GSB#2015-3016
UNION#2015-0526-0045
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Mohamed)
Union
- and -
The Crown in Right of Ontario (Ministry of Attorney General)
Employer
BEFORE
Diane L. Gee
Vice-Chair
FOR THE UNION
Robin Lostracco Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Henry Huang Treasury Board Secretariat Legal Services Branch Counsel
WRITTEN SUBMISSIONS
May 19, 2017
Decision
1This matter is a grievance filed by the Ontario Public Service Employees Union (the “Union”) on behalf of Abdulkadir Elmi Mohamed (the “Grievor”) on September 9, 2015 (the “grievance”). By way of a preliminary motion, the Employer asks the Grievance Settlement Board (“Board”) to declare it has no jurisdiction to award the grievor damages relating to a compensable injury he suffered at work. The Union opposes the motion. Both parties filed written submissions and agreed the issue could be determined on the basis of such submissions. This is the Board’s decision in respect of the Employer’s preliminary motion that the Board has no jurisdiction to award the grievor damages arising out of a compensable injury.
Background
2The Union provided the Employer with particulars in support of the grievance. The Employer accepts the particulars as true for the purposes of its preliminary argument. The particulars are as follows:
The grievor is employed as a Court Services Officer, FPT 1500 with the Ministry of Attorney General in Toronto. He had been employed with the OPS for 26 years.
Flexible Part-Time (FPT) 1500-hour staff are guaranteed a minimum of 1500 working hours per year. This averages out to 5.75 hours per day. However, FPT staff work above the minimum hours on a regular basis and also frequently earn overtime pay.
Before he was injured, the grievor had frequently been working more hours than the minimum guaranteed hours as well as overtime hours. In 2014, the grievor’s T4 reported an income of $47,238.89, in 2015 the grievor’s T4 reported an income of $39,518.22.
The duties of a Court Services Officer include but are not limited to supporting the judiciary, maintaining court decorum, directing stakeholders, clients, jurors and members of the public, escorting the judiciary to and from court, escorting counsel to chambers, calling witness and parties into the courtroom and controlling movement in and out of the courtroom.
On or about May 13, 2015, the grievor was working in the Ontario Superior Court of Justice, Estates Court at 330 University Avenue, 8th floor.
There was a contested guardianship matter scheduled before Justice McEwen. In the morning, Shael Eisen, counsel for one of the parties alerted the Court Clerk/Registrar to a potential problem that could escalate to physical violence.
Justice McEwen chose not to alert security or call for extra security in the courtroom.
The grievor was not provided with any information by the employer that there were security risks with the case.
The motion was adjourned in the afternoon and the parties began to leave the courtroom. The grievor went to make copies for the parties of the Judge’s endorsement. The photocopier was located outside the courtroom.
Upon providing the endorsement to both parties in the hallway, Mr. Eisen and his client asked the grievor if he would escort them to the elevator past the opposing party. The grievor agreed.
As the grievor was walking down the hallway with Mr. Eisen and his client, one of the members of the opposing party starting making a kissing sound loudly. The grievor told this man to respect the court and to please be quiet and leave.
After this, there was an altercation between the two parties. A large man pushed Mr. Eisen’s client into the wall and grabbed his throat.
The grievor was caught in the middle of the altercation, pushed to the ground and hit his head into the door frame and/or water fountain and was injured.
The grievor was concerned for the victim’s life and struggled to release the attacker’s grip around the victim’s throat to prevent a possible fatal incident. The grievor shouted for help.
The grievor did not have easy access in the hallway to a phone, panic button or radio/walkie talkie in order to call for help.
Another Court Services Officer, Anthony, heard the commotion in the hallway from another courtroom. He ran to pound on the security door down the hallway, and no one answered. The grievor asked Anthony to call security and the police. Security did not arrive for seven or eight minutes.
The grievor gave a statement to the police when they arrived. Afterwards, he began to feel dizzy and had to grab onto the counter to steady himself. He felt like he blacked out for a few seconds.
The grievor was taken to the hospital by paramedics after he developed dizziness and a headache. He had cuts on his hand and left leg, and was unconscious on the way to the hospital. He was in the hospital for about four hours.
The grievor was sent for a CT scan and was diagnosed with a concussion. The grievor was advised he may have bruising on the brain and to rest (brain rest) until his symptoms were gone.
The grievor reported this incident and his injuries to managers Tara Stead and Joe Doria.
It was initially recommended the grievor remain off work 3-7 days. The grievor was off work from when he left in the ambulance May 13, 2015. He did not return to his regular hours until October 5, 2015 (72.3 days of work).
The grievor filed a claim with WSIB, the claim was approved on or about May 22, 2015. The Employer reported to WSIB that the grievor worked 5.75 hours a day. The grievor was compensated by WSIB on that basis. A total of 2.19 vacation credits were deducted from the Grievor’s credits to top-up his payments from WSIB while on leave.
The grievor received treatment for his injuries including massage therapy.
In or around August 28, 2015 a union representative, Marie-Paule Duret was asked to attend a Return to Work meeting for the Grievor. The Union learned of the violent incident that occurred in May at this meeting. The union representative wrote to the employer to inquire whether or not the Health and Safety Committee had been made aware of the incident.
A Return to Work Plan was created on or about September 8, 2015 for the grievor to commence a graduated return to work. In or around October 5, 2015, a return to work meeting was held with a Work Transition Specialist from WSIB.
On or about September 19, 2015, a grievance was filed which states:
I grieve that my rights under the C.A. have been violated under specifically, but not limited to Art 2, 3, 9.1 and any other applicable articles, policies or legislation. As the employer has failed to provide me with a safe working environment and caused me severe physical and mental harms, specifically due to an incident which occurred in the workplace on May 13th, 2015 and on an ongoing basis.
Settlement Desired
Full Redress including and not limited to, proper training for staff, immediate improvement of security response time, the employer takes immediate steps to prevent such incidents in the workplace, immediate repayment of lost wages, credits and benefits, damages and any other remedies that the board deems appropriate.
A formal resolution meeting took place on November 16, 2015.
The grievance was referred to arbitration on or about February 16, 2016.
3The Union’s position is as follows:
It is the Union’s position the Grievor’s health and safety was put at risk due to the lack of proper security measures in the courthouse, as well as insufficient training to deal with violent incidents. The Employer breached the collective agreement and the Occupational Health and Safety Act when it failed to take all reasonable precautions to ensure the health and safety of the worker. The Employer failed to advise the Joint Health and Safety Committee and the Ministry of Labour of this violent incident in the workplace which resulted in the grievor passing out.
The Employer also failed to reasonably accommodate the workplace injuries of the Grievor. He lost wages because he was only paid by WSIB and the Employer based on his minimum guaranteed hours of work as an FPT. The Employer should have ensured the grievor was paid based on his actual previous earnings.
4The Union relies on the following Articles of the Collective Agreement:
Article 3.1: There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).
Article 9.1: 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 all employees.
5The Union seeks remedies including but not limited to:
a) A declaration that the Employer has breached Articles 3 and 9 of the Collective Agreement;
b) Directions to the Employer to take measures to improve the safety of the working environment for the grievor and other workers in accordance with Article 9 of the collective agreement;
c) Repayment of lost wages, including any lost opportunity for overtime;
d) Repayment of credits and benefits;
e) Special and general damages including damages for pain and suffering.
The Employer’s Submissions
6The Employer submits that, as a result of subsection 26(2) of the Workplace Safety and Insurance Act, 1997 SO 1997, c 16, Sched A (“WSIA”), the Board has no jurisdiction to award the following damages on the basis they constitute compensable losses the Act:
c) Repayment of lost wages, including any lost opportunity for overtime;
d) Repayment of credits and benefits;
e) Special and general damages including damages for pain and suffering.
7The WSIA enacts a mandatory no-fault collective liability insurance framework that compensates certain workers for workplace injuries.
8As a “trade-off” to benefitting from this insurance coverage, workers covered by the WSIA are statutorily barred from double-dipping by seeking damages from their employer for which they could receive compensation under the WSIA. This disentitlement is provided for under the WSIA. This disentitlement is provided for under subsection 26(2) of the WSIA:
No action for benefits
26(1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.
Benefits in lieu of rights of action
(2) 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, child or dependent 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 working or an occupational disease contracted by the worker while in the employment of the employer.
9In OPSEU (Monk) v. Ontario (MCSS and MCYS) (2010) GSB #1995-1694 April 10, 2010 (Gray), (referred to herein as “Monk”) Vice-Chair Gray considered whether subsection 26(2) of the WSIA limited the remedial jurisdiction of this Board to award damages for a breach of the health and safety provisions of the OPSEU collective agreement caused by the alleged exposure of employees to second-hand smoke at work. The health and safety provisions considered in Monk are identical to the current article 9.1 challenged by the Grievor.
10Following a thorough review of the historic context at paragraphs 7 through 15 and jurisprudence of the WSIA at paragraphs 28 through 82, Vice-Chair Gray concluded at paragraph 110 that the Board is without jurisdiction to “award a grievor damages for or by reason of an accident happening to the worker … if the alleged accident … was compensable under the … WSIA”.
11Monk was upheld both on judicial review (OPSEU v. Ontario et al, 2012 ONSC 2348 and on subsequent appeal (Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2013 ONCA 406). It has also been cited with approval and consistently followed by the Board since.
12The Employer respectfully submits that, absent exceptional circumstances, which are not present, this Board is bound to follow the ruling in Monk pursuant to the principle established in Blake and ATU and Ontario (Toronto Area Transit Operating Authority) (1988), GSB No. 1276/86 (May 3, 1988) (Shime) that the Grievance Settlement Board is one board of arbitration.
13As set out in the Union’s particulars, the grievor suffered a head injury on May 13, 2015 when he became entangled in a physical altercation while on duty and working as a Court Services Officer.
14The Grievor’s injury was not only a compensable injury under the WSIA, but the grievor did in fact apply and was approved for WSIA benefits.
15While the Employer fervently disputes that it failed to take all reasonable precautions to ensure the health and safety of the Grievor, the Employer submits that such a finding is immaterial to the Board’s remedial jurisdiction under the no-fault WSIA regime.
16Given the Board’s ruling in Monk, and that the Grievor’s injury was a compensable injury under the WSIA, the Employer asserts that the Board is without jurisdiction to award any damages for or by reason of this accident happening to the grievor pursuant to subsection 26(2) of the WSIA.
The Union’s Submissions
17It is the Union’s position that the case law makes it clear that the Board is not precluded from awarding certain monetary remedies and other remedies for breaches of Article 9.
18The Union submits that the grievance cannot be dismissed even if the Board finds it does not have jurisdiction to award monetary damages, as the Board still has jurisdiction to issue declarations and directions related to violations of the Collective Agreement.
19The grievor suffered a serious injury to his head on May 13, 2015 when he was caught in the middle of a physical altercation between two litigants while on duty as a Court Services Officer. The grievance before the Board raises serious issues related to the reasonable precautions the Employer should have taken to prevent the assault and injury that befell the grievor in the line of duty.
20As set out in the Union’s particulars, the Union alleges the Employer did not have any process in place for alerting the grievor and other worker’s to the security risks that certain litigants in the courthouse could pose. The potential for violence had been raised with the court by counsel for one of the parties and yet no steps were taken by the Employer to prevent or warn of the violence that did ultimately ensue.
21Further, the Union alleges the Employer did not provide sufficient training to the grievor to handle violent incidents.
22The grievor was not provided with a means of contacting security in the courthouse hallway should violence such as the incident on May 13, 2015 occur. The grievor was not provided with equipment such as a radio/walkie talkie, phone or panic button to alert security when a threat arose.
23The Union alleges this failure on the Employer’s part to make reasonable provisions for the health and safety of the grievor resulted in him being seriously injured with a head injury in the workplace after being assaulted by a member of the public.
24The grievor was unable to work due to his injuries for several months, only returning to the workplace on September 21, 2015 on a graduated basis. The grievor lost significant earnings due to his injuries because he was only paid for his minimum guaranteed hours. The grievor regularly worked hours over and above his minimum hours including overtime hours. It is the Union’s position the Employer should have ensured the Grievor’s workplace injuries were accommodated in accordance with his average regular hours of work prior to the incident.
25In Monk, the Board reaffirms at paragraphs 83 and 84, that it is not limited to granting declaratory or directory remedies for breaches of what is now Article 9.1 of the collective agreement, “…the Board has consistently said that it has jurisdiction to award damages for a breach of Article 18.1/9.1 in an appropriate case. In my view, that conclusion is correct.”
26The Board also concluded in Monk, at paragraphs 107 and 108, that while some claims for damages are precluded for or by reason of the WSIA, it does not preclude all remedies:
A “right of action” or claim to a remedy is not “for or by reason of” a workplace injury or disease merely because a workplace injury or illness forms part of the context in which the claim arises… a claim for damages is precluded only if it relates to the consequences of the worker’s having suffered the injury or contracted the disease. The injurer worker’s right to return to work, with accommodation if necessary, is not precluded from consideration through the lens of the collective agreement and the incorporated obligations under the Ontario Human Rights Code, even though the issue is also addressed by WCA/WSIA. The same is true of other rights that may arise in a context in which a compensable injury has occurred. Article 18.1/9.1 obliges the employer to take reasonable measures to avoid, prevent or minimize risk to the safety and health of employees. Injury or illness, compensable or otherwise, can be the consequence of a failure to do that. An alleged causal connection between an alleged breach of Article 18.1/9.1 and a particular compensable injury or illness does not, however, preclude this Board from awarding remedies for that breach, apart from remedies “for or by reason of” the compensable injury or illness itself. Subject only to that limitation, an employee injured as a result of a risk to which she or he should not have been exposed is no less entitled to remedies that address the breach, particularly if it is ongoing, than a similarly situated employee whose exposure to the same risk has not (yet) resulted in his or her becoming injured or ill.
[Emphasis added]
27Further, Monk concludes, at paragraph 109, that not all monetary remedies are precluded: “Monetary loss may flow from a breach of Article 18.1/9.1 in other ways, such as loss due to damage to personal property, or expenses or losses incurred to avoid or mitigate a risk to safety or health created by the breach.” This was affirmed by the Ontario Superior Court of Justice (Div. Ct) which stated: “The Vice-Chair did not find that the WCA or WSIA foreclosed all grievances under the health and safety provision… His interpretation left alive a potential monetary remedy for a breach of the health and safety provision of the collective agreements such as for proven property loss or damage.”
28In OPSEU (Pereira et al) v. Ontario (MCSS) (2016) GSB # 2013-0016 etc. (May 13 2016) (Harris) the Board has also decided that, despite the WSIA and the jurisdiction of the WSIB, the Grievance Settlement Board still has jurisdiction to consider whether a breach of Article 9 has occurred, and to make declaratory awards and directory remedies.
29In this grievance, the grievor and the Union have raised issues and facts that could give rise to monetary or other remedies such as a declaration or directions which the Board does have the jurisdiction to award. With respect, the Board should be cautious when imposing limits on its own jurisdiction, and should carefully examine whether the damages flow from an alleged causal connection to a workplace injury.
30The Union respectfully requests that the Board not consider or rely upon the application for review and Court of Appeal factum submitted by the Employer. The submissions of the Employer and the Union, the Union’s particulars, and the case law should be the only materials the Board relies upon when making its decision.
31The Employer had identified it intends to raise further preliminary objections, and has identified an objection on the basis of delay in filing the grievance. The Union reserves the right to make any arguments, objections and submissions necessary including but to limited to waiver in response to further preliminary objections of the Employer.
32Given all of the Union’s, submissions, the Union respectfully requests that the Board find that preliminary objection of the Employer be dismissed.
33If the Board does accept the Employer’s submissions, and rules that it does not have the jurisdiction to award some of the remedies the Union and the grievor seek, the Union submits that the grievance should not be dismissed in whole. As outlined, the Board would still have jurisdiction to determine whether a breach of the Collective Agreement has occurred.
The Employer’s Reply Submissions
34The Employer disputes the suggestion in paragraph 13 of the Union’s response paragraph 83 - 84 of Monk could be read to say that the Board has jurisdiction to award damages on the basis of any breach of article 9.1 notwithstanding section 26(2) of the WSIA. When the cited quotation is read in its full context, it is apparent that the Board meant that it would have had jurisdiction to award damages for a breach of this collective agreement in the absence of section 26(2) of the WSIA.
Can this Board award damages for breach of Article 18.1/9.1?
83The Board has previously concluded that it is not limited to granting declaratory or directory remedies for breaches of article 18.1/9.1. Subject to the impact that the WCA/WSIA may have on it, the Board has consistently said that it has jurisdiction to award damages for breach of article 18.1/9.1 in an appropriate case. In my view, that conclusion is correct… [Emphasis added]
35In the next section, beginning at paragraph 85, the Board entitled the next heading, “Does the WCA/WSIA limit the Board’s power to award damages for breach of Article 18.1\9.1?” Vice-chair concluded that the WCA and WSIA precluded this Board from awarding damages under article 18.1/9.1 for compensable injuries to which these acts would have applied.
36To the extent that grievor is seeking additional monetary remedies, including other incidental losses and loss of earnings, the Employer submits that none are available to the Grievor in this case.
37With respect to the incidental losses as alluded to in paragraph 15 of the Union’s response, the Union has not alleged any material facts in its particulars that could support the award of such compensation or even what that compensation would be.
38With respect to the grievor’s alleged loss of earnings, including of overtime, as set out in paragraph 12 of the Union’s response, the Employer emphasizes that these losses (if even realized) occurred precisely “for or by reason of” the workplace accident which the grievor received compensation for under the WSIA. Accordingly, subsection 26(2) of the WSIA is express in precluding the Board from awarding compensation for such losses of earnings and overtime opportunities. Furthermore, the notion of human rights accommodation is irrelevant here to the determination damages; the purpose of accommodation is to allow the grievor to perform work, not circumvent legislation to reap greater benefits than provided for under the WSIA. To allow for damages on this basis would amount to a collateral attack on the Workplace Safety and Insurance Board award.
Analysis and Decision
39Monk concerned 235 grievances filed between 1991-2008 on behalf of bargaining unit members who had been exposed to second hand smoke in the workplace. It was the Union’s contention that, by not taking steps to prevent such exposure, the Employer was in violation of article 18.1, and later article 9.1, of the collective agreement. The Union argued that the Employer had not taken every precaution reasonable for the protection of a worker as required by the Occupational Health and Safety Act and sought, by way of remedy, a declaration and general damages.
40The Employer asserted that section 26 of the WSIA (and its predecessor section 16 of the Workers Compensation Act R.S.O. 1990, c. W.11, as amended, repealed effective January 1, 1998 by S.O. 1997, c. 16, Schedule A) operated so as to take away the Board’s jurisdiction to grant a remedy. The current wording of article 9.1 of the collective agreement and section 26 of the WSIA is exactly the same as it was when Vice-Chair Gray considered these provisions in Monk.
41Monk is directly on point. The Union was advancing the same argument as is being advanced in this case relying on the same article of the collective agreement. The relevant language of the collective agreement and section 26 of the WSIA is the same today as it was when Monk was decided.
42At paragraph 7 of Monk, Vice-Chair Gray described the existing workers’ compensation scheme as containing a “historic trade-off.” Injured workers gained a guarantee that they would receive compensatory payments regardless of the state of their employer’s solvency as well as the right to receive payments regardless of any contributory negligence on their part. On the other hand, employers who participated in the scheme, were guaranteed that their liability would be limited, or capped, so as not to exceed that provided for by the workers compensation scheme. The scheme was thus attractive to both workers and employers.
43Following an extensive review of the jurisprudential context, and a thoughtful and purposive analysis as to the meaning of the language of section 26 of the WSIA, Vice-Chair Gray concludes, at paragraph 110, that section 26 precludes this Board from awarding damages in respect of compensable workplace injuries:
I find that this Board cannot award a grievor damages “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” if the alleged accident or disease is or was compensable under the WCA or WSIA, whichever applies.
44At paragraphs 108 and 109, Vice-Chair Gray addresses the impact of section 26 of the WSIA on a grievance alleging a violation of article 9.1:
Article 18.1/9.1 obliges the employer to take reasonable measures to avoid, prevent or minimize risk to the safety and health of employees. Injury or illness, compensable or otherwise, can be the consequence of a failure to do that. An alleged causal connection between an alleged breach of Article 18.1/9.1 a particular compensable injury or illness does not, however, preclude this Board from awarding remedies for that breach, apart from remedies “for or by reason of” the compensable injury or illness itself. Subject only to that limitation, an employee injured as a result of a risk to which she or he should not have been exposed is no less entitled to remedies that address the breach, particularly if it is ongoing, than a similarly situated employee whose exposure to the same risk has not (yet) resulted in his or her becoming injured or ill. Of course, the entitlement of a grievor, whether injured or not, to declaratory or directory remedies will depend on whether granting them might serve some useful purpose in the circumstances.
The WCA/WSIA does not preclude a monetary remedy for breach of Article 18.1/9.1 unless it is, in substance, a remedy for the consequences of a compensable injury or illness. Monetary loss may flow from a breach of Article 18.1/9.1 in other ways, such as loss due to damage to personal property, or expenses or losses incurred to avoid or mitigate a risk to safety or health created by the breach.70 Where a claim for damages is made on behalf of a worker who has suffered a compensable injury or illness as a result of the breach, they can be awarded in respect of the breach if and to the extent that the worker would have been entitled to them even if she or he had not suffered a compensable injury or illness as a result of the breach.
45As indicated by the Employer, the Monk decision was upheld both on judicial review and appeal.
46In my view, the Monk decision is directly on point and determinative of the issue before me. It is my view that the analysis and conclusion reached by Vice-Chair Gray is correct. In addition, as indicated in Blake and ATU and Ontario (Toronto Area Transit Operating Authority) (1988), GSB No 1276/86 et al (May 3, 1988) (Shime), the Grievance Settlement Board is one Board; each decision by a panel of the Board becomes a decision of the Board. In the absence of exceptional circumstances, such as an argument not having been made in the earlier case, the law changing, or the result being wrong, panels of the Board ought not to depart from earlier decisions.
47The grievor in this case was injured at work, remained off of work due to his injury, filed a claim with WSIB and was compensated by the WSIB. The request for remedial relief is as follows:
a) A declaration that the Employer has breached Articles 3 and 9 of the Collective Agreement;
b) Directions to the Employer to take measures to improve the safety of the working environment for the grievor and other workers in accordance with Article 9 of the collective agreement;
c) Repayment of lost wages, including any lost opportunity for overtime;
d) Repayment of credits and benefits;
e) Special and general damages including damages for pain and suffering.
48The Employer concedes that the Board has the jurisdiction to make a declaration as requested by the Union in a) and make directions as described in b) above. The Employer, quite properly, is only challenging the Board’s jurisdiction with respect to c), d) and e) above.
49As indicated above, I consider the decision in Monk to be correct and also consider myself bound, in the absence of exceptional circumstances, to follow Monk. Monk found that section 26 of the WSIA precludes the Board from awarding a grievor damages for a compensable accident but does not preclude the Board from making an award of damages that the worker would have been entitled to if they had not suffered a compensable injury or illness as a result of the breach. The remedies sought in a) and b) are, as the Employer recognizes within my jurisdiction to award; the grievor would have been entitled to seek these two remedies even if he had not been injured as a result of the alleged breach.
50The grievor’s claims for repayment of lost wages, including any lost opportunity for overtime; repayment of credits and benefits; special and general damages including damages for pain and suffering all arise only as a result of his having suffered a compensable injury. As determined in Monk, any claims for such damages can only be pursued through the WSIB.
51Having regard to the foregoing, the Employer’s preliminary motion is granted. I find that the Board does not have jurisdiction to award the grievor repayment of lost wages, including any lost opportunity for overtime; repayment of credits and benefits; special and general damages including damages for pain and suffering.
52The grievor is entitled to pursue his grievance in an effort to obtain a declaration that the Employer has breached Articles 3 and 9 of the collective agreement and a direction to the Employer to take measures to improve the safety of the working environment for the grievor and other workers in accordance with Article 9 of the collective agreement.
53This matter is referred to the Registrar to be scheduled for one further date to be used for mediation.
Dated at Toronto, Ontario this 9th day of June 2017.