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HomeMy WebLinkAbout2005-1927.Rodrigues.07-04-24 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2005-1927,2005-1928 UNION# 2005-0528-0002, 2005-0528-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER WRITTEN SUBMISSIONS Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Rodrigues) - and - The Crown in Right of Ontario (Ministry of Labour) Richard Brown Gavin Leeb Barrister and Solicitor Sean Kearney Senior Counsel Ministry of Government Services April 10 & 16,2007. Union Employer Vice-Chair 2 Decision This decision supplements an earlier one holding the grievor had been discharged without just cause. In closing argument, employer counsel contended reinstatement should be denied and the remedy limited to damages. This was the first occasion when the employer suggested the grievor should not be reinstated, even if there was no just cause for dismissal. Counsel for the union responded to this argument by contending the employer is barred from raising it at the end of the hearing. This procedural issue was addressed subsequently in written submissions. I have now reviewed the evidence upon which the employer relies in opposing reinstatement. This review has led me to conclude the remedy ought not to be limited to damages. Having concluded the grievor should be reinstated, even if the employer is not barred from opposing this remedy, I need not decide whether such a bar exists. My reasons for reinstating the grievor are set out below. I Reinstatement is the remedy normally awarded by arbitrators to employees dismissed without just cause. Damages in lieu of reinstatement have been awarded only in exceptional circumstances. The exceptional nature of a monetary relief has long been recognized by arbitrators: see, for example, Tenant Hotline and Peters and Gittens (1983), 10 L.AC. (3d) 130 (McDowell). The arbitral practice of granting reinstatement, except in extraordinary situations, was noted with approval by the Supreme Court of Canada in Alberta Union of Public Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727. Upholding an award denying reinstatement, Iacobucci 1. wrote: The parties and the Court of Appeal cite a number of decisions where jurisdiction to substitute an award of damages in lieu of reinstatement was exercised in what have been termed "exceptional" or "extraordinary circumstances" ... On balance, the board's comments reflect concerns about the continued viability of the employment relationship, and fall squarely within the ambit of exceptional circumstances as reflected in the arbitral decisions noted above. (pages 755 and 756) Counsel cited two decisions of the Grievance Settlement Board affirming these general remedial principles: Liquor Control Board of Ontario and Ontario Liquor Control Boards Employees Union (Massa), GSB No. 2033/97, dated Feb. 15,2000 (Abramsky); Ministry of Natural 3 Resources and Ontario Public Service Employees Union (Wickett), GSB No. 20011-0542 (Petryshen). The prevalence of reinstatement as a remedy for unjust dismissal is based upon the nature of the employment relationship under a collective agreement. The point is best made by comparing this relationship to a simple contract for the sale of a specific quantity of fungible goods at a fixed price. Non-delivery by the seller is remedied in the courts by awarding the buyer damages equal to the cost of obtaining replacements plus any associated losses. Compensation so computed puts the buyer in the position it would have occupied had the contract been carried out. Damages are much less able to accomplish this remedial objective in a case of unjust dismissal, as I explained some years ago in a paper entitled "Contract Remedies in a Planned Economy: Labour Arbitration Leads the Way", published in Swan, 1. and Reiter, B., Studies in Contract. Toronto: Butterworths (1979). Lost wages and other monetary benefits cannot be computed with any degree of precision, largely because of uncertainty about how long the grievor would have continued to be employed, but for the unjust dismissal, and uncertainty about what alternative work he or she will be able to find and retain during this period: Management may not fire without just cause but may layoff, in accordance with seniority, to reduce the workforce. The employee is free to quit. ... Should a prediction be made as to whether, at some future time, the employee might have been properly terminated or might have quit? Labour market imperfections may leave the worker unemployed for a substantial period of time. Should an attempt be made to predict when another j ob will be found. If the employee finds work at a lower rate of remuneration, ought a claim for the differential to be allowed? ("Contract Remedies.. .", supra, at 103) The calculation of compensation for unjust dismissal is further complicated by the difficulty of valuing seniority rights: A discharged employee loses seniority rights as well as wages. These invaluable rights entitle the employee to vacations and other benefits, to preference when promotions are made and protection against layoffs. ("Contract Remedies.. .", supra, at 103) The computation of damages is further frustrated by the non-monetary rewards of employment: Self-respect and life style are closely related to employment. ... The courts have recently recognized that these interests are deserving of protection and have awarded damages for injury to them. Obviously, the loss cannot be measured readily and no sound basis has been offered for the amounts awarded. ("Contract Remedies...", supra, at 1 03) 4 Since this comment was written, the Supreme Court of Canada, in Reference re Public Service Employees Relations Act (Alberta), [1987] 1 S.C.R. 313, has acknowledged "a person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being." The intractable problem posed by attempting to place a monetary value on these attributes of any job is self-evident. All of the difficulties inherent in attempting to fashion adequate monetary compensation for unjust dismissal are avoided by reinstating the aggrieved employee instead. That is why reinstatement is the normal remedy. II Employer counsel relies upon four decisions awarding damages in lieu of reinstatement. Brinks Canada Ltd and Newfoundland Association of Public Employees (1999),77 L.AC. (4th) 260 (Fagan); DehavillandInc. and CAW Canada (1999),83 L.AC. (4th) 157 (Rayner); Liquor Control Board of Ontario and Ontario Liquor Control Boards Employees Union (Massa), GSB No. 2033/97, dated Feb. 15,2000 (Abramsky); and Vancouver Island Health Authority and British Columbia Nurses Union (2006), 10 L.A C. (4th) 231 (Hope). In Brinks Canada, the grievors worked as money custodians. A fellow employee had misappropriated funds and they were less than candid when questioned about what had happened. Arbitrator Fagan concluded there was cause for discipline but that discharge was not warranted. He awarded damages in lieu of reinstatement, because the grievors "expressed strong emotions of anger" about their treatment by management, and because "the highest of ethical standards were required" in handling customers' cash. I note the utility of this decision as a precedent is somewhat diminished because it contains no indication the arbitrator recognized that damages are an exceptional remedy. The extraordinary nature of monetary relief was recognized in all of the other cases cited. In Dehavilland, Professor Rayner wrote: The cases referred to cite several factors that are relevant to the decision to award compensation in lieu of compensation. In no particular order those factors are: 1. The refusal of coworkers to work with the grievor. 2. Lack of trust between the grievor and the employer. 3. The inability or refusal of the grievor to accept responsibility for any wrongdoing. 5 4. The demeanour and attitude of the grievor at the hearing. 5. Animosity on the part of the grievor towards management or coworkers. 6. The risk of a "poisoned" atmosphere in the work place. Many of these factors, but not all, exist in the present case. The demeanour and the attitude of the grievor at the hearing was particularly revealing. As I stated in my earlier award dealing with the merits of the grievor's discipline: It became obvious as soon as the case began that the hearing would be difficult for several reasons, but primarily the attitude of the grievor. Simply put he does not trust the Company or its officials and does not trust the Union. He would have preferred independent counsel but said that he could not afford one. He objected to Mr. Gray, the plant chairperson, as his representative and Mr. Gray withdrew in favour of Mr. Murphy. The grievor also threatened to leave the hearing several times. .... Finally at one point in the hearing the grievor said something in the general direction of either Mr. Gray or Mr. Skipper which sounded like a vague threat. There is no doubt that the grievor distrusts management because of what he perceives to be its reaction to his complaints about procedure to senior Company officials and outside agencies. There is also no doubt that the grievor does not accept any responsibility for any improper behavior. He referred to an earlier string of progressive discipline as "bogus" and as part of an ongoing vendetta by Mr. Kehoe, a manager, assisted by other supervisors and officials in the human resources department, to get him. He claimed that there was such a conspiracy because the grievor is what is colloquially known as a "whistle blower". . . In short, the grievor was denied reinstatement because he disrupted the hearing with threatening behavior, never accepted any responsibility for wrongdoing, and contended he was the victim of a conspIracy. The reasons why reinstatement was denied in Massa were much the same. The grievor was dismissed as a result of a conversation with officials at the Ministry of Labour during which he named three fellow employees and a manager and then said: "I want to kill 'em." Arbitrator Abramsky decided discharge was an excessive penalty, because psychiatric evidence indicated the grievor did not intend to harm anyone, and because he was a long-service employee. Declining to reinstate him, the arbitrator wrote: [T]he grievor accepts no responsibility for his actions. He was in what can only be described as a state of denial, blaming everyone else for his discipline and discharge. ... In his view, the others were "out to get him"... He clearly harbors great animosity and was disparaging toward management and a number of co-workers. . . . He also mentioned other employees who refused to work 6 with him... The grievor also demonstrated a lack of candor about what occurred as the inconsistencies in his testimony reveal. (pages 71 and 72) In Vancouver Island Health Authority, a nurse was dismissed for repeatedly not following standard nursing practices. Arbitrator Hope concluded discharge was unwarranted because the employer had failed to take appropriate corrective action. The grievor did not want to return to her former position and the arbitrator concluded the employer could not reasonably be expected to offer another assignment. In this setting, he declined to reinstate the grievor, noting her relationship with her supervisor and workmates was "dysfunctional" to the point where a number of the latter had refused shifts rather work with her. III The facts here are very different than those in the cited cases where the remedy was limited to damages by an arbitrator who acknowledged the exceptional nature of this sort of relief. Ms. Rodrigues is seeking to return to her former position, not requesting some other assignment. There were no threats of violence and no disruptive behavior at the hearing. Nothing in the evidence suggests the grievor experienced any difficulty with other employees. She does not deny all responsibility for wrongdoing. In particular, she expressed remorse for not following proper procedures and apologized for accusing her manager of discrimination, albeit belatedly while testifying. She accepted some responsibility for not meeting performance targets; and I concluded the employer had failed to prove that some of this shortfall was not attributable to approved absences. Considering all of the evidence, I am not persuaded the prospect of a viable employment relationship is so remote that reinstatement should be denied. 7 IV The employer is directed to reinstate Ms. Rodrigues and to amend her record to reflect a suspension of twenty days, the longest suspension the employer is allowed to impose under the Public Service Act. The time elapsed since termination far exceeds twenty days. Nonetheless, this is one of those rare cases where there should be no compensation for lost wages and benefits. Such compensation is denied because the grievor was seriously derelict in the performance of her duties over a prolonged period, even though her deficiencies were brought to her attention on numerous occaSIOns. Dated at Toronto the 24th day of April 2007