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HomeMy WebLinkAbout1981-0227.Gonneau.82-02-01227/81 IN THE -MATTER OF AN ARBIT?'TION Under THE CROWN E~MPLOVEES COLLECTIVZ EARGAIXING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: ODSEU (11. Gofineau) and Grievor, The Crcwn in Riqht of Ontario (Xinistry df the Attcrxey General! Employer. K. Teplitsk:/, Q.C. - Vice-Chairman H. J. Lainq - IYember R. Russell - Member For the Gri&ok: I. J. Roland, Counsel Cameron, Brewin & Scott Barristers & Solicitors For the Employer: S. X. Porter, Counsel, Legal Brakci ?linistry of Government Services Hearing: January 18, 1982 - 2 - This matter first came on for hearinq on August 25, 1981 when the parties presented an agreed Statement of Facts. After hearing some preliminary representations the.Board suggested that this matter should be adjourned to enable the employer to obtain legal counsel because it appeared that this grievance, although only involving the sum of $100.00, raised several important issues of law. On consent the grievance was adjourned until January 18, 1981. For convenience I now set out in its entirety the agreed Statement of Facts: "1. This grievance concerns Marilyn Gonneau employed in the position of "Clerk 4 General" by the Ministry of the Attorney General (hereafter referred to as the "Ministry") at the Courthouse located at 491 Steeles Avenue East,'&iilton, Ontario. 2. At all material times- Ms. Gonneau was covered by the current Collective Agreement between OPSEU and the Crown in Right of Ontario. 3. The qrievor,. like most other, employees of the Ministry, travelled to and from work at the Milton Courthouse by private automobile. Two parking lots for the use of the public, including Ministry employees are located adjacent to the Courthouse, one on on (sic) east side, and one on the west side of the Courthouse. I \ - 3 - 4. The only access to and egress from the parking lots is by private laneways, one for each parking lot, onto Steeles Avenue East, a public four lane municipal road. The laneway serving the west parking lot (hereafter referred to as the "west laneway") is approximately 6.8 meters wide. The parking lots and the private laneways are part of the Milton Courthouse property -owned by the Government of Ontario. 5. The west laneway declines from the west parking lot to Steeles Avenue East. 6. On Wednesday, December 10, 1980, Ms. Gonneau travelled in her own private vehicle to her employment at the Milton Courthouse. She parked her vehicle in the west parking lot. Her regularly scheduled hours of work were 8:30 a.m. to 4~45 p.m. The Courthous.e offices close daily at 4:30 p.m. That day Ms. Gonneau was permitted to leave work at 4:30 p.m., having completed her work for the day. 7. Ms. Gonneau proceeded to her vehicle in order to drive home. About one inch of ice and blowing snow had accumulated on the Courthouse parking lot and west laneway earlier that day. No efforts had been made that day by Ministry personnel to salt, sand, or remove the ice and snow that had accumula- ted in the west parking lot and laneway. 8. Upon exiting the parking lot by the west laneway, the Grievor proceeded cautiously 'and applied the brakes of her vehicle in order to stop it before entering Steeles, Avenue East. - 4 - 9. Due to the'ice and snow in the west laneway her vehicle slide (sic) into Steeles Avenue East where it collided with a vehicle proceeding in a westerly direction. As a result of the collision the Grievor's vehicle required repairs totalling $1,408.70. Damage to the other vehicle amounted to $1,073.08 and an additional amount for the rear axle. 10. 1YS . Gonneau's insurance company has paid for the repair of her vehicle, but for $100.00 deductible, which amount was paid personally by her. . 11. Attached hereto is a copy of the policy accident report." I conclude based inparticular on Paragraphs 7 and 8 of the agreed Statement of Facts that the.grievor did not cause or contribute to her loss by failing to take reasonable care, and that her employer did not make reasonable provisions for the safety of those persons, including the grievor, whom it knew would be using the driveway on that'~ day. The issues which confront us are whether: 1) Article 18.1 imposes any duty on the employer, the breach of which is enforceable under the grievance procedure by an award of damages, and 2) Assuming the answer to question 1) is yes, does - 5- “la.1 18.2 18.3 la.4 submitted Article 18.1 apply,to the agreed facts and the inferences which I have drawn. Article 18 in its entirety provides as follows: 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 Vnion shall co-operate to the fullest extent possible In the.prevention of accidents and in the reasonable promotion of safety and health of all employees. The Employer. shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees. The purchase.of safety shoes or boots for on-the-job protection of the purchaser shall be subsidized as per the applicable practice in each ministry. The current practices relating to the supply and maintenance of apparel for employees shall continue during the term of this Agreement, subject to any changes which may be entered into between the parties at the local or ministry level." In her able submissions, counsel for the employer that Article 18.1 did not create any enforceable obligation on the employer. Rather, it was a mere statement of principle or "good intentions". Articles 18.2, 18.3 and 18.4 provide the details of the employers obligation to make reasonable provisions for the safety and health of its employees and a breach of these provisions are enforceable. The emp,loyers obligation is no greater than that specified in 18.2, la13 and 18.4. Put bluntly, the argument is that Article 18.1 ismere SUrplUSage. Mr. Roland submitted that one should strive, so far as reasonably possible, to construe language.so that effect is given to all terms of a contract so that none are rejected as surplusage or as having no meaning. In my opinion, Section ia (11 literally construed imposes an obligation on the employer, the breach of which may attract a remedy in damages. A literal construction which gives meaning is preferable to a construction which would treat 18.1 as mere surplusage. It would be a dangerous practice for arbitrators to give weight to'speculation as an aid to construction in the face of language capable of a sensible literal meaning. I can find no policy reason that would require us to ignore the plain meaning of 18.1 to prevent a griever-.access to the informal arbitration procedure as a means of redressing a breach by the employer of such a provision. If parties insert language into a collective agreement their expectation must be that it will have meaning and that a breach, if damage results, will be enforced through the grievance -procedure. MS. Porter's alternate position was that Section 18.1 does not apply because the damage was to property rather than to the safety and health of the grievor and that the damage-did not arise during the griever's hours of employment. -7 - She also submitted that there could be no obligation on the employer to provide for the safety of an employee when the employee was engaged in the use of a parking lot which was supplied gratuitously. I reject.,these submissions. It is clear that the property damage flowed directly from the employers failure to make reasonable provisions for the safety and health of the grievor. Fortunately she was not ,injured in the accident. I am aware of no principle which would disentitle a party to recover a loss of property which flowed directly from such a breach of contract. Rather, it seems clear that the loss is not too remote. This loss both arose "naturally" or was in the contemplation of both parties at the time the collective agreement was made. In other words both of the alte.rnative conditions in Hadley v. Baxendale (1854) 9 Exch. 343. are satisfied in this case. Article 18.1 does not specify the area or areas in respect to which the obligation applies. In my opinion the parties intended that the, obligation would apply to those parts of the lands and premises over which the employer has control and to which the employee has a. right of access. This would include the means of ingress and egress to the work place, the lunchrooms, and the parking lots supplied by the employer. .* -a- The argument as I have noted was advanced that because the employer is under no contractural obligation to su,pply a parking lot,it cannot be liable for damage sustained by reason of its failure to make reasonable provisions for employees entitled to use it. I address this argument notwithstanding that the accident occurred on the mea~ns of ingress and egress to the work place and not specifically on the parking lot. In my opinion, if the employer chooses to supply a parking lot or sidewalks, or for that matter a lunchroom, its obligations under 18.1 apply. These are all facilities connected withandincidental to the work place. Although their supply may be gratuitous, obviously the employer considers it in its interests to make these available. There is no reason to read Article 18.1 as confined to the actual, "spot" where the employee works. The expression "during the hours" of employment, in my opinion, was.not designed to limit the employer's obligation to the exact hours the employee is at his work station. It was intended, rather, to confine the employer's obligation to those times when the employee is legitimately on the lands and.premises of the employer in connection with his employment. Accordingly, it would apply, in my respectful opinion, while the employee is securing either ingress or egress to his work station. In any event, as a factural matter, the loss . -9 - was sustained by a breach during the working hours of the employee, of the employer's obligation. The fact that the loss actually occurred, arguably, after the employee had ceased to work does not change that fact. For these reasons the grievance is allowed and I would award the grievor the sum of $100.00 as claimed ,by her. DATED. this 1st day of February, A. D. 1982. ~. T4t+ pJ$ / M. TEPLITSKY, Q-C., ARBITXATOX L .~;: :;~--- .- - R..Russell - Xember Dissent to follow H. J. Laing - Member I am obliged to dissent from the award ~of the majority in this matter. As noted the parties agreed to a Statement of Facts. they choose. If they e may use either parking The manner in which emp The maJority have drawn certain conslusions from these facts but seem to have given no weight to the fact that the parking lots are for the use of the public and Ministry employees.such as the grievor are free to travel to and from work in any way lect to come by private automobile they lot or, presumably, park somewhere else. loyees come to work and the location at which they may choose to park their private vehicles are matters of individual choice over which the employer exerts no control and with respect to which the employer cannot be made to accept -I' any responsibility. The relevancy of this comes clear when one considers Article 18. The first paragraph of this article is general in its language and imposes obligations on the employer con- cerning the safety and health of its employees during the hours of their emp referring to oyment. The. following paragraphs add flesh by more specific matters. I do not agree that Article 18.1 is mere surplusage. I agree;it must be given both meaning and application. However, the article must not be distorted to cover a situation beyond the reasonable contemplation of the parties. Nhat this article addresses is the work place of the employees, the location where they work together with the necessary appendages. This . , - 2 - might well include employees' lunch rooms or work rooms for example, but surely it does not extend to a public parking lot, especially where employees are free to use their own transportation. In the language of tort law the damages are simply too remote. In the language of labour relations, the majority have placed a construction on the words of the article that it will not reasonably bear. As set out in the Statement of Facts the accident took place on Steeles Avenue East. The grievor had already exited from the parking lot. This underlines the difficulty inherent in the approach adopted by my colleagues. They have considered a contractual obligation, Article 18, and have applied it to a situation where the grievor was not subject to any employment obli gations. The grievor was on her way home, in her own vehi cle after leaving work. Since her employment obligation had ended I fail to see how the employer's obligation continued, bearing in mind the open ing sentence of Ar For these reasons I would have dism icle 18.1. ssed the grievance. ?a? . -c Heather Laing /et