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HomeMy WebLinkAbout2000-0687.Gibbon.02-11-26 Decision ~M~ om~o EMPLOYES DE L4 COURONNE _Wi ii~~;~~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#0687/00 UNION#00E533 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (GIbbon) Grievor -and- The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE BelInda KIrkwood Vice-Chair FOR THE UNION Mary MacKInnon Bode and MacKInnon BarrIsters and SOlICItorS FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING Jan. 30& 31 Nov 6 2001 TELECONFERENCES May 29 2001 Jan. 17 2002 2 INTERIM DECISION Background to Employer's Preliminary Motion The parties agreed that the following facts, as paraphrased were true for the purposes of hearing and deciding the employer's preliminary motion 1 On April 4, 2000, the grievor, Ms Gibbon, who was a female correctional officer at the Thunder Bay Correctional Centre was attacked by four female inmates while she was working in the C dorm of the institution 2 The incident occurred at 8 SO P m while doing a routine check of the female cell and bed areas This incident was subsequently investigated by both the Thunder Bay Police department and the Ministry's Special Investigation Unit. 3 On or about April 10, 2000, an inspector from the Ministry of Labour visited the institution and advised the employer's representatives that he had come to do a routine inspection of the institution pursuant to the Occupational Health and Safety Act. 4 On or about April 11, 2000, the inspector again visited the Thunder Bay Correctional Centre At that time, he met representatives of both the employer and the union and issued two employment orders against the employer S The two Orders stated Pursuant to Subsection 2S(2)(h) of the Occupational Health and Safety Act the employer shall take every precaution reasonable in the circumstances for the protection of the worker The employer shall ensure that in the Young Offenders Unit of the above noted facility, a correctional officer remains in full view of another officer while conducting resident checks or performing other duties in the dormitories or other isolated areas This currently is not the practice And Pursuant to Subsection 2S(2)(h) of the Occupational Health and Safety Act the employer shall take every precaution reasonable in the circumstances for the protection of the worker The employer shall conduct a hazard analyses and risk assessment of the Young Offenders Unit at the above noted location This will include but is not limited to issues surrounding 1) risk of injury to workers from violence ii) staffing levels and scheduling, II) barriers/shields, iii) lighting, iv) protective equipment, v) building restrictions, vi) worker procedures viii) and worker training in procedures The Joint Health and Safety Committee shall be consulted in the establishment and maintenance of the program outlined above This order shall be complied with by May 31, 2000 6 On or about April Sth as a result of the incident on April 4, Ms Gibbon made a claim for benefits under the Workplace Safety and Insurance Act, 1997 3 7 On or about May 8, 2000, Ms Gibbon filed the grievance in which she claims that the employer had failed to make reasonable provisions for her safety 8 On May 11, 2000, the employer appealed the two labour inspectors orders 9 In July of 2000, the employer and the union reached an agreement regarding the Ministry of Labour Orders It is the parties understanding that the agreement constitutes full and final compliance with the two orders 10 In August 2000, the employer advised the Ministry of Labour that an agreement had been reached between the two parties with respect to the two orders 11 On or about October 11, 2000 the OLRB granted the employer leave to withdraw its appeal of the inspectors order, given that the matter had been resolved As of October 1, 2000, pursuant to the Work Safety Insurance Act ("WSIA") the Work Safety Insurance Board ("WSIB") instructed Ms Gibbon to assist the employer in identifying appropriate employment for the grievor's safe return to work. WSIB also referred Ms Gibbon to a labour market service provider to assist her in establishing a labour market re-entry program to allow her to return to suitable appropriate work to restore her pre-injury earnings Ms Gibbon was approved for a re-entry plan to provide her training and assistance in being placed in an alternate position, subject to any suitable modified work that the Ministry may offer Ms Gibbon's claim for benefits under WSIA was approved and she was paid full loss of earnings benefits from April 5, 2000 to May 1, 2002, when she took parental leave after adopting a child When Ms Gibbon took parental leave, WSI B directed the Ms Gibbon to obtain maternity benefits from Employment Insurance, and on completion of her maternity leave to contact their office to review ongoing benefits and determine her labour market re-entry needs Ms Gibbon obtained maternity benefits through Employment Insurance for 35 weeks effective April 21, 2002 The remedies sought in this grievance are 1) that the grievor, Ms Gibbon, be made whole, which includes full compensation from the date of the accident until Ms Gibbon returns to work, including service, wages, benefits etc including damages for past and future for losses from her personal business, 2) that Ms Gibbon be returned to work and that the employer make reasonable provision for her health and safety; 3) that the staff members not enter locked areas without back up, 4) $30,000 for damages for pain and suffering, 5) $10,000 for punitive damages, 6) that all staff be provided requisite training in working with staff members who have been victims of an assault, training for identification of the impacts of serious incidents on staff and peer counseling training in this instances, 7) reimbursement of medical costs, which includes the payment of $800 for structural integration therapy which was not covered by the Great West Life Policy or by the extended health plan provided for in the collective agreement; and 4 8) interest on all monies due and owing As staff no longer enter locked up areas without back-up, the union is not pursuing this aspect of the remedy Argument on Employer's Preliminary Motion Employer Argument The employer has brought a preliminary motion objecting to the jurisdiction of the Grievance Settlement Board to order any monetary damages arising from the incident on the basis that any and all damages arising from the incident arise exclusively under WSIA and cannot be grieved under the collective agreement. Employer counsel argued that where there is a claim for damages, which arises because of an "accident" as defined by WSIA and compensable under WSIA, the right to damages is to be provided under that Act and not under the collective agreement. Employer's counsel submitted that the Grievance Settlement Board has no jurisdiction to award any other remedies, as the operation of section 118 of WSIA extinguishes the grievor's rights under the collective agreement. Employer counsel argued that if the parties had intended that there be greater entitlement than the benefits under WSIA, it would have to be clearly set out in the collective agreement. In support of the employer's position, Employer counsel relied on the case of OPSEU (Lister) and Ministry of Community & Social Services, GSB No 340/89 (Samuels, 1989) Counsel argued that the Lister case was on all fours in terms of the facts and remedies sought, with the case at hand Vice-Chair Samuels had concluded in that decision that the Grievance Settlement Board was not able to award damages for damages arising from an assault which was considered an "accident" under s 14 of the WCA, the comparable section 26(2) of WSIA, as damages arising from an accident were compensable under the Act and were in lieu of any right of action to damages under the collective agreement. This case was followed by OPSEU(Thomson) and the Ministry of the Solicitor General & Correctional Services, GSB No 1612/92 (Stewart, 1997) which held that where a claim for personal injury arising from an accident at the workplace has been accepted by the WCB, the Grievance Settlement Board cannot award additional damages for personal injury on the basis of providing a remedy under article 18 1 of the collective agreement. These principles were also followed in OPSEU (Johnston) and Ministry of Health, GSB 1225/91 (Tacon,1994) and were referenced in OPSEU (Fleming) and Ministry of the Solicitor General & Correctional Services) GSB No 461/95 (Knopf, 1996) Employer counsel submitted that Ms Gibbon's claims for reasonable provision for her safety and for back up were dealt with by the Ministry of Labour in its Orders made under section 25(2)(h) of the Occupational Health and Safety Act, and claims for training of peer workers were also covered by the second Order relating to hazard analysis and risk assessment and specifically dealt with training of the grievor's peers Counsel submitted that as the orders were never challenged or appealed, the union is now estopped from raising this claim Employer counsel submitted that if more training for 5 the grievor's peers is being sought, then the appropriate forum is that of the Ontario Labour Relations Board Employer counsel submitted that the union is estopped from claiming the non-monetary remedies, as the remedies were covered by the agreement reached by the parties in settlement of the Ministry of Labour Orders Employer counsel further submitted that the union not be allowed to resile from its agreement (British Columbia Ferry Corporation and British Columbia Ferry & Marine Workers Union, BCLRB No 6/80 (Munroe)) Employer's counsel submitted that labour tribunals have generally held that they have no jurisdiction to award punitive damages, and that there is no jurisdiction to award punitive damages as no such remedy is set out in the collective agreement. (Re Rexwood Products Ltd And United Brotherhood of Carpenters and Joiners of America, Local 2995 3 L.A C (3d) 83) Counsel relied on the decision of the Public Service Grievance Board in G Morrison and The Crown in Right of Ontario (Human Rights Commission) P/0037/94, P/0037/95 in which the Board held that although the Supreme Court of Canada in Vorvis v Insurance Corporation of British Columbia (1989), 58 0 L.R (4th) 193 had permitted the application of punitive damages, the legislation had not been amended to follow that course As a result, in light of the remedial role of the Public Service Grievance Board and given the nature of punitive damages is to punish a transgressor, which has no place in labour relations, that Board declined to adopt that category of damages Union Argument Union's counsel submitted that the issues placed before the Board by the employer do not go to the issue of jurisdiction, but arise from the scope of the remedies which cannot be determined without hearing the evidence, determining the damages, and apportioning damages which are compensable under WSIA, and those which fall under the collective agreement. Union counsel submitted that the union recognizes that WSIA is a mandatory statutory insurance plan, which provides benefits to employees who are injured in the workplace, and in return for participation in the insurance scheme, employees give up some of their rights to compensation for injuries The union acknowledges that the effect of section 26(1) of WSIA is to prevent employees from seeking benefits compensable under the Act in any other forum, and 26(2) provides those benefits arising "for or by reason of an accident happening to a worker while in the employment of the Employer", in lieu of any action, statutory or otherwise Union counsel submitted that the grievor is not seeking an Order from this Board to payout benefits to which she is entitled under WSIA. Union counsel submitted that the accident suffered by Ms Gibbon, is evidence of failure by the employer to live up to its contractual obligations under the agreement. Union counsel submitted that the subject matter of the grievance is not solely the accident or compensation for the accident or attack, but is broader and arises from the breaches of the collective agreement. 6 Union counsel submitted that Ms Gibbon's claim for damages is not limited to her damages arising out of the attack, but include damages arising out of the employer's response after the attack, and to the employer's decisions which effected her working conditions, which are outside the scope of WSIA, such as requiring her to stay on the job to move young persons into cells due to low staffing levels, and the employer's requirement that she attend debriefing sessions in the workplace, over a two week period The union submitted that the remedies for the employer's actions after the assault, are not compensable items under WSIA, but are remedies flowing from breaches under the collective agreement. Union counsel distinguished between damages for sustained or post traumatic stress arising directly out of the attack, which are not compensable under WSIA, and acute reaction to the traumatic event, which would be a compensable under WSIA Union counsel submitted that as damages for stress relating to the employer's decisions or actions relating to its handling of the grievor or the young offenders after the traumatic attack are not compensable under WSIA, and she submitted these damages are within the jurisdiction of the Grievance Settlement Board Union counsel submitted that matters arising from the employer's actions and decisions relating to the grievor's employment fall under the collective agreement. As they are matters outside WSIA, they are matters outside the jurisdiction of the WSI B as set out in section 118 The union relied on Smith and Bergounhon and Ministry of Solicitor General and Correctional Services GSB No 1598/96 (Abramsky, 1997) which held that the WCA does not cover all work-place injuries and does not pre-empt the entire field of work related injuries As the WCA could not bar claims, which it did not cover, the Grievance Settlement Board held that it had jurisdiction over claims for compensation not covered by the WCA Union counsel submitted that the Lister case is distinguishable from the case at hand, as the claim in Lister was based only on an assault at the workplace and not on the employer's response to the assault. The union relied on Weiland County General Hospital and Ontario Nurses' Association, 5 WC.AT R 97, [1987] 0 WC.AT 0 No 412, decision No 53-87 in which the Board found that it had jurisdiction to award sick benefits, as the claim was not compensable by the WCB Union counsel then submitted that the OPSEU/Paul Gibson and Ministry of the Solicitor General and Correctional Services GSB No 1478/89 (Kaufman, 1998) decision succinctly articulated the relationship between the remedies under the WCA and remedies sought under the collective agreement when it held that the Grievance Settlement Board has jurisdiction over rights claimed under the collective agreement with the exception of compensation for work-related injuries which have been determined to have been compensable under the WCA Union counsel agreed that Minutes of Settlement are binding on the parties, but submitted that there is an obligation on the employer to continue to provide a healthy and safe environment. There are specific aspects that relate to the grievor's individual needs, which need to be addressed, which are not covered by the Orders issued by the Ministry of Labour and entered into by the parties Union counsel submitted the grievor's situation is as in OPSEU/Boulet and Ministry of Community and Social Services GSB #1189/99 (Brown, 2000), in which the union and the ministry had settled a health and 7 safety issue, but the employees covered were not prevented from pursuing their rights in arbitration as an individual's issue may differ from the union's Workplace Safety and Insurance Act 1997 PART 1 -INTERPRETATION 1 Purpose - The purpose of this Act is to accomplish the following in a financially responsible and accountable manner' 1 To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases 2 To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease 3 To facilitate the re-entry into the labour market of workers and spouses and same sex partners for deceased workers 4 To provide compensation and other benefits to workers and to the survivors of deceased workers 2 (1) Definitions -In this Act, accident" includes (a) a willful and intentional act, not being that act of the worker (b) a chance event occasioned by a physical or natural cause and (c) disablement arising out of and in the course of employment. 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan (4) Except as provided in subsection (5) a worker is not entitled to benefits under the insurance plan for mental stress Same (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions to discipline the worker or to terminate his employment. Rights of Action 2610 No action for benefits - No action lies to obtain benefits under the insurance plan but all claims for benefits shall be heard and determined by the Board 8 (2) Benefits in lieu of rights of action - Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker a worker's survivor or a worker's spouse same-sex partner child or dependant has or may have against the worker' s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer Part XI - DECISIONS AND APPEALS Decisions by the Board 118(1) Jurisdiction - The Board has exclusive jurisdiction to examine hear and decide all matters and questions arising under this Act, except where this Act provides otherwise (2) Same - Without limiting the generality of subsection (1) the Board has exclusive jurisdiction to determine the following matters 3 Whether personal injury or death has been caused by an accident. 4 Whether an accident arose out of and in the course of an employment by a Schedule 1 or 2 employer 7 Whether loss of earnings has resulted from an injury 8 Whether permanent impairment has resulted from an injury and the degree of impairment. 9 The amount of a person's average earnings and net average earnings Article 9 1 of the collective agreement, upon which this grievance is based, echoes article 18 1 of earlier collective agreements, as referred to in this decision, states 91 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co- operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of its employees Decision The Grievance Settlement Board is established under the Crown Employees Collective Bargaining Act and its jurisdiction as set out in the collective agreement is to resolve differences between the parties This involves the interpretation and application of the collective agreement between the parties In carrying out those functions, it must 9 consider the collective agreement in the context of statutes that affect it, which includes WSIA. There have been a number of cases, as submitted by counsel, which have dealt with the jurisdiction of the Grievance Settlement Board to hear and make decisions on matters, which come before the WSI B or its predecessor WCB, which have dealt with some, but not all the issues in this case The union claims that the grievance is based upon conduct that affected the grievor that gave rise to a claim that was not covered by WSIA Therefore, the first issue to be addressed is is a worker who has a claim arising from an accident which claim is not compensable under WSIA, a. entitled to make a claim and seek a remedy from the Grievance Settlement Board, or b is the worker barred from making such a claim? The Weiland County General Hospital decision is an example of a case where an employee who had an accident at the workplace which was not covered under the WCA, but was able to obtain a sick leave benefit as provided in the parties' collective agreement. The grievor lost two days work, after a patient kicked her when she was at work. The grievor, who believed that her absences were exacerbated by an earlier non- work related injury, did not make a claim to the WSB The employer believed her absences resulted from the incident at work, and treated it as compensable under the WCA legislation The WCB denied the grievor's claim, as the grievor had not received any medical treatment. Therefore, the grievor's claim was not compensable However, the grievor was awarded sick leave benefits in an arbitration award arising from a grievance under the collective agreement, when the arbitrator found, that as the WCB had determined that the injury was not compensable, there was no conflict between the WCA and the collective agreement. An appeal launched before Workers' Compensation Appeals Tribunal "WCA 1" to determine whether the grievor had lost the right to arbitrate as a result of the workers' compensation legislation, and if the grievor ought to have filed for WCB benefit's was unsuccessful This case is important for WCA 1's comments on the limitations of its jurisdiction and its comments on the ability of unions to be able to pursue an employee's grievance under the collective agreement. It saw a difference between a limitation on the rights and right of action of an employee, which may prevent the employee from suing the employer in some cases, from the union's right to pursue an employee's grievance under the collective agreement. It held that there was nothing in the WCA, which would preclude a union and employer from including additional provisions in a collective agreement, and enforce those obligations under the terms as agreed by the parties through the grievance procedure As stated by the WCA T in Weiland County General Hospital at page 103 In our view, it is not inconsistent with the intent or the wording of the Workers' Compensation Act to find that a worker has no right to bring a civil action against his 10 employer in certain cases but that his union continues to have the right to pursue the worker's grievance under the terms of a collective agreement. We would note that a collective agreement could not waive a workers' right to Workers' compensation benefits (s 16 of the Act) There is, however, nothing in the Workers' Compensation Act which would preclude a union and an employer from including additional provisions in a collective agreement. They could, for example, provide for additional benefits or for recall or job modification for workers who have had compensable accidents There is also nothing to preclude them from making the type of agreement that was made in this case - that is, providing for sick benefits in cases not covered by workers' compensation Collective agreements are voluntary agreements which do not affect workers' rights under the Workers' Compensation Act. Any such provisions in collective agreements would be enforced by the grievance procedure Such provisions are not, in our view, what was contemplated by the historical "trade-off" which is embodied in ss 8, 14, and 15 of the Workers' Compensation Act. These were not the type of "actions" or "rights of action" which workers gave up in return for a statutory no-fault accident compensation system Thus, in our view, the reference to "action" or "rights of action" in ss 8, 14, and 15 of the Act was not intended to prevent the union and the employer from using the grievance procedure to enforce rights under the collective agreement. A different characterization of the issues, but the same result, was seen in Smith and Bergounhon, in which Vice-Chair Abramsky held that the Grievance Settlement Board had jurisdiction to hear the grievor's claims for compensation as the grievor's claims for compensation to the WCB had been denied In that case, the union had filed four grievances alleging that the grievors were harassed and assaulted by management at work during a strike, and that the actions of their supervisor, who allegedly was consuming alcohol, endangered their health and safety The grievors claimed that the employer violated the collective agreement by not continuing their salary while their workers' compensation claims were pending The grievors' claims to the WCB for damages for stress were denied, and were found to be not compensable under the Act as the alleged stress was not characterized as acute stress arising from a sudden, shocking and life-threatening event, the only type of stress compensable under the WCA Vice-Chair Abramsky held that article 18 1 of the collective agreement is an enforceable contractual right for which damages may flow if breached and therefore allowed the grievors' claims for damages to proceed She held that the Grievance Settlement Board 11 had jurisdiction on the basis that not all injuries 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 industrial disease As there were gaps in the legislation, the WCA did not pre- empt the entire field of work related injuries 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 happening 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 union 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 circumscribes the jurisdiction of the WSIB to matters falling under the statute and does not cover areas outside the legislation However, as some of the grievor's claims had been compensated under WSIB, the next issue is whether a worker who has a claim arising from an accident which claim is covered and as such, compensable under WSIA, a. entitled to make a claim for supplementary or additional damages by pursuing a claim through the collective agreement and seeking a remedy from the Grievance Settlement Board, or b is the worker barred from making such a claim? It is first necessary to clarify one item of the remedies being sought, as the Union's claims were to some degree contradictory On the one hand, the Union claimed it was not seeking benefits compensable under WSIA or damages flowing from the accident, but was relying on the employer's conduct after the assault, and yet the grievance stated that the grievor was seeking full compensation from the date of the accident to the date of the grievor's return to work. As acknowledged by the union, WSIA provides entitlement to benefits under an insurance plan for employees who have an accident, as defined by the Act, at the workplace As set out in subsection 26(1) the entitlement to benefits under the Act is solely within the jurisdiction of the WSIB Union counsel stated that the union was not seeking an Order from this Board for these benefits The union's position as stated at the hearing, is in line with the limitations as set out in the statute, which is clearly beyond this Board's jurisdiction to award This question is therefore focused on the issue of the Board's jurisdiction where an employee's claim has been covered by WSIA, and the employee is seeking supplementary compensation to that claim, through the grievance procedure In the Lister decision, a nurse was sexually assaulted by a male resident at her workplace She filed a claim for benefits and received compensation under the WCA, 12 and then filed a grievance claiming that the ministry had violated article 18 1 of the collective agreement. The grievor claimed, in a similar fashion, as did Ms Gibbon, that she had suffered physical, psychological, emotional and financial damage, and was seeking damages for the difference between her salary and her workers' compensation benefits, loss of outside income which she had received while her son was living with her and which she lost when he moved out, medical costs, and out of pocket disbursements, and general damages for physical and mental stress Vice-Chair Samuels held in Lister that there was jurisdiction to determine if there was a violation of article 18 1, and the Grievance Settlement Board had jurisdiction to enforce the obligation to provide for the health and safety of its employees, but could not award damages, as the damages which the grievor was seeking under the collective agreement were damages for personal injury which were compensable under the workers' compensation legislation Vice-Chair Samuels looked to the source of the right to damages, as relevant in setting the parameters of an action or a grievance, rather the quantification or classification of damages He held that the effect of section 14 of the WCA, a predecessor to subsection 26(2) of the current WSIA, was to replace the contractual right to damages under the collective agreement for an injury at the workplace with a legislative compensation scheme Vice-Chair Samuels held that as the damages arose from an "accident" at the workplace and was a compensable claim under the Act, by virtue of s 14 of the WCA, the legislative scheme was in place of a right to claim broader damages arising from the accident before the Grievance Settlement Board At page 10 of Lister, Vice-Chair Samuels stated Section 14 is concerned with the source of the right to damages, not the way in which the damages are calculated If the "right" to damages against the employer is "by reason of any accident happening to him while in the employment of such employer", such rights, statutory or otherwise, have been replaced by the legislative compensation scheme The Thomson decision followed the Lister decision The WCB paid benefits to the grievor after she had injured her foot at work, and had dealt with some accommodation issues The grievor then grieved and alleged that the employer breached article 18 1 of the collective agreement and failed to accommodate her and sought a wide range of damages, which included the difference between her WCB benefits and her regular pay, payment for lost time to attend medical appointments, payment for hours of lost work, general damages for pain and suffering and compensation for foot damage At page 9 the decision of Vice-Chair Stewart found that the facts were similar to Lister, and found that Here, where a claim for damages for personal injury arising from an accident in the course of employment has been made and accepted by the Workers' Compensation Board, it is our view that the Grievance Settlement Board cannot award additional damages for personal injury on the basis of providing a remedy for a breach of article 18 of the Collective Agreement. Accordingly, it is our conclusion that the Employer is correct in its position that in certain respects the claims before us related to matters that are properly within the exclusive jurisdiction of the tribunals established pursuant to the Workers Compensation Act. In particular, those matters are claims for replacement damages, general damages and damages for a permanent disability 13 Vice-Chair Stewart considered, but did not follow the approach taken in Rigglesworth by Vice-Chair Fisher, which applied a wide interpretation of Weiland County General Hospital and took a broad view of the jurisdiction of the Grievance Settlement Board In Rigglesworth, the grievor had developed health problems from the presence of certain chemicals in the workplace The WCB denied his claim, but subsequently allowed a subsequent claim on an aggravation basis The grievor also grieved that article 18 1 of the collective agreement was violated and sought financial compensation for past and future losses in wages together with financial compensation for mental stress and physical hardship before the Grievance Settlement Board Vice-Chair Fisher did not agree with Vice-Chair Samuel's interpretation of WCA 1's findings in Weiland County General Hospital Vice-Chair Fisher concluded that unions and employers were free to negotiate clauses in collective agreements which provide additional financial benefits to the workers' compensable injuries and article 18 1 could be viewed as such an additional benefit. Therefore he held that the Grievance Settlement Board had jurisdiction to hear the grievor's claim, although he did not determine whether s 18 1 was intended to cover the grievor's claim Notwithstanding his view however, Vice-Chair Fisher found that the Rigglesworth case was different from the Lister case on its facts, as in Lister, the grievor's claim was accepted and paid by WCB, and Mr Rigglesworth's had been rejected by the WCB and found to be non-compensable Although the union relied on the Gibson case, to illustrate that the Grievance Settlement Board has taken on jurisdiction where a claim before the WCB has not been determined, it is not helpful The facts are very different, as that employer was opposing the grievor's claim both in front of the WCB and in front of the collective agreement. As Vice-Chair Kaufman stated, the employer cannot have it both ways Vice-Chair Kaufman retained jurisdiction in the unjust dismissal claim arising from the collective agreement, but was not prepared to make any determination until the WCB claim had been settled In my view the cases of Lister and Thompson, and as endorsed in Fleming and in Johnston in obiter, are a preferable approach to follow when determining the Board's jurisdiction, where a claim has been filed and found to be covered under WSIA, as Rigglesworth ignores the impact of the predecessor to section 26, particularly section 26(2) of WSIA When section 26 is looked at in its entirety, it covers two aspects The first, section 26(1) prevents any right of action for benefits, other than a right to claim benefits through the WSIB The second, section 26(2), provides that entitlement to benefits under the WSIB is in lieu of, or instead of, "all rights of action (statutory or otherwise) " The benefits are therefore a replacement for all riahts of action resulting from "an accident happening to the worker while in the employment of the employer" Section 26(2) would not be necessary if an employee was only prevented from seeking benefits from other sources Therefore reading section 26(2) in conjunction with section 2 of WSIA, which defines an "accident" and the right to benefits, section 26(2) prevents a worker from pursuing any action against the employer for any damages arising from an accident for which benefits were paid Therefore, the next issue is 14 Does article 9 1 entitle a worker to bring claims for damages arising from a violation of that article, which are not covered under WSIA, and make other additional claims, through the grievance procedure? As held in Lister, there is jurisdiction to interpret and apply article 9 1 of the collective agreement, and make a declaration that the employer has breached article 9 1 by not providing a reasonable and safe atmosphere for the grievor, but there is no jurisdiction to award damages which would otherwise flow from the source of the compensable claim under WSIA However, as there is nothing in WSIA that prohibits the parties from creating separate contractual rights outside the scope of WSIA, parties can agree to additional rights in their collective agreements, but given the language of section 26(2) that bars workers from exercising other rights of action, it would have to be clear in the collective agreement that the parties agreed to provide benefits which were in addition to any benefits that an employee may receive under WSIA There is another line of cases which must be considered, and which give rise to a right of action under the collective agreement and which are not inconsistent with the earlier cases The cases of Fleming and Johnston recognize that there can be a separate contractual right arising from the collective agreement, that gives rise to a remedy In these cases, such as held in Fleming and noted in Johnston, a right of action can run concurrently with the workers' compensation matters In Fleming, the grievor had been injured at work and had received workers' compensation benefits She had returned to work, but was seeking a compressed work week schedule which she had had prior to her injury The employer was prepared to give her the schedule she wanted when she was able to resume her full duties The grievor claimed that she was being discriminated against on the basis of her disability Vice-Chair Knopf agreed that the Grievance Settlement Board has no jurisdiction over a claim for compensation for a work related injury such as in Lister and Johnston She pointed out however, that the issue before her, was not whether the Grievance Settlement Board could award additional compensation or damages beyond those available under the WCA, which is the issue here, but whether the grievor had a contractual right under the collective agreement to the compressed work week schedule She recognized that the WCB has exclusive jurisdiction over whether or not there was compliance with the Act, but recognized that there could be rights under a collective agreement that are concurrent and at times greater than those under the WCA. In making the panel's decision, Vice-Chair Knopf acknowledged that compliance under the WCA does not necessarily mean that the compliance has answered the question posed under the collective agreement. Therefore, in applying these principles, Vice-Chair Knopf held that while the WCB may have determined that the employer return the employee to a suitable position, without causing undue hardship to the employer, the issues as to whether there was discrimination on the basis of handicap, and whether the grievor had been reasonably accommodated were within the jurisdiction of the Board Similarly, Article 9 1 clearly articulates that there is a responsibility on the employer to provide a safe and healthy working environment for the grievor during her working hours, which is a separate contractual right, over which this Board has jurisdiction to interpret and apply As the parties are not barred by section 26 of WSIA from providing for additional benefits in a collective agreement, which can be enforced through the grievance procedure, this Board has the jurisdiction to award monetary damages which were not covered or compensated for in lieu of the grievor's rights under WSIA, and non- IS monetary remedies flowing from a declaration that the employer has failed to provide a safe and healthy working environment. When applying the principles from the arbitral jurisprudence to the case at hand, I find that: 1) the Board does not have jurisdiction to make any remedy for any additional or supplemental damages, however characterized, which have as their source, the "accident", as defined under WSIA as Ms Gibbon had compensable benefits under that Act; but 2) the Board has jurisdiction to hear a claim which rests upon a source which was not covered and was not compensable under WSIA, and 3) the Board has jurisdiction to award non-monetary remedies upon a declaration that the employer has failed to provide a safe and healthy working environment pursuant to its obligations under article 9 1 A further issue is raised from the Employer counsel's submissions What is the impact of the Settlement reached by the parties on remedies flowing from any breach of article 9 1? The employer has alleged that there is no jurisdiction to make an order relating to working conditions, as the parties cannot resile from their agreement made after the Orders were issued by the Ministry of Labour In my view, as referred to by Employer's counsel, the Be Ferries decision at page 8, correctly sets out the principles applicable to a settlement when it expresses the view that settlements are final and binding between the employer and union so long as they are made by persons with actual or apparent authority, and that it is immaterial if settlement might not have been reached if one of the parties had more information at the time the settlement was reached However, as also stated at page 8 At the same time, before depriving someone of the prima facie right to an adjudication on the merits of a case, an arbitration board or this Board should be thoroughly satisfied not only that a settlement has been reached but also the terms of the settlement were such as to firmly embrace and resolve the issue at hand The Agreement that settled the Orders issued by the Ministry of Labour was a matter between the union and the employer to which the grievor was not a party and it did not deal directly with the claims made by Ms Gibbon Although the Orders and Settlement arose from the incident involving the Ms Gibbon, and the parties knew at the time of the Settlement that Ms Gibbon's grievance had been filed in May, the Orders and the Settlement did not address Ms Gibbon's health and safety, and Ms Gibbon was not a party to the agreement, and the parties did not include any specific releases or exclusions of any individual grievance As in Boulet, the Orders do not relate to the way the working conditions affect the grievor, which is the matter before this Board Accordingly, as the grievor that has filed a grievance pursuant to the collective 16 agreement and has not waived any rights under that collective agreement, she is entitled to have it determined whether the employer violated article 9 1, and failed to make reasonable provision for her health and safety during her hours of employment, and she is entitled to seek a remedy for that alleged breach Therefore, the scope of the remedy as it relates to the health and safety issues, which includes the non-monetary claims by the union that the employer make reasonable provisions for the grievor's health and safety, such as training of peers is within the jurisdiction of the Grievance Settlement Board, to the degree that it affects Ms Gibbon, which is the issue before this Board The Orders and Settlement however, did deal with many issues, and may go to the issue of mitigation, as suggested by Union counsel Similarly, as in Fleming, if it is found that the employer has breached the collective agreement in its obligations to provide a safe working environment for the grievor, a remedy which flows from making the grievor whole, is a return to work, which may include the duty to accommodate the grievor The next issue is Whether the Board has jurisdiction to award damages for pain and suffering in the circumstances Although damages for pain and suffering may be difficult to prove and achieve, these heads of damages relate to the scope of damages, and are within the jurisdiction of the Grievance Settlement Board However, what is not included within our jurisdiction, are damages for pain and suffering which have as their source, the accident. The final issue is Whether the Board has jurisdiction to award punitive damages? The case of G Morrison and The Crown in Right of Ontario (Human Rights Commission) a decision of the Public Service Grievance Board, sets out the purpose and the seriousness of a claim for punitive damages at page 5 of its decision where it states The purpose of punitive damages in the common law is to punish the particularly vile or blameworthy conduct of the defendant. There is nothing compensatory at all about this category of damages Rather punitive damages are intended to express legal condemnation, principally through monetary retribution, in order to deter the defendant and others who may be tempted to follow in his or her footsteps, from behaving in the same fashion again As the Supreme Court of Canada noted in Vorvis, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer In his majority judgement, Mcintyre Stated on p 206 and 208 that punitive damages would be awarded only in rare circumstances It must never be forgotten that when awarded by a judge or a jury, a punishment is imposed upon a person by a court by operation of the judicial process What is it that is punished? It surely cannot be merely conduct of which the court disapproves, however, strongly the judge may feel Punishment may not be imposed in a civilized community without a 17 justification in law The only basis for the imposition of such punishment must be a finding of the commission of an actionable wrong which caused the injury complained of by the plaintiff punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment. The Board makes its conclusions at page 6 of the decision as follows Without making a detailed analysis of the interpretation in Re Ontario Hydro on the import of the Vorvis principles on punitive damages to statutory labour tribunals, it is our judgement that we have not been persuaded by anything we have read in Re Ontario Hydro that the prevailing labour and employment law view towards the jurisdiction of a board such as ours to order such damages has been fundamentally altered On the contrary, we agree with the direction provided in the cases and comments we have cited on the previous page For this Board, an award that has a punitive character should have no place at the resent time in our remedial quiver It would be contrary to the thrust of remedial principles that both the PSGB, and labour tribunals elsewhere in Ontario, have regularly followed We accept the oft-cited rationale that adopting punitive awards would be seriously detrimental to the well-being of on-going relationship between the parties where it is governed by statutory framework. We acknowledge the common law, through Vorvis, has permitted its application, and tribunals such as ours should always be alert to the ongoing evolution in the judiciary's development of employment law But until either labour and employment legislation is specifically amended to include this qualitatively new direction, or the thinking among labour and employment tribunals in Ontario and Canada undergoes a sea-change in its policy towards the place of punitive damages in industrial and human relations, we decline to adopt this category of damages Although the Supreme Court of Canada recognized in Vorvis, that a court may award punitive damages in extreme circumstances where there has been a breach of contract where there is an independent actionable wrong, where it is necessary to punish the wrongdoer, our role as a statutory Board role is to resolve differences between the parties, arising from the interpretation, application, administration or alleged violation of a collective agreement. The Board is to resolve matters of contractual interpretation and application, and has no inherent or statutory jurisdiction to punish a wrongdoer as required by the nature of punitive damages The nature of punitive damages is to punish the transgressor, and not to compensate or remedy breaches in the collective agreement. In order to have jurisdiction to award punitive damages it would have to be shown that it would "resolve" the differences between the parties as set out in article 22 16 which establishes the parameters of our jurisdiction as it flows from the collective agreement. In light of this remedial role of the Board, we adopt the views of the Public Service Grievance Board in G Morrison and 18 find that we have no jurisdiction to award punitive damages Even if it were a matter of the scope of damages as submitted by union counsel, the facts as agreed by the parties for the purposes of this motion do not to meet the standard set by Mr Justice Mcintyre Therefore in summary, I find that the Grievance Settlement Board has jurisdiction to determine and declare if article 9 1 of the collective agreement has been breached, and to hear and determine any right to damages including interest, arising from the conduct which was not covered and compensated through WSIA, which would include damages for stress which are not compensable under the WSIA and which did not have the accident as its source This Board does not have any jurisdiction to determine any damages arising from the accident however, caused or however categorized Therefore, with reference to the remedies sought by the union as set out at pages 3 and 4 of this interim decision 1 I find that this Board has no jurisdiction to award remedies with respect to remedies 1, and 5 and the parties have resolved remedy 3 2 With respect to remedy 6, this Board has jurisdiction to award a remedy to the extent that such remedy impacts or would impact the grievor 3 With respect to remedies 4 and 8, this Board has jurisdiction, only to the extent that such remedies are not compensable under WSIA 4 With respect to remedy 7, this Board has jurisdiction only to the extent that such remedy relates to a claim that is not compensable under WSIA, and to the extent that it is allowable under the collective agreement. In those matters that the Board has held it has jurisdiction to hear a claim, the Board is not making any findings of fact, including whether the claims over which it has jurisdiction for remedies 4, 7 & 8 are valid, or are claims over which the WSIB has no jurisdiction Dated at Toronto, this 26th day of November, 2002 : - .. : :