HomeMy WebLinkAbout1992-2878.Fitch.97-11-04
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~ ONTARIO , EMPLOYES DE LA COURONNE
f GROWN EMPLOYEES DE L'ON1"ARIO
ell 1111 GRIEVANCE COMMISSION DE
jwo SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M6G IZ8 TELEPHONE/TELEPHONE (416) 326-1388
I 180,RUEDUNDASOUEST BUREAU600, TORONTO (ONJ MSG IZ8 FACSIMILEITELECOPIE (416) 326-1390
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GSB # 2878/92
OPSEU # 92H126
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before ,
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Fitch)
Grievor
- and -
I The Crown in Right of ontario
I (Uxbridge/Stouffvil1e Ambulance service.)
I Employer
BEFORE N. Dissanayake Vice-Chair
E Seymour Member
.1 F Collict Member
FOR THE C. DiFranscesco
GRIEVOR Counsel
( Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE P Whalen (July 18 and August 20, 1996)
EMPLOYER Counsel
J. Middlbro' (April 29, 1997)
Counsel
Middlebro' & Stevens
Barristers & Solicitors
HEARING July 18, 1996
August 20, 1996
April 29, 1997
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SUPPLEMENTARY DECISION
The grievor, Mr Graham Fitch, was employed at the
Uxbridge/Stouffville Ambulance Service in the capacity of full-time
ambulance attendant from September 1990 He was dismissed from his job on
December 8, 1992 Following a grievance filed on his behalf, by decision
dated August 8, 1995 the Board concluded that the employer had failed to
establish just cause for his dismissal He was ordered reinstated with
full compensation The grievor was offered reinstatement by the employer
effective October 9, 1995, but the grievor opted not to return to his
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former employment The parties are in disagreement as to the quantum of
il compensation, if any, the grievor is entitled to from the date of his
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discharge until to October 9, 1995, specifically as to whether he complied
with the duty to mitigate his losses
The grievor"s formal education consists of grade 12 equivalent and
successful completion of the Ambulance Care Program at Humber College in
1986-87 In addition he had taken several courses related to ambulance and
rn emergency health care FOllowing his graduation from the Ambulance Care
Program, he was employed at a number of ambulance services as ambulance
attendant and air ambulance dispatcher, before joining the employer in
September 1990 as a full-time Ambulance Attendant Therefore, it is fair
to say that at the time of his discharge his -education and experience was
solely in the field of ambulance and emergency care
The grievor's testimony-in-chief
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While performing his full-time duties with the employer, the grievor
had been employed part-time as a dispatcher at Air Ambulance Dispatch {"Air
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Ambulance") at the Medical Air Transport Centre in Toronto, on an
assignment through the Government of ontario Go-Temp Service Subsequent
to his discharge, the grievor continued to work for Air-Ambulance He
testified that he informed his supervisors at Air Ambulance that he was in
a position to do more shifts than before and that he got increased work
which brought him sufficient income to get by despite the loss of his full-
time job Therefore, initially he did not search for other work He
testified however that by late spring/early summer of 1993 his hours at
Air-Ambulance started to decrease gradually From 3 to 4 twelve hour
shifts per week, by June it reached a point where~he rarely worked two days
in a row The grievor testified that he lived in a rented apartment in
Port Perry at the time On top of the $700 monthly rent, he had payments
to make on a new car he had purchased in October 1992 He found it
difficult to make ends meet As a result he gave up his Port Perry
apartment 'and moved in with his sister's family in Toronto, and lived rent
free
The grievor testified that after some time he felt that he could no
longer impose upon hi s sister's family Besides, his income from Air
Ambulance was decreasing Starting around June 1993, while on the phone
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with dispatchers in various ambulance services throughout Ontario, the
grievor -began to make inquiries about the j'ob market in the ambulance
field The North Bay dispatcher informed him that Tamagami Ambulance may
be hiring a part-time ambulance attendant The grievor testified that by
this time he was keen to get back to his career as ambulance attendant
He successfully applied for that job In October 1993 he quit his Air
Ambulance job and took up the Tamagami position
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At Tamagami, he worked on an on-call basis carrying a pager He
received $1 00 an hour on call pay For actual ambulance calls he received
approximately $ 16 00 to $ 17 00 an hour for the duration of the call with
a three hour minimum The grievor testified that as it turned out, he
received very few calls In fact, he did only four ambulance calls until
he left Tamagami in February 1994 During this period he lived with
friends outside Mattawa rent free In return he baby-sat his friend's
child Yet he found it a struggle financially
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The grievor testified that before moving to Tarnagami he had met Mr
Keith Baker of the Metro pati-ent Transfer Services, a company in
Scarborough, offering non-emergency medical ambulance services In
February 1994 he contacted Mr Baker and received an offer of a regular
part-time job He accepted and moved to Toronto, where he lived with his
mother for a month before renting an apartment with a friend in
Mississauga
The grievor worked at Metro Patient Transfer until June 1994 He
testified that he found the daily drive to work from Missi13sauga to
Scarborough across the top of Toronto stressful He therefore applied for
and obtained a job with Park N' Fly, which was located closer to where he
lived At Park N' Fly, the pay was comparable to the pay rates at Metro
Transfer His job was to drive a bus from the Park N' Fly parking lot to
the terminals at Pearson airport
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The grievor found out that the Dixon Hotel Airporter ("Dixon" ) was
looking for a bus driver Approximately in August 1994 he applied for and
obtained that position The Dixon job did not last very long either The
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grievor testified that he was very anxious to get back into an ambulance
attendant job He testified that he had throughly researched the job
market in Western Canada over the telephone He found out that British
Columbia was not hiring Alberta had some possible openings, but wanted
the grievor to pay for testing of his qualifications Saskatchewan had
employment opportunities and also accepted his qualifications at par He
obtained a leave of absence from Dixon and went job hunting in
Saskatchewan According to him, in September 1994 he flew out to Regina
and from there rented a car and ~drove from town to tow~, meeting with
-people and dropping off resumes at numerous~ambulance services" As a
result of these efforts he was able to secure a job in Melville,
,~ Saskatchewan starting in November 1994
The grxevor testified that at Melville, he drove both ambulances and
a wheel-chair bus He received on-call pay of $ 24 00 for 20 hours and $
20 per patient plus 20 cts A kilometre for ambulance calls The grievor
testified, however, that he ended up mostly driving the wheel-chair bus,
because he only received 3 or 4 ambulance calls a month In his continuing
desire to work as an ambulance attendant, he kept looking out for other job
opportunities
In March 1995, the grievor secured a 3/4 time ambulance attendant job
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at North Battleford, saskatchewan The North Battleford Ambulance Service
maintained a crew at base on 12 hours shifts The grievor was on call 24
hours a day, five days on and five days off and received on-call pay of $
1 25 an hour --
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The grievor testified that he was fairly content with his job with
North Battleford, until Dutchak Holdings purchased that operation in August
1995,. The owner of Dutchak Holdings, Mr Dutchak immediately reduced the
on-call time of the attendants Moreover, he stopped calling in attendants
to do city calls, if the base ambulance was out of town Mr. Dutchak did
those calls himself The result of these changes implemented QY Mr
Dutchak was that the grievor's hours and income were drastically reduced
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The grievor testified that while in Melville, he had met a young lady
wi th whom he subsequently lived together Sae had three children and
attended college He grievor became financially responsible to support
< his financial
:~ this family The grievor found that he could not meet
obligations on his reduced income He sought permission from Mr Dutchak
to seek another full-time jOb while employed at Dutchak Holdings, but was
refused
As a result, the grievor quit his job and obtained a new job as Front
Desk/Switch Board clerk at Tropical Inn, a hotel in North Battleford The
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grievor testified that after a couple of weeks of unpaid training, he
started that job in September/October 1995, and worked there for 3 weeks
As of October 9th, 1995, he was still employed at the Tropical Inn
The grievor testified that between his dismissal on December 8, 1992
until the end of September 1995, he was regularly employed except for a
total of 3 to 4 months
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Grievor's testimony in cross-examination
The grievor testified that after he was dismissed on December 8, 1992
he did not immediately start a job search because he was able to earn a
reasonable income from his part-time job at Air Ambulance However, by
late spring 1993 his hours started to decrease By June it became a
concern He conceded however that he did not actively look for work in
June because he anticipated getting his job back with the employer as soon
as the criminal trial ended After he was acquitted on July 28, 1993, he
wai ted through the month of August for Mr Peter Carell, the owner of
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Uxbridge-Stouffville Ambulance Service, to apologize to him and recall him
to his former position When this did not happen by mid-September, he
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started to make inquiries about job availability from various dispatchers
he was in contact with by telephone while doing his duties at Air
Ambulance He said that he made 3 to 4 inquiries a day until he was
satisfied that a particular area not was hiring
The grievor testified that whenever he got a tip that an employer
maybe hiring, he sent off a resume to that ambulance service When asked
how many resumes he sent, he stated that he sent one to Niagara along with
a covering letter When he had no response, he called and spoke to the
manager, who told him that his resume had been placed on file
When asked what other applications he made, the grievor stated that
he sent a resume to Marathon near Thunder Bay He could not recall whether
he followed up this application The grievor testified that in September
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1993 the North Bay dispatcher indicated to him that Tamagami and South
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River may be hiring He sent resumes and was called for an interview by
South River He went for the interview in September and was told to keep
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in touch, but no job offer was made The same week he had an interview
with Tamagami The grievor testified that he drove up to Mattawa where he
had some friends and attended both interviews from there The grievor
admitted that the Mattawa area appealed to him because he had friends there
and that he had applted for a job in the area in 1991 Had he received a
job offer at that time he would have quit his job with the employer The
grievor testified that once he got the Tamagami job and moved to the area,
he made two applications to the North Bay Ambulance Service, one for a
dispatcher position and one for an attendant position He also drove to
- Sudbury and inquired personally about the helicopter service, the dispatch
centre, and the Sudbury Ambulance Service He testified that he was
~ advised by the North Bay Service as well as the Sudbury employers that he
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was ineligible because the jobs were bilingual All of the rejections were
conveyed orally, so he did not have any rejection letters
Once he started working at Tamagami on a part-time basis in December
1993, he made no formal applications elsewhere Up to the time he resigned
from Air Ambulance in October 1993, he had earned $ 23,563 33 When asked
why he would quit that job to go to Tamagami for an on-call job at $ 1 00
an hour with no shifts guaranteed, he gave three reasons First, the hours
at Air Ambulance were gradually declining Second, he wished to work as
an ambulance attendant and the Air Ambulance j~ ~s as a dispatcher
Third, he felt he was inconveniencing his sister's family by living there,
whereas his friends at Mattawa were happy to provide him free board and
lodging in return for his baby-sitting services Under questioning, he
conceded that he took a financial risk 5y quitting the Air Ambulance job
to take up the Tamagami job -
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When asked why he did not keep his Air Ambulance job and attempt ~o
find other part-time work to supplement his income, he testified that he
did According to him he applied to Mississauga, streetsville and
Georgetown, all by telephone He did not know the names of the persons he
spoke to at any of these places He admitted that the only written
application he had made was to Niagara He testified that he kept away
from the Durham Region "because of Mr Carell"
At Tarnagami, the grievor did orientation in December 1993 and started
work in January 1994 His T-4 slip for 1994 shows his income from Tamagarni
to be $ 632 88 For part of October and all of November and December, 1993
he had no income at all, except approximately $ 45 00 he was paid for 3
hours of orientation in December He admitted that he quit Air Ambulance
in mid October 1993 and moved to Tamagami, but his Tamagami job did not
start till January 1994
At Tamagami, through January and February 1994 he did not look for
other work In the two months he had only about 30 hours of work in total
So in February he contacted Mr Baker who offered him a regular part-time
job with Metro Transfer in Scarborough starting in mid February The hours
were irregular on an as needed basis and the pay was $ 7 00 per hour
The grievor worked at Metro Transfer until June 1994 During that
period he did not search for other jobs In June he quit and accepted the
job at Park N' Fly He said he made that move because Park N' Fly was
closer to his residence and Park N' Fly paid $ 9 00 per hour He
testified that through this period he spent in Toronto he made no
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applications to ambulance services in Ontario because by then he had
decided that he ~as not going to find any ambulance work in Ontario
When asked what efforts he made to find jobs outside the ambulance
field, the grievor replied "not much because in the back of my mind I was
hoping to move out West to get back to my ambulance career" While working
at Metro Transfer he had researched the job market in Saskatchewan and B C
In July he quit Park N' Fly, and took up the Dixon Hotel Airporter job,
even though it paid $ 60 00 a week less He said that he did that because
- at the Airporter he did rotating shifts which allowed him to enjoy evenings
on most days He did that jOb until he moved West to Melville,
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Saskatchewan in November 1994 He agreed that at Melville he made less
than what he would have earned had he stayed at the Dixon Airporter
The Melville job was also an on-call job with no hours assured The
work involved driving a bus He quit Melville to go to the job in North
Battleford at the end of March 1995 Under questioning he said that he
made that move because the income was better and the North Battleford job
was an ambulance job He testified that during his tenure there from March
to August 1995 he was quite content and did not look for other work, until
the operation was taken over by Mr Dutchak
When asked why, given his stated goal of working in the ambulance
field, he quit an ambulance job to work in a hotel, the grievor testified
that he could not manage to support himself, his girl-friend and her 3
children on the money he made at North Battlefield after the Dutchak take
over He had anticipated that at Tropical Inn he would make more working
full-time at near minimum wage, than he would have at North Battleford
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He was employed at Tropical Inn as of October 9, 1995, the agreed to cut
off date for his compensation claim
Employer counsel put to the grievor documentation showing that in the
one month period the grievor worked at the Dixon he had made approximately
$ 350 00 a week and asked why he quit to go to the Tropical Inn at $ 176 00
a week The grievor testified that he anticipated that soon his income at
Dixon would have decreased even below $ 176 00 a week
The Employer's Evidence ~
The employer's evidence was adduced through Mr Peter Carell the
-~ owner of-Uxbridge-Stouffeville Ambulance Services He testified about a
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survey of ambulance services he had conducted in the Fall/Winter of 1995
In addition he filed copies of the employment classified section in the
Toronto star for each first Friday of the month between November 1992 and
August 1995
Mr Carell's testimony-in-chief
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Mr Carell testified that the purpose of his survey was to see what
the general employment picture was in land ambulances services in Ontario
similar to Uxbridge-stouffeville in the years 1993, 1994 and 1995 His
survey report was based on responses received from 98 ambulance services
following a survey form sent by him According to it, a total of 575 jobs
were filled by the 98 services that responded in the years 1993, 1994 and
1995 Mr Carell testified that larger ambulance services in the greater
Toronto area did not respond to his survey-because their method of record
keeping did not allow them to properly respond to the questionnaire Nor
did his survey include the 19 government operated ambulance services in
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Southern Ontario He testified, however, that from conversations he had
with managers in these ambulance services, he had personal knowledge that
these services were actively hiring in the 3 year period under survey
Mr Carell's testimony in cross-examination
Under cross-examination Mr. Carell agreed that the public reputation
and the reputation in the ambulance service industry was very important for
any ambulance service. He ladmitted that if he knew that a job applicant
had been fired from another ambulance service for an alleged sexual
assault, he would be concerned about hiring ~hat person However, he
stated that if the person had been acquitted at a criminal trial "You have
to respect that and life must go on", and that he would not necessarily
avoid hiring the person When asked if so why he did not reinstate the
grievor after his acquittal, Mr Carell testified "because a grievance was
already in progress independently"
A sample of the survey form circulated by Mr Carell was filed The
relevant part of the text of that form reads as follows
Dear Sir/Madam
Re New Staff Hired -Calendar Years 1993, 1994, 1995
I am conducting an emp;'oyrnent survey subsequent to a
Grievance Settlement Board award and so I am in need of some
general information Would you please look over your records
and fill in how many staff you hired, 'for FOR ANY REASON,
during the calendar years 1993 through 1995
Your name
Date completed
1993 1994 1995 TOTALS
Full-time -
Part-time
Casual -'>
TOTALS
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The results of the survey relied on by the employer were based on 98
of these survey forms filled and returned by 98 ambulance services The
results indicated that in the 3 years a total of 575 positions were filled,
consisting of 91 full-time, 275 part~time and 209 casual positions
Mr Carell admitted that he did not know what qualifications the
applicants who filled these positions had Union counsel pointed out that
the survey focussed on "staff hired" and suggested that the respondents
would have included non-ambulance positions filled such as dispatchers,
$ecretaries and mechanics Mr Carell responded that he had not thought
about it, but stated that he had only paramedic jobs in mind when he
prepared the survey form He conceded that the form did not draw a
distinction between paramedic and other jObs, but stated th~t he did not
think that any of the responding services would have hired mechanics
because to his knowledge only large services hired mechanics and the bulk
of the responding services were relatively small He conceded that he did
not know which ambulance services hired secretarial and clerical staff
Mr Carell also admitted that where a survey form indicated that a full-
time position was filled, it was possible that it was filled by granting
a promotion to a part-time or casual employee
The general principles of law
The leading case relating to the duty to mitigate is Red Deer College
v Michaels, (1975) 57, D L R (3d) 386 S C C where Laskin C J made the
following remarks at p 390-1, which have been often quoted in arbitration
awards --
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In the ordinary course of Ii tigation
respecting wrongful dismissal, a plaintiff, in
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offering proof of damages, would lead evidence
/ respecting the loss he claims to have suffered by
reason of the dismissal He may have obtained
other employment at a lesser or greater
remuneration than before and this fact would have a
bearing on his damages He may not have obtained
other employment, and the question whether he has
stood idly or unreasonably by, or has tried without
success to obtain other employment would be part of
the case on damages If it is the defendant's
position that the plaintiff could reasonably have
avoided some part of the loss claimed, it is for
the defendant to carry the burden of that issue,
subject to the defendant being content to allow the
matter to be disposed of on the trial judge's
assessment of the plaintiff's evidence on avoidable
consequences
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The Red Deer College judgement dealt with an action. for wrongful
dismissal After referring to the passage above, arbitrator Rayner in Re
McDonnell Douglas Canada, (1989) 9 L.A C (4th) 387 made the following
observations at p 388-9
Later in the judgment the court placed the
onus on the defendant, not the plaintiff However,
in Re Metropoli tan Toronto Board of Com'rs of
Police and Metropolitan Toronto Police Assn (1977)
14 LAC (2d) 1 (Arthurs), the arbitrator in
referring to the Red Deer case indicated that the
custom in labour arbitrations is that the employer
had the onus of raising the issue of mitigation if
he wishes to have evidence adduced on that issue
but that once the issue is raised, the onus is then
on the employee to show that he has taken all
necessary steps to mitigate This "custom" has
developed because in the vast majority of cases the
key iss~e is one of "just cause" and the parties
are content to leave questions of compensation and
mitigation to the parties with the arbitrator only
dealing with the issues if it becomes necessary to
do so In Re Carling O'Keefe Breweries of Canada
ltd And Western Union of Brewery, Beverage, Winery
& Distillery Workers, Loc 287 (1984), 20 LAC
(3d) 67 (Beattie), the reasoning in Red Deer was
also explored and the concluE~on reached that if
the employer challenged the attempts at mitigation,
the employee had the onus of showing that he had
taken reasonable and prudent steps at mitigation
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The issue of who ultimately bears the evidentiary
onus may be debatable although my own preference
would be to adopt the approach taken by arbitrator
Arthurs but in the instant case the question of
onus is not determinative because the grievor did
lead evidence as to what he did to seek alternative
employment
In the present case as well, the question of how exactly the onus
shifts is not of significance The employer led evidence as to what
employment, in its view, was available to the grievor The grievor
testified as to the extent of his attempts to obtain employment The Board
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must determine in light of all of the evidence, whether the employer has
satisfied its ultimate onus of establishing that the grievor had failed to
comply with his duty to mitigate his losses
In Re Construction Aggregates Ltd, (1991) 21 LAC (4th) 370
(McPhillips) at p 374, the Board described the task of the respective
parties in a dispute relating to the duty to mitigate
Therefore, in assessing whether the grievor mitigated his
damages, the available job market must be considered However,
the less evidence there is with regard to legitimate efforts
made by the employee, the less evidence will be required of the
employer to show there were available jobS which could possibly
have been obtained Put another way, from a practical point of
view the evidentiary onus on an employer will increase in
proportion to the degree of effort which has been put forth by
the employee
In Re McMillan, 967/93 (Dissanayake) at pp 7-9, this Board stated
The grievor did not testify that she did not seek
alternate employment because she felt that no employer would
hire a discharged employee accused of serious misconduct
However, in his submissions union counsel raised this as a
justification for the grievor's mlnimal efforts The Board
reiterates that the duty is only to make reasonable efforts,
not to actually find employment To assume that one is not
going to be successful in finding employment is to engage in
pure speculation Just as much as there is no guarantee that
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the grievor would have found employment had she made reasonable
efforts, there is no assurance that she would ~ot have been
hired either, particularly by employers other than in the
ambulance service sector To accept the union's approach is in
effect to create a legal principle that an employee who is
discharged for alleged misconduct is exempt from the duty to
mitigate. The Board agrees with Arbitrator Rayner who in Re
McDonnell Douglas Canada Ltd (Supra) at pp 391-2 rejected
such a principle
In essence, the union's argument, on this
point, abolishes any duty to mitigate, and with
respect, I cannot accept it It may well have been
difficult for the grievor to find other employment
but the duty of mitigation does not require the
grievor to find other employment but rather to take
all reasonable steps to seek other employment If,
after a reasonable search, the grievor cannot find
- another job, then the company must accept the
consequences of its improper discharge and
compensate the grievor so as to make him whole
'iC However, if a reasonable search for other
" employment is not undertaken, and only the grievor
can conduct such a search, one cannot say whether
mitigation was possible The duty to mitigate is
so well established, and for good reasons, that I
cannot abolish it even in the circumstances of this
case
Union counsel contended that the employer's survey was
not scientific and did not establish that any of the available
jobs would have suited the grievor in light of her full-time
job, which she worked on the basis of a rotating shift
schedule However, the employer's onus does not go so far as
to prove that the grievor would actually have got one of the
available jobs The employer has established that positions
were available for part-time ambulance attendants in the same
geographic zone where the grievor had been employed It is the
grievor, and not the employer, who is aware of the personal
restrictions she had in terms of travel, schedule, family
obligations etc If she had made a reasonable job search and
was able to show that none of the available positions were
suitable, she would have been in compliance with the duty to
mitigate However, where she has not even tried, no one really
knows whether any of the available positions would have suited
her To accept the union's position is to assume that because
the grievor held her full-time dispatcher position, there would
not be any part-time position which she could possibly have
fitted in
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CONCLUSION
The task of the Board is to apply the general principles of law to
the facts before it, and determine whether the grievor could be said to
have taken all reasonable steps to m~tigate his losses In this regard the
Board notes the observation of Lord Haldane in British westinghouse
Electric Co V Underground Electric Railways Co , (1912) A C 673 at pp
690 that the duty udoes not impose on the plaintiff an obligation to take
any step which a reasonable and prudent man would not ordinarily take "
_. An observation must be made about the credibility of the grievor's
evidence as to his job search efforts He specified certain workplaces he
;t~ approached with the hopes of finding employment However, in addition he
also testified in very vague terms that he Umade inquiries" from or that
he ~sent off resumes" to, many ambulances services He testified that in
Saskatchewan he Udrove from town to town dropping off resumes" Yet he did
not name the workplaces He kept no list and had no notes relating to his
efforts Under cross examination, he stated that when he submitted
resumes, he also included a covering letter to each employer However, he
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did not produce a single copy of a resume or covering letter that he had
sent According to him he did not retain copies of any of that
documentation He also did not produce a single rejection letter His
position was that he received none because all of the rejections were
received verbally
The union submits that this testimony of the grievor must be accepted
as true because it stands uncontradicted .- In the Board's view, that does
not logically follow It must be rememb~ied that the job search activity
was undertaken by the grievor The employer was not in any way involved
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in that activity No employer is in a position to monitor what a
discharged employee does in an effort to find employment It is therefore
not rea~onable to expect any employer to be in a position to contradict an
employee's testimony in that regard The fact that the employer did not
contradict the evidence of the grievor does not necessarily mean that the
Board must accept all of that evidence as credible and truthful The Board
must still assess the credibility of the evidence by cqnsidering a number
of factors including the consistency of the evidebce and the inherent
probabilities of the testimony
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In Re Vulcan containers (Canada) Ltd, (1970) 21 LAC 167
(Christie), the grievor produced a list of employers she allegedly
approached The Board at p 168 observed about the absence of
corroboration and its impact on the grievor's credibility
There is no corroboration for the grievor's
testimony that she did in fact approach these
companies other than her husband's testimony that he
dropped her in the area on the days stated and picked
her up on his way home from work in the evening The
grievor testified that she applied to a great many
companies in addition to these on her list but that
she "got sick and tiredff of writing down their names
In my view this statement casts some doubt on her
credibility, at least with regard to her job hunting
efforts
In that case the grievor had some corrOborating evidence, albeit very
weak, from her husband In this case there is nothing other than the
grievor's assertions The only corroboration is with regard to jobs he
actually was successful in obtaining The Board found the grievor to be
a very intelligent and articulate person It is very hard to believe that
if the grievor made all of those applications as he claims, he would not
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have kept some record The absence of any letter of rejection causes the
Board further concern about the credibility of the grievor's evidence
In any event, the Board is of the view that even if the grievor's
testimony is accepted, it does not fully meet the test of "all reasonable
effortsH required of him The union stresses the fact that the grievor was
employed throughout the period of some three years, except for 3 or 4
months It is pointed out that, the grievor even secured jobs below the
rank of ambulance attendant, and suggests that thereby he even exceeded the
_duty he had to meet ~
'i'~ In many cases relating to mitigation the dispute is whether the
grievor unreasonably failed to look for lower ranked jobs when it became
apparent that employment of equal rank was not available In the present
case, the grievor was employed for the vast maj,ori ty of the time but all
of his jobs were s~gnificantly lower ranked than the position from which
he had been dismissed Does this necessarily mean that the grievor
exceeded or at least met the duty to mitigate as the union suggests? We
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do not think so The duty on the grievor was not to look for any
employment It was to take all reasonable steps to mitigate or minimize
his losses If by making reasonable efforts the grievor could have avoided
all of his losses, the duty to mitigate requires him to do so He did not
fully comply with his duty by mitigating only part of his losses
By his own admission, by June 1993 the grievor became very concerned
because his hours at Air Ambulance had significantly dropped At this
point, it was incumbent upon the grievor-to take all reasonable steps to
seek a full-time position as ambulance attendant in order to replace the
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income he lost as a result of his discharge from Uxbridge-stouffville
That is what a "reasonable and prudent" person would have done While the
grievor made some attempts, they were half-hearted and casual Even on his
own testimony, his job search consisted mostly of inquiries made from
emp~oyees working as dispatchers at other ambulance services The
inquiries were made whenever the grievor had to contact such dispatchers
as part of his duties as dispatcher at Air Ambulance He conceded that he
made only one written application to an ambulance service, namely the
Niagara Ambulance Service The grievor made very minimal efforts at
_ seeking positions in southern Ontario Southern ontario has a number of
large ambulance services In addition there were some 19 government
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operated ambulance services in Ontario He made little or no effort to
seek employment with these employers He testified that he had no chance
of succeeding in Southern Ontario because of the stigma of the pending
criminal charges against him He testified that he did not try in the
Durham Region "because of Mr Carel 1 " However there is no evidence to
suggest that Mr Carel 1 did anything to impede his chances of employment
or that if he did, that other employers would have been influenced by Mr
Carell Besides, as cases such as Re McMillan (supra) and Re McDonell
Douglas (supra) point out, the duty on the grievor was to make an effort
He was not entitled to assume that he would not succeed, particularly
considering that he had been acquitted of all criminal charges by the end
of July 1993 While some employers may have continued to be prejudiced,
it is entirely possible that others may have sympathised with the grievor
It is precisely because of this unpredictability that arbitrators have h~ld
that employees discharged for alleged serious misconduct are not entitled
to assume that they are not going to be successful in finding employment
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The Board is convinced that the grievor was content to do whatever
job he came across through acquaintances or "tips" as long as it was
adequate to get by, because he was confident that he would be reinstated
.--
at the conclusion of the arbitration That, in our view, explains why he
left Southern Ontario for the North He preferred to live in the North and
,
took the opportunity to tryout his preferred life-style, while waiting for
reinstatement He also testified that he liked living in the West for a
number of reasons E'or instance he said that the people there were
friendlier The Board is satisfied that the grievor did not move to
-Northern ontario and subsequently to Saskatchewan because he had exhausted
all reasonable efforts to find employment in Southern Ontario without
''!''f .-..'
success In fact, the evidence indicates that he made very minimal efforts
to seek job opportunities in Souther Ontario, where a number very large
private ambulance services and equally large government ambulance services
were located
This situation is somewhat analogous to the situation faced in Re
, Canada Post Cort> , (1989) 6 LAC (4th) 232 (T A B Jolliffe) The
grievor filed a job search list of 170 employers she had contacted, most
of them by telephone At p 2.39 the arbitrator observed "It is most
telling that she produced 10 pages of. hand-written notes listing
approximately 170 job contacts with a wide range of potential employers
without generating so much as one real job application she can remember and
no rejection letters" At p 240 the arbitrator concluded
I have no doubt that she was, unless something
extraordinary had turned up for herL quite content to
await the hearing and eventual arbitration decision,
collecting unemployment insurance in-the meantime In
my review of the IO-page document listing her employer
contacts, it is apparent that overwhelmingly the jobs
listed thereon are sales clerking, clerical, entry
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level administrative or lower level management of the
type which, the grievor so often noted, did not come
up to her salary expectations
Indeed it is fair to say that the evidence of that grievor with
regard to job search effort, which the Board found to be inadequate, was
stronger in that she directly contacted 170 employers by telephone and was
able to list who was contacted The one difference is that she was
unsuccessful in obtaining even a lower ranked job through her efforts In
the present case the grievor contacted very few potential employers
qirectly He did not provide a list of employers he made inquiries about
or the places where he sent off resumes to However, he was successful in
securing some lower ranked jobs through his causal efforts While the
grievor in Re Canada Post partially mitigated her losses through
unemployment insurance benefits, the grievor did so by doing low paying
jobs However the fact is that his efforts at finding an equally ranked
and equally paying job which would have fully mitigated his losses, were
very minimal A reasonable and prudent man, to use the terminology of Lord
Haldane, would have made a significantly more serious effort to find a
full-time position as an ambulance attendant in one of the many ambulance
services in ontario
Considering that the grievor did obtain some employment for the vast
majority of the time, the fact that those j,obs were not adequate to
mitigate or avoid his losses fully, and the fact that the grievor only made
half hearted and casual efforts at finding jobs whi ch woul d have fully
mitigated his losses, the Board concludes that the grievor only partially
met the duty on him to mitigate his losses
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The next issue to be determined is whether the employer has adduced
adequate evidence to establish that had the grievor fully complied with his
duty to mitigate, he might have found employment which would have avoided
all or some of the losses, for which he now seeks compensation
There is no doubt, as the union points out, that the survey conducted
by the employer was not scientific and had some flaws Partic~larly, while
disclosing that a certain number of positions were filled in the three year
period, the survey does not indicate how many of those were ambulance
-attendant jobs for which the grievor would have been qualified
Nevertheless, what it does establish is that 91 full-time, 275 part-time
. ,
'q and 209 casual positions of some sort were filled in these ambulance
services While the evidence is that some larger ambulance services employ
some clerical staff and even mechanics, the survey did not include the
I larger ambulances services in Ontario, including the 19 government operated
ones Mr Carell testified that they did not respond to his survey because
their record keeping methods did not permit them t,o provide the requested
information While the survey results were not one hundred percent
reliable, on the basis of all of the evidence it is reasonable to conclude
that the bulk of the 575 positions filled in the three'year period, and
particularly the 91 full-time positions, would have been ambulance
attendant jobs The point is that the grievor did not make a serious
effort to canvass the many ambulance services within ontario As held in
Re Construction Aggregates Ltd (Supra) , given his minimal efforts, a high
evidentiary onus ought not be placed on the employer The employer has no
obligation to show that the grievor wouladefinitely have secured one of
the positions available All that it 'has to prove is that there were
positions available for which the grievor was qualified to apply See, Re
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MacMillan, (supra) The Board concludes that the employer has met this
standard of proof
I
In conclusion, the Board finds that the grievor satisfied the duty I
to mitigate fully only until the date he quit his position at Air Ambulance
in October 1993 He is entitled to full compensation for that period
However, after that period, he only partially satisfied his duty to
mitigate The Board must, as best as it can, determine that portion of the
grievor's losses which is attributable to the inadequacy of his efforts at
mitigation during this period The Board~ concludes that, in the
circumstances his entitlement to compensation for lost wages should be
~~ reduced by fifty percent after the date he quit the Air Ambulance job In
other words, he is entitled to be compensated only for one half of the
amount of wages he would have received, but for the dismissal Of course
the actual amounts he earned during the whole period will be deducted from
the amount of wages lost from the employer Further, he shall be entitled
to interest on the amount of compensation owing pursuant to this award,
calculated in accordance with the principle known as "the Hallowell Rouse
.,
Formula" as set out in Practice Note 13 of the Ontario Labour Relations
Board Practice and Procedure
The employer' is directed to pay to the union, the amounts calculated
to be owing pursuant to this decision, within 60 days of the date this
decision is received by the employer In the event that the parties are
unable to agree upon the calculation of particular items of compensation,
those amounts not in dispute shall be paid-within the 60 day period
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In order to enable the parties to do the appropriate calculations the
Board was called upon to rule on some incidental issues between the
parties The Board rules as follows
Baseline for calculating salary
The Board rules that the loss of the grievor's part-time position at
Air-Ambulance cannot be reasonably attributed to the employer Therefore,
income from that part-time employment should not be taken into account in
calculating the baseline salary At the same time, all of the grievor's
income from Air Ambulance in the year 1993, ~ should not be taken as
mitigation because he would have had a certain amount of income from Air
Ambulance even if he had not been dismissed However, considering the
evidence that the grievor was able to perform more work for Air Ambulance
after his dismissal at Uxbridge-stouffville, the Board directs that the
rate of income at Air Ambulance for 1992 prior to his discharge be used as
the rate of income he would have had at Air Ambulance in 1993, had he not
been discharged from his full-time position Only the additional amounts
he made at Air Ambulance following his discharge by the employer are
subject to mitigation
Income Tax Implications
The Board agrees with the reasoning in Re Grenius, 1495/89 (Fisher)
that a make-wrlole award should take into account adverse income tax
implications for the grievor Therefore the Board orders that the employer
gross up the amount of the additional amount of tax liability resulting to
the grievor as a result of receiving compensation for lost wages in a lump
sum as a result of this decision
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Period of Entitlement
The Board's decision directing reinstatement was dated August 8,
1995 The evidence indicates that pursuant to that direction the employer
offered reinstatement effective September 25, 1995 The grievor indicated
to the employer that because he had to relocate from Saskatchewan he needed
more time to return to ontario and resume his employment Then the
employer set a reinstatement date of October 9, 1995 On October 3, 1995
the grievor informed the employer that he would not be returning to
employment with the employer In these circumstances the employer submits
that the period of entitlement should end as of the date of the Board's
decision (August 8, 1995) , whereas the union claims compensation up to
October 9, 1995 The Board rules that since the grievor could have resumed
his employment with the employer as of September 25, 1995, that ought to
be the cut-off date for his entitlement
The Board remains seized with jurisdiction to deal with any
disagreements between the parties in calculating the amounts of
compensation resulting from this decision
Dated this 4th Day of November 1997 at Hamilton, Ontario
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l. N ssanaya e
Vice-Chairperson
"Concurring"
E Seymour
Member
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"Concurring"
F Collict
Member
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