HomeMy WebLinkAbout1987-1291.Neckles.95-10-03ONTAR/ EMPLOY~SOEL4 COURONNE
CROWN EMPLOYEES DE “ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RkGLEMENT
BOARD DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Under
THE C'ROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Neckles)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Community & Sbcial Services)
Employer
BEFORE J. Emrich Vice-Chairperson
J. Solberg Member
H. Roberts Member
R. Wells
Counsel
Gowling, Strathy h Henderson
Barristers & SoliCitOrS
FOR THE
EMPLOYER
S. Mason
Counsel
Legal Services Branch
Ministry'of Community & Social SeTViCe.
HEARING October 5, 1994
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MTRODUCTION
The grievor was ordered to be reinstated to work as a Correctional Officer subject to
a four month suspemion pursuant to the de&ion of this panel dated January 14, 1994. The
grievor was reinstated effective February 28, 1994. On July 29, 1994, a lump sum payment
was made by the Employer on account of retroactive compensation owing from the date of
tumination on June 8,1987. The parties asked the panel to reconvene to hear evidence and
argument concerning issues arising from the implementation of the Board’s order, which they
were unable to resolve. While the parties were able to agree upon a formula for the
calculation of interest and upon the rate of interest at 1096, they were at odds concerning the
calculation of the gross loss and on the issue of mitigation.
DECISION
The parties are agreed as to the general principles to be applied in the assessment and
calculation of compensation owing to the grievor as a result of his dismissal on June 8,1987,
subject to a four month suspension ending October 7, 1988. They differ concerning how the
principles apply to the facts.
Thus, it is common ground between the parties that the purpose of damages is
compensatory rather than punitive, having as its goal the restoration of the grievor to the
position he would have been in, had his employment not been terminated. As pointed out
in Brown & Beatty, Canadian Labour Arbitration (3rd) at s.2:1410 at pp.2-20, the general
principle is qualified by three factors:
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Arbitrators have recognized that the general principle is subject to three basic
quahfying factors. In the first place, the loss claimed must not be too remote,
that is, it must be “reasonably foreseeable”. Secondly, the aggrieved party must
act reasonably to mitigate his loss. Finally, the loss or damages must be certain
and not speculative.
The hearing in this matter commenced in October 1987 and continued through 1988;
the original decision of the panel upholding the grievor’s discharge was issued September 6,
1989. An application for judicial review was Bled by the Union on March 7, 1990 and the
decision of the Divisional Court was issued November 7, 1990 setting aside the award and
remitting the matter back to the Board to fix a disciplinary penalty in light of the Court’s
reasons. An appeal was taken by the Employer to the Ontario Court of Appeal which heard
the case on June 15,1992 and issued its judgment on October 27, 1992. The majority of the
Court dismissed the appeal, subject to a variation of the original order, and remitted the
matter back to the Grievance Settlement Board to dedde the issue of just cause in light of the
Court’s reasons. The matter came back before the same panel for hearing on April 2, 1993
and the award was issued January 14, 1994. Some months later, the parties requested a
hearing be set to resolve issues arising from compensation owing to the grievor.
While the proceedings certainly have been protracted, there is no evidence nor
argument made that there was delay or abuse of process by the Union or by the grievor of a
sort which would disallow or reduce the compensation otherwise payable. It was open to the
parties throughout this process to take steps to settle the matter and thereby reduce or
contain the liability accruing from ,the arbitration process and subsequent litigation. This is
not a case in which there was a mutual agreement between the Union and the Employer to
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defer the grievance and arbitration process pending resolution of tandem corollary proceedings
as was the case in Re Chromolox Inc. and CAW. (199 1) 17 LAC. (4th) 3 18 (H.D. Brown).
In any event, Arbitrator Brown rejected the Companys argument that the mutually agreed
deferral should be to the prejudice of the grievofs claii for compensation. For the foregoing
reasons, we conclude that the damages claimed by the grievor are not too remote because the
process has been so protracted.
Furthermore, the losses of the grievor are cettain and not speculative, since the
quantum of compensation owing can be calculated based on the amount the grievor would
have earned had he been returned to work following his suspension in October. Any periods
that the grievor would not have worked, for instance due to medical reasons or plant lay-offs,
would be taken into account so as to reduce the quantum of compensation. For instance, in
Re Thermal Ceramics and U.S.WA (1993) 34 LAC. (4th) 23 (Gray), the arbitrator
disallowed as unproven a &ii for lost wages over an eight month period during which the
grievor was found not to be fit for a return to work.
The usual method for the calculation of back pay following an unjust discharge or
suspension is set forth in Brown & Beatty, Canadian Labour Arbitration (3rd) at s.2: 142 1 and
2~1422:
2:1421 Unjust disdqc or suspcmin~ In calculating the back pay to which
an employee who has been dismissed or suspended is entitled, most arbitrators
have followed the general principles. In both circumstances, the first
calculation is to determine what the grievor would have earned if he had
worked his normal hours for the period in question. If a shift premium would
have been paid, it should be included. However, if it is intended that these
calculations will reflect the circumstances which actually prevailed, and where,
for example, there had been a lay-off of employees during this period, then
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apartfrom any benefits that might accrue in such circumstances, the grievor
would not be entitled to include the period of the lay-off in the calculation.
Likewise, where the grievor was incapacitated and could not have worked for
some or all of the period, that time would not be included in the assessment.
Unless there are reasons to believe that overtime would not have been worked
or where the agreement provides otherwise it has been generally held that lost
overtime opportunities, lost profit sharing, and lost incentive bonuses ought to
be included in the calculation. However, an amount for welfare premiums not
required to be paid by the employer during the period that the employee was
not working would not be included in assessing earnings unless the amount
represented payments made by the grievor individually which he otherwise
would not have had to make. Of course, in addition to the payment of
damages, the employer would be required to make any necessary pension fund
payments. On the other hand, the value of a fringe benefit of a lower plane fare
j would not be included in the award unless the plane trips were required.
Once this calculation has been made, the following deductions and
allowances may have to be taken into account. Since the gross calculation
contemplates employment throughout the period in question, vacation pay and
any other payments received ought to be either repaid or set off against the
gross calculation set out above, unless the period the employee was off work was
treated as a vacation. Conversely, where reinstatement is not part of the
remedy sought or warranted, it would appear that an amount for vacation pay
ought to be added to the gross amount. As well as vacation pay received, any
expenses saved, all moneys actually earned during the period the employee was
off work, and any amount lost due to a failure to mitigate ought to be deducted
from the gross amount. Any expenses incurred in the course of mitigating
would then be added back. One arbitration board has held, however, that
where a wrongly-dismissed employee was bordered reinstated but refused this
remedy, compensation for lost benefits was not warranted since the loss flowed
from the refusal of employment itself. Finally, at least one arbitrator has been
required to calculate damages owing where the employer refused to reinstate
the employee following the arbitration decision.
2:1422 Lost incentive and overtiixe pay. It is not uncommon, in calculating
the damages to which an employee is entitled as a result of a breach of the
agreement, to have to construct a hypothetical set of circumstances. This is
particularly so in calculating damages for a lost overtime or incentive
opportunity. The approach adopted by most arbitrators is to attempt to
ascertain what actual opportunities existed during the period in question. And,
in that regard, arbitrators generally will not presume that an employee would
have refused an overtime assignment unless there is some basis, such as a long
‘history of refusals, for concluding otherwise. Accordingly, if the employee
asserts that he would have accepted the overtime opportunity, that generally
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will suffice unless evidence to the contrary is adduced by the employer. A
similar approach is used for calculating lost incentive opportunities. There, an
estimate is based on what the individual would likely have earned as shown by
his actual experience at some relevant point of time. Where it is not possible
to reconstruct the individual grievor’s likely situation, the alternative of making
an estimate based on average hours actually worked by employees in the same
classifications has been suggested. Such calculations may involve a good deal
of uncenainty, however, and in one such circumstance, to resolve the matter
the arbitrator simply divided the grievor’s claim in half.
In Re B.C. Rail and United Transuortation Union (1985) 22 LAC. (3d) 417
(Munroe) the arbitrator adopted the approach articulated in Red Deer College v. Michaels
et (1975) 57 D.L.R. (3d) 386, [1976] 2 S.C.R. 324, [1975] 5 W.W.R. 575. At p.419,
Arbitrator Munroe explains the nature of the onus on the grievor to prove the amount of his
losses, as well as the burden of proof upon the defendant employer to prove that those losses
could have been mitigated:
The Rzd Deer decision in the Supreme Court of Canada stands out as the
clearest statement to date on the location of the burden of proof on questions
of mitigation in employment cases. From that decision, I extract the following
principles. First, as a general proposition, it is for the employee who was
improperly dismissed to prove. on a preponderance of probabilities, the amount
of his losses. To that extent, a claim for compensation as the result of an unjust . . dmmssal is indistinguishable from an action for damages for any other breach
of contract.
Accordingly, one would expect the grieving employee to show the
position he would have occupied were it not for the dismissal; the rate of pay
attached to that position at the material times; the hours, days, weeks or
months of employment that likely would have been available to him; the fact
that he was ready and willing to perform the available work; the places where
he obtained or attempted to obtain alternative gainful employment; and the
amount by which his earnings in the employment from which he was dismissed
would have exceeded the amounts earned elsewhere.
Ho-r, a burden does not rest with the grieving employee, at least not
initially, to rebut what I would characterize as “special defences” to the amount
thus established as the prirnnfaric entitlement. And, as the result of the Red
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Deer decision, included in the catalogue of “special defences” must be an
assertion by the employer that the employee could reasonably have avoided
some or all of the loss. Such an assertion carries with it the burden of proof
with respect thereto.
To satisfy that burden, the employer, in addition to relying on a claimed
insufficiency of attempts at mitigation by the employee, should be prepared to
show that a more industrious effort could well have resulted in the procurement
of alternative employment - i.e., a lesser loss. Where such a showing ir made
(whether by examination, cross- examination or reasonable inference), an
evidentiary burden may shift to the employee to demonstrate that even a more
reasonable effort on his part would have come to nothing. But the potential
shifting back and forth of the evidentiary onus is the same-here as with respect
to any other issue of fact, and does not alter the location of the over-all burden
of establishing that the loss really could have been reduced. He who asserts
must prove.
We adopt the foregoing principles and turn to review the evidence adduced.
The grievor was discharged on June 8,1987; his grievance was filed the same day. The
arbitration hearing commenced in October 1987 and continued to the end of June 1988.
Mr. Neckles was hired by Nestles on June 12, 1988 but was placed onindefinite lay-off on
December 17, 1988. The Employer’s witness, Ms. Deborah Lightfoot, Industrial Relations
Administrator for Nestles, indicated that the Company contacted the grievor on January 4,
1989 for recall, but the grievor indicated he was not available. The note made at the time of
this contact indicated that the grievor said he was going to Grenada. In his evidence, the
grievor denied that he had gone to Grenada at that time. Around Easter 1990 the grievor
attended his father’s funeral in Grenada when he was working at Canada Post. On November
25, 1988 the grievor was attacked by a fellow employee at work and severeiy injured. He was
suspended from November 25 to December 5,. 1988 because of this incident and was
subsequently laid off as part of a general plant lay-off prompted by a seasonal business cycle.
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In her letter dated July 19, 1994, Ms. Lightfoot indicated that the Company attempted to
contact the grievor again on June 29, 1989, but received no response to the recall and his
employment status was terminated. The grievor testified that he suffered emotional trauma,
in addition to physical injuries as a result of the assault on November 25.1988. He did not
seek any psychological counselling, although he might have sought that assistance through his
application to the Criminal Injuries Compensation Board which awarded him $3,300 for pain
and suffering on December 12, 1990.
The grievor testified that for the duration of the arbitration hearing, he suffered from
insomnia, constant headaches, and an inability to concentrate as a result of the emotional
trauma. He indicated that he did not take any medication for his symptoms and there is no
indication in his evidence that he sought counselling to assist him to cope with his
circumstances, even after he was attacked at Nestles in November 1988. He testified that
from October 1987 to June 1988 he regularIy reported to the Manpower Centre at St. Clair
and Duffetin which was closest to his residence, as well as to Manpower Centres at Yongc and
Eglinton and on Front Street to look at the job advertisements posted on the noticeboards.
There are no job applications tiled in evidence for this period. No other evidence was
tendered to show that the grievor actually applied for or was interviewed concerning jobs until
he was hired at Nest&s after taking a test. The grievor indicated that neither of his co-workers
at 3 11 Jatvis whom he had listed as references on his resumC were contacted by prospective
employers during this time frame. We find that there is insufficient evidence to show that the
grievor made reasonable efforts to seek alternate work up to the jxint in time that he was
accepted for work at Nestles. The nature of the allegations against the grievor, which induded
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allegations of sexual misconduct with young offenders, were no doubt a significant deterrent
to prospective employers who could offer work comparable to that which the grievor had held
at the. time of his dismissal. Indeed, that prejudicial ,effea was acknowledged in cross-
examination by the Employer’s witness, John Crawford, Cooperative Education and
Employment Resources Administrator at Centennial College.
Thus, while the grievor would have been unlikely to have found employment
comparable to his position as a CO, at 3 11 Jarvis, he was not unemployable, as his hire at ’
Nestles and subsequently at Canada Post in late 1989 attest. By his own evidence, the
emotional trauma he was suffering as a result of~his dismissal, together with the additional
trauma suffered from the attack at Nestles, induced him not to seek a recall to Nestles. We
find that the grievor made insufficient effort to find alternate work from June 1987 to June
1988 and thereafter from January 1989 to October 1989. A reasonable person in the position
of the grievor would have sought counselling to enhance his coping skiIls. There is insufficient
evidence that the grievor applied for alternate work in this time period, other than register and
meet the reporting requirements set by the Canada Employment Centres for drawing
Unemployment Insurance benefits. Indeed, the office memos fiIed in evidence from the
Canada Employment Centres at 3221 Yonge Street and in Scarborough indicate that he was
registered with them since October 1989. The Labour Force and Employment Statistics for
Ontario filed as Exhibit #6 indicate that the unemployment rate was fairly low for the years
1987, 1988, and 1989. It was not until 1990 that the unemployment rate began to rise as
the recession commenced and continued through 199 1, 1992, and 1993. The job applications
riled in evidence at Tab 5 of the Union brief date from March 1990 and later. In his
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evidence, he indicated that while he was not cut off from drawing U.I.C. benefits for not
actively seeking employment, he also indicated in &ef that he had to submit a job search list
to the Canada Employment Centre periodically, but only in the beginning. In cross-
examination, he was asked why the only job search documents indicating employer responses
to his applications date around March and April of 1990 and March 1993. He responded
that he did not know, but he was not in the habit of keeping copies of his job search
applications and the responses. He indicated that he never received any response to many of
his applications and explained that it was chance that these documents had been kept. A
reasonable person in the position of the grievor would have maintained a continuous record
of his job search records and the Union should have put the grievor on notice that such a
practice is advisable in the circumstances.
The emotional turmoil into which the grievor was thrown in consequence of his
dismissal and the serious nature of the allegations which formed the basis of the discharge
constituted a significant impediment to the grievor’s effort to obtain work and subsequently
to accept work at Nestles upon recall. Although some period of dislocation immediately
following the discharge is to be expected, it would have been reasonable for a person in the
grievor’s circumstances to obtain some counselling to help him cope with his circumstances.
Even in 1993 the grievor indicated that he could not continue in a course at the University
of Toronto in which he had registered because he was unable to concenuate on the course
material because of his emotional state. No medical evidence was available because the
grievor refused to seek medical assistance or counselling from other helping professions to help
him deal constnxtively with his predicament.
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From December 1988 until November 1989 the grievor remained unemployed. His
only source of income reported on his 1989 tax return isunemployment insurance benefits
of $7,341. On November 6, 1989 he was hired by Canada Post as a casual employee for a
three month term. Mr, Neckles indicated that he expected to be assigned work over the busy
holiday season: When questioned repeatedly by the panel concerning whether he was
expected to call in to Canada Post to obtain work assignments, he acknowledged that casual
employees were expected to call in. He obtained no work over the holiday season. He was
unable to recollect whether he had called in prior to the end of the holiday season. He
recalled that he did contact Canada Post after the holiday season and began to receive some
work as a casual employee in February and March of 1990 up to May 1992. During this
period, his income continued to be supplemented by unemployment &tsurance benefits, as his
assignments Were sporadic because of his status as a casual employee. In May 1992, he
explained that he tried to switch his status to a regular employee, but through some
miscommunication, his employment was terminated after he had agreed to management’s
request as to whether he would accept midnight shifts. He explained that Canada Post was
cutting back on its workforce at this time. When Mr. Neckles contacted Canada Post he was
told he would have to reapply. He never obtained any further work at Canada Post. He
remained unemployed for the balance of 1992 and 1993, although he registered at the
Canada Employment Centre in Scarborough near where he had moved. He testified that he
recalled seeking work through newspaper clippings, making enquiries at factories in Rexdale,
at a juice factory near Steeles and Keele Avenue, applying to five social services agencies, and
making enquiries of friends in government and other friends. He was unable to be more
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specific ar.d indicated that he did not realize he should have kept a record of his job search
efforts. Although he possesses a Bachelor of Arts degree from York University and was
qualified to teach in Grenada, the grievor acknowledged in cross-zunination that he did not
consider applying to obtain his teaching certificate to be eligible to teach in Ontario.
On the whole of the evidence we conclude that for the period from June 1987 to June
1988 a reasonable person in the position of the grievor would have sought some counscUing
to help him cope with his circumstan ces. We find that the emotional turmoil from which the
grievor was suffering seems to have impeded his job search efforts and affected his ability to
return to Nestles when a recall was offered in June 1989. We find that in the time period of
1987,198&l and 1989, had the grievor conducted a more efficacious job search, he would have
been able to get more work than he in fact obtained. The job market was good throughout
that period. Circumstances in the market began to change in 1990, but fortunately the
grievor was able to obtain some work through Canada Post until May 1992. By May 1992,
the Ontario job market had dried up as the economy was in the grip of a deep recession. We
find that even if the grievois job search efforts were less than reasonable from 1992 through
1993 the reduced availability of work was such that it CaMOt be concluded that a more
industrious effort would have procured alternate work. The prcjudidal nature of the
allegations against the grievor, would continue to disadvantage him with respect to
comparable work in social services and the depressed job market hampered the prospects of
finding alternate work The grievor alleged that his difficulty in obtaining work was
attributable to racism. Certainly the Ontario government has recognized in its legislative
initiatives concerning employment equity that racism is a factor operating to reduce the,
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economic prospects of visible minorities, and we would agree that this factor could have
operated to reduce the grievor’s chances of finding alternative work, but the effect of this
factor was probably more significant in the tight job market of the 1992-93 time Period. At
least he was able to obtain some employment in the earlier time frame when the job market
was more favourable. We do not conclude that this factor, on its own, eclipses the effect of
a lack-lustre effort to find alternate work.
In short, we conclude that the Employer has met the burden of proof upon it to show
that the grievor’s efforts to find alternate work were not reasonable and that if reasonable
effort had been made, more alternate work would have been obtained by the grievor from
November 1987 to June 1988 and from Januuy 1989 to February 1990 when he began work
at Canada Post. From 1990 on to May 1992 the grievor mitigated his losses through his work
at Canada Post. From May 1992 forward, the unfavourable job market was such that the
Employer was unable to persuade us that in alI the circumstances, even if the grievor had
demonstrated greater effort, he would have obtained more work.
CALCULATION OF GROSS LOSS
Evidence of the grievor’s income for the years 1987 to 1993 was placed in evidence
through his income tax Slings reproduced at Tabs 3 and 4 of the Union brief. The grievor was
reinstated on February 28, 1994 and a lump sum payment on account of retroactivity was
paid by the Employer on July 29, 1994. In any event, we remain seised as to the calculation
of the gross loss if the parties continue to have difliculty resolving the fmal computation, even
with the guidance provided by this award.
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As was apparent from the passage from Brown & Beatty, overtime, statutory holiday
cay, and shift premiums which would have been earned by the grievor had he remained at
work after his suspension, are usually included in the calculation of the gross loss.
The Employer proposes ‘that the calculation be based on the averages earned by
classified staff over the years in question from 1987 to 1994. Counsel for the grievor proposes
that the average earned by the grievor in the 3 year period immediately prior to his dismissal
in June 1987 be used as a simpler and more accurate measure of what the grievor would have
earned. We conclude that the latter method seems preferable because of its simplicity and
correlation to the grievoh pattern of earning overtime, shift premiums, and working on
statutory holidays.
The foregoing is subject to any deductions which should be made in accordance with
the direction provided in Brown & Bcatty, Canadian Labour Arbitration, 3rd ed., s.2: 142 1
and 2: 1422 reproduced above. Counsel for the Employer indicated at the hearing that he
agreed with the basic precept that shift premiums, overtime, and statutory holiday pay should
be included in the gross calculation, but really did not address this issue further in final
argument. Calculation of the gross loss should proceed from June 1987 to December 1987
and thereafter from January 1990 in light of our conclusions as to the grievers failure to
mitigate his losses during the years 1987, 1988, and 1989. We remain seised of jurisdiction
to determine any issues arising from the implementation of the award which the parties are
unable to resolve.
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Dated at Kingston, Ontario, on this 3 r d day of 0-c t o be L- , 19%.
Jane E. Emrib Vice-Chairperson
“I dissent” - dissent appended
Janet Solberg Member
‘I dissent” - dissent appended
Harry Roberts Member
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Janet Solberg US Consultants
6 Hontclair Ave. Toronto, Ont M4V 1Wl
488-1883(b) 485-4154(f)
DISSENT
OPSEU (Neckles) and The Crown in Right of Ontario (MCSS) GSB File 1291/87
I might have quibbled about some of the comments made by the Chairperson in this decision. But that is not the reason for
this dissent. This dissent focusses solely on the Chairperson's failure to award retroactive compensation from December 1987 to
June 1988.
Mr. Neckles was dismissed from his job in June 1987. From October 1987 to June 1988, Mr. Reckles uas involved in arbitration and present on all hearing days. During that whole
time, Mr. Neckles claims he was distraught and traumatired. Given the circumstance of his dismissal and the charges levied against him, I think his reaction is entirely understandable.
As the Board knows, this case was not about a one-day suspension nor a grievance about holiday pay. This case was as serious and
difficult as any I have ever been part of. With respect, I think
it is entirely unreasonable to have expected Mr. Neckles to seek, find and retain a job during the period of the arbitration. The
Chairperson's failure to compensate him for those seven months is an added penalty I don't think he deserves.
c
Re: GSB 1291/87 OPSEU (Neckles) and the Ministry of Community
& Social Services
Partial Dissent
As will be evident from my comments on earlier drafts of 9 April
1993, 8 Decembe~r 1993 and my dissent to the award on 7 January
1994 on this case, I have never subscribed to the belief that the
grievor was guilty of only one incident under the Standards of
Conduct and Disciplinary Guidelines of the York Detention Home and
hence was liablta for only the. minimum penalty for such an
infraction.
I still hold to this view. I agree with the comments made
throughout the award relative to' the grievor's failure to make
reasonable efforts to find alternative work.
On 29 July 1994, he received a lump sum payment on account
of retroactivity following his reinstatement on 28 February, 1994.
This settlement, in my view, is more than adequate in.
resolving his claim, under all the circumstances previously set
out, and I could not propose or recommend any further additional
payment beyond that point.
This is the substance of my dissent.
H. ,Roberts, Member
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