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HomeMy WebLinkAbout1993-0967.MacMillan.96-03-14 __t:IP ( '!~ .. ~'. ' : ~," -: .,~ '.' ,j','", ,,' ! '. ONTARIO EMPLOYES DE LA COURONNE ; . .', :- ;, '. ". ",: " '. ' CROWN EMPLOYEES DE L'ONTARIO {\j\ \L , ." ,.';'<<",; ">,' GRIEVANCE COMMISSION DE ' rf" ,~ n LU;; ;~ ,i-N , Qv'J oJ' 1111 SETTLEMENT REGLEMENT \'1'11 BOARD DES GRIEFS '~ 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG IZ8 FACSIMILE /TELECOPIE (416) 326-1396 ~-- GSB # 967/93 ," :' f'l!i-j4 '/i"""n . ~(. ~;C. 'j't~..;.. I OPSEU # 93E137 CRC',s - IN THE MATTER OF AN ARBITRATION GR~ --- , ]::'vi;::1\JT Under .- BOA-QD f THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacMillan) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Thames Valley Ambulance Limited Employer BEFORE: N Dissanayake Vice-Chairperson S Urbain Member D Montrose Member FOR THE L Yearwood GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P Whalen EMPLOYER Barrister & Solicitor HEARING September 13, 1995 :.- i 2 SUPPLEMENTARY DECISION By decision dated January 13, 1995, the Board decided Ms MacMillan's discharge grievance. with the employer member partially dissenting, the Board ordered as follows at p. 22 Having regard to the nature of the grievor's conduct and the mitigatory circumstances, we direct that the grievor be reinstated in her position, subject to a suspension without pay for a period,of 10 working shifts Subject to that penalty, the grievor shall be entitled to be compensated for all monies lost, benefits and seniority The Board remains seized in the event the parties encounter difficulty in the implementation of this award On September 13, 1995 the Board reconvened in order to deal with certain disagreements the parties had encountered in the implementation of the Board order The resolution of the issues was as follows Compensation for the period of delay in reinstatinq the grievor The Board I s order was dated January 13, 1995 The grievor was not reinstated until April 15, 1995 The employer took the position that the delay occurred for two reasons which were beyond its control First, since her discharge the grievor had put on weight and her existing uniforms did not fit. The manufacturer was not able to supply uniforms of the proper size until April 15, 1995 Since the regulations require ambulance attendants to be in uniform while on duty, the employer was in no position to reinstate the grievor until - ---- :; 3 the uniforms became available Secondly, while the grievor was away following her discharge, she had missed the up-dating r of her training which she would otherwise have received as part of her employment She could not be reinstated ~ntil she was provided with the update training required by the regulations In the circumstances the employer submitted that it was not liable for compensating the grievor for the period of delay in implementing the board's order to re-ihstate The Board orally ruled that had the employer not discharged the grievor in contravention of the collective agreement, the uniform or updating of training would not have been a problem, and that therefore the employer must be held responsible for the consequences of its violation The Board ruled that the grievor was entitled to be compensated for all monies lost, benefits and seniority up to the date of actual reinstatement on April 15, 1995 Hours of work The parties disagreed as to the calculation of the number of hours for which the grievor was to be compensated The union sought compensation on the basis of 24 hours per week. ;I .. 4 Since there was no guarantee in the collective agreement of 24 hours per week for part-time employees and since it is common ground that the grievor had not regularly worked 24 hours per week, the Board ruled that the union's claim was not justified The Board ruled that the grievor's entitlement should be based on the hours actually worked by the grievor during the period of one year preceding her discharge Two issues must be factored into the calculation of the grievor's entitlement First, the 10 working shift suspension imposed by the Board must corne off her entitlement The parties were directed to work-out the ratio of 12 hour and 8 hour shifts worked by the employer in the preceding year to determine the quantum of hours for the 10 working shift suspension Secondly, it was agreed that the grievor was paid for the time she spent receiving the update training prior to reinstatement This amount of payment also must corne off her compensation entitlement ( f Vacation pay While initially the employer had denied liability for vacation pay, following discussion it was agreed that the grievor was entitled to 4 percent vacation pay on the wages calculated to be owing pursuant to the Board's order - - ~ --- -- .. ,. 5 Rate of pay There was disagreement as to the rate of pay at which the grievor's back-wages ought to be calculated Specifically, the issue arose as to whether the grievor possessed the Advance Life Support certification during the period in question The parties agreed to verify the appropriate rate under the collective agreement and seek confirmation of the grievor's status with regard to the ALS certification. Interest The employer pointed out that despite the union's request for interest, the Board did not award any interest in its award In the circumstances, the employer took the position that the grievor was not entitled to interest The Board ruled that in its order, it had merel~ made a general direction to the employer to compensate the grievor for "all ~onies lo~t" The Board did not consider and reject the union's request for interest It left it to the parties \ to determine what the "monies lost" were and remained seized in the event there was a dispute Since no reasons were adduced as to why the grievor in this case should not be entitled to interest, the Board directed that interest be paid 'w ~- -.... The emplover's evidence Mr John Mercer, Operations Manager of the Thames Valley Ambulance Ltd. testified that he conducted a survey of other ambulance services within the zone in which Thames Valley Ambulance Service was located, inquiring whether or not between June 1993 and January 1995 there were any vacancies available for part-time ambulance attendants. The Board was provided with a list of the ambulance services and the individual within each service who responded The survey indicated that during the period in question a total of 42 part-time ambulance attendant positions became available The employer also filed 21 classified sections from issues of the London Free Press between June 4, 1993 and January 6, 1995. Each page included a section advertising vacancies in Restaurants and hotels The London Free Press is a daily newspaper and the exhibits were presented as a random sample indicative of the vacancies available in the hospitality sector during the period in question The advertisements are for an assortment of positions, some fUll-time and some part-time, some requiring some skills and experience and some unskilled The union concedes that the grievor did not make application to any of the ambulance services in the surrounding area during her period of discharge. It was also not in dispute that she did not apply for any jobs advertised in the newspapers, in the hospitality sector or any other sector The grievor testified that she made .," ~ verbal inquiries about possible employment opportunities at a golf club and a restaurant, both located in London In addition, she made and sold crafts - candles and flower arrangements - at 3 craft , shows She testified that each show lasted 2 days and that on each show day she worked approximately 10 hours Her total earnings from the three craft shows amounted to $ 300.00. That was the I extent of her attempts at mitigation The employer takes the position that this is an' extreme case of failure to mitigate. Counsel points out that the employer has established that there were at least 42 vacancies available at the same rank of part-time ambulance attendant which the grievor had held, in the same zone where she had worked. The grievor had not made any attempts to obtain any of these. Counsel submits further that the duty to mitigate requires an employee to reduce expectations and seek positions with lesser ranking and remuneration, once it becomes apparent that that a comparable position may not be available. Re Canada Post Corp. ( 1991) 21 LAC. (4th) 400. Thus it is contended that even if a part-time ambulance attendant position was not available to the grievor, she had the q.uty to seek alternate employment advertised in the newspapers. She had failed to do this either. The union submits that the survey conducted by Mr. Mercer was not scientific. While some jobs may have been available, according to the union, the critical factor here is that the gr ievor was employed full-time as a dispatcher with the London City Police. It -.-- is contended that given her full-time employment with a rotating shift schedule, there is no guarantee that the grievor would have been able to obtain any of the jobs in the ambulance service sector or the hospitality sector Union counsel further submits that it would have been useless for the grievor to have applied to any ambulance service, because no employer would have hired an ambulance attendant who had been discharged for allegedly refusing to do an assigned call and repeatedly hanging up on the dispatcher. In the circumstances, it is submitted that the grievor did not have to do anymore than she did in order to discharge her duty to mitigate In Re Construction Aqqreqates Ltd., ( 1991) 21 L. A,. C (4th) 370 (McPhillips), at p 374 the Board stated 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 job~ which could possible 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 the present case the efforts at finding employment undertaken by the grievor has been minimal. The grievor did not even attempt to explain to the Board as to why she had not taken the very basic and common sense steps such as applying for positions advertised in the local newspapers or registering with Canada Manpower and private employment agencies. J , " The duty on the grievor was not to actually find employment, but to make reasonable efforts. As a unionized employee who was discharged and who filed a grievance claiming that she ought not to have been discharged, it is not reasonable to expect the grievor to immediately seek alternate employment. It would be reasonable for her to await the employer's response to the grievance during the grievance procedure, to see if her union is able to change the employer's mind. However, there must come a time when it becomes clear that that is not going to happen Usually that would be the point of time when the grievance procedure is exhausted without a resolution and the only option left is arbitration At least by this time, it must have become clear to the grievor that her grievance would not be resolved until the matter is referred to the Grievance Settlement Board, a hearing scheduled and completed, and a decision obtained She knew, or reasonably should have known, that she would not have employment with her employer for an extended period of time In our view, at that point the grievor had an obligation to attempt to replace her lost income to a degree which is reasonable possible under all of the circumstances Her participation in the 3 craft shows and her two rather casual personal inquiries, by any reasonable standard, were not sufficient to meet her duty to mitigate losses. 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 minimal ef~orts 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 the grievor would have found employment had she made reasonable efforts, there is no assurance that she would not 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 Picher, who in Re McDonnell Doualas Canada Ltd. (supra) at pp 391-2 rejected such a principle' In essence, the union's argument, on thil? 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 empioyment but rather to take all reasonable steps to seek other employment. If, after a reasonable search, the grievor cannot ~ind another job, then the company must accept the consequences of its improper discharge and compensate the grievor so as to make him whole 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, ther~ would not be any part-time position which she could possibly have fitted in However, it is clear that the grievor~had fitted in her part-time position with the employer with her full-time dispatcher position at the London City Police We have not been given any reason as to why, in these circumstances, it is reasonable to simply assume that there would not have been any other part-time position with another employer which the grievor could have performed in the same manner Given the minimal efforts made by the grievor in looking for replacement employment the Board concludes that the employer has met its onus Having ,concluded that the grievor failed to meet her duty to mitigate, the Board must determine what impact that ought to have on her entitlement to compensation The Board must, as best as it can, determine that portion of the grievor's losses, which can be ~ attributable to her own failure to mitigate The grievor was discharged on June 3, 1993 and she grieved the same day Following the grievance procedure, the union on July 9, 1993 referred the matter for arbitration before the Board In our view, it is at this point that the grievor should have started an active and reasonable job search Assuming that she had done that, we estimate that in the present economy, it would have taken the grievor approximately six months to make application, go through the hiring process and find a part-time job to fit in with her full-time rotating schedule at the London City Police Therefore, we hereby direct that the grievor be compensated from the date of her discharge to the week ending Sunday January 9, 1994 She shall not be entitled to compensation for the period beyond January 9, 1994. Of course, the above direction is subject to the 10 shift suspension without pay earlier directed by the Board Further, the $ 300 00 the grievor earned through her work at the craft shows shall be set-off against her entitlement The compensation calculated to be owing pursuant to this award shall be paid to the union within 60 days from the date this award is received by the employer, together with interest calculated in accordance with the formula set out in Practice Note No 13 in the ontario Labour Relations Board practice and Procedure The Board remains seized in the event that the parties encounter any difficulty implementing this award .. J Dated this 14day of March 1996 at Hamilton, Ontario. ~~?-4 N. Of anayak:e Vice-Chairperson ~ ~G:tw- s. Urbain Member cd ~L\JL ~ v D. Montrose Member