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HomeMy WebLinkAbout1989-1373.Humphries.90-05-31I -CA ~ ONTARIO EMPLOYES DE LA COUF~ONNE ~.~' ..~ CROWN EMPL O YEE$ DE L 'ON TARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TEL~'PHONE: (416J 326-~388 180, .~UE DUNDAS OUEST, BUREAU2100, TORONTO ~ONTARIO). M5G ~Z8 FACSIMILE/T~L~COPIE : (4~$) 325-~396 1373/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD BETWEEN: OPSEU (Humphries) Grievor - and - · he Cro~n in Right of Ontario (Ministry of Health) Employer - and - BEFORE: B.A. KirkwoOd Vice-Chairperson M. Lyons Member F. Collict Member FOR THE C. Wilkey GRIEVOR: Counsel Cornish Roland Barristers & Solicitors FOR THE M. Failes EMPLOYER: Counsel Barristers & Solicitors Winkler, Filion and Wakely BEARING: March 7, 1990 DECISION The grievor was an Ambulance Officer 2 who had been employed by the Oshawa Ambulance Service for the last ten years. On Friday, October 3, 1989, two of his co-workers made allegations that he had kicked a patient during one of their calls. The grievor learned that complaints had been made to his supervisor and learned that the police may investigate the incident. After the weekend, on October 6, 1989 the grievor went to his manager's office to determine the status of the complaints and found investigators looking into the matter. He discussed the incident with the investigators and met his supervisor. He was then advised orally and in writing, that he was suspended from duty without pay from October 6, 1989 for up to twenty (20) days pending the outcome of the investigation in accordance with section 22(1) of the P~:hllc Serv{ce Act R.S.O. 1980 c. 418 as amended, and Section 18(1) of 'the Regulations under the Act. On October 12, 1989 the grievor filed his grievance, claiming that he have been disciplined without just cause by receiving a twenty (20) day suspension without pay. He asked that the discipline be rescinded, that the incident be struck from his record, and for reimbursement for any and all monies, benefits and seniority lost. As a response to the grievance, the grievor was advised by his Employer, that his suspension p~nding the investigation 'was not disciplinary and that if he were exonerated, that he would be compensated retroactively. The grievor was subsequently advised that a hearing was scheduled for October 25, 1989. Two days prior to the hearing date, he received a copy of the investigator's report and became concerned that he may'lose his job. The grievor contacted the local representative of the Union who advised him that it was not the Union's policy to provide legal counsel at the investigation stage, but only if the grievor were discharged or suspended. The grievor, dissatisfied with the Union's position, obtained his own legal representation. In order that the grievor could obtain representation, the hearing was adjourned on the grievor's request to October 31, 1989. The grievor was represented by his own legal counsel at the hearing. The Union's local representative was also present. On October 31, 1989, after the hearing, the Regional Manager, advised the grievor that there was no evidence to indicate that the grievor intended to kick the patient and accordingly, the suspension was unjust, and the grievor was reinstated effective immediately with no loss of pay or benefits. The .Employer reimbursed the grievor for his pay on November 23, 1989. The grievor, however, was not able to return to work until January 12, 1990 as the suspension had created an emotional toil upon him. The Employer's counsel conceded, that the grievor was disciplined without just cause; that his seniority and benefits were not in issue; and nor was there any issue over striking any reference to the incident from his personnel record, The Union's counsel agreed that the settlement sought had be~n obtained in part, but that the Union was seeking reimbursement for: (1) the cost of the lawyer appearing at the hearing on October 31, 1989 in the amount of $600.00; (2) cost of a fax of materials to the Ministry in the amount of $6.74; (3) an allowance for 344 kilometers for three trips - to Oshawa to attend at the OPSEU offices, one trip to the Whitby Psychiatric Hospital where the hearing was held, three trips to the Dnion steward's home, two trips to his lawyer's office; (4) long distance charges in the amount of $30.24; (5) interest on the loss of wages from october 23 to November 23 when the payment was made; and (6) interest on the money which the griever used to cover the his expenses. The Union's counsel submitted that Sections 18(2) (c). and Section 19 of the Crown ~mD]oyees' Collective ~arga~n~ng Act R.S.O. 1980 c. 108, as amended, provides the Board jurisdiction to determine whether the suspension was with or without just cause and to award damages flowing from a finding that the suspension was unjust. She submitted that Page as the Employer had conceded that the suspension was unjust, the expenses incurred by the grievor were damages arising from the Employer's wrongful decision to suspend the grievor without pay. The Union's counsel, relying on the cases of OPSEU (~ahoon) and The Crown in Right of Ontario {Ontario DeveloDmeDt ~orDora%{on% G.S.B.773/85, 455/86 {R.Verity) and OPSEU {Mcl.eaj1, Moore ~nd Un~on Gr~evsnce) ~nd Ministry of Co~lmun~ty and Social Services), G.S.B. 1134/88, 1356/88, 221/89 (A. Barrett) submitted that damages are subject to common law principles and should be compensatory and not punitive. By application of the common law principles, the Union'~ counsel submitted that the expenses were damages which flowed directly from the Employer's decision and were not remote as the decision to retain a lawyer was reasonable considering the possible affect of the investigation. She submitted that the grievor-'is entitled to be "made whole" which included reimbursement for all costs, however, incurred. The Union ' s counsel further submitted that arbitrators have determined that damages arise from a balance of the Employer's and the employee's interests and that considering the affect of the suspension on the grievor personally and emotionally, the Employer's decision did not fairly balance the interests of the employer with the interests of the employee. The Employer was obliged to' take care before imposing such an onerous penalty on the grievor and that it was unreasonable for the Employer to rely on the version of the facts given by two other employees and not to rely upon the grievor's version of the facts. The Employer's counsel submitted that damages flow from a loss, whereas costs are the expenses which a party incurs to put forward a case or to protect oneself against a case. He submitted that the issues are whether the g~ievor is entitled to; (1) legal costs; (2) costs in attending lawyers; and (3) interest. He submitted the Cahoon (supra) and McLean (supra) cases are not helpful as they relate to damages and not to the issue of costs, which were not awarded in any case. The Employer's counsel submitted that there was no provision in the collective agreement nor in the enabling statute to provide the Board with jurisdiction to award costs. He submitted that the ability to substitute a Penalty is the same in the public sector as in the private sector and costs are not awarded in either sector. He submitted that similarly, travelling and long distance charges are costs which are not provided in the private sector, nor even by the Courts in civil litigation matters and are not applicable to the public sector. The Employer's counsel submitted that whether the suspension was appropriate was moot as the grievor had been reimbursed for his pay. He submitted that no interest on the delayed wages is payable as the matter was handled, and resolved expeditiously as required by the Public Service Act and that the Puh]~ Service Act provides only for back pay. As the Ministry conceded that the grievor was suspended without just cause, the sole issue is to determine whether the Ministry is responsible for all costs however incurred by the grievor. Page 7 AS ~in the Q~hoon (supra) decision, which Board accepted the direction of the Divisional Court in R.V. OP~RU (1982) 38 O.R. 670, and OPSEU (Rerry~ ~nd The CrQwn tn Right of Ontario 57 O.R. (2d) 641 tO construe the legislation which is equivalent to the existing s. 19(1) of the Crown ~m~loyees Co~ctiye Barq~ninq Act to exercise its remedial powers, this Board has the jurisdiction to award damages flowing from an unjust suspension. We agree that the common law principles as set out in the Cahoon (supra) case and as quoted at page 27 from Brown and Beatty are applicable. Compensation is, of course, a discretionary matter. As Authors Brown and Beatty state in their text, Canadian Labour Arbitration (2nd Edition) at page 161: "Unless the agreement provides otherwise, generally, in assessing damages arbitrators have followed and utilized the same common-law principles that are applied in breach of contract cases. Thus, the basic purpose of an award of damages is to put the aggrieved party in the same position he would have been in had there been no breach of the collective agreement. As stated by one arbitrator: 'Stated in abstract, the relevant principle is quite clear. The purpose of damages for breach of contract is not to punish but to compensate, and the function of compensation is to place the aggrieved party in a monetary position as near as possible to that in which he would have been had the contract been performed.'" On the other hand, however, the Board has not found it within its jurisdiction to award costs. As stated in A. Gir~monte ~nd The M~nistry of Community and Soci~t S~rv{ces, G.S.B. 176/78; 144/78 (J.F.W. Weatherill) at page 2: ... Neither a collective agreement nor the Crown Employees Collective Bargaining Act confers such jurisdiction (to confer costs incurred by the Employer before the withdrawal of the grievance).. We do not consider that the provision in section 18(a) (8) of the Act that the Board "shall determine its own practice and procedure" confers on the Board jurisdiction to award costs. Similarly, Re Ontario Public Service ~]o~ees Union ~nd Ontario Public Service Staff Unio~ 16 L.A.C. (3d) 278 (K.P. Swan), quoted Re The Crown in Right of Ontario (M~nistry of Attorney-Genezal) and Ontario ~ubl[c Service Employees Union {Isaac ~rb4 MacIsaac) G.S.B. 742/85, 24/85 (Kennedy) which held that in balancing the interests of the parties where there was a contested adjournment, the right of the Board to control its own process does not confer the right to award costs. Accordingly, no costs were awarded when the grievance was withdrawn. For the same reasons, we also do not find that this Board has jurisdiction either by the collective agreement or by statute to order costs. The public sector is different from the Court system in that the court system has enabling legislation that provides the power to award costs and sets up tariffs that are applicable to compensate partial costs incurred in the litigation. Therefore, the jurisdiction to order the reimbursement of the expenses is dependent upon the nature of the expenses incurred. The expenses which were incurred by the grievor arose from two sources - the decision by the Employer to have a hearing to consider the matter, and the Employer's wrong decision to suspend the grievor. P~e 9 The hearing was not caused however, by the Employer's decision to suspend the grievor, but arose from the Employer's decision to investigate the allegations. The Employer's decision to have a hearing and the grievor's assessment that there was a possibility that he may lose his job, made the grievor decide to have legal counsel at the hearing. His decision became firm when he was advised by the Union that the local representative was unsure if he would be able to attend as the representative had a busy schedule. The fax, the visits to the lawyers, and to the Union office and to the hearing all flow from the decision by the grievor to be represented at the hearing and are costs which he incurred in his representation. It was the grievor's choice to decide whether to have legal counsel and he must bear the cost of his representation and its related costs. The application of the common law principle of placing the aggrieved party in a monetary position as near as possible to that in which he would have been had the contract been performed, does not make costs incurred by the grievor in his legal representation, damages. These costs are 'not damages which flowed from the grievor's unjust suspension, but were costs related to presenting the grievor's position at the hearing into the incident. The grievor's expenses in connection with his representation, as mentioned above, were different from the Cahoon case (supra) in which the moving expen'ses were damages which were directly related to the Ministry's failure to insure the confidentiality of that grievor's telephone numbers with the result that the employee's safety was jeopardized and that grievor had to move. As there is no system of costs in t~he public sector, to award the grievor his costs, the Board would effectively be creating a system of costs, whereby either party could seek counsel and seek reimbursement of its costs under the guise of damages, thereby circumventing the system which has been established by by the legislature in the enabling statute and by the parties in the collective agreement. The nature of the loss of interest on the delay in the payment of the wages is a different matter and is in the nature of damages, such as found in the Ca~oon case. It flows directly from the Employer's decision to suspend the grievor from his duties without pay, which decision the Employer admits was wrong. The direct effect of the Employer's decision was that the grievor did not receive his wages until November 23, 1989. As he did not have enough income to cover his living expenses, he had to cash in his term deposits. Therefore, there was an actual monetary loss to him which was caused by the Employer's decision to withhold payment of the grievor' wages to him pending the outcome of the Employer's investigation. We do not find that the payment of interest in this case is a matter of being punitive to the Employer, as found in the Re Newport ~ortswear agd International T.ad~e~' Garment Worke~' Un,on, T.ocal 77-19~ ~nd 197,. 30 L.A.C. (2d) 149 (J.D00'Shea) but rather is to recompense the grievor for a direct loss of monies. Therefore, the grievor is therefore entitled to interest on his wages for the period he was delayed in receiving them le~s the two weeks which the government · customarily delays in paying the salaries. As a result, this grievance is upheld in part. -A ~'age 11 We trust that as the calculation of the interest will not be difficult and will not be a .great expense that the Board will not be required to finally resolve this issue; but we will remain seized should there be any difficulty in this matter. Dated at Toronto, this 31 day of May, 1990. Belinda A. Kirkwood, Chairperson ~red~ toll±ct, M~mbor