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HomeMy WebLinkAboutNajafi 20-04-21IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE ("College") and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("Union") AND IN THE MATTER OF A GRIEVANCE OF MEHRDAD NAJAFI Stephen Raymond Arbitrator Aooearances for the College Timothy P. Liznick Counsel Timothy Bingham Manager Labour Relations Erin Campbell Senior Human Resources Consultant Frank Rosa Director, Client Engagement for IT Services Appearances for the Union: David Ragni Counsel Mehrdad Najafi Grievor AWARD This is an arbitration of a grievance in respect of the discharge from employment of Mehrdad Najafi ("the grievor"). There is no issue as to my jurisdiction. By decision dated December 13, 2019, 1 directed the parties to make written submissions on two issues. The first issue is in respect of the grievor's damages for the loss of reinstatement. By way of background, the College made a motion that there is a strong labour relations purpose in not continuing this matter and that I should issue an award to the grievor in respect of his damages for loss of reinstatement. The College also consents that if this is the only amount to which the grievor is entitled that it would pay the amount despite its view that it has a strong case and will succeed in this arbitration. The College had set out its calculation of the grievor's potential damages. The Union had not. I directed the Union to do so. It has done so. The College has responded to the Union's calculation. The second issue is in respect of a further group of damages to which the grievor might be entitled if there are any material facts asserted which, if true, might provide the grievor with a further entitlement. The heads of damages are in respect of loss of reputation, mental suffering, damages to health and breach of privacy. I directed the Union to particularize the material facts upon which it would intend to lead evidence in respect of these heads of damages. The Union has done so. I would then receive submissions from the parties as to whether if I assume the material facts plead to be true and provable would they give rise to a prima facie case such that the Union should be permitted to lead evidence. On the other hand, if not, I may dismiss those claims for damages without any further hearing. 21Page I will address the first issue and then the second CALCULATION OF DAMAGES FOR LOSS OF REINSTATEMENT The College submitted that the appropriate amountfor damages for loss of reinstatement was for the period of seventy-four weeks from July 2, 2015 to December 4, 2016 when the grievor was unemployed. It calculates that amount as $ 88,411.50 (74 weeks at $1,194.75 per week). It accepted that the grievor is entitled to interest on that amount. In the College's subsequent submission in reply to that of the Union, the College asserted that the damages should be reduced by earnings received from Centennial College prior to December 4, 2016 in the amount of $ 12,725.05. Its new calculation of the entitlement is $ 75,686.45 plus interest. The Union submitted that the appropriate amount for damages for loss of reinstatement is in the approximate range of $ 184,320.81 to $ 222,265.00 plus interest. The difference between the two numbers is due to a number of arguments that the Union makes in support of a higher number. Briefly, it asserted that had the grievor not been terminated, he would have won a job competition and earned the corresponding higher rate of pay. I have nojurisdiction in this grievance in respect of the termination of his employment to determine the grievor's entitlement in respect of a job competition in which he never actually competed. The Union seeks the pay increases that the grievor would have received had he worked the seventy-four weeks. I agree. The Union seeks vacation pay on top of the amounts. I disagree. Had he worked, he would have earned what the College has calculated during the seventy-four weeks not that amount plus vacation pay. 31Page The Union seeks pension loss. I disagree. On September 18, 2018, 1 ordered the Union to enumerate the grievor's damages for loss of reinstatement. At the time, the Union sought fifteen percent for benefits. I have included this amount in my calculation below. At that time, that amount was a catch- all for any special allowances such as gym memberships, etc.. I calculate his damages for loss of reinstatement as follows: 74 weeks @ $1194.75 $ 88,411.50 Wage increases during the period $ 10,040.70 Subtotal $ 98,452.50 15% benefits $ 14,767.88 Subtotal $113,220.38 Less mitigation earnings $ (12,725.05) Tota I $ 100,495.33 This is the calculation of the damages in lieu of reinstatement. In addition to the $ 100,495.33, the grievor is entitled to interest as set out in the attached Schedule A in the amount of $ 6,264.58 for a total of $106,759.91. 41 Page OTHER DAMAGES I turn now to the second issue. That is, are there any material facts upon which, if true, I might make an award in respect of loss of reputation, mental suffering, damages to health and breach of privacy. There is no possible claim to loss of reputation. In order to award, I would need material facts plead of particular words or statements about the grievor by the College or its agents. I have none Damages for mental suffering and damages to health can be addressed together. Having reviewed the extensive submission of the Union in support of the grievor's claims in this regard, there are no material facts alleged which could ground these claims. The conduct raised did not form part of the grievance before me. It could have been the subject matter of another grievance had it been raised in a timely manner. The grievance filed on July 21, 2015 concerned only the grievor's termination of employment. The facts alleged in respect events after the termination of employment can be considered to be the consequences of losing a job. They are not separate actionable conduct by the College. Finally, I turn to the breach of privacy. The grievor cannot sustain a claim for breach of privacy, even if all the facts plead are true. First, the College does not breach his privacy when it accesses information available about him on the internet. Second, the College does not breach his privacy when it accesses its own system. Users were told clearly and plainly that the College's own system was subject to monitoring by the College. When the College engages in that monitoring, it cannot be acting in breach of the grievor's privacy when no such anticipation of privacy exists. The grievance is hereby resolved 51 Page Dated at Toronto, this 215Sday of April, 2020. Stephen Raymond 61Paae SCHEDULE A Start Date End Date # of Prejudgment Interest ($ x % x Days I DayslnYear) days Rate $100,495.33 x 1.00% x 183 I 2 -Jul -15 31 -Dec -15 183 1.00% $503.85 365 $100,495.33 x 0.80% x 731 I 1 -Jan -16 31 -Dec -17 731 0.80% $1,605.73 366 $100,495.33 x 1.30°k x 901 1 -Jan -18 31 -Mar -18 90 1.30% $322.14 365 $100,495.33 x 1.50% x 183 / 1 -Apr -18 30 -Sep -18 183 1.50% $755,78 365 $100,495.33 x 1.80% x 92 ! 1 -Oct -18 31 -Dec -18 92 1.80% $455.85 365 F $100,495.33 x 2.00% x 476 1 -Jan -19 20 -Apr -20 476 2.00% $2,621.14 365 Total PreJudgment $6,264.58 Interest: $106,759.91 Total Amount: