HomeMy WebLinkAbout1989-0195.Sysiuk.90-08-07f~= ONTARIO £MRLOYES GE LA COLIPONNE
~ CROWN E,¥tPL O YEE$ DE L 'ON TA ~-~ 0
'~ . GRIEVANCE C,ONINIlSSION DE
BOA~;tD DES GRIEFS
;~0 DUNDAS ET~EET WEST, TORONTO, CIVT/,PJO, MSG 1Z6-SL'ITE 2700 ;rELF. P~,ONE/TEL[SPhONE
TOO. RuE DUNDAS OUEST, TORONTO, ~Ot~TA~'~O) MSG
195/89
IN THE ~tkTTER OF AN A~RBITRATION
Under
CROWN EMPLOYEES COLLECTIVE BA/~GAINING ACT
Before
GRIEVANCE SETTLEMENT BOA-RD
BETWEEN
OPSEU {Sysiuk)
Grievor
~.and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
- and -
BEFORE: B. Keller Vice-Chairperson
G. Majesky Membe.r
D. Walkinshaw Member
FOR THE B. Rutherford
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOE THE C. Slater
EMPLOYER Senior Counsel
Human Resources Secretariat
Management Board cf Cabinet
HEARING: March 16~ 1~90
'This issue arises as a resul, t of a wrievance alleging a violation
of s. ~.20.1 of the collective agreement. The Board was told
that the employer had admitted that it had breached the
collective agreement but that the parties were u,'~able Lo agree
all aspects of the remedy. That is the issue the Board is to
decide.
The parties are agreed on the following:
1) The employee is entitled to back-wages.
2) The period of entitlement is April 1 - Nov. 26, 1989.
3) Interest is payable in accordance with the normal
practise of computing interest.
4) The issue of integration of damages is moot.
The parties are unable to agree on whether the grievor is to be
comoensated for his inability to' make the maximum allowable
pension contribution. In other words, his maximum al'!~wable
pension contribution in 1990 is reduced because of events the
previous year and he therefore will pay a greater amount of
income tax. He seeks compensation for the addi~icn~l ta×es paid
re~ult~ng from his inability to contribute tke ~.~aximum RRSP
amount.
The argument on behalf of the grievor is that the grievor is
entitled to be "made whole". That means that he would have, but
for the action of the employer, been able to make full pension
contributions thus gaining the maximum tax advantage. He
requires compensation to be put into the position he would have
been prior to the actions of the employer.
The employer characterizes the issue as one of remoteness of
damages.~ Counsel agrees with the "make-%~hole" principle but
submits that the compensation sought by the grievor was not
reasonably within the contemplation of the par~ies and thus too
remote.
In support, the Board was referred to a judgement of the High
Court of Justice, Allen v Tandv Electronics Ltd. 2 C.C.E.L. 13'?.
The plaintiff was dismissed but' subsequently offered ~ther
positions with the employer that he refused. He eYentuaily found
another job, at a lo%vet salary, six monShs later. Whi~e
unemployed he ~ithdrew some R.R.S.P. funds to cover living
expenses. ~e brought an action for d~]mages for' wro~gfu]
dismissal. The court awarded compensation .less mitigation.
plaintiff had sought damages for tax paid on R.R.S.P.
withdrawals. The claim was refused~ The court acknowledged 'that
there was some loss of benefits and interest but found they
sufficiently remote t'o be disallowed.
In the case of Kilby v Oxford Wharehousing Ltd. et al ! C.C.E.C.
217 (High Court of Justice), a claim for loss of investment
income on the collapse of an R.R.S~P. was disallowed in the case
of a wrongful dismissal because that item of damage was not
within the contemplation of the parties when the emplcyment
contract ~as entered into.
Although neither case is on all fours with the instant case, tkey
clearly lend support to the proposition of the employer with
~egard to the claim of the grievor. The Board does not take
issue with the notion of making the grievor whole. However,
there is no principle that does not have solve limitations, in
our view the nature of the compensation s.~ug~t by the grievor i~
entirely too remote to be considered part of what has been
customarily understood to be a make-who].e award and its pay~ent
· is not ordered by the Board. To the extent that this was the
issue to be determined, the grievance is denied.
Nepeanthis 7th day of August 1990.
M.B. I(eller, Vice Chairperson
'/ . -'
0. madesky / / Member
~ D. Wa!kinsha~ Me~er