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Home My WebLink About1993-0757.Meagher.00-09-20 Decision o NTARW EMPLOYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ISO DUNDAS STREET WEST SUITE 600, TORONTO Olv A15G 1ZS TELEPHONE TELEPHONE, (416) 326-1 iSS ISO, RUE DUNDAS OUEST BUREAG 600, TORONTO (ON) A15G IZS FA CSIAflLE TELECO PIE. (416) 326-1'96 GSB #0757/93 OPSEU #93E057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GmEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon OPSEU (Meagher) Grievor - and - The Crown III RIght ofOntano (Mimstry of Health and Long-Term Care) Employer BEFORE Susan Stewart Vice ChaIr FOR THE DaVId Wnght GmEVOR Counsel Ryder Wnght BlaIr & Doyle Bamsters & SOhCItorS FOR THE Mary QUIck EMPLOYER Counsel Legal ServIces Branch Mimstry of Health and Long-Term Care BY WRITTEN SUBMISSION DECISION In a deCISIon dated May 7 1995 a panel of the Gnevance Settlement Board of whIch I was the Vice-ChaIr upheld the dismIssal gnevance ofMr L Meagher and remstated hIm to hIs pOSITIOn as a socIal worker at WhItby PsychIatnc HOSpItal. I was recently asked to determme two Issues whIch the partIes have been unable to resolve The partIes made wntten submIssIOns wIth respect to those Issues, whIch relate to a claIm for course expenses and a claIm for mterest on dental bills. The claIm for mterest on dental bills relates to dental work whIch would have been covered by the gnevor's dental plan had hIs employment conTInued. Mr Meagher was reImbursed by the Employer for the pnncIpal amount of the dental expenses on November 27 1998 however he was not reImbursed for mterest m the amount of $65 69 whIch had accumulated as of October 6 1998 pnor to payment. It IS the pOSITIOn of the Umon that the mterest payment IS properly payable to compensate Mr Meagher for a cost that he would otherwIse not have mcurred, as m the ordinary course of employment hIs dental expenses would have been paId fOrthWith. It IS the Employer's pOSITIOn that because the charges accumulated subsequent to Mr Meagher's remstatement, they should not be consIdered to conSTItute a natural and dIrect consequence of the breach. I turn now to the claIm relaTIng to course expenses. FolloWing the termmaTIon of hIs employment, Mr Meagher enrolled m computer courses at the Toronto School of Busmess. His expenses for tuITIOn, books and mterest on student loans totalled $7 718 00 He had not attempted to find work wIthm the field of socIal work because he consIdered It futile to do so, gIven hIs termmaTIon by the Mimstry of Health. At the relevant tIme he was 54 years of age Mr Meagher apphed for a number of pOSITIOnS 3 but was unsuccessful. Because computer skills were hsted as a reqUIrement for many posItIOns and he dId not possess those skIlls, Mr Meagher decIded to obtam computer trammg. He obtamed mformanon about computer trammg at a commumty college, however there were no Immediate opemngs. He enrolled m a seven module course called Micro-Computer Busmess Apphcanons offered by the Toronto School of Bus mess, wlnch ran from May to October and mcluded traImng m accounnng, database management and word processmg. He also enrolled m a program of traImng relanng to the admImstratIOn of hotels, whIch was offered free of charge to students enrolled at the school Mr Meagher ulnmately did obtam employment, at a hotel where he utihzed lns computer traImng. However he was only able to obtaIn tlns employment on a casual basIs, workIng weekends when regular staffwas not aVaIlable. I turn first to the claIm for mterest on dental expenses. I am unable to accept the Employer's submIssIon that thIS should not be consIdered a natural consequence of the breach. Mr Meagher mcurred an expense for wlnch would he would ordinarily have been reImbursed promptly Although he made payments on the account, there was an accrual of mterest because of lns apparent mabihty to make full payment of the account. In my VIew the mterest that he was responsible to pay IS properly vIewed as reasonably forseeable and therefore a claIm for whIch he IS enntled to be reImbursed. I turn now to the claIm for educatIOnal expenses. There IS no real dispute about the relevant pnncIples. A discharged employee has an obhganon to mIngate losses by searchmg for employment. 4 Accordmgly m cases such as Re Canada PIOSt Corp. and Canadian UnIon of Postal Workers (Beale) (1989),6 L.AC (4th) (JohfIe) and Re Coast Mountam Bushnk Co. and Independent Canadian TransIt UnIon, Local 11 (Schultz), [1999] B C C.AA No 424 (Ready), arbItrators have allowed retrammg or educaTIonal expenses on the basIs that they were reasonable expenses mcurred pursuant to the obhgaTIon to mITIgate In other cases, such as Brown and West Coast AIr Ltd. 1999 C.L.AD No 282 (Savage), an adjudicator deahng With a dismIssal under the Canada Labour Code reJ ected a dock worker's clrum for costs for courses m transcendental meditaTIon, tal chI, and nutnTIon on the basIs that It was concluded that the courses were taken for reasons of personal mterest rather than the purSUIt of employment. A sllnilar result prevailed m Re Canada Post Corp and P.S.AC. (Liley) (1990), C.L.A S 146 (Devhn) wherem a claim for costs assocIated WIth a busmess management trainIng course was rejected on the basIs that the eVIdence dId not mdlcate that the course mcreased the gnevor's "marketabihty" or that the gnevor made any efforts to find employment requmng skills that he had obtamed m the course In her submIssIOns, Ms. QUIck noted that the expenses m Issue here were much larger than those allowed m the cases referred to She also argued that the course expenses ought to be vIewed as expenses mcurred m connectIOn With a personal mterest rather than as legITImate expenses mcurred m connectIon With the obhgaTIon to mITIgate. Ms. QUIck also quesTIoned the mterest expense assocIated With the gnevor's student loan, and m that regard referred me to Re Canada Post Corp. and CanadIan UnIon of Postal Workers (Noel) [1998] C.L.AD No 236 (Outhouse) wherem the arbItrator awarded 5 mterest at pnme rate, notwIthstanding the fact that the gnevor had obtamed a bank loan at a lngher rate. In hIS submISSIons, Mr Wnght argued that the educaTIonal expenses that the gnevor mcurred were legITImate costs mcurred pursuant to lns obhgaTIon to mITIgate lns damages. He emphasIzed that Mr Meagher ulTImately obtamed work m wlnch lns newly acqUIred skills were utihzed and submItted that the gnevor's claims should be allowed. The cnTIcal queSTIon IS whether the expenses are reasonable m all the CIrcumstances. While Ms. QUIck IS correct m her observatIOn that the cost of the course here exceeds that m Issue m other cases, the mformaTIon before me mdicates that a less expenSIve alternaTIve was pursued by the gnevor but that It was not available to hIm. A decIsIon on the part of the gnevor to Wait for a less expenSIve course could well be a basIs for quesTIomng hIS efforts to mItIgate. I am not persuaded that the cost of the course should be a basIs for disquahfymg It as a legITImate expense m these CIrcumstances. As well, I am not persuaded that the takmg of tlns course should be vIewed as the purSUIt of a personal mterest. The nature of the course IS very different from the courses consIdered m the West Coast AIr Ltd. case, supra. As well, unlike the Canada Post (Liley) case, supra, Mr Meagher did m fact obtam employment m wlnch the skills that he obtamed were utihzed, resulTIng m a reducTIon m the damages owmg by the Employer to the gnevor With respect to the matter of mterest, as I read Mr Outhouse's award, he IS confirmmg the Hallowell House pnncIple With respect to the payment of mterest on lost wages, notwIthstanding the fact that the gnevor there obtamed a loan at a hIgher rate At Issue here IS mterest on a student loan for courses taken to assIst the gnevor m obtalmng employment. In my VIew tlns claim 6 IS an appropnate expense assocIated wIth the gnevor's obhganon to mItIgate ills losses. In accordance WIth the foregoIng, the gnevor IS to be reImbursed for ills expenses. I connnue to retaIn Junsdicnon In connectIon With thIs matter Dated at Toronto, thIS 20th day of September 2000 p..t Susan L Stewart, Vice-Chair