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

Ontario Public Service Employees Union (Latimer)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Susan D. Kaufman

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

David Strang Acting Deputy Director, Labour Practice Group Management Board Secretariat

HEARING

December 9, 2004 & January 11, 2005.

CONFERENCE CALL

February 11, 2005.

Third Implementation Decision

The Decision on the merits in this matter was issued on May 24, 2001. That Decision contained numerous directions with respect to remedies.

The first Implementation Decision was issued on March 4, 2004. It directed:

To Summarize:

The Board orders and directs that the employer is to pay the grievor forthwith:

1. $61,067.04 for lost wages and interest up to the end of 2003; and

2. $7,500.00 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 reserved on in this Decision and with respect to the implementation of the directions and orders in this and the 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 grievor 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 regarding remediation of the workplace. It also stated:

On June 22, 2004, the employer's representative acknowledged that the most recent medical report indicated that the grievor was unable to work. That report was dated October 8, 2003. Since October 8, 2003 there has been compliance with the directions given in the May 24, 2001 Decision and with the undertakings set out in the Board's August, 2003 ruling, which may have an impact upon the grievor's ability to work, and which should be canvassed with her doctor(s).

The Board had taken a "wait and see" approach to whether the grievor 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 regarding obtaining a further medical opinion as to whether the grievor would be able to return to work in this context.

On December 9, 2004, after receipt of the medical opinion dated November 2, 2004, the parties met with me briefly in Sudbury. On that date, Mr. Roland, counsel for the union and the grievor, advised that the grievor 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 investigate and determine whether it had compensated the grievor for statutory holiday pay. Mr. Roland advised that the grievor was also seeking compensation for lost shift premiums as a result of being unable to work, under the "make whole" principle. Medical reports dated October 6, 2003, and November 2, 2004 had previously been provided. I directed both Counsel to hold the information contained in the medical reports in strictest confidence. The parties agreed to adjourn and present argument, in January, 2005, as to whether the grievor would be required to apply for LTIP, whether she would be entitled to "top-up" if she received LTIP benefits, and whether she was entitled to compensation for shift premiums.

On January 11, 2005 the parties reconvened before me in Sudbury, Ontario. 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 regarding payment of statutory holiday pay, overtime pay for 2004, compensation for shift premiums, and future compensation of the grievor.

1. Submissions re Statutory Holiday Pay:

Mr. Roland stated that the grievor 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 in 2004.

Mr. Strang stated that the employer did not dispute that statutory holiday pay is owed to the grievor, 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 in payment would be compensated by interest as well.

Mr. Roland stated that the union and the grievor appreciate that the employer had undertaken to look into the claim that the statutory holiday pay had not been paid to the grievor, and to pay interest on it, arising 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 remain seised.

On February 11, 2005, in 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 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 grievor had incurred a loss of shift premiums from May, 1999 to the end of 2004 of $10,128.00. He provided a handwritten list, of unknown origin, 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

$10,128.00 + 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 interim 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 grievor 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 grievor for lost shift premiums. He advised that they arise from the regular schedules the grievor would have worked and have been calculated. He stated that the grievor and the union 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.

3. Submissions re Compensation for lost Overtime Pay:

Mr. Roland stated that the grievor had not yet received compensation for lost overtime pay for 2004. He requested the Board, on behalf of the grievor, to direct the employer to make all outstanding payments for statutory holiday pay, lost overtime, and lost shift premiums, within thirty days of this hearing.

4. Submissions re future Compensation of Grievor:

(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 grievor's absence is due to illness. He stated that the appropriate 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 grievor 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 grievor 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 grievor, 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 jurisdiction 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 contribution by the employee. If the employer caused it, damages are not owed unless the damages are foreseeable. Where a grievor presented herself for work as a C.O. in a state of health where being asked to remain at her position for a relatively short period of time would cause her not to be able to return to work indefinitely is not in any way foreseeable. The employer assumes that the union is in a position to establish the grievor's inability to work in the female unit caused her to be unable to work. The medical report suggests that the grievor was under care well before 1999. The grievor has had a serious ailment. It may be argued by her doctor that the 1999 incident was the triggering event. It would have to be established with some certainty that her mental state would not have deteriorated without that triggering effect. The employer would have to move on to the issue of causation if not successful on this motion. Exploring the issue of causation has been rejected in Ontario 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 grievor. 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 LTIP or Workers' Safety and Insurance Board (WSlB) benefits and to have another worker, the grievor, compensated at a different rate, has been rejected in Ontario 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 tribunal which deals with medical issues and evidence. Its process minimizes public exposure of that material. 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 periodically monitoring claims, as is the WSIB.

In the context of the Ontario Public Service and the Collective Agreement, we have provisions for compensating employees for illness, meshed with the LTD Plan. The grievor has more than satisfied the waiting period for LTD 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 superior benefit is paid.

The appropriate course is for the grievor to apply for LTIP. The finding of this Board should be sufficient for her receipt of LTIP and she should be monitored under that programme. The union and the employer have agreed that that is a satisfactory level of compensation. The Board should remain seised.

If the Board finds it has jurisdiction, once it determines causation, it must decide on foreseeability, as stated in the Wagon Mound case. The damages must be contemplated before the breach. In Canadian Union of Postal Workers And Canada Post Corp. (Perchaluk Grievance, CUPW 856-92-01230, Arb. Freedman) [1997] C.L.A.D. No. 208, at ¶ 231 to 233, reference was made to the grievor's "unusual and unreasonable sensitivity to matters of this kind." In the case before this Board, the grievor presented herself for work as a Corrections Officer. She understands the job, and the duty to stay at her post. If a crisis develops, they continue at their post, they do their job when a difficulty arises. The job can be tedious or boring. 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 indefinite period 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 inappropriate to do so.

The Board does not have the jurisdiction to award damages. In the 1980's, this Board deferred on the issue of assessment of damages for workplace injuries 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 jurisdiction model as the appropriate model. Assessment belongs with the WSIB.

Gibbon, 0687/00 deals with and sets out the current legislation. In that case a female C.O. 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 grievor 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 grievor 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 definition. S. 118 of the WSIA deals with the jurisdiction 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 grievor's claim for supplemental benefits. In Rigglesworth, 637/90, 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. Decisions No. 809/9812 (McCombie) and 2056/03 (Nairn), show that the Tribunal has resolved that issue and reflect a more thorough and expansive view of their jurisdiction.

At p. 14 of Gibbon, supra, Arbitrator Kirkwood stated that Arbitrator Knopf stated in Fleming, supra, that the GSB has jurisdiction to deal with human rights issues. This Board has been dealing with human rights to this point in this case. The employer has cleansed the workplace. All that's left is someone off work because they are ill. This Board has dealt with the Fleming-related issues. Now the parties are down to the LTIP 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 jurisdiction to usurp the authority of the tribunals created under the WCA.

In Thomson, 1612/92, the grievor sustained injuries as a result of carrying out her duties without proper footwear. At p. 6 the Board cited Lister, supra and Fleming, supra. The tripartite Board in Thomson, supra, decided unanimously 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 C.O. who worked in a federal correctional institution. Stressors in the workplace resulted in her disablement. The Tribunal stated at ¶19 that a C.O.'s job has a tendency to be stressful to begin with. The claimant was in a medium security institution. The Sudbury Jail is a maximum security institution. The grievor and her doctor had to anticipate stress. One cannot really see someone sending the grievor into that. In the case before the WSIAT, the Tribunal stated that there had been no specific incident and at ¶31 to 32, that the grievor 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 triggered it" and "ours is a stronger case."

Mr. Strang noted that at ¶39 the Tribunal stated:

Leaving aside the policy questions which are discussed below, the Panel is satisfied that the worker meets the Tribunal test for entitlement to a disablement arising out of and in the course of her employment.

and that at ¶ 41 it stated:

Furthermore, we accept the worker's evidence that this "poisoned work environment" was a significant contributing factor in the gradual development of what is now a serious disability.

Mr. Strang submitted that at ¶92 on p. 20 of Decision 809/9812, the Tribunal 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 WSIAT suffered ailments of the exact type that the grievor 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 grievor's psychiatrists as to whether the incidents this Board had previously found were violations, were responsible for the grievor's illness. He submitted that the WSIB could handle that.

Mr. Strang noted that in WSIAT Decision 2056/03, the Tribunal stated, at the end of ¶33:

We are satisfied that the policy does not exclude entitlement to benefits where a worker has experienced 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 aphonia.

Mr. Strang submitted that psychiatric illness from workplace harassment is compensable, that the GSB is excluded from dealing with it, and the GSB's jurisdiction is exhausted. He submitted that this Board is open to make the finding that the grievor is disabled and would be entitled to LTIP benefits. Once on LTIP the grievor 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 retain jurisdiction, the employer would not object strongly.

(B) By Mr. Roland for the grievor and the union:

This is the first time in this long hearing that we have heard of any concerns with regard to the Board's jurisdiction 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 grievor that she should be filing for WSIB benefits. There is no information before this 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 grievance, 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 jurisdiction to award top-up for a long-term disability. There's been no suggestion of a break in the employment relationship. The grievor still has a right to long term income protection under the LTIP provisions. The employer seeks to avoid paying a top-up. LTIP 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 grievor 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 grievor 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 performing modified work while 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 that in part due to the unfortunate timing of the delivery of his letter, and in part due to the delay in providing her a relief on that 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 with him. However, when Mr. Mroczynski called him, I do not think Mr. Chenard had to be told that the 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 the institution. I conclude that the 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 minutes after she requested it,

would stress, annoy and provoke the grievor and exacerbate the condition from which the grievor was suffering. Its conduct denied the grievor the dignity and respect to which all employees who are sick and unable to carry 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 discrimination. I also conclude that its conduct on May 9, 1999 made the workplace environment 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 rights case. In Howe/Dalton/Loach, #3155/92, etc. the Board found a human rights poisoned workplace on several occasions. This Board should use the approach in Howe/Dalton/Loach, supra, to continue to provide damages. To turn a human rights issue into a simple "the grievor got hurt on the job" is not the correct approach. Further, the GSB has never said it completely lost jurisdiction where Worker's Compensation benefits were applied for and denied.

The Board should not go down the WSIB path or it will forget that this has essentially been a human rights case. The grievor's rights 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 jurisdiction 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 grievances. By looking at them, the true nature of this case as a human rights 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 trivial actions. The Tribunal did not find the Corporation had direct responsibility in connection with the Hawaii 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 grievor's psychiatric 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 grievor seeks re-crediting of or top-up of sick benefits. The arbitrator stated, of the union,

It relied on my decision in Province and M.G.E.A. (grievance 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 grievor. I found that it was the active, positive and aggressive acts of one employee, compounded by the inappropriate response of a supervisor, which led directly to the grievor's being away from work. I found also that management knew of the activities but had not dealt with them appropriately 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 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 grievor was vulnerable and continued its conduct. The last act was the last in a chain of continued events with knowledge of the grievor's condition. Everything was reasonably foreseeable.

In Rigglesworth, 637/90 (Fisher) Gibson, 1498/89, (Kaufman) and in Smith and Bergounhon, 1598/96 (Abramsky), the GSB has held that there is no absence of jurisdiction. 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 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 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.

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 rights claim, not a workplace stressor case. In Gibbon, supra, and Lister, supra, the grievors wanted a benefit over and above Workers' Compensation benefits, and the union used Art. 18.1, the health and safety provision, to get extra compensation. The grievor in this case was singled out by the employer. What the employer did cannot be trivialized and reduced to an injury sustained in the course of employment.

In Rigglesworth, 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 tries to distinguish Rigglesworth, in which Vice-Chair Fisher was focusing on Art. 18.1. The union focused on the human rights aspect in this case. The employer's position in this case is based upon a supposition that the WSIB would compensate the grievor 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 grievor 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 right 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 grievor's rights had been systematically violated. In Thomson, supra, the grievor's WCB claim was honoured. At page 9 of the Thomson decision, the Board distinguished the case before it from Rigglesworth, because the WSB had denied the Rigglesworth 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 right to interpret and apply and give appropriate remedies for breaches of the Human Rights Code, using its authority under the collective agreement, the Human Rights Code, and the authority exercised in Howe, Dalton and Loach, supra.

At ¶19 of WSIAT Decision 809/9812, the Tribunal remarked about the high level of workplace stress of the institute in which the worker was employed and pointed out that the job of a correctional officer, regardless of gender, has a tendency to be stressful to begin with. That shows that the Tribunal was cognizant that the workplace in correctional institutions is stressful, and in this case, the employer knew that the grievor 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 rights issues and stating that the workplace had been cleansed. There is a distinction between human rights and the injury. Even if the workplace had been detoxified or cleaned up, that does not remove this Board's continuing jurisdiction to award damages and remedies for breaches of human rights. The breaches occurred before detoxification. This Board still has jurisdiction to determine final remedies. There's a clear causal relationship, as the grievor's condition has deteriorated 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 grievor's medical condition. Its conduct emphasizes that responsibility under art. 18.1 (Health and Safety). The employer violated the grievor's privacy, along with other violations found in the Board's Decision on the merits. The grievor's condition has deteriorated, triggered by the first incident and the deterioration has continued to the point that the grievor will never work again.

LTIP benefits may be the answer. LTIP is a right under the Collective Agreement. However, LTIP is not the full answer. The employer wants to shield itself from its liability by using LTIP, but the grievor should not be penalized. But for the foreseeable consequences of the employer's actions, particularly of management, due to willful blindness, harassment and discrimination, the grievor 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 grievor 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 grievor is disabled medically from returning to work for the foreseeable future. In the union's view, that simply reduces the options which can medically occur. If the grievor 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 arising from the foreseeable consequences of its actions. It is ultimately liable for certain effects found in Ex. 1 and 2. The grievor 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 grievor's LTIP benefits.

It has never been GSB policy to defer to Workers' Compensation in a situation where the grievor has sustained damages arising from a violation of her human rights. The GSB took jurisdiction in Howe/Dalton/Loach, supra. I know of no case where the employer exhibited the kind of behaviour focused on this particular grievor. The medical evidence indicates the reason for her current condition and attributes causality directly back to the employer. The purpose of damages is to put the grievor in the place she would have been in but for the breach. Money cannot restore self-respect or dignity, 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 LTIP with wages and benefits she would have had. It is within the Board's jurisdiction to direct that she be compensated for shift premiums, statutory holidays and overtime.

If the Board accepts the employer's argument that your jurisdiction is trumped by the WSIA (and we think not, in a human rights 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 recognized that the grievor was ill. 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 grievor 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 interjected that the grievor was penalized for rushing out of the workplace, and that this cannot be properly argued in this context.)

There were findings of human rights violations in the Board's Decision on the merits, and on other occasions the Board found the grievor was misinterpreting.

Mr. Roland distinguished between human rights cases and health and safety cases. Health and safety cases end up with dead bodies. Compensation flows through the WSIB compensation system. The issue of compensation becomes clouded where there has been exacerbation of a prior 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 grievor 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 any 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 Receipt" 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 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 grievor's claim for lost shift premiums in this Decision. They have advised me that if the employer disputes the figures comprising the grievor's claim, it will so advise Mr. Roland.

It may be helpful to review, briefly, the history as to the compensation of the grievor and the implementation by the employer of directions intended to remediate the workplace since the Decision on the merits was issued.

The Decision on the merits is dated May 24, 2001. It directed that the grievor be "compensated and made whole, with interest, for all loss of salary, benefits and seniority 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 period within which the remediation was to be carried out. The longest time period 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 merits, 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 Interim Ruling dated August 28, 2003.

It should, however, be noted that the employer had been paying the grievor's regular salary pursuant to the Board's order dated March 13, 2000 and has continued to do so since the Decision on the merits was issued.

An implementation hearing was held on February 4, 2004. The Board issued an Implementation Decision dated March 4, 2004 which dealt in detail with the grievor's economic losses, and reserved on the grievor'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 merits, the parties made informal submissions regarding the grievor's claim for statutory holiday pay. No issue of timeliness was raised.

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 union 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 grievor was seeking compensation for the loss of the opportunity 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 merits was issued. During that period, 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 grievor of her claims for compensation under the "make whole" principle, and is entitled to some finality with respect to those claims. The grievor has the assistance of counsel and the union, 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 grievor'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 grievor'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 grievor'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.

The employer's position re timeliness taken on January 11, 2005, however, serves as notice to the grievor and the union that any other claims for compensation under various "heads" are to be presented shortly.

3. Future Compensation of the Grievor:

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 deprived the grievor 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 "dignity, self-respect and self-worth" to the grievor.

The Board has been provided two medical reports from one of the grievor's specialists, one dated October 8, 2003 and the latest dated November 2, 2004. The grievor lives in a small community. This Board has previously concluded that there has been a breach of the confidentiality of the grievor'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 grievor's specialist is of the view that she is totally disabled from working as a C.O. or any other employment.

In the Decision on the merits, 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 grievor 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 grievor'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 various breaches of the collective agreement in the Decision on the merits. 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 grievor's ability to recover sufficiently to return to work, and thereby contributed substantially to the deterioration of the grievor'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 grievor previously applied for and was denied LTIP benefits. The reason for the denial of the benefits did not form part of the evidence before the Board. The grievor has not been required to re-apply for those benefits pending the Decision on the merits and compliance with the Decision.

Seeking relief from the previous direction of the Board to continue to pay the grievor's salary, the employer, essentially, requests the Board to direct the grievor to re-apply for LTIP benefits. It advised that should the Board order that the qualification period for the LTIP 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 LTIP benefit payments and the grievor's regular salary (a "top-up"), and that it should not be required to compensate the grievor 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 jurisdiction are predicated upon a hypothetical set of circumstances. It has not been established that the grievor 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 jurisdiction in these circumstances.

LTIP benefits are provided for under the collective agreement, subject to a determination as to entitlement. The grievor, 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 LTIP coverage be waived. In the event that the insurer declines to provide the grievor LTIP 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 LTIP area.

If the grievor's claim for LTIP 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 opportunity 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 grievor would be a further assault on her dignity 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 discrimination. 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 inappropriate and unjust to limit the grievor'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 LTIP benefits. The employer's conduct in the workplace, which constituted a human rights violation, and its delay in implementation of the directions for the remediation of the workplace, and the probable impact of that delay on the grievor, cannot be ignored.

In such complex, unusual circumstances, an arbitrator has broad remedial authority 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 grievor 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 contribution of that delay to the deterioration in her condition. The purpose of the remedy in such circumstances is not to punish 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 grievor's loss than is the grievor.

In view of the foregoing, the Board concludes that it would be just and equitable for the employer to pay the grievor the difference between the amount she may receive in LTIP benefits and the amount she would have earned had she been able to return to work as a C.O. and worked regular shifts.

Consequently, the Board orders that

a) until such time as the grievor begins to receive LTIP 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 LTIP benefits, the employer is to pay the grievor the difference between those LTIP 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 grievor 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 grievor's receipt of LTIP benefits may trigger some entitlement under Art. 46.11 to compensation for those vacation credits. Again, 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 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.

In the event that the grievor begins to receive LTIP 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 grievor, and the nature and extent of that compensation, if any. I will remain seised with respect to all issues pertaining to remedies arising from this Decision, previous Implementation Decisions and Rulings, the Decision on the merits and earlier Interim Rulings.

Dated at Toronto, Ontario this 7th day of March, 2005.