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Home My WebLink AboutOlivo 01-04-12é÷î÷ùû ùÍÍÌ×Ê ìÓÙÔ×Ê ùÔÛÓÊÌ×ÊÉÍÎ êÍÚ×ÊÈ ïÇÊÊÛÃ çÎÓÍÎ ÍÖ ÍÖ û ÍÖ ÍÖ ÍÖ ÍÖ ÍÎ ÈÔ×ï×ÊÓÈÉ ê×ÓÎÉÈÛÈ×Ï×ÎÈ íÐÓÆÍ ùÍÏÌ×ÎÉÛÈÓÍÎ ¬ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÈÍ ÖÛÙÈ ÈÍ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÍÖ û ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ å×Ú×Ê ôÃØÊÍ ÍÖ÷ÍÎÓÉ æÍÊÆÓÉ ùÍÊÌÍÊÛÈÓÍÎ ùÍÐÇÏÚÓÛ æÍÊÆÓÉ ÍÖ ÍÖ ÍÖ ÓÖ ÈÍ ÍÖ ÍÖ ÍÖ õÊÛÓÎ ÍÖ ÈÍ ÈÍ ÖÍÊ ÈÍ ÖÍÊ ÍÖ ÈÍ ÈÍ ÈÍ ÍÖ ÈÍ ÍÖ ÛÈ ÈÍ ÈÍ ÍÖ ÛÈ ÍÖ ÈÍ ÍÖ ÈÍ ÈÍ ÈÍ ÖÛÙÈ ÍÖ ÈÔÛÈ ÍÖ ÈÍ ÈÍ ÍÖ ÖÍÊ ÍÖ ÈÍ ÍÖ ÍÖ ÈÍ ÈÍ ÖÍÊ ÍÖ ÈÍ ÈÍ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÍÊ ÈÍ ÍÖ ÈÍ ìÇÎÓÈÓÆ× ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÈÍ ÍÊ ÍÖ ÍÖ ÍÖ ÍÖ ÓÎÒÇÊ×Ø ÈÍ ÈÍ ÖÍÊ ÍÊ ÖÍÊ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÍÖ ÖÍÊ ÍÖ ÍÖ ÈÍ ÍÊ ÍÖ ÖÍÊ ÍÖ ÍÖ íÎÈÛÊÓÍ ùÍÇÊÈ ÍÖ÷ÍÎÓÉ ÍÖ ÍÖ ÍÖ ÍÖ íÎÈÛÊÓÍ ÍÖ ÈÍ ÓÖ ÍÖæÍÊÆÓÉ ÈÍ ÍÖ ÍÖ ÍÖ æÍÊÆÓÉ ÍÖ ÍÖ ÍÖ õÊÍÅ×ÊÉ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ æÍÊÆÓÉ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ø ÈÍ ÍÖ ÍÖ íÎÈÛÊÓÍ ÍÖ ÍÖ ÈÍ ÈÍ ÍÊ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÛÈ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÊ ÖÍÊ ÍÊ ÚÓÈÍÖ ÍÊ ÍÖ ÍÖ ÈÍ ÅÓÈÔ ÈÍ ÍÊ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖÈÔÓÉ ÍÖ ÈÍ ÈÍ ÖÛÐÐ ÅÓÈÔÓÎ°ÇÎÖÛÓÊ ÍÊ ÍÖ ÅÓÈÔÓÎ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ùÔÛÊÈ×Ê ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÛÈ ÍÖ ÍÖ ÖÍÊ ÈÍ ÈÍ ÍÊ ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÓÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÈÔÛÈ ÍÖ ÍÖ ÛÕÊ××Ï×ÎÈ¯ý ÍÖ ÍÊ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÈÍ ÈÍÊÈ ÍÖ ÍÖ ÓÖ ÍÖ å×Ú×Ê ÍÖ ÓÖ ÛÈ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÛÈ ÈÍ ÍÖ øÇÚÍÊØ ï×ÈÛÐÐÇÊÕÓÉÈ×É ø±ûÏ×ÊÓËÇ× í±ð×ÛÊÃ ÍÖ ÈÔÛÈ ÈÍ ÈÔÛÈ ÈÍ ÖÍÊ ÍÖ ÍÖ ÈÍ ÍÖ ÛÈ øÇÚÍÊØ ÈÍ ÍÊ ÍÖ ÈÍ ÛÈ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÈÍ ÈÍ ¬ ÍÖ ÍÖ ÈÍ ÈÍÊÈ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍÊÈÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÈÍ ÈÍ ÈÍÊÈ ÍÖ é×ÊÆÓÙ×ÉÍÖ ÍÖ ÖÍÊ ÈÍÊÈ ÈÍ æÓÐÐÛÕ× ÈÍ ÈÍ ÈÍ ÈÍÊÈ ÍÖ öÍÊØÓÎÕ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ûÈ ÍÖ ÖÍÊ ÈÔÓÎÑÈÔÓÉ ÈÔÓÉ ÖÛÐÐÉ ÍÖ ÈÍ ÖÍÊ ÍÖ ØÍ ÎÍÈ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÈÍ ÈÔÛÈ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ °Ì ÈÍ ÈÍ ÍÖ íÖ ÈÍ ÈÍ ÍÖ ÈÍ ÍÖ ÈÍ ÍÖ ÍÖ ÈÍ ÍÊ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÓÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ óÖ ÛÈ ÍÖ ÈÍ ÛÈ ÖÍÊ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÈÍ ÛÈ ÍÖ ÍÖ ÖÍÊ ÈÍ ÈÍ ÒÇÊÃ ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÍÊ ÒÍÚ ÈÍÊÈÍÖ û ÍÖ ÈÍ ÈÍ ÍÖ ÈÔÛÈ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÍÊ ÍÖ ÈÍ ÍÖ ÈÍ ÍÖ ÈÍ ÍÖ ÖÍÊ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÊ ÍÖ ÈÍ ÍÖ Looking directly at the alleged misconduct asserted by the Union in the instant case as forming the basis of its claim for aggravated and punitive damages in relation to the termination of Mr. Olivo, and looking directly at the terms of the collective agreement, as discussed above, this Board is satisfied, using the words of the Supreme Court in Weber, that "the conduct giving rise to the dispute between the parties [in its essential character] [does not arise] either expressly or inferentially out of the collective agreement between them." We are fully satisfied that the dispute between the parties respecting the alleged tortious misconduct of the College against Mr. Olivo and/or the Union in the nature of the intentional infliction of mental distress and defamation, in its essential character, does not arise either expressly or inferentially from the collective agreement. The allegations of the intentional infliction of mental distress on Mr. Olivo, by the actions of Mr. Fogel, supported by the College, in pursing the discharge of Mr. Olivo and the allegations of defamation against Mr. Fogel, for a discharge that the Union alleges essentially labeled Mr. Olivo as anti-Semitic and guilty of hateful actions, are alleged wrongs-which are primarily the result of an emotionally charged personal vendetta or prolonged bitter hostility between Mr. Olivo, the vice president of the Union at the relevant time, and Mr. Fogel, the Director of Employee Relations. The alleged infliction of mental distress and the alleged defamation are serious allegations and of utmost importance. However, while the dispute 32 occurred in the workplace and while the dispute occurred between parties who are subject to the terms of the collective agreement, those facts, alone, do not mean that the alleged wrongs have arisen "inferentially" under the collective agreement. The alleged wrongdoing of defamation and the intentional infliction of mental distress do not violate any term of the collective agreement. There is no term of the agreement prohibiting defamation or the intentional infliction of mental distress. As noted by lacobucci J., speaking for the majority of the Supreme Court of Canada in Wallace. supra, at paragraph 73, "[a]n employment contract is not one in which peace of mind is the very matter contracted for ..." Unlike the situation in Weber, there is no provision in the collective agreement between the instant parties that provides for the airing of allegations of "unfair treatment" through the grievance procedure, let alone the arbitration procedure. The discharge of Mr. Olivo arises under the collective agreement. It has been adjudicated by this Board and he has been reinstated with full compensation for his losses. Allegations of anti union animus arise under the collective agreement. Any breach of the no-discrimination article of the collective agreement may be remedied by the normal "make whole" remedies that would include the reversal of improperly motivated action taken against Mr. Olivo, along with "make whole" compensation, where appropriate. Further allegations of alleged tortious conduct in the form of the intentional infliction of mental distress and defamation, however, do not arise under the collective agreement, expressly or inferentially. ÍÖ ÍÖ ÍÖ æíêæóé óîéçêûîù÷ ÍÖ Re Ontario Hvdro and CUPE that, on the basis of the principles set out in Vorvis, aggravated and punitive damages could be awarded in a grievance, like Mr. Oli¥o's, where a board of arbitration had determined that the discharge was without just cause. Applying the reasoning in Vorvis to the collective agreement context, the board of arbitration in Re Ontario Hydro and CUPE held that aggravated and punitive damages could be awarded if the alleged wrong causing the unjust discharge was also "independently actionable" under a related clause of the collective agreement. In the instant matter, the Union relies on the interpretation of Vorvis in Re Ontario Hydro and CUPE to assert that aggravated and punitive damages can be awarded at arbitration to Mr. Olivo because, it alleges, the wrongdoing involved in Mr. Olivo's unjust discharge is "independently actionable" within the meaning of Vorvis because it constitutes the breach of another article of the collective agreement, article 3.02. Article 3.02 stipulates, in part, that the College may not discriminate, intimidate or interfere with an employee because of the employee's activity in the Union. It is the position of the Union that Mr. Olivo's discharge was also a breach of article 3.02 because, it maintains, the discharge was motivated by the College's desire to punish Mr. Olivo and the Union for their alleged hostility against Mr. Fogel and the College in respect of Union matters and to undermine the Union in its negotiations with the College. ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ á ß áß ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ óÖ ÍÖ ÍÊ ÈÍ ÍÖ ÍÖ ÍÖ ÈÍ ÖÐÍÅ ÍÖ ÓÈÉ×ÐÖ ÈÍ ÍÖ ÎØ ÖÍÊ ÍÖ ÙÍÎÉÈÓÈÇÈÓÎÕ ÈÍÊÈ ÓÈÅÓÐÐ ÈÍ ÖÓÎØ ÅÔÓÙÔ ÍÎÐÃ ÖÍÊ ÍÖ ÈÔ×ÓÊ ÍÖ ÍÖÖÇÐÐ ÈÍ ÍÖ ÈÍ in a collective agreement context. Does "independently actionable" mean, as the Union asserts in the instant matter, the breach of any other related clause in the collective agreement, such as article 3.02 in the instant collective agreement? Or, as asserted by the College, does "independently actionable" mean actionable outside the contract or collective agreement in tort? The framework for the "independently actionable wrong" was somewhat unclear in Vorvis. The Court in Morris did not expressly indicate whether it meant "independently actionable" in both contract and tort. However, in its subsequent decision in Wallace, discussed in detail in section "G", below, the Supreme Court of Canada clarified, at p. 74 of that decision, that an independent or separate "actionable wrong" means one that is independently actionable either in contract or in tort. Adopting this clarification of Vorvis that was made in the Wallace decision, the question in the collective agreement context becomes whether the wrong giving rise to the request for aggravated and punitive damages is independently actionable either in contract, i.e. the collective agreement, or in tort. We turn first to the issue of whether the wrong put forward by the Union in support of the claim for aggravated and punitive damages is independently actionable in contract, i.e. in the collective agreement. 43 æÍÊÆÓÉ æÍÊÆÓÉ ÍÖ ÍÖ ÍÖ íÎÈÛÊÓÍ ÈÔÛÈ ÍÖ ÍÖ ÍÊ ÖÍÊ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÖÍÊ ÈÍ ÍÖ ÍÖ ÍÖ ÒÇÉÈ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÒÇÉÈ ÈÍ ÈÍ ÍÖ ÍÖ ÓÇÉÈ ÖÍÊ ÖÍÊ ÍÖ ÐÓÏÓÈÖÍÊ ÍÖ æÍÊÆÓÉ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ôÃØÊÍ ÍÖ ÈÔ× ÍÖ ÍÖ ÐÛÅ ÈÍ ÛÎØ ÈÍ ÈÍ ÍÖ ÈÔÛÈ ÈÍ ÍÖ ÒÇÉÈ ÖÍÊ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÊ ÈÍ æÍÊÆÓÉ ÈÍ ÍÊ ÍÖ ÍÖ ÈÍ ÍÖ ÍÊ ÍÖ ÍÊ ÍÊ ÍÖ ÍÖ ÍÖ ÍÖ ÍÊ ÍÖ ÍÖ ÍÖ ÈÍ ÖÍÊ ÍÖ ÈÍ ÖÍÊ ÍÖ ÈÍ ÍÊ ÅÔÍÐ× ÈÍ ÈÍ ÈÔÛÈ ÈÍ ÖÍÊ ÍÊ ÖÍÊ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÊ ÍÖ ÍÊ ÈÍ ÍÖ ÍÊ ÈÍ ÓÖ ÈÍ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÓÖ ÍÖ ÓÖ ÍÖ Obviously, nothing in this decision takes away the right of Mr. Olivo to pursue his personal claim for aggravated and punitive damages against the College in the appropriate civil forum. -F- ALLEGED BREACH OF ARTICLE 3.02 In the event that this Board is in error in finding that, under Vorvis principles, a breach of article 3.02 would not provide the foundation for an award of aggravated and punitive damages, we turn to the Union's assertion that in discharging Mr. Olivo, the College acted in breach of article 3.02 of the agreement. Article 3.02 of the collective agreement provides as follows: Article 3 RELATIONSHIP 3.02 The Colleges and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practiced by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of an employee's activity or lack of activity in the Union or because of an employee's filing or not filing a grievance including participation in the workload complaint system. Having carefully assessed the submissions of the parties, the Board is unable to find that the College's action against Mr. Olivo constitutes a separate 65 breach of article 3.02 of the collective agreement. On the evidence presented, the Board cannot find that College's action of discharging Mr. Olivo constituted an act of "intimidation, discrimination, interference, restraint or coercion ... because of [Mr. Olivo's] membership ... in the Union or because of [Mr. Olivo's] activity ... in the Union ..." While the relationship between the Union and the College was strained and although the action taken against Mr. Olivo was without justification, both because of the delay and because the evidence was insufficient to prove wrongdoing on the part of Mr. Olivo, the evidence does not substantiate a finding that the College's discharge of Mr. Oiivo constituted an act of "intimidation, discrimination, interference, restraint or coercion ... because of [Mr. Olivo's] membership ... in the Union or because of [Mr. Olivo's] activity ... in the Union ...". Although Mr. Fogel's focus on Mr. Olivo as the author of the deplorable anti-Semitic communications was misdirected, the evidence satisfies the Board that Mr. Fogel believed that he had been personally wronged by Mr. Olivo. Negative emotions and personal hostilities were running high at the time between Mr. Fogel, the Union and Mr. Olivo, so much so that Mr. Fogel had filed an independent action in the courts in defamation against Mr. Olivo and the Union and others. Mr. Fogel had been subjected to hateful and disturbing anti-Semitic written attacks in the workplace over an extended period of time. Although the · .... '~"*;"" for his "'--'-~'"'~'-" that it was Mr. Olivo who had sent the anti-Semitic material to him was without substance, the Board is satisfied that he believed Mr. 66 ó ÓÖ Mr. Olivo by the College still caused Mr. Olivo to suffer the intangible injuries of hurt feelings and emotional distress for which the Union contends aggravated damages are awardable under the principles established in Wallace. In Wallace, the employer asserted until the trial date (which commenced two years following the termination) that it had terminat~;d Mr. Wallace's contract for cause. Specifically, the employer asserted that it had cause to terminate Mr. Wallace for an alleged inability to perform his duties satisfactorily, notwithstanding that he had been the company's top salesperson for each of the 14 years he had been employed by the company. The contract of employment had given Mr. Wallace a virtual guarantee of job security until retirement, as long as he gave the company no cause to dismiss him. The company also gave him assurances of fair treatment. The company, however, made a conscious decision to play "hardball" with Mr. Wallace and terminated his. employment. The termination brought on emotional problems for Mr. Wallace, as well as a declaration of personal bankruptcy. At trial, the judge in Wallace dismissed the claim for punitive damages, allowed the claim for aggravated damages and set the reasonable notice period at 24 months. The trial judge concluded that the parties must have contemplated that if Mr. Wallace was dismissed without cause, he, in all likelihood, would suffer mental distress, such that this became an implied term of the contract and such that dismissal without cause would constitute a separate actionable wrong in ÍÖ Æ×ÊÃ ÍÖ ÍÖ ÍÖ ÍÖ term respecting the foreseeability or contemplation of mental distress in the event of a termination without cause. At paragraph 73, lacobucci J. stated that, An employment contract is not one in which peace of mind is the very matter contracted for ... and so, absent an independently actionable wrong, the foreseeability of mental distress or the. fact that the parties contemplated its occurrence is of no consequence... Accordingly, the endorsements and clarifications that were made by the Supreme Court in Wallace, respecting its earlier decision in Vorvis, include: (1) confirmation of the principle established by the Supreme Court in ¥orvis that aggravated and punitive damages will only be awarded in an action for wrongful dismissal if the wrong put forward to justify the aggravated and punitive damages is independently actionable, (2) clarification that by "independently actionable" it means independently actionable in contract as well as in tort, (3) clarification that the courts in Canada have not yet recognized a tort of bad faith discharge or unfair termination, (4) clarification that the foreseeability of mental distress or the fact that the parties may have contemplated its occurrence in situations of termination without cause does not render it an implied term of the contract and is of no consequence, absent the existence of an independently actionable wrong, and (5) confirmation that the Court would not imply into the contract a term either requiring fair treatment or requiring cause or a legitimate business purpose for termination. Once the Supreme Court clarified that it would not imply such terms into the contract, it followed that alleged breaches of such implied terms could not become the basis for the finding of independently actionable wrongs in contract and thus could not provide the foundation for aggravated or punitive damages. After the Supreme Court in Wallace endorsed its earlier decision in Vorvis and set limits on what would, and would not, constitute a separate actionable wrong in contract and in tort, as set out above, it went on to find that bad faith conduct and unfair dealing by the employer in the manner of dismissal under an individual contract of employment may be accounted for in compensation by lengthening the notice period required for termination (or payment in lieu thereof), notwithstanding that the negative employer conduct could not constitute a separate actionable wrong in tort or in contract, and thus could not provide the foundation for an award of aggravated or punitive damages. The explanation given by the Supreme Court for taking account of such negative employer conduct in the determination of the length of the required notice period is that the individual contract of employment has some particularly unique characteristics that make such considerations appropriate. The Supreme Court stated its view that both the terms of the individual contract of employment and almost all aspects of the employment relationship reflect an unequal balance of power between the employer, as the "bearer of power", and the lone employee, as one who is able to do little more than accept the terms offered by the employer. The Supreme Court took note of the fact that the individual employee is particularly vulnerable at the point when the employment ?4 ÍÖ Ê×ÐÛÈÓÍÎÉÔÓÌ ÍÖ ÍÖ ÍÖ ÓÈ ÍÖ ÍÖ ÍÖ ÍÖ ÈÍ ÈÍ ÍÖ ÍÖ ÈÍ ÍÖ ÍÖ ÍÖ to a court hearing a wrongful dismissal case. As emphasized by the Supreme Court in Wallace, the individual contract of employment may be severed by either party, even wrongfully. When the termination of an employee has been without cause, the related issue in an action for wrongful dismissal under an individual contract of employment is normally the length of the required notice period or the amount of the payment in lieu thereof. "' In contrast, a collective agreement reflects an ongoing relationship between the union, as representative of the employees, and the employer. Significantly, in that setting, the board of arbitration has full jurisdiction, where appropriate, to reinstate an employee back into the employment relationship and to fully compensate the employee for all losses flowing from the breach of the collective agreement, including the time during which he or she may have had difficulty finding alternate employment, pdor to the reinstatement, due to the impact of the negative employer conduct at the time of dismissal. The fact that similar reinstatement remedies do not obtain in a wrongful dismissal of non unionized employees may explain, to some extent, the development of additional remedial elements in respect of individual contracts of employment by the Supreme Court in Vorvis and Wallace, such as the limited availability of aggravated and punitive damages and the extension of the notice period to take account of negative employer conduct directed against vulnerable employees under individual contracts of employment. '79 ¾ÉÎÍÈ ÍÖ ÍÖ ÍÖ be to fly in the face of the Supreme Court's determinations in Vorvis and Wallace, respecting the very limited basis upon which aggravated damages may be awarded in a wrongful dismissal matter. To endorse the Union's claim for aggravated damages on the basis of intangible injuries that do not result from a separate actionable wrong in accordance with Vorvis and Wallace, would be to adopt an extension that was made in Wallace to the principles established in Vorvis, into an entirely different and factually incompatible context. The extension that was made in Wallace respecting a lengthening of the notice period required for termination was developed to meet particular circumstances relating to individual contracts of employment (such as the imbalance of power and the unavailability of remedial reinstatement). These circumstances pertaining to the individual contract of employment are wholly distinguishable from and at odds with the situation that pertains to collective agreements. For these reasons, we deny the Union's claim under Wallace for aggravated damages based on alleged intangible injuries that may have resulted from alleged wrongdoing that falls short of being "independently actionable" within the meaning of Vorvis and Wallace. ÍÖ ÍÖ 4. That the basis of the finding in Wallace, respecting individual contracts of employment, that negative employer conduct which falls short of being independently actionable in contract or tort, may, nonetheless, result in an award of damages to an employee through an extension of the notice period required for termination of the individual contract of employment, is inapplicable to and at odds with the circumstances pertaining to collective agreements. That, accordingly, intangible injuries which may have been suffered by Mr. Olivo that fall short of being independently actionable within the meaning of Vorvis and Wallace, as applied in the collective agreement context, do not provide a basis for an award of aggravated damages. -II - CLAIM FOR ADDITIONAL INTEREST Regarding the issue of the alleged underpayment of interest, the Union asserts that interest is owing to Mr. Olivo between the time he was reinstated and the time his compensation for lost wages plus interest was actually paid to him. It is common ground that interest was calculated by the College on the lost wages owing to Mr. Olivo up until June 30, 2000. The interest was calculated on the basis of the "Hallowell House" formula, which is the formula typically applied in such circumstances. The Union asserts that the calculation of interest on the basis of the "Hallowell House" formula is only appropriate up to the point of reinstatement (which occurred on or about May 25, 2000), and that from the point of 84 reinstatement until the point of actual payment of compensation to the grievor (which occurred on or about August 17, 2000), the interest should be calculated anew on the full amount of the compensation owing. By a letter dated June 23, 2000, the College set out its calculation of the compensation owing to Mr. Olivo for his losses flowing from the improper discharge. The College offered to pay the full amount to Mr. Olivo at that point of June 23, 2000, inclusive of interest calculated through June 30, 2000. Given that there were some outstanding compensation issues between the parties that needed to be resolved, the College's offer of immediate payment included the reservation that if it turned out that there had been an overpayment, Mr. Olivo would return to the College the amount of the overpayment. It was not until on or about July 23, 2000, a month later, that the Union accepted the College's offer for the immediate payment of the total lump sum of compensation, as calculated by the College. Consistent with the position of the College, the Union noted that its acceptance of the payment should not be taken as reflective of its agreement with the accuracy of the stated amount of compensation. Having carefully reviewed the submissions of the parties, the Board of Arbitration is satisfied that no additional interest is owing to Mr. Olivo for the period up to June 30, 2000, which is the point in time through which the College ÍÖ ÍÖ However, once the Union responded to the College on July 23, 2000, the College waited over three weeks, until August 17, 2000, before making the payment of compensation to Mr. Olivo. Once the College had heard back from the Union on July 23, 2000, it would seem reasonable to expect that the College would have taken no more than one week to actually make the payment to Mr. Olivo, particularly since the calculations had already been made and since the College had stated its readiness to make the payment as of June 23, 2000, a month earlier. Accordingly, the Board finds that additional interest is payable from August 1, 2000 to August 17, 2000, when the compensation was actually paid to Mr. Olivo. The ~oard has before it no evidence that would justify that 2 ¼ week delay. For that 2 ~ week period, Mr. Olivo was denied the use of the funds that were rightfully his and were, at that point, well overdue. Accordingly, to be made whole for his loss, he is entitled to interest for that additional 2 ~ week period in August 2000 prior to the date of repayment. For this addition period of 2 weeks, it is not necessary to divide the compensation in half. The accrual of wages is no longer involved and the whole amount of the compensation was overdue at that point. Accordingly, the Union's claim for interest is allowed in part and denied in part.. The Board denies entitlement to additional interest for June or July of 2000 but allows the claim for additional interest from August 1, 2000 to August 17, ÍÖ part of Mr. Olivo's loss includes his lack of a two month vacation break in July and August of 1998 and then again in July and August of 1999 in the context of an ongoing employment relationship where he could have the relaxation of knowing that he had a job to which he could return. The Union asserts that a two month period of non-employment in each of these respective periods in 1998 and1999 is not equivalent to the unpaid vacation entitlement under the collective agreement. To compensate for this alleged loss of unpaid vacation entitlement, the Union claims 4 months' compensation equivalent to 4/10t~ of his annual salary (1/10th for each of the 4 months) or 4 months off during the academic year without any decrease in his regular annual salary. The following provisions of the collective agreement are relevant to the issue of vacation entitlement: Article 11 WORKLOAD 11.03 The academic year shall be ten months in duration and shall, to the extent it be feasible in the several Colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round operation and where a College determines the needs of any program otherwise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. 90 ÍÖ ÍÖ experienced had he not been under the cloud and strain of challenging a wrongful discharge through arbitration. However, the "make whole" theory of compensation under collective agreements is based on rights flowing from the collective agreement and is designed to put an employee back in the position he or she would have been in had the employer not acted in breach of the collective agreement. It is designed, by in large, to compensate employees for losses that carry a tangible, quantifiable or financial significance, not an emotional significance. It goes without saying that any employee who is discharged without just cause and is forced to regain reinstatement through grievance and arbitration is placed under substantial emotional hardship. The emotional pain that accompanies the unjust discharge, however, is not the breach of the contract for which the employee is made whole. It is the view of this Board of Arbitration that while a discharge without just cause might well disturb the level of enjoyment or relaxation that might otherwise be anticipated in a period of unpaid vacation, that fact does not create a quantifiable or tangible loss for which, the grievor is entitled to compensation. Emotional equilibrium is not an entitlement under the collective agreement. The entitlement to two months of unpaid vacation is not an entitlement to two months off work free from emotional disturbance at the hands of the College. Should a professor who is troubled during the July'and August unpaid vacation period over a dispute with the College respecting.his or her upcoming work assignment be compensated for the two months unpaid vacation if it turns out that the College had been in breach of the collective agreement in respect of the issue which upset the professor. We do not believe so. The loss in respect of which the grievor is entitled to compensation is the tangible or quantifiable loss that flows directly from the College's breach of Mr. Olivo's contractual rights. The emotional disturbance that may have accompanied the College's breach of the agreement was not in itself a breach of the agreement and does not, in the circumstances of this matter, create a tangible or quantifiable loss in respect of the unpaid vacation period in 1998-99 and 1999-2000. Accordingly, the Union's claim for compensation for alleged lost vacation entitlement is, hereby, denied. To summarize, for the reasons set out above, the Board denies the Union's claim for aggravated and/or punitive damages; the Board allows, in part, the Union's claim for unpaid interest; and the Board denies the Union's claim for vacation entitlement. Dated at Toronto this 4th day of Decem Pamela Cooper Picher Chairperson ._~ I concur. "Robert J. Gallivan" College Nominee I dissent for reasons set out below. "Sherril Murray" Union Nominee DISSENT OF UNION NOMINEE, SHERRIL MURRAY: I agree with the Chair that the evidence presented by the College was entirely insufficient to establish any wrongdoing on the part of Mr. Olivo against Mr. Fogel. I also agree with the Chair that the termination of Mr. Olivo had to be voided in any event because of the extreme delay on the part of the College in taking disciplinary action against him. However, I strongly disagree with the Chair with respect to her approach to the other issues addressed in the Supplementary Award regarding aggravated and punitive damages, interest and compensation for lost vacation time. Punitive and Aggravated Damages (a) Weber The Chair takes the position that the ruling in Weber does not apply because the dispute in question, does not arise from the interpretation, application, administration or violation of the collective agreement. I think it is obvious that 94 ÍÖ violated the collective agreement by discriminating against Mr. Olivo on the basis of his activities on behalf of the Union. The Chair frames the issue as follows: does the dispute between the parties with respect to the alleged torts of the intentional infliction of. mental distress and defamation arise inferentially out of the collective agreement? This characterization of the issue is misleading. The issue properly framed is as follows: does the dispute between the parties with respect to aggravated and punitive damages rise inferentially out of the collective agreement? In light of the Weber decision, the answer to the latter question, if not the former question, would certainly appear to be "yes". The claim for punitive and aggravated damages arises from the conduct of the College in taking the action it did against Mr. Olivo, including the dismissal. The Chair offers various labour relations rationales for the declining of jurisdiction to award aggravated and punitive damages. Firstly, she suggests that claims regarding misconduct sufficient to warrant the award of punitive and aggravated damages is a highly charged emotional component not consistent with the nurturing of ongoing relationships. In my view, the impact of such egregious misconduct on the part of an employer, and the difficulties created for the ongoing relationship between the parties by this conduct, cannot be resolved by >,,, ,-~ ,-,-,~c,-~,,,,~,,,,, ~, ,d *,-,-~t~n,-, the c~se the same as ~ny ~h,-r "r, ,n ,-,~ the ,~, ,o, ,ng *,he ............. o,, ........ ~ ................... mill" case involving a close but disputed interpretation of the collective agreement. Secondly, she suggests that grievances will be more difficult to settle if the Union is able to advance a claim for punitive and aggravated damages. She offers no insight regarding the impact on settlement opportunities of an employer acting with malice and in bad faith. She fails to recognize that the dechning of jurisdiction to award punitive and aggravated .damages even in extraordinary cases such as this one, simply grants--th~ employer carte blanche to engage in egregious misconduct knowing that it will never face a claim for anything other than purely compensatory damages. Thirdly, she suggests that the parties will be required to invest additional resources in arbitrating such claims. With all due respect to the Chair, surely it is for the Union to decide if the resolution of the dispute in question requires an adjudication of a claim for punitive and aggravated damages in light of the employer's misconduct. If such egregious misconduct is found, the employer can hardly complain about the additional resources required to defend the matter. I also note that the hearing in this matter took thirteen days to complete. Of that total, only one day was devoted to arguments regarding the claim for punitive and aggravated damages. Clearly, I am of the view that the claim for punitive and aggravated damages arises in this case from the violations of the collective agreement by the College. In accordance with Weber, the claim should have been adjudicated by this Board of Arbitration. In my view, the Chair wrongfully declined a jurisdiction when she refused to adjudicate the dispute. (b) Vorvis The Chair also rejected the application of Vorvis to the circumstances of this case. She also rejected the concepts developed in the Ontario Hydro case regarding the application of the principles in Vorvis to a .collective agreement situation. With the greatest of respect, I think that the Chair fails to understand the application of Vorvis to this case. In Vorvis, the Court expressly reserved its comments with respect to a collective bargaining regime. The Court concluded that punitive and aggravated damages could be awarded in an appropriate case of wrongful dismissal, but only if the plaintiff could identify some independently actionable wrong, such as a tort of infliction of mental distress. The requirement for the independently actionable wrong was necessary, as I understand the case, because punitive and aggravated damages could not be awarded simply by reason of the employer's decision to terminate the employment relationship. At common law, the employer had the right to terminate an employment relationship, subject only to the obligation to give notice or pay in lieu of notice. Therefore, the termination of the employment relationship per se could never give rise to punitive or aggravated damages unless the contract expressly provided for such a claim. 9g Of course, the circumstances are entirely different under a collective agreement. The employer does not have the right to terminate the employment relationship regardless of notice or pay in lieu of notice. The employee has security of employment. Therefore, the conduct on the part of the employer in terminating the employment relationship under a collective agreement can found a claim for punitive and aggravated damages in the appropriate circumstances. In Vorvis, the Court offered the assessment of the necessary prerequisites for a claim for punitive and aggravated damages in a wrongful dismissal action. The plaintiff must be able to identify some action on the part of the employer above and beyond the termination of the employment. Since the employer had the right at law to terminate that relationship, the additional action must be amenable to characterization as an independently actionable wrong. These principles can only be applied by analogy to the collective bargaining regime in view of the substantially different legal arrangement. The board of arbitration in the Ontario Hydro case articulated the principles in the Vorvis case and the application of those principles, by analogy, to the collective bargaining regime. The Ontario Hydro case provides a useful guide for the award of punitive and aggravated damages when the employer has engaged in violations of the collective agreement in addition to a dismissal without just cause. Applied to this case, these principles justify the awarding of punitive and aggravated damages to Mr. Olivo. ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ ÍÖ The collective agreement provides for salary to be paid to an employee for the ten months of the academic year. In practice, the College spreads the compensation for the ten months of the academic year over the full year. Nevertheless, the two months of vacation is properly characterized as a period of unpaid vacation. Pursuant to Article 15 of the collective agreement, an employee is entitled to additional compensation for teaching during the months that would otherwise be the vacation period. Therefore, if an employee teaches for more than the ten month academic year, he or she is entitled to additional compensation, above and beyond the salary attributable to the ten month academic year. In this case, the College terminated the employment of Mr. Olivo, without just cause. He was in no position to enjoy the two month vacation period in each of the years 1998 and 1999. Therefore, Mr. Olivo should either be granted additional vacation time or he should be compensated for the vacation periods he lost in 1998 and 1999. The issue regarding compensation for vacation time was addressed in the arbitration award provided by the Union, Health Labour Relations Association of B.C. (1977), 16 L.A.C. (2d) 162. In that case, the grievor's employment was terminated. The board of ~rbitration ordered her rein~statement with full compensation. The employer .paid her full salary for the period she was ]04 ÍÊ ÍÖ û ÍÖ ÍÖ ÈÍ ÍÖ ÈÍ ÖÍÊ ÈÍ