invoked at all to date The WSIA IS beIng dredged up now after many years of lItIgatIOn of thIS gnevance, In order presumably to aVOId paYIng for what the employer IS responsIble for caUSIng. The employer wants to aVOId that responsIbIlIty by saYIng that the GSB has no jUnSdIctIOn to award top-up for a long-term dIsabIlIty There's been no suggestIOn of a break In the employment relatIOnshIp The gnevor stIll has a nght to long term Income protectIOn under the L TIP provIsIOns The employer seeks to aVOId paYIng a top-up L TIP pays out consIderably less than an employee's full wages It should be clear from Ex. 1 and 2 that the employer's actIOns are responsIble for the fact that the gnevor cannot go back to work. I'll address reasonable foreseeabIlIty and shared responsIbIlIty later The questIOn of whether the employer caused the specIfic medIcal problem the gnevor suffers has been determIned by thIS Board. In the maIn DecIsIOn, thIS Board stated, at pp 201 - 202 The grievor had previously been described to the employer by Dr Prince as emotionally unstable and she was perfonuing modified work wlnle still in recovery from that condition. Mr Chenard knew or ought to have known that Dr Prince had so described her, although the evidence was not clear that Mr Mroczynski was aware of that description. By May 9 1999 Mr Chenard knew or ought to have known tl1at in part due to the unfortunate timing of tl1e delivery of his letter, and in part due to the delay in providing her a relief on tl1at occasion, the grievor had been greatly stressed on Dec. 30 1998 and unable to work for about a month. The evidence was not entirely clear as to what Mr Mroczynski told Mr Chenard, when he was in phone contact witl1 him. However, when Mr Mroczynski called him, I do not think Mr Chenard had to be told that tl1e situation was critical, in order to have exercised independent judgment and to have instructed Mr Mroczynski to provide her relief to permit her to leave tl1e institution. I conclude that tl1e employer knew or ought to have known 1 that the grievor was emotionally vulnerable, 2 that a statement to her that she was not sick, but only upset, and a decision that she would be relieved only temporarily and 3 failure to provide relief for about 45 Iuinutes after she requested it, would stress, annoy and provoke the grievor and exacerbate the condition from winch the grievor was suffering. Its conduct denied the grievor the dignity and respect to winch all employees who are sick and unable to caflV out their duties are entitled. I conclude that its conduct on May 9 1999 singled the grievor out for very exceptional and unfavourable treatment, reflected poor judgment and constituted both harassment and discriIuination. I also conclude that its conduct on May 9 1999 made the workplace enviromnent at the Sudbury Jail toxic for the grievor ThIS Board's analYSIS speaks to the foreseeabIlIty In the language that the employer "knew or ought to have known" The employer's submISSIOns are a wholesale attempt to retroactIvely reconfigure thIS case It's essentIally been a human nghts case In HOYf,e Dalton Loach, #315592 etc the Board 11 found a human nghts pOIsoned workplace on several occaSIOns ThIS Board should use the approach In HOYf,e Dalton Loach, supra, to contInue to provIde damages To turn a human nghts Issue Into a sImple "the gnevor got hurt on the job" IS not the correct approach. Further the GSB has never said It completely lost jUnSdIctIOn where Worker's CompensatIOn benefits were applIed for and demed. The Board should not go down the WSIB path or It wIll forget that thIS has essentIally been a human nghts case The gnevor's nghts have been trampled on and abused, based on her condItIOn and her gender The Board should recall the "babe" remark. ThIS should not be reformulated and relItIgated. ThIS Board found that ArtIcles 3 1 and 3.2 had been vIOlated and provIded many dIfferent types of remedIes IncludIng damages and apologIes and removal of pOIson from the workplace where pOSSIble Even If the Board finds It has no jUnSdIctIOn for future claims (and the Board was not asked to do so retrospectIvely), the employer IS estopped from raiSIng thIS ObjectIOn at thIS pOInt. There are multIple gnevances By lookIng at them, the true nature of thIS case as a human nghts case, can be seen, and thIS IS why Art. 3 1 and 3 2 featured so In the DeCISIOn. In Canadian Union of Postal Workers And Canada Post Corp supra, at ~225 et. seq there was some questIOn as to how the claimant was hurt by seemIngly tnvIal actIOns The Tnbunal dId not find the CorporatIOn had dIrect responsIbIlIty In connectIOn WIth the Hawa11 postcard receIved by the worker The final act here was not the actIOn of the corporatIOn-It was that of Mr MroczysnkI, who had prevIOusly trotted out the gnevor' s psychIatnc hIStOry In front of a thIrd party On Mother's Day 1999 he was ActIng I. C and hIS conduct was a part of a long chaIn of harassment. ThIS IS supported by Ex. 1 and 2 The CUPW case IS qUIte dIstIngUIshable from thIS one, but It IS useful to conSIder At ~229 the gnevor seeks re-credItIng of or top-up of SIck benefits The arbItrator stated, of the umon, It relIed on my deCISIOn In ProvInce and M.G.E.A (gnevance of LOUIse Boeckler) 1992 In that case I found that the employer had a responsIbIlIty on the facts In connectIOn WIth the Illness suffered by the gnevor I found that It was the actIve, POSItIve and aggressIve acts of one employee, compounded by the Inappropnate response of a supervISor whIch led dIrectly to the gnevor's beIng away from work. I found also that management knew of the actIVItIes but had not dealt WIth them appropnately whIch In my VIew was suffiCIent In that case to place lIabIlIty on the proVInce That has already been deCIded at pp 201 - 202 of the Award of thIS Board In thIS case Mr Strang emphaSIzed ~233 of the CUPW supra, deCISIOn, whIch stated that the reactIOn of the 12 employee demonstrated "an unusual and unreasonable sensItIvIty to matters of thIS kInd" ThIS Board has already found that the employer In thIS case knew that the gnevor was vulnerable and contInued ItS conduct. The last act was the last In a chaIn of contInued events WIth knowledge of the gnevor's condItIOn. EverythIng was reasonably foreseeable In RiggleSyt,orth, 63790 (FIsher) Gibson, 1498 89 (Kaufman) and In Smith and Bergounhon, 159896 (Abramsky) the GSB has held that there IS no absence ofjunsdIctIOn. Mr MroczysnkI's behavIOur was not a workplace accIdent. It was a vIOlatIOn of s 18 of the Human Rights Code and of Art. 3 1 and 3.2 It IS Important that the employer has raised the WSIB at thIS tIme Gibbon, supra, raises a very speCIfic Issue at pp 10 - 11 Vice-Chair Abramsky [in SmIth and Bergounhon, supra] held that artIcle 18 1 of the collectIve agreement IS an enforceable contractual nght for whIch damages may flow If breached and therefore allowed the gnevors' claims for damages to proceed. She held that the Gnevance Settlement Board had jUnSdIctIOn on the baSIS that not all Injunes that occur at work are covered by the WCA, only those whIch are a result of an "aCCIdent" as defined by the Act, or were the result of Industnal dIsease As there were gaps In the legIslatIOn, the WCA dId not pre-empt the entIre field of work related Injunes Vice-Chair Abramsky held that the Act could not bar claims whIch the Act dId not cover claims whIch were not the result of an "aCCIdent happemng to hIm whIle In the employment of such employer" These deCISIOns are consIstent WIth sectIOn 26 of the current WSIA, whIch bars actIOns when benefits have been paid. As no benefits had been paid, no actIOn was statute barred. Therefore, a umon IS not barred from purSUIng an employee's claim, where the WSIB has determIned that an employee's claim IS not covered and IS not compensable under the WSIA The employer IS not assIsted by sectIOn 118 of WSIA, as sectIOn 118 only cIrcumscnbes the jUnSdIctIOn of the WSIB to matters fallIng under the statute and does not cover areas outSIde the legIslatIOn. The Gibbon deCISIOn was addressIng a request for compensatIOn supplementary to a WSIA claim whIch had been covered by the WSIA The employer has not covered thIS as a WSIA claim because It knows that It'S a human nghts claim, not a workplace stressor case In Gibbon, supra, and Lister supra, the gnevors wanted a benefit over and above Workers' CompensatIOn benefits, and the umon used Art. 18 1 the health and safety proVISIOn, to get extra compensatIOn. The gnevor In thIS case was SIngled 13 out by the employer What the employer dId cannot be tnvIalIzed and reduced to an Injury sustaIned In the course of employment. In RiggleSyt,orth, supra, Vice-Chair FIsher made the pOInt that the partIes could proVIde for other benefits RIgglesworth's claim had been rejected by the WCB In Gibbon, supra, Vice-Chair KIrkwood tnes to dIStIngUISh RiggleSyt,orth In whIch Vice-Chair FIsher was fOCUSIng on Art. 18 1 The umon focused on the human nghts aspect In thIS case The employer's posItIOn In thIS case IS based upon a SUpposItIOn that the WSIB would compensate the gnevor In thIS case Vice-Chair FIsher correctly pOInted out that there's a dIstInctIOn to be made, If the WSIB finds that there IS no compensable Injury In Lister supra, the gnevor had receIved Workers' CompensatIOn benefits In thIS case the tIme lImIts may have been mIssed. It's been 5 years SInce the last IncIdent. The nght to WSIA benefits may not eXIst at thIS pOInt. That constItutes an estoppel ThIS case IS dIstIngUIshable from the cases whIch deal wIth sItuatIOns where Workers' CompensatIOn benefits were applIed for and were eIther accepted or not covered. Johnston, supra dealt wIth a claim for exceSSIve workload and overtIme At p 9 the Board found that the GSB cannot usurp the WCB But the facts In Johnston are not eqUIvalent to the sItuatIOn In thIS case of a pOIsoned work envIronment and where the gnevor's nghts had been systematIcally vIOlated. In Thomson, supra, the gnevor's WCB claim was honoured. At page 9 of the Thomson decIsIOn, the Board dIstIngUIshed the case before It from RiggleSyt,orth because the WSB had demed the RiggleSyt,orth claim. The Board In Thomson relIed on Lister supra, where the WCB claim had been honoured. These cases are completely dIstIngUIshable In thIS case the Board has the nght to Interpret and apply and gIve appropnate remedIes for breaches of the Human Rights Code USIng ItS authonty under the collectIve agreement, the Human Rights Code and the authonty exercIsed In HOYf,e Dalton and Loach, supra At ~19 ofWSIAT DecIsIOn 809/9812, the Tnbunal remarked about the hIgh level of workplace stress of the InstItute In whIch the worker was employed and pOInted out that the J ob of a correctIOnal officer regardless of gender has a tendency to be stressful to begIn wIth. That shows that the Tnbunal was cogmzant that the workplace In correctIOnal InstItutIOns IS stressful, and In thIS case, the employer knew that the gnevor had had prevIOUS medIcal problems In the workplace and In an already stressful workplace they made It worse by the employer's abUSIve behavIOur culmInatIng In the May 9 1999 IncIdent. The employer IS now tryIng to find a break In the causal chaIn, pOIntIng to human nghts Issues and statIng that the workplace had been 14 cleansed. There IS a dIstInctIOn between human nghts and the Injury Even If the workplace had been detoxIfied or cleaned up that does not remove thIS Board's contInuIng jUnSdIctIOn to award damages and remedIes for breaches of human nghts The breaches occurred before detoxIficatIOn. ThIS Board stIll has jUnSdIctIOn to determIne final remedIes There's a clear causal relatIOnshIp as the gnevor's condItIOn has detenorated to the present, and the employer has engendered the pOIsoned work envIronment. The pOIsoned clImate contInued. The mere fact that the employer has finally and belatedly complIed wIth the Board's orders does not remove In any way the employer's responsIbIlIty for the gnevor's medIcal condItIOn. Its conduct emphasIzes that responsIbIlIty under art. 18 1 (Health and Safety) The employer vIOlated the gnevor's pnvacy along wIth other vIOlatIOns found In the Board's DeCISIOn on the ments The gnevor's condItIOn has detenorated, tnggered by the first IncIdent and the detenoratIOn has contInued to the pOInt that the gnevor wIll never work agaIn. L TIP benefits may be the answer L TIP IS a nght under the CollectIve Agreement. However L TIP IS not the full answer The employer wants to shIeld Itself from ItS lIabIlIty by USIng L TIP but the gnevor should not be penalIzed. But for the foreseeable consequences of the employer's actIOns, partIcularly of management, due to wIllful blIndness, harassment and dISCnmInatIOn, the gnevor would probably stIll be at work, and reCeIVIng payment for statutory holIdays and overtIme But for the employer's conduct, there's no eVIdence that the gnevor would not have worked at the Sudbury JaIl for her entIre career and have receIved retIrement benefits In our VIew the WSIA does not shIeld the employer from thIS kInd of claim ThIS Isn't over the course of employment. We do agree and accept the doctors' OpInIOnS whIch have been IdentIfied as Ex. 1 and 2 to thIS motIOn. We agree that the gnevor IS dIsabled medIcally from returmng to work for the foreseeable future In the umon' s VIew that sImply reduces the optIOns whIch can medIcally occur If the gnevor had been found well, she would have returned to a cleansed workplace She IS precluded from a return to work by a medIcal condItIOn. What remaInS IS that the employer IS stIll lIable to provIde remedIes ansIng from the foreseeable consequences of ItS actIOns It IS ultImately lIable for certaIn effects found In Ex. 1 and 2 The gnevor must be "made whole" That's res judicata Therefore the employer should be responSIble for the dIfference between what she IS paid by the Insurance company The employer should be reqUIred to compensate her for the damage It caused. The employer should top up the gnevor's L TIP benefits 15 It has never been GSB polIcy to defer to Workers' CompensatIOn In a sItuatIOn where the gnevor has sustaIned damages anSIng from a vIOlatIOn of her human nghts The GSB took jUnSdIctIOn In HOYf,e Dalton Loach, supra I know of no case where the employer exhibIted the kInd of behavIOur focused on thIS partIcular gnevor The medIcal eVIdence IndIcates the reason for her current condItIOn and attnbutes causalIty dIrectly back to the employer The purpose of damages IS to put the gnevor In the place she would have been In but for the breach. Money cannot restore self-respect or dIgmty but there IS no reason that the employer should be saved from the consequences of ItS actIOns That means dIrectIng the employer to top up the L TIP wIth wages and benefits she would have had. It IS WIthIn the Board's jUnSdIctIOn to dIrect that she be compensated for shIft premIUms, statutory holIdays and overtIme If the Board accepts the employer's argument that your jUnSdIctIOn IS trumped by the WSIA (and we thInk not, In a human nghts case) the Board should remaIn seIsed of enforcement, should there be a determInatIOn whIch reqUIres further adjudIcatIOn. (C) Reply of Mr. Strang for the employer: The employer IS not takIng a new pOSItIOn. It has recogmzed that the gnevor was III QuestIOns arose as to whether her Illness JustIfied her absence The employer operated under the assumptIOn that because of her Illness, she was unable to attend at work. It's only because of Ex. 1 and 2 that we find that the Illness IS due to the workplace It's only through these documents that we know she had epIsodes as early as 1995 ThIS Issue IS now dIfferent. The Issue of whether the employer has a pOIsoned workplace IS over We've gone from aggravatIng the Illness to causIng the Illness I assume the pOSItIOn Mr Roland IS takIng IS the extent or symptomatology keepIng the gnevor from workIng was caused by the employer I argue that If (condItIOn referred to WIthheld) was dIagnosed before 1999 she could not have worked In the JaIl (CondItIOn referred to WIthheld) IS not reasonably foreseeable (Mr Roland Interj ected that the gnevor was penalIzed for rushIng out of the workplace, and that thIS cannot be properly argued In thIS context.) There were findIngs of human nghts vIOlatIOns In the Board's DeCISIOn on the ments, and on other occaSIOns the Board found the gnevor was mISInterpretIng. Mr Roland dIstIngUIshed between human nghts cases and health and safety cases Health and safety cases end up WIth dead bodIes CompensatIOn flows through the WSIB 16 compensatIOn system The Issue of compensatIOn becomes clouded where there has been exacerbatIOn of a pnor condItIOn. Proof of causatIOn becomes a problem The Board should not move to the questIOn of causatIOn. The employer runs a workplace It pays Its WSIB premIUms and maIntaInS long term dIsabIlIty benefits The questIOn IS, why should the gnevor get more than everyone else? The employer has cleansed the workplace Its conduct preventIng her return IS ended. It's sImple The Board's Analyses and DeCISIOns. 1. Statutory HolIday Pay and CompensatIOn for Lost OvertIme In 2004. On June 28 2004 the Board Issued the follOWIng order respectIng Statutory HolIday Pay The Board orders and directs that the employer is to pay the grievor forthwith $15,111.34 as compensation for the loss of opportunity to work statutory holidays and the resultant loss of statutory holiday pay and interest thereon up to the end of 2003. The employer shall pay interest on $15,111.34 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 auy additional income taxes imposed upon her as a result of receiving a lump sum in lieu of lost statutory holiday pay, in the year she receives them, subject to the considerations set out under the heading "k) Potential Loss Due to Increased Tax Rate in Year of Receiut" in the March 4,2004 Implementation Decision. On March 1 2005 counsel for the employer left a telephone message adVISIng that the employer had not paid the statutory holIday pay and would do so The employer has not taken the posItIOn that the compensatIOn for lost overtIme for 2004 had been paid. In VIew of the hIStory of thIS matter the employer is ordered a) to pay the grievor the statutory holiday pay and interest which it was ordered to pay in the June 28, 2004 Second Implementation Decision, within thirty days of the date of this decision, b) to pay the grievor the lost overtime pay for 2004 which it was ordered to pay in the Implementation Decision dated March 4,2004, within thirty days of the date of this decision, c) and to compensate the grievor for any additional income taxes imposed upon her as a result of receiving a lump sum in lieu of lost statutory holiday pay and lost overtime pay in the year she receives it, subject to the considerations set out under the heading "k) Potential Loss Due to 17 Increased Tax Rate in Year of Receipt" in the March 4, 2004 Implementation Decision. 2. Claim for Lost ShIft PremIUms. Counsel for the partIes have asked me to address only the Issue of the tImelIness of the gnevor's claim for lost ShIft premIUms In thIS DecIsIOn. They have advIsed me that If the employer dIsputes the figures compnSIng the gnevor's claim, It wIll so adVIse Mr Roland. It may be helpful to reVIew bnefly the hIStOry as to the compensatIOn of the gnevor and the ImplementatIOn by the employer of dIrectIOns Intended to remedIate the workplace SInce the DeCISIOn on the ments was Issued. The DeCISIOn on the ments IS dated May 24 2001 It dIrected that the gnevor be "compensated and made whole, WIth Interest, for all loss of salary benefits and semonty she Incurred " Salary was not defined at that tIme The benefits were not speCIfied at that tIme SpeCIfic dIrectIOns regardIng the remedIatIOn of the workplace were gIven. In some dIrectIOns, the Board stated the tIme penod WIthIn whIch the remedIatIOn was to be carned out. The longest tIme penod stated was two months from the date of the DeCISIOn. On August 13 2003 about two years and three months after the DeCISIOn on the ments, the employer acknowledged that It had not yet complIed WIth a number of the dIrectIOns regardIng remedIatIOn of the workplace and undertook to do so Those undertakIngs are set out In the FIrst Post-DeCIsIOn Intenm RulIng dated August 28 2003 It should, however be noted that the employer had been paYIng the gnevor' s regular salary pursuant to the Board's order dated March 13 2000 and has contInued to do so SInce the DeCISIOn on the ments was Issued. An ImplementatIOn heanng was held on February 4 2004 The Board Issued an ImplementatIOn DeCISIOn dated March 4 2004 whIch dealt In detaIl WIth the gnevor's economIC losses, and reserved on the gnevor's claim for loss of statutory holIday pay In the absence of eVIdence In support of It. On June 22, 2004 over three years from the date of the DeCISIOn on the ments, the partIes made Informal submIsSIOns regardIng the gnevor's claim for statutory holIday pay No Issue of tImelIness was raised. 18 On June 22, 2004 the employer advIsed that It had complIed wIth the DIrectIOns In the May 24 2001 DecIsIOn regardIng remedIatIOn of the workplace The umon dId not dIspute the employer's submIssIOns regardIng complIance Thereafter the Board Issued ItS Second ImplementatIOn DecIsIOn, dated June 28 2004 The Second ImplementatIOn DecIsIOn dealt wIth the Issue of statutory holIday pay and, In VIew of the employer havIng advIsed the Board of ItS recent full complIance wIth ItS DIrectIOns toward remedIatIOn and detoxIficatIOn of the workplace the DeCISIOn gave dIrectIOns regardIng the provIsIOn of medIcal reports It made no findIng that the workplace had been remedIed or detoxIfied. The Board remaIned seIsed regardIng the balance of the remedy On December 9 2004 Mr Roland first advIsed the Board that the gnevor was seekIng compensatIOn for the loss of the opportumty to work ShIftS for whIch she would have been elIgIble to receIve shIft premIUms SInce May 9 1999 The employer first raised the Issue of tImelIness of the claim for loss of ShIft premIUms on January 11 2005 Close to four years have passed SInce the DeCISIOn on the ments was Issued. Dunng that penod, neIther party has been partIcularly conscIentIOus In complYIng wIth the tImelInes contaIned In the dIrectIOns of thIS Board, although on occaSIOn, each has complaIned of the other's non-complIance wIth those dIrectIOns The Board apprecIates that the employer IS entItled to IdentIficatIOn by the gnevor of her claims for compensatIOn under the "make whole" pnncIple, and IS entItled to some finalIty wIth respect to those claims The gnevor has the assIstance of counsel and the umon, who can be expected to provIde the detaIls of her claim, presumably on a tImely and efficIent basIs However the employer has been sIlent regardIng the tImelIness of the presentatIOn of the gnevor's claims for compensatIOn In the nature of salary and economIC loss untIl January 2005 The employer's delay In complIance wIth the dIrectIOns In the May 24 2001 DecIsIOn, and In raiSIng the tImelIness Issue regardIng the gnevor's compensatIOn claims untIl early 2005 would by any ObjectIve standard, result In a reasonable person concludIng that untIl January 2005 tIme was not of the essence to the employer regardIng the gnevor's claims I therefore conclude that the grievor is not barred by delay from having her claim for compensation for lost shift premiums considered at this time. I will remain seised with respect to the issue of shift premiums in the event that the parties are unable to agree. 19 The employer's posItIOn re tImelIness taken on January 11 2005 however serves as notIce to the gnevor and the umon that any other claims for compensatIOn under vanous "heads" are to be presented shortly 3. Future CompensatIOn of the Gnevor: ThIS Board has not concluded and does not propose to conclude that the workplace IS currently "cleansed" or "harassment-free" gIven that the Board's dIrectIOns In that regard had not been fully complIed wIth untIl shortly before June 22, 2004 The unfortunate delay In complIance depnved the gnevor of the reassurance that the employer vIewed the Board's orders and reasons behInd them as JustIfied, and sufficIently Important, so as to carry them out promptly The unfortunate delay substantIally lImIted the Intended effect of the remedIal dIrectIOns to restore "dIgmty self-respect and self-worth" to the gnevor The Board has been provIded two medIcal reports from one of the gnevor's specIalIsts, one dated October 8 2003 and the latest dated November 2,2004 The gnevor lIves In a small commumty ThIS Board has prevIOusly concluded that there has been a breach of the confidentIalIty of the gnevor's personal health InformatIOn by the employer's representatIves In the past. AccordIngly the contents of those reports are not dIsclosed In any detaIl In thIS DecIsIOn. It IS sufficIent to state that the gnevor's specIalIst IS of the VIew that she IS totally dIsabled from workIng as a C 0 or any other employment. In the DeCISIOn on the ments, the Board concluded that the employer's conduct had exacerbated the symptoms of her condItIOn, and that the employer knew or ought to have known that ItS conduct would do so It IS not In dIspute at thIS tIme that the gnevor IS now unable to return to work, due to her condItIOn, and that she has been unable to return to work SInce May 9 1999 The Board concludes, from the contents of the November 2,2004 report, that notwIthstandIng the employer's fairly recent complIance wIth the Board's dIrectIOns, on balance of probabIlIty the gnevor's InabIlIty to return to work and the greatest portIOn of her current symptoms as set out In the specIalIst's reports, are a consequence of the employer's conduct whIch was found to be In vanous breaches of the collectIve agreement In the DeCISIOn on the ments On the basIs of the medIcal reports, the Board concludes as well that the employer's three-year delay In the full ImplementatIOn of the remedIal dIrectIOns dId nothIng to assIst and very probably undermIned the gnevor's abIlIty to recover sufficIently to return to work, and 20 thereby contnbuted substantIally to the detenoratIOn of the gnevor's condItIOn, reflected In her current condItIOn. I conclude that the employer knew or ought to have known that that was a lIkely outcome of Its delay The gnevor prevIOusly applIed for and was demed L TIP benefits The reason for the demal of the benefits dId not form part of the eVIdence before the Board. The gnevor has not been reqUIred to re-apply for those benefits pendIng the DeCISIOn on the ments and complIance wIth the DeCISIOn. SeekIng relIef from the prevIOUS dIrectIOn of the Board to contInue to pay the gnevor's salary the employer essentIally requests the Board to dIrect the gnevor to re-apply for L TIP benefits It advIsed that should the Board order that the qualIficatIOn penod for the L TIP benefits be waived, the employer can Implement that order The employer's posItIOn IS that It should not be reqUIred to pay the dIfference between the L TIP benefit payments and the gnevor's regular salary (a "top-up") and that It should not be reqUIred to compensate the gnevor for loss of addItIOnal compensatIOn, e g. overtIme, statutory holIday pay ShIft premIUms, after June 2004 The Board concludes that the employer's submIssIOns wIth respect to the effect of the WSIA on thIS Board's JunsdIctIOn are predIcated upon a hypothetIcal set of CIrcumstances It has not been establIshed that the gnevor IS entItled or wIll be entItled to WSIA benefits In the CIrcumstances of thIS case The employer has not commenced a claim to WSIB on her behalf, nor has It requested her to commence one No useful purpose would be served to express any VIew of the Board's JunsdIctIOn In these CIrcumstances L TIP benefits are provIded for under the collectIve agreement, subJ ect to a determInatIOn as to entItlement. The gnevor as a member of O.P S.E U IS entItled to apply for those benefits, and It would not be unfair In the present CIrcumstances to reqUIre her to apply for them agaIn. In VIew of all of the foregoIng, the Board, therefore, directs the grievor to apply for LTIP benefits, with the assistance of the union's specialists in the LTIP area, forthwith. The Board orders that the six month qualification period for L TIP coverage be waived. In the event that the insurer declines to provide the grievor L TIP benefits in response to her application, the grievor is directed to refer the matter to the Claims Review Subcommittee of the Joint Insurance Benefits Review Committee (JIBRC), with the assistance of the union's specialists in the L TIP area. 21 If the gnevor' s claim for L TIP benefits IS honoured, and the employer antIcIpates that her claim wIll be honoured, she wIll receIve about 66 2/3% of her regular gross salary She wIll have to pay Income tax on that already reduced Income If she IS not compensated for the remaInIng 33 1/3 % of her salary she wIll Incur a substantIal economIC loss If she IS not compensated for the economIC loss resultIng from the lost opportumty of workIng overtIme, workIng statutory holIdays, and workIng ShIftS whIch would have entItled her to ShIft premIUm pay she wIll Incur a further economIC loss If she IS not compensated for those losses, she wIll not be "made whole" and would have to lIve In substantIally reduced CIrcumstances Should she, In all the CIrcumstances of thIS case be reqUIred to bear the economIC burden of that loss herself) ImposIng that burden upon the gnevor would be a further assault on her dIgmty and self- esteem, and would sImply not be fair In all the CIrcumstances of thIS case She IS not at fault. She has been a vIctIm of repeated harassment and dISCnmInatIOn. Her symptoms have been found to have been exacerbated as a result of the employer's conduct, as set out In the May 24 2001 DecIsIOn. It would be Inappropnate and unJust to lImIt the gnevor's compensatIOn to LTIP benefits on the grounds that her health does not permIt her to return to work and the collectIve agreement only provIdes for L TIP benefits The employer's conduct In the workplace, whIch constItuted a human nghts vIOlatIOn, and ItS delay In ImplementatIOn of the dIrectIOns for the remedIatIOn of the workplace, and the probable Impact of that delay on the gnevor cannot be Ignored. In such complex, unusual cIrcumstances, an arbItrator has broad remedIal authonty and dIscretIOn, whIch IS not lImIted to the benefits found In the collectIve agreement. The functIOn of the remedy In these CIrcumstances IS to lImIt the economIC Impact on the gnevor and put her as closely as possIble, In the posItIOn she probably would have been In, but for the employer's breaches of the collectIve agreement and post-decIsIOn delay In ImplementatIOn, and the substantIal contnbutIOn of that delay to the detenoratIOn In her condItIOn. The purpose of the remedy In such CIrcumstances IS not to pumsh the employer but to provIde the outcome that IS most Just and eqUItable In all the CIrcumstances As well, It must be born In mInd that the employer IS In a better posItIOn to assume the economIC burden of the gnevor's loss than IS the gnevor In VIew of the foregoIng, the Board concludes that It would be Just and eqUItable for the employer to pay the gnevor the dIfference between the amount she may receIve In L TIP benefits 22 and the amount she would have earned had she been able to return to work as a C 0 and worked regular ShIftS Consequently, the Board orders that a) until such time as the grievor begins to receive L TIP benefits, the employer is to continue to pay the grievor her regular salary as well as the compensation for lost overtime and statutory holiday pay ordered in the Implementation Decisions dated March 4, 2004 and June 28, 2004, b) from the date upon which the grievor begins to receive L TIP benefits, the employer is to pay the grievor the difference between those L TIP benefits and her regular salary, and compensation for lost overtime and statutory holiday pay pursuant to the Implementation Decisions dated March 4, 2004 and June 28, 2004, c) the grievor is to incur no loss of seniority and is to receive all other benefits to which she would have been entitled, but for her inability to return to work, and d) the claim for lost shift premiums is adjourned, to be determined by the parties, if possible, and without prejudice to the right of either party to make further submissions to this Board on this subject. Mr Roland, Mr Gledhill and Mr Strang are directed to hold the information contained in the specialist's written opinions dated October 8, 2003 and November 2, 2004 in strictest confidence. The contents of the specialists' written reports on the grievor are not to be disclosed by them to anyone, pending the issuance of a further order, or until the parties agree in writing to other arrangements. In the March 4 2004 ImplementatIOn DecIsIOn the Board dIrected that the gnevor was entItled to accumulate vacatIOn credIts annually SInce May 9 1999 wIthout the applIcatIOn of Art. 46 5 It should be noted by the partIes that the gnevor's receIpt ofLTIP benefits may tngger some entItlement under Art. 46 11 to compensatIOn for those vacatIOn credIts AgaIn, the gnevor IS to be compensated by the employer for any addItIOnal Income taxes Imposed upon her as a result of reCeIVIng a lump sum for paid out accumulated vacatIOn credIts In the year she receIves them, subJect to the consIderatIOns set out under the headIng "k) PotentIal Loss Due to Increased Tax Rate In Year of ReceIpt" In the March 4 2004 ImplementatIOn DecIsIOn. 23 In the event that the gnevor begIns to receIve L TIP benefits and subsequently does not meet the reqUIrements for receIpt of those benefits, or the benefits are reduced, I wIll remaIn seIsed wIth regard to whether there are further oblIgatIOns on the part of the employer regardIng compensatIOn for the gnevor and the nature and extent of that compensatIOn, If any I wIll remaIn seIsed wIth respect to all Issues pertaInIng to remedIes ansIng from thIS DecIsIOn, prevIOus ImplementatIOn DecIsIOns and RulIngs, the DeCISIOn on the ments and earlIer Intenm RulIngs Dated at Toronto Ontano thIS ih day of March, 2005 - ...