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HomeMy WebLinkAboutBouvier 04-06-25 . . Concerning an arbitration Between: Jeanne Sauvé Family Services and Ontario Public Service Employees Union Grievance of Laurianne Bouvier, Dismissal Concernin~ compensation Arbitrator: Joseph W. Samuels For the Parties Union Will Presley, OPSEU Representative Laurianne Bouvier, Grievor Employer Guy Wainwright, Counsel Yves Barbeau, Assistant Executive Director Hearings in Timmins on June 21, 22 and 23, 2004 1 On January 23, 2003, Laurianne Bouvier was dismissed from her employment as a Casual Residential Worker at Jeanne Sauvé Family Services. She was still in her probation period. She grieved her dismissal. In my award dated January 6, 2004, I concluded: that the Employer acted arbitrarily in dismissing Ms. Bouvier. The remedy in this situation is not easy to find. In my view, it would be very uncomfortable for Ms. Bouvier to return to the workplace pursuant to an Arbitrator's Order. She may not want to return to Kapuskasing, now that she has moved back to North Bay. The Employer may not want her back and her treatment in the workplace may not be appropriate. If she is to return, it should be by agreement of the parties, with suitable arrangements worked out by them. At this point, I will confine my Order to this - the grievor must be returned to the financial position she would have been in had she not been dismissed arbitrarily. This means a consideration of her losses since her dismissal, and a consideration of what her future would have been had the Employer not violated the collective agreement. I will leave it to the parties to fashion a suitable remedy in light of these considerations. I will retain my jurisdiction to put flesh on these bones, if the parties are unable to come to agreement on the remedy. The parties did not reach an agreement to allow Ms. Bouvier to return to work at Jeanne Sauvé Family Services; and they were unable to "fashion a suitable remedy" in light of the considerations I set out in the award of January 6. So we convened in Timmins to hear evidence and argument, on the basis of which I will act according to the jurisdiction I retained "to put - flesh on these bones". 2 The evidence showed that Ms. Bouvier made heroic efforts to find work following her dismissal. She explored possibilities in North Bay, New Liskeard, Sturgeon Falls, Kapuskasing, Huntsville, Timmins, and Smooth Rock Falls. She made applications for positions involving social work, counselling, mental health, and clerical work. She applied for full-time and part-time positions. At last, in August 2003, she found work in Cochrane which would commence in September. She moved to Smooth Rock Falls and commuted by car to Cochrane for three weeks at the new place of employment. This job paid her significantly less than she had been earning at Jeanne Sauvé. But almost immediately after starting this new job, she was accepted as a Volunteer Coordinator at Child and Family Services of Timmins and District. This job, which gave Ms. Bouvier earnings commensurate with her earnings at Jeanne Sauvé, started on October 14. So she communted from Smooth Rock Falls to Timmins until November, when she moved to Timmins. In mid-December 2003, she was dismissed from her position in Timmins. This dismissal has been grieved and Ms. Bouvier is represented in that matter by the Canadian Union of Public Employees. Following her dismissal in Timmins, Ms. Bouvier had a great deal of trouble. finding new employment and has only recently begun working for a new employer. In all these circumstances, how do we apply the principle I set out in my award of January 6, 2004: the grievor must be returned to the financial position she would have been in had she not been dismissed arbitrarily. This means a consideration of her losses since her dismissal, and a consideration of what her future would have been 3 had the Employer not violated the collective agreement. The first issue is Jeanne Sauvé's liability with respect to the period before Ms. Bouvier commenced work in Timmins. The evidence I heard during the first stage of this matter suggested strongly that, but for the arbitrary action and recommendations of Ms. Bouvier's supervisors, she would have completed her probationary period and she would have gone on to enjoy virtually full-time hours either on contract in a back-fill position, or as a casual employee. At our hearing concerning compensation, the Employer introduced evidence and argument to suggest that Ms. Bouvier's prospects in the period after her dismissal, had she remained in Jeanne Sauvé's employ, would have been quite dismal, because it is suggested she would have got little work, since her supervisors did not appreciate her performance and would have given her little work. In my view, this new evidence flies in the face of what I heard and what I conclude from the evidence that was introduced during the first stage of this matter. The Employer cannot now ask me to rely on a different version of the future, based on the prospective decisions of supervisors whose previous decisions I have already determined to have been arbitrary. I find that, had the grievor remained in the employ of Jeanne Sauvé up to the time of her ultimate employment in Timmins, she would have enjoyed full- time work. She is entitled to financial compensation for the wages and benefits she lost in this period as a result of her dismissal. The grievor was paid two weeks' in lieu of notice, so her losses commenced on February 6, 2003. From February 6 to March 30, she lost an average of 83.125 hours bi- weekly (which is the average she was working before her dismissal) at $16.06 per hour. The Union has calculated this loss to be $5006.25. 4 The rate of pay went up under the collective agreement on April 1 to $16.38 per hour. There were 28 weeks from April 1 before she started work in Timmins on October 14. During that period, she worked three weeks in Cochrane at $500 per week and thus earned $1500. Had she been at Jeanne Sauvé;she would have earned $19062.23. Thus, her loss in this period was $17562.23. There were eight statutory holidays she missed between her dismissal and her hiring in Timmins, which represents a loss of $1048.32. She would have received 6% in lieu of vacation on the total of $5006.25 plus $19062.23 plus $1048.32, which represents a loss of $1507. Thus, her total loss of wages and benefits up to the hiring in Timmins was $25123.80. Secondly, Ms. Bouvier incurred expenses as a result of her dismissal. She moved almost immediately to North Bay. She had to travel extensively to look for work. She had to move to Smooth Rock Falls. And then she moved to Timmins. She testified about these expenses. Though she did not submit supporting documentation, I am content to find that her expenses were reasonably put at $3200. The third issue is the consequences of her dismissal from the position in Timmins with Child and Family Services. The Union here suggests that Jeanne Sauvé has continuing liability for the grievor's losses after her dismissal from Timmins for two reasons: . because it is alleged that the Executive Director of Jeanne Sauvé, Mac Hiltz, interfered with her employment in Timmins and caused that employment to be terminated; and . because, as a matter of causation, her plight after the Timmins' dismissal is still attributable to her dismissal in January 2003 by Jeanne Sauvé. 5 The agreed evidence with respect to the allegation of interference by Mr. Hiltz is as follows: . in November, as Volunteer Coordinator of the Ontario Early Years program (a program which the Timmins agency was administering, and which involved a number of satellite agencies), Ms. Bouvier requested the collective agreements of some of the agencies. Some or all of these agencies objected to this request, and ultimately on December 1, 2003, Ms. Bouvier was instructed by her supervisors that the collective agreements were not needed and she was told to call the satellite agencies to tell them this. And Ms. Bouvier followed these instructions. . at a meeting on December 9, 2003, attended by representatives of the Timmins agency and other social agencies, Mac Hiltz, the Executive Director of Jeanne Sauvé, took aside Corrie Van Dyk, the Director of Service at the Timmins agency, and said to Mr. Van Dyk that he (Hiltz) was requesting clarification concerning the request from Ms. Bouvier to see a copy of the Jeanne Sauvé collective agreement. Mr. Hiltz went on to say that Ms. Bouvier had worked for Jeanne Sauvé. Mr. Van Dyk told Mr. Hiltz that he knew the collective agreement was an issue. Mr. Van Dyk was shocked to learn that Ms. Bouvier had worked for Jeanne Sauvé, because it was not on the resumé she had given to the Timmins agency when she applied for work there. . soon after this meeting on December 9, Ms. Bouvier was dismissed from her employment in Timmins and one of the significant factors in the Timmins' decision to dismiss her was "the mistrust of Ms. Bouvier from the stakeholders". Jeanne Sauvé was the most important stakeholder. 6 . With respect to the Union's argument that Mr. Hiltz interfered with Ms. Bouvier's employmeut in Timmins, it is critical to note that, during the meeting on December 9, Mr. Hiltz did not say he mistrusted Ms. Bouvier. He did not say that he would have any difficulty working with her as Volunteer Coordinator. The agreed fact is that he simply requested clarification concerning the reqnest from Ms. Bouvier to see a copy of the Jeanne Sauvé collective agreement (indeed, as I've already said, eight days before this meeting Ms. Bouvier had called the satellite ageucies to say that she didn't need the collective agreement-I don't know whether Mr. Hiltz knew this or not). In my view, there was nothing wrong in what Mr. Hiltz did here, and there was nothing in this request for clarification which would reawa~en the responsibility of Jeanne Sauvé for Ms. Bouvier's lack of empl oymen t. In similar vein, there is nothing wrong in Mr. Hiltz telling Mr. Van Dyk that Ms. Bouvier once worked for Jeanne Sauvé. Therewas no evidence that Mr. Hiltz knew that Ms. Bouvier had not put this on her resumé in applying for the Timmins job. There was no evidence to suggest that Mr. Hiltz Was trying to make things difficult for Ms. Bouvier by telling this to Mr. Van Dyk. The fact that the news shocked Mr. Van Dyk cannot be attributable to Mr. Hiltz. Again, there Was nothing in the mention of this fact that would reawaken the responsibility of Jeanne Sauvé for Ms. Bouvier's lack of employment. With respect to the Union's argument that, as a matter of causation, Jeanne-Sauvé is responsible for Ms. Bouvier's lack of employment after her dismissal from Timmins, I do not agree. Her lack of employment after her dismissal from Timmins is due to her dismissal from Timmins. And the legal and financial consequences of this dismissal will be detennined during the grievance process between Ms. Bonvier (and the Union which represents her there) and Child and Family Services of Timmins and District. ~ 7 In my view, the liability of Jeanne Sauvé ended when Ms. Bouvier found suitable employment at a rate equivalent to what she would have earned at Jeanne Sauvé. In sum, her losses of wages and benefits, plus her expenses in trying to find work, come to $28,323.80. But she did not receive the wages when they were due, and she had to incur the expenses some months ago, so she has lost the use of money over time, and I must take this into account. I award $30,000 in compensation. On January 29, 2004, I ordered Jeanne Sauvé to pay to Ms. Bouvier $10,000 as interim relief. It is necessary to deduct this amount from the sum awarded now. I order Jeanne Sauvé to pay $20,000, less any deductions required by law, to Ms. Bouvier immediately upon receipt of this award, plus interest at 6% per annum if the amount ordered remains outstanding after July 15, 2004. The interest would run from July 15 to the date of payment. I will reserve my jurisdiction to deal with any issue which may arise out of this award. Done at London, Ontario, this 25th day of June, 2004