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HomeMy WebLinkAboutLabrecque 15-09-13BETWEEN: IN THE MATTER OF AN ARBITRATION CHILDREN'S HOSPITAL OF EASTERN ONTARIO ("Hospital") - and — ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("Union") ARBITRATOR: Jasbir Parmar On Behalf of the Hospital: Raquel Chisholm, Counsel Erica Bennett, Articling Student Heather Rose, Director, Human Resources Tammy Degiovanni, Director, Ambulatory Care On Behalf of the Union: Peggy Smith, Counsel Denise Labrecque, Grievor Steve Nield, OPSEU Representative. This matter was heard on September 2, 2015 in Ottawa, ON. I. Introduction 1. In an earlier award, I upheld the Grievor's grievance challenging her termination. However, rather than reinstatement, I awarded damages in lieu thereof. The issue addressed in this decision is the quantum of those damages. 2. Both parties were given full opportunity to make submissions on how the damages should be calculated and what the quantum of damages should be. Having heard the opposing positions, the parties agreed to engage in a "final offer selection process". They each put forth a position, knowing that I would choose one of the two positions suggested. II. Parties' Positions 3. The Union submitted the damages should be calculated on the basis of 1.5 months of pay per year of service. Given the Grievor's 14 years of service, this would be $184,897.00 in damages. This approach to calculating damages is set out in Hendrickson Spring Stratford Operations, infra. 4. The Hospital submitted a different method should be used, which is set out in George Brown College, infra. Under this theory, damages are calculated on the basis of a prospective analysis, focusing on the future employment with the employer which the employee will not have. This method involves a four step process: calculating the maximum income the Grievor could have received if she was not wrongly discharged; add in the value of benefits; reduce the amount by various contingencies that may have prevented continuing employment; and further reduce that amount to reflect the obligation to mitigate her loss. 5. The Hospital submits this method should be used to calculate the Grievor's loss. As such, they submit the appropriate calculation is based on the years of service she would have worked until she is eligible for an unreduced pension, a 10% top up for lost benefits, a 50% reduction on the basis the facts suggest she would likely have been unable to continue 1 employment without being terminated in the future, and a 50% reduction assuming she will be able to find some other employment and mitigate her loss (the Grievor has found some fixed -term employment already). The calculation also includes an amount for pre -judgement interest. The total proposed by the Employer is $72,291.88. 6. The following authorities were cited to me: Bahniuk v. Canada (Revenue Agency) (2014), 235 L.A.C. (4th) 368; George Brown College — and — OPSEU (2011), 214 L.A.C. (41) 96; Hay River Health and Social Services Authority — and — PSAC (2010), 201 L.A.C. (4th) 345; Hendrickson Spring Stratford Operations — and — U.S. W.A., Local 8773 (2009), 191 L.A.C. (4th) 116, and North Bay Regional Health Centre — and — ONA (unreported, June 15, 2015) (M. Newman). III. Analysis 7. Arbitrators have struggled at finding a method that appropriately quantifies the loss associated with not being reinstated, as indicated in the jurisprudence cited to me. 8. A number of arbitrators adopted a method that borrowed from the approach used to calculating damages for non -unionized employees who had been terminated without just cause. This method focuses on the individual's period of employment prior to their termination. 9. More recently, a different approach has found favour amongst some arbitrators. The underlying rationale is well -articulated in decisions such as George Brown College, supra and Hay River, supra, and for this reason I will only summarize it briefly. This approach rejects the length of service calculation as not actually being tied to what the individual is losing. For example, an employee of 25 years who is two years away from retirement will receive a large amount of damages when what he is really losing is an opportunity to continue to be employed with the employer for another two years. On the other hand, an employee of 10 years who is 15 years away from retirement would receive a significantly 2 lesser amount, even though he is actually suffering a greater loss - the opportunity for another 15 years of employment. 10. The latter approach begins by considering the individual's future employment with the employer, and the earnings and benefits the individual may have earned. The George Brown/Hay River approach also includes an assessment of other factors that may affect continued employment. 11. The Union submits this is an arbitrary method, requiring a forecasting of the future. It is true there is an element of predicting what would have happened, but it is not arbitrary. In deciding that the usual remedy of reinstatement is not appropriate, an arbitrator has already made an assessment about the future. Based on all the facts of the specific case, the arbitrator concluded continued employment is not feasible. Those facts are relevant to the issue of continued employment, and there is no reason that those facts should not be taken into account in calculating the Grievor's loss as a result of not being reinstated. 12. Similarly, an assessment about the ability to mitigate can also be made with regard to the specific facts of the case, such as skills, training, and experience of the individual and his or her experience in finding alternate employment. 13. In my view the George Brown approach, with its prospective focus, is the favourable one. It is more likely to arrive at a monetary amount that reflects what is actually lost by the employee in not being reinstated to their former job. It also takes into account the specific circumstances of each case. As noted by Arbitrator Newman in North Bay Regional Health Centre, the damages calculation isn't meant to "unduly reward the employee or punish the employer, but to place the employee in the position that best replicates his actual monetary loss". The George Brown approach does just that. 14. As the Hospital's calculation is based on this approach, I find that their damages calculation is the appropriate one. 3 IV. DISPOSITION 15. The Hospital is ordered to pay to the Grievor $72,291.88 as damages in lieu of reinstatement. 16. 1 remain seized with respect to any issues relating to implementation of this award. Dated this 13th day of September, 2015. JASBIR PARMAR M