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HomeMy WebLinkAboutCarpenter 88-10-26Concerning an arbitration Between: NIAGARA COLLEGE and ONTARIO PUBLIC SERVICE EMPLOYEES UNION Grievance of D. Carpenter, discharge, 87R36 Supplementary. Award Board of Arbitration J. W. Samuels, Chairman A. S. Men'itt, College Nominee I. Freedman, Union Nominee For the Parties College C. C. White, Counsel Union I. J. Roland, Counsel Based on written submissions from the parties 1 On July 15, 1987, David Carpenter was dismissed from his employment with Niagara College. He grieved that the College did not have just cause for the dismissal. Mr. Carpenter began his association with the College in September 1981. From that time until his dismissal, he was a development officer (later the title changed to training officer or training consultant) in the Department of Continuing Education Services. In a nutshell, his job was to assist local finns to design, deliver and validate in-house training for their employees. At the end of his employment, he was working in the Ontario Skills Development Office. We heard his grievance over three days in late 1987 and early 1988. In our award dated February 15, 1988, we concluded that the College did not have just cause for the dismissal and we made the following order (at page 13-14): We order that he be reinstated in the College's employ as of the date of discharge, with no loss of seniority or benefits. He should be compensated for any monies not paid as a result of the discharge, with interest on each amount at 9.25% from the date it ought to have been paid until the date of payment. This rate of interest is a rough weighted average of the Bank of Canada rate during the period involved. And we reserved our jurisdiction to deal with any matter related to compensation, if the parties have any problem implementing this order. In July 1988, we heard from counsel for the Union that the parties were unable to work out the implications of the Board's award and we were asked to reconvene. It was later agreed that we would entertain written submissions from the parties. The problem is that, while the College had 2 paid Mr. Carpenter all retroactive wages and benefits, it had not restored the grievor to his former position with the College. However, the College had been paying Mr. Carpenter his salary and benefits in accordance with the collective agreement. For some time, Mr. Carpenter was given no job at the College, and then he was placed in a clerical position, with his salary red- circled. The College now says that, whatever our finding in our earlier award, it has lost confidence in Mr. Carpenter's ability to function in the Ontario Skills Development Office. We are limited to dealing with matters over which we reserved our jurisdiction (on the question of an arbitrator's jurisdiction after the hearing is over and the award is issued, see Palmer, Collective Agreement Arbitration in Canada (2nd edition, 1983), at pages 41-43). In our award, we ordered that the grievor be "reinstated in the College's employ, with no loss of seniority or benefits", we ordered compensation "for any monies not paid as a result of the discharge", and we reserved our jurisdiction to deal with "any matter related to compensation". The "compensation" over which we have retained jurisdiction is the compensation we ordered---"for any monies not paid as a result of the discharge". If the College failed to comply with our award and its actions after the issue of the award resuk in further monetary losses, which would not have occurred had the College complied with the award in full, then these further losses can be said to flow from the discharge, and there remains an issue of "compensation for any monies not paid as a result of the discharge". This leads us to what had to be done to comply with our award. The grievor had been discharged from his position in the Ontario Skills Development Office and we found that there was no just cause for this action. As a consequence, we ordered "reinstatement in the College's employ as of the date of discharge, with no loss of seniority or benefits". In 3 short, the grievor was to be treated as if he had not been dismissed. The College was to return Mr. Carpenter to his employment and he was to suffer no loss of seniority or benefits as a result of the discharge. We have no jurisdiction now to make any order concerning the physical whereabouts of Mr. Carpenter. We reserved jurisdiction to deal only with "compensation". Indeed, even if we had reserved jurisdiction to deal with "any matter related to our orders", we are not sure that we could come back and order that the College must physically place the grievor in a particular situation. And even if we could 'so order, in our view, we should not order an employer to physically put an employee in a position which the employer feels is simply not appropriate. At most, what we can and should do is put an employee in the financial position he would have been in if he had been put in the physical position ordered in the award. This leads to the following conclusion. Pursuant to our original reservation of jurisdiction, we now award that, in order to compensate the grievor for "any monies not paid as a resuk of the discharge", the College must maintain Mr. Carpenter in the financial position he would have been in had he been returned to his position as a development officer after the issue of our award. And we will continue to retain jurisdiction over "any matter related to compensation ('for any monies not paid as a result of the discharge'), if the parties have any problem implementing this order". 4 If the College continues to feel that Mr. Carpenter is simply unsuitable for a position in the Ontario Skills Development Office, and cannot find work for him which would attract the same salary and benefits as Mr. Carpenter would earn in the Office, perhaps it might be best if the parties could come to some agreement for a lump-sum payment to Mr. Carpenter and he could seek employment elsewhere. Mr. Carpenter is still a young man and could have a successful career elsewhere. Done at London, Ontario, this~]~day of Ct.~d~,.~,. ,1988. -~~gamuels, Chairman A. S. Merritt, College Nominee I. Freedman, Union Nominee