GSB# 2020-0592

UNION# 2020-0369-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McKay)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

D.J.D Leighton

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michelle LaButte and Daniel DiCroce Treasury Board Secretariat Employee Relations Advisors

HEARING

May 13, 2021

SUBMISSIONS September 17, 2021

DECISION

1Shannon McKay was a Correctional Officer 2, at Central North Correctional Centre, at the time that she grieved on February 28, 2020. She alleges that the employer breached Article 2, and 9 of the collective agreement, the Occupational Health and Safety Act (OHSA) and any other applicable law, when it failed to provide her with a safe workplace. She seeks a declaration that Article 9 and Subsection 25 (2) of OHSA, specifically clauses (a), (d), and (h) were breached when she was assaulted by an inmate and suffered significant and serious injuries. The union submits that the Ministry breached its duty to provide a safe workplace, and therefore argues that a declaration of the breaches and $20,000 in damages should be ordered by this Board.

2The employer acknowledged that it failed in its duty to provide the grievor with a safe workplace and that as a result she suffered a serious assault by the inmate shortly after he was transferred to the institution. The employer did not oppose the union’s request for the declarations that it breached both the collective agreement and OHSA but noted that the Board has no jurisdiction in this case to order damages.

3The parties referred this grievance to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing, the parties agreed that I had the jurisdiction to deal with this matter and asked that I issue a decision without precedential value, and without written reasons.

4Having carefully considered, the submissions of the parties on the grievance, as well as the jurisprudence of the Board, I hereby grant the grievance in part and make the following declaration: the Ministry failed in its duty to the grievor to provide a safe workplace, thus breaching its legal obligations under Article 9 of the collective agreement and clauses (a), (d), and (h) of Subsection 25(2) of OHSA. Further, I have decided not to order damages in this case.