Loading...
HomeMy WebLinkAbout1992-3043.Sutherland.93-11-04 -- ---~ ---~-- . ~-, := ,..<':;..0.. (, . c~, ,. ,- ONTARIO \ EMPLOYES DE LA COURONNE ......._J .' r. CROWN EMPLOYEES DE L'ONTARIO . . GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARfO. M5G lZ8 TELl3PHONEITELl!PHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILEITIELE:COP/E (416) 326-1396 3043/92, 3044/92, 3045/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sutherland) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer '-. BEFORE: N Dissanayake Vice-Chairperson M Lyons Member M O'Toole Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE M Blight EMPLOYER Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors HEARING July 22, 1993 " - - (. ,.". 'i;: ) 2 DECISION Three grievances filed by the grievor, Mr. Richard Sutherland came before the Board for hearing. Two of them, Files 3043{92 and 3044{92, are job competition grievances alleging violations of article 4 of the collective agreement. The other, File 3045{92, is a "health and safety" grievance alleging a contravention of article 18 1. J Following opening statements by both counsel, counsel for the union advised the Board that the union wished to withdraw the health and safety grievance The Board consented, and it is hereby confirmed that File no 3045{92 is deemed to be withdrawn That left the Board seized with the two job competition grievances It was agreed between the parties that before proceeding to hear the merits of these grievances, the Board should decide in a preliminary way, a dispute between the ! parties as to the scope of the remedial order that may be awarded in the event one or both grievances succeed This dispute arises from the peculiar circumstances of this case The parties filed with the Board an "Agreed Statement of Facts" which reads as follows AGREED STATEMENT OF FACTS 1. The agreed facts recorded herein are for the sole purpose of a preliminary objection by the employer in three grievances, attached as Exhibits 1-3 to this Agreed statement of Facts ( "these --- - - .. - . - - -- - ~ --- - - c_u (,:'c \;~:1<! ~ 3 grievances") A similar issue is raised in six other grievances, three of which ~re scheduled for hearing on August 31, 1993 (GSB File Nos 2134/92, 2135/92 and 2136/92) It is understood that the outcome of the employer's preliminary objection shall be determinative of the issues it raises for the grievances described herein 2. The grievor, Richard sutherland, was employed as a correctional officer and classified as Correctional Officer 2 ("C02") at the Mimico Correctional Centre (nMimicon) for approximately 5 years. Effective April 19, 1993 the grievor left Mimico and began employment as a C02 at the Niagara Detention Centre ("Niagara") That transfer followed a job competition for the position of C02 at Niagara, in which the grievor was the successful candidate 3. These grievances arise as a result of an earlier posting for a C02 position at Niagara <(Competition CI-2042-92), for which the 'grievor applied unsuccessfully. A copy of the posting,is attached as Exhibit 4 hereto The posting limits the area of search to Ministry staff residing within 40 kilometres of Niagara Detention Centre. 4. All of the grievances mentioned in paragraph 1 were filed as a result of job competitions held between January 1992 and April 1993, for C02 positions at Niagara, and in which the grievor was not the successful candidate Three gri~vances were filed in re~pect of each of three unsuccessful applications for posted C02 positions at Niagara. The grievances fall into two categories: the first category includes grievances directed to the job competi tion process and the -second category inc'ludes health and safety grievances protesting the distance the grievor drove between his work at 1 Mimico and his home in the Niagara area each day. 5. The grievor moved from Mimico to the Niagara area in early 1992 for personal/family reasons The grievor did not consult the employer nor was the employer involved in any way in the grievor's I decision to move his residence. Between the time the grievor moved his residence to the Niagara area and April 19, 1993, the grievor commuted between his home in the Niagara area and his employment at Mimico on the QEW I f (- ? 4 r 6. The rate of pay and working conditions for a C02 is the same at Niagara as at Mimico. The only remedy sought in the job competition grievances is reimbursement for travelling expenses undertaken by the grievor from the start date of the C02 position at Niagara for which he competed unsuccessfully (November 1992), to the date of his transfer to Niagara The only remedy sought in the health and safety grievances is a declaration. that article 18 1 of the Collective Agreement was breached Both parties argued, and we will determine, this p;reliminary issue on the supposition that the grievor's two job competition grievances will be successful Ignoring the reference in the foregoing statement to the health and safety grievance which has now been wit.hdrawn, the thrust of the preliminary dispute relating to the jOb competition grievances is as follows. Since the rate of pay and the working conditions enjoyed by the grievor at Mimico and at Niagara were identical, he suffered no loss in that regard by his failure in the job competitions which are the subject matter ,of these two grievances Therefore, it is the employer's position that, even if successful, the grievor is only entitled to a declaration by the Board that the collective agreement had been contravened The union disagrees It is contended that if the employer had complied with the requirements of article 4 in conducting the earlier job competitions, the grievor would have been awarded a position at the Niagara Detention Centre in November 1992 and therefore at that time his commuting -- ---.- - --.- ~ - ~ ~- c .. c-c:;.. 5 between Niagara Falls and Mimico would have ceased In other words, the union takes the position that because of the employer's breach..) the grievor's commuting and the related travel expenses continued from November 1992 till April 19, 1992. Thus the union claims that if the grievances are successful the grievor is entitled to be reimbursed for the travel expenses he incurred during that period Counsel for the employer argues that the grievo~ is not entitled to any compensation for travel costs Firstly it is submitted that his travel costs did not flow from the breach She points out that at one time, the grievor worked at the Mimico jail and lived in Mimico Then he made a personal decision to move his residence to Niagara Falls and to commute to work to Mimico. She points out that the employer had no input into that decision Nor did it have any control over where the grievor elected to live She submits that the quid pro quo is that when an employee decides tp live in a distant place and to commute to work, the travel expenses are the sole responsibility of that employee. Counsel acknowledges that in the scenario contemplated here, the grievor's travel expenses would have ended sooner if not for the breach of the collective agreement by the employer. However, she argues that that does not take away the fact that it is the employee's responsibility to decide - --- --- -- (l-.'. 1, ~ I ( 6 ! where to live and to bear the consequences of that decision including the travel costs Relying on the test in Re Hadley v. Baxendale (1854) 156 E R 145, counsel submits that only damages which were foreseeable at the time the contract was \ entered into are compensable It is submitted that the parties would only have contemplated the usual employment related damages such as loss of wages and other benefits, as possible consequences of a breach. They would not have contemplated that the employer would become responsible for non-employment related damages such as travel expenses It has been long established in the arbitral jurisprudence that 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 See, Re Mohawk Colleqe of APplied Arts & Technology, 91982) 5 L.A C. (3d) 237 (Brown). As arbitrator Weiler stated in Re Canadian Johns Manville Co. Ltd., (1971) 22 t. A C 396 at pp 397-8: Stated in the 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 I I - - -- - - I - - - -- -- I (~ c. 7 We see no merit in the employer's position that the travel expenses do not flow from the breach. Counsel's reasoning is, in our view, based on a confusion between the employer's general responsibility for the travel expenses of an employee and the employer's responsibility to compensate for travel expenses incurred as a result of a breach of the collective agreement It is clear that under the collective agreement the employer has no responsibility for the expenses c incurred by an employee travelling to and f~om work However, that is quite a different issue from the employer's liability for travelling costs necessitated by a breach of the collective agreement on its part. The employer i~ liable for the latter, if it is otherwise a compensable loss. For example, in ,Re Ward 1720 and 1721/89 (Dissanayake) , the Board concluded that the grievor had been transferred to a 'position in Toronto from the position he had held in Hamilton, in contravention of the collective agreement. The grievor lived in Brantford. As a result of the transfer the grievor was required to commute a longer distance between his home in Brantford and his new work location in Toronto The Bo~rd in, its remedial award directed that the grievor be compensated for the additional travel costs incurred as a result of the breach ~_._- ( I \~ :-j c...: 8 The Board cannot agree with counsel that there is a distinction between cases where the commuting starts as a result of the breach and cases where the grievor is required to continue the commuting as a result of the breach In either case the test is the same That is, one has to determine what travel expenses, if any, would not have been \ incurred by the grievor but for the breach of the collective agreement Those expense~ are properly compensable as a . remedy for the breach. ...., The Board agrees with the proposition that not all losses resulting from a breach of the collective agreement are necessarily compen!3able. Only losses which are reasonably foreseeable are compensable Therefore having concluded that the grievor was required to incur additional travel expenses as a result of the breach, we must determine if that loss was too remote or whether it was reasonably foreseeable. We cannot agree with employer counsel that the parties to the collective agreement would only have contemplated losses directly related to employment such as loss of wages. At the time of the competitions in question, the employer was fully aware that the grievor lived in Niagara Falls, and that if he failed to obtain a position pursuant to the job posting he will be required to continue to commute to Toronto. Those / expenses were clearly a direct result of the breach since the " 'J ---~ ~ --~-- - -- ,1:...- c ~ ~ \ 9 1 grievor would not have incurred those if the employer had complied with the collective agreement We cannot accept that the parties would have believed that they will not be held responsible for monetary losses directly resulting from their breach of the collective agreement In summary then, it is the Board's finding that the travel expenses in question were a direct result of the breach and further that those expenses were losses that were not too remote. Accordingly, if the grievances succeed on the merits, the union will be entitled to be compensated for those travel expenses Having determined this issue by way of this preliminary decision this Board remains seized of the grievances ,in files 3043/92 and 3044/92 until their final disposition If either party wishes that this panel reconvene for that purpose, the Registrar of the Board should be contacted ( -- cr --- ",{J~:i c-.-: 10 ( Dated this 4th day of November, 1993 at Hamilton, ontario / /~~(}L N Dissanayake Vice-Chairperson ?::-~ <-;c~fl! M Lyon Member ., i 1 "I Dissent" (dissent attached) M O'Toole Member I ~- -- -, -- -~ ~ - .-. C'-i-' ( '. , "'M--~ ;,....: 3043/92, 3044/92, 3045/92 DISSENT The reasoning of the majority is superficially persuasive but close scrutiny reveals it to be erroneous in 2 respects ( 1) the finding that the grievor's travel expenses were incurred as a result of the employer's breach of the ) collective agreement, the finding that \ 2) such expenses were reasonably foreseeable I will discuss each of the above errors seriatim. In my opinion, the denial of the posting did not result in the grievor's travel expenses Prior to the postLng, the grievor had chosen to relocate his residence from Toronto to Niagara Falls and to commute to his job in Toronto This was a personal, lifestyle decision freely entered into It was this decision that resulted in the grievor's travel expenses The denial of the posting by the employer did not affect this decision Stated differently, the grievor was free at any time after the posting to move back to Toronto. His decision not to. do so is what necessitated his travel expenses However stated, the result is that the denial of the posting did not force the grievor to do ~. :..-:;' I anything that he had not already freely chosen to do The grievor's situation is quite unlike the employee in the I Ward case. There the emplo~ee's travel expenses were necessitated, not by his personal, lifestyle decision to reside in Brantford, but 'by the employer's decision to improperly transfer him to a position in Toronto. This decision forced the employee to~hange his own lifestyle decision to live and work in Brantford Turning to the second error of the majority, it is my submission that the grievor's travel expenses were not reasonably foreseeable. At all times the grievor had complete freedom of choice as to the location of his residence He chose to reside in Niagara Falls. He was free to change that location at any time Because of this freedom of choice, the grievor's travel expenses were unforeseeable It is irrelevant that the employer was fully aware that the grievor lived in Niagara Falls as there was no evidence, either that the grievor moved to Niagara Falls in reliance on the employer not breaching the collective agreement, or that the employer was aware of such reliance It was only established that the grievor moved to Niagara ~alls for "personal/family reasons" and the employer was not aware of such reasons Accordingly, the employer could not have reasonably foreseen )what would be the consequences of the breach of contract I on the grievor's travel expenses In my opinion, it is quite unrealistic and would lead to a - ~-- - ----~- -- - ---------- J -- ( .-- t... \. \,. ___I ~ - ~ great deal of mischief if an employer were held liable for tne " . adverse monetary effects of a breach of the collective agreement on an employee's lifestyle This would encourage employees to ensure that the employer was fully aware of all such possible 'adverse impacts. Suppose the grievor travelled to a work location elsewhere in Niagara Fal~s but still a greater distance from his residence than Niagara Detention Centre and that the employer were so aware. In this situation the denial of the posting would have required the grievor to continue to incur more ~xpense than needed I to travel to Niagara Detention Centre Presumably the majority would find that the employer was liable to compensate the grievor for the extra expense on the theory that it resulted from the employer's breach of the collective agreement r cannot subscribe to a theory that leads \ to such a mischievious result and, accordingly, I must dissent 7111 (j';;~ I M O'Toole, Member I