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HomeMy WebLinkAbout1984-0495.Changoor.85-02-07IN THE MATTER OF AN Under ARBITRATION THE CROWN EMPLOYEES COLLEC TIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (B. Changoor) - and - Gri evor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: For the Grievor: E. E. Palmer, Q.C. - Vice Chairman I!. Russel Member L. .D. Foreman Member M. I Rotman Barrister and Solicitor . . For the Employer: P. W. Codner Staff Relations Officer Human Resources Planning and Services Branch Ministry of Transportation and Communications Hearing: December 13, 1984 ,. 2. DECISION the present arbitration arises out of a griev- ance filed by Mr. 8. Changoor on 25 May 1984. In this document, Mr. Changoor takes the position that the Employer. was in violation of the collective agreement by failing to pay for the replacement of certain e,yeglasses owned by him which were destroyed during the course of. his employment. This matter was not settled to the satisfactiqn of the c griever and so the present arbitration was necessitated. A hearing in relation to this grievance was held in Toronto, Ontario, on 13 December 1984. At that time the Employer raised an issue relating to the Board's jurisdiction to hear this matter. TO that issue we now turn. The facts upon which the argument on this point was based is not in dispute. Thus, it would seem that the griever works on Emergency Patrol, i.e., he assists distressed motorists on Ontario's highways. While engaged in this work on the 401 highway, the griever saw a piece of metal lying on the highway which he considered to constitute a danger to passing motorists. Hence, he left the vehicle in which he was driving and ran across the highway to where the object was lying. He bent down to pick it up and his prescription eyeglasses fell from his pocket.Because of oncoming traffic, he could not wait to pick them up. Therefore, he returned to the side of the ” j. 3. road. The passing vehicles crushed Mr.Changoor's spectacles. Although, he attempted reimbursement through other sources than arbitration, he was unsuccessful. He now8 seeks payment under the latter'. The jurisdictional argument in this case centered in on the provisions of Article 18.1, which reads: ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS 18.1 The Employer shall continue to make reason- able provisions for the safety and health of its employees during the hours of their employ- ment. 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 all employees. The case for the Union on this. issue was straight- forward. Basically, they consider this case to be analo- gous to OPSEU and The Crown in Ri@t of Ontario (Ministry of the Attorney-General), File 227/81, Teplitsky, chairman, 1 Feb.82, hereinafter referred to as the Gonneau award. In that case the Board used the provisions of Article 18.1 to provide relief to an employee whose car had been damaged on a parking lot of the Employer which had not been properly cleared of snow. In essence, counsel for the Union here argued that the kind of damage suffered by the griever was one which was reasonably foreseeable in the type of job held by Mr. Changoor. Not having made provi-. sion to prevent such loss, it was argued that the Employer should pay for the broken spectacles, just as it had to 4. pay for the damaged automobile caused by the Employer's failure to clean their parking lot of snow. Notwithstanding this argument, we accept the position of the Employer that Article 18.1 does not form a basis for the claim of the griever. Briefly, it is our view that the facts agreed to by the parties does not disclose that the Employer has failed to"make reasonable provisions for the safety and health" of this grievor.The 'loss he suffered arose from the way he chose to carry out his work; it does not flow from something the Employer failed to do. For example, there was no allegation that the Employer created the situation which caused the loss and, even more to the point, it was not argued that the Employer failed to supply Mr. Changoor with equipment which would have allowed him to carry out his duties both leis- urely and safely. i It is the latter point which is of importance here. AS we read the provision.6 of Article 18.1 they relate to the obligation of the Employer to provide equip-: ment and practices which will enhance the ,safety and health of employees; it does not obligate the Employer to pay for all property losses suffered by employees in the course of their employment. The former is shown by the Gonneau -__ award: the Employer, as found there, was obligated to provide a safe, i.e., cleaned of snow and ice, parking lot. Where they fail to do so, they are responsible for damages ‘5 . 5. f 1.0 employees which reasonably flow from such failure to carry out the contractual obligations imposed by Article 18.1. it does not hold tha‘t any loss suffered by such employees while on this parking lot, no matter whether cleaned of snow or not, shall be compensated by the Employer. I” result, we di DATED at Lynden, February, 1985. smiss this grievance. Ontario, this 7th day of /I E.E.Palmer,Q.C. Vice Chairman R.Russel Member ‘L.D.For%maG Member