GSB#2013-0047

UNION#2013-0234-0029

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Yole)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ann Fowler Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

March 8, 2017

Decision

1The Employer and the Union at the Maplehurst Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. A number of the grievances were settled through that process. However, this grievance remained unresolved requiring a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2William Yole is a Correctional Officer who filed a grievance alleging a violation of the Collective Agreement, various policies and procedures as well as “any other applicable legislation” regarding the matter of smoking in and around the workplace and the resulting second hand smoke.

3By way of remedy the grievor requested, in part:

• Full compensation and redress including compound interest
• An award payment for damages to my health in the amount of $1000 for every year that I have been exposed to second hand smoke within/on/ or around the workplace
• An award payment equal to my maximum life insurance amount available through the group insurance plan representing future

4Before the Union set out the facts that led to the filing of this grievance the Employer raised the matter of this Board’s jurisdiction to award the remedy set out in Mr. Yole’s grievance and asked for a ruling in that regard.

5The Employer urged that in the event that the merits of this matter can be proven the Board cannot award compensatory damages as set out in Re OPSEU v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Service - Monk et al) [2010] O.G.S.B. A. No 119 (Gray), upheld by Divisional Court [2012] O.J. No. 4301 and the Court of Appeal [2013] O.J. No. 2369. A ruling regarding this objection was requested.

6I agree with the Employer’s view. The issue before Vice Chair Gray was the very matter that is set out in Mr. Yole’s grievance, that is, second hand cigarette smoke in the workplace. It was determined by Vice Chair Gray, and upheld by the Court of Appeal that claims for compensation including damages are the exclusive jurisdiction of the Worker’s Safety Insurance Act.

7Accordingly, even in the event that the grievor could prove the allegations set out in his grievance, I am without the jurisdiction to award much of the remedy that is requested.