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HomeMy WebLinkAbout2007-0353.Allan.11-01-06 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2007-0353 UNION#07-18 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Allan) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Jim Morrison Canadian Union of Public Employees Staff Representative FOR THE EMPLOYERGurjit Brar Workplace Safety and Insurance Board Counsel HEARINGDecember 9, 2010. - 2 - Decision [1]The grievor, Mr. Phil Allan, had grieved that the employer breached article 16.06 of the collective agreement by denying his request for a leave of absence. By decision dated January 14, 2009 the Board allowed the grievance. A further hearing was convened on December 9, 2010, to deal with remedial issues. [2] The grievor testified about the losses that resulted from the emSOR\HU¶VEUHDFK+H stated that if he had been allowed to accept the temporary assignment, for six months he would have worked with very competent colleagues at the Office of the Employer $GYLVRU ³2($´ DQGOHDUQHGIURPWKHPthat he would have had the opportunity particularly to develop new research, presentation and advocacy skills; and that he would have received further training on interview, interrogation and cross- examination skills. He lost all of these developmental opportunities as a result of the HPSOR\HU¶VGHQLDORIKLVUHTXHVW >@7KHJULHYRU¶VSRVLWLRQZDVWKat the arrangement with the OEA that he would receive a temporary assignment as Employer Specialist (rather than a permanent appointment) was made solely for his own benefit. It was an opportunity for him to work as an Employer Specialist for a six month period and decide whether he wished to accept the Employer Specialist position on a permanent basis. In other words, at the end of the six month temporary assignment it was his choice whether to return to his position at the WSIB or to accept a permanent Employer Specialist position at the OEA. On that basis, the grievor testified about the remuneration he would have received as a permanent Employer Specialist following the temporary assignment until his retirement expected after five years, and also as to the increased pension entitlement that would have resulted. [4] In the alternative, the grievor testified that if he had decided to return to the WSIB at the end of the six month temporary assignment, he would have had greatly enhanced skills and qualifications that would have enabled him to obtain a position of Early Resolution Officer. He testified about the increased remuneration he would have been - 3 - entitled to as an Early Resolution Officer up to his retirement in five years, and the resulting increased pension entitlement. >@,QWKHJULHYRU¶VYLHZWKHDSSURSULDWHUHdress for the loss of developmental opportunity is an order by the Board that the employer provide him with a paid leave of absence for a period of one year in order to enable him to take the paralegal program; that the employer pay all fees associated with that program; and that the employer allow a further paid leave of absence for one week to enable him to write the paralegal bar admissions course. [6] The grievor also testified that the Board should order that the employer compensate him for the difference in remuneration between his wages and pension entitlement in his present position as Return to Work Mediator at the WSIB, and such entitlement he would have received had he continued as a permanent Employer Specialist at the OEA until retirement. [7] In cross-examination, employer counsel confronted the grievor with documentary evidence before the Board, and suggested that the only offer the grievor received from WKH2($ZDVWKDWRIDVL[PRQWK³VHFRQGPHQW´DQGQRWDQRIIHURISHUPDQHQW employment. The grievor disagreed. In UHGLUHFWKHWHVWLILHG³0\XQGHUVWDQGLQJ based on discussions and correspondence with Ms. Carmichael was that at the end of six months if it was my desire to continue, I would resign from the WSIB and join the OEA, and I would be deemed to have completed probation and would continue on salary progression. It was very clear in my mind that if I wished to continue I would have been a permanent employHHKDYLQJFRPSOHWHGSUREDWLRQ´ [8] In his submissions, Mr. Morrison for thHXQLRQVXSSRUWHGDQGDGYRFDWHGWKHJULHYRU¶V remedial request. In the alternative, he sought an order that the employer pay to the grievor the amount of $50,000 plus interest, as compensation for the loss of developmental opportunities and actual monetary losses resulting from the loss of permanent employment as an Employer Specialist at the OEA or as Early Resolution Officer at the WSIB. - 4 - [9] Counsel for the Employer submitted that what the grievor requested, and what he was denied, was a six month leave of absence to accept a temporary assignment. That was WKHH[WHQWRIWKHJULHYRU¶Vloss. Anything beyond that is mere speculation. He thus submitted that any compensation awarded should only reflect the loss of developmental opportunity during a six month temporary assignment as Employer Specialist. Counsel agreed that while there was no evidence as to what specific training and experience the grievor would have received during the temporary assignment, that does not prevent an award of compensation. However, he argued that only a nominal award should be made. [10] It is very clear that had the employer DSSURYHGWKHJULHYRU¶VUHTXHVWIRUDOHDYHRI absence, he would have received the higher rate of pay of an Employer Specialist for the period of his six month temporary assignment. The Board was advised that the grievor had already been compensated for that loss. That leaves two claims in dispute, (1) compensation for alleged loss of developmental opportunity and (2) compensation for alleged monetary losses following the six month temporary assignment. [11] The employer does not dispute that the grievor lost the opportunity to develop his skills and qualifications. The issue is about how that loss should be redressed. There should be no debate about the value of developmental opportunities. The employer has itself UHFRJQL]HGWKLVLQLWV³/HDUQLQJ 'HYHORSPHQW3ROLF\´E\FRPPLWWLQJLWVHOI³WR providing employees with skills enhancement and developmental opportunities, both within the organization and within other orgaQL]DWLRQV´7KHJULHYRU¶VWHVWLPRQ\DVWR the developmental opportunities he would have received, had he been able to accept the offer of the temporary assignment (set out above at para.2) remains unchallenged and uncontradicted. While attaching a monetary value to that lost opportunity is difficult, that is not a reason to deny compensation or to award only nominal compensation. This is emphasized in Re Polymer Corp, (1959), 10 L.A.C. 51 (Laskin) at p. 64: There is no need to emphasize that the difficulty of assessing damages had never been a reason for denying a claim thereto based on an established breach of contractual or other obligations owed to the claiming party. - 5 - $VDUHVXOWRIWKHHPSOR\HU¶Vbreach of the collective agreement, the grievor was denied the opportunity to obtain valuable skills and qualifications. He is entitled to be compensated for that loss of opportunity. See, Re Jafri, 933/91 (Dissanayake) and th Ontario and O.P.S.E.U., (2004) 131 L.A.C. (4) 63 (Leighton); application for judicial review dismissed (2005) 137 A.C.W.S.(3d) Ont. Div. Ct. [12] I turn next to the grievoU¶VFODLPRIPRQHWDU\ORVVXSWRhis retirement date following the six month temporary assignment, and associated losses in pension entitlement. I ILQGWKDWWKHJULHYRU¶VFODLPthat he received an offer of a permanent position of Employer Specialist, to be accepted or rejected by him at the end of a six month temporary assignment period, is not supported by the evidence. His understanding to WKDWHIIHFWEDVHGRQ³GLVFXVVLRQVDQGFRUUHVSRQGHQFH´LVGLDPHWULFDOO\FRQWUDU\WRDOORI the evidence before the Board. The only correspondence in evidence as to the nature of the offer he received is an e-mail dated October 26, 2006 from Ms. Heather Carmichael, Manager OEA Services to the grievor. It reads in part as follows: It was a pleasure talking with you about the Employer Specialist position and we look forward to making the necessary arrangements to have you come on board. However, as discussed, there is a skill set gap relating to your advocacy experience that we are very concerned about. It is necessary that we close that gap, to make you a fully functional OEA representative: six months will give us the chance to mutually evaluate progress in achieving that end and determine whether it is worthwhile continuing the employee relationship. Rather than having you resign your employment at the WSIB while we undertake this 6 month evaluation period, it makes sense that we proceed with a secondment arrangement. This clearly establishes that the OEA was very concerned about a skill set gap relating to WKHJULHYRU¶VDGYRFDF\H[SHULHQFHDQGWKDWWKH2($ZRXOGEHDVVHVVLQJWKHJULHYRU¶V suitability at the end of the six month temporary assignment. It certainly does not suggest WKDWLWZDVWKHJULHYRU¶VFKRLFHWRDFFHSWRUUHMHFWDSHUPDQHQWSRVLWLRQ,ILQGWKDWWKH grievor was not offered a permanent position of Employer Specialist as he claims. He was offered a six month temporary assignment with the understanding that he would be - 6 - offered a permanent position at the end of the six month period, if, and only if, the OEA was satisfied, based on its assessment at the end of that period, that the grievor met the requirements relating to advocacy skills. [13] There is also no evidence that the grievor would have been able to secure a position of Early Resolution Officer, had he returned to the WSIB following the temporary assignment. In cross-examination the grievor candidly admitted that he had no evidence to offer in that regard, beyond his own opinion. [14] Based on the evidence, therefore, I conclude that the grievor did not suffer actual monetary losses, as a result of loss of permanent positions, either as Employment Specialist at the OEA or as Early Resolution Officer with the WSIB. [15] However, that is not to say that the grievor suffered no loss at all. He did lose the opportunity to use the six month period in a temporary capacity to aWWHPSWWR³FORVHWKH JDS´LQKLVDGYRFDF\VNLOOVDQGFRQYLQFHWKH2($WKDWKHGLGSRVVHVVWKHUHTXLUHG advocacy skills. If he had been successful in doing so, he would have been offered a permanent position of Employer Specialist. It is unknown as to what training and experience the grievor would have received during the six months to enhance his advocacy skills. Similarly, one could only speculate whether he would have been able to meet the expected standard in advocacy skills at the end of the six months. However, that does not mean that he suffered no loss. He did lose the opportunity to prove himself and to attempt to secure a permanent position. He is entitled to be compensated for that loss. [16] As a result of the foregoing, the grievor is entitled to be compensated with respect to loss of the developmental opportunities over a six month temporary assignment as Employer Specialist, and for the loss of the opportunity to demonstrate to the OEA that he did possess the required advocacy skills to deserve an offer of a permanent position. > - 7 - program leading to admission to a profession regulated by the Law Society was not the same as a six month temporary assignment as Employer Specialist. He stated, however, that the paralegal program was the "closest thing" he could find, to the training and qualification opportunity he was denied as a result of the employer's breach. Neither party was able to suggest a developmental opportunity that would reasonably replicate what was lost. The only feasible remedy in the circumstances is to award compensatory damages, even though attaching a monetary value to the lost opportunity will necessarily be difficult and imprecise. [18] Similarly, one could only speculate as to whether or not the grievor would have received an offer of a permanent position at the end of the six months. What is known, however, is that he lost the opportunity to attempt to acquire the required advocacy skills during the six months, and attempt to convince the OEA that he had in fact closed that skill set gap. That lost opportunity must also be compensated through an award of monetary damages. [19] Despite my earlier finding that there is no evidence justifying a conclusion that the grievor would have been able to secure a particular position as a result of the newly acquired skills and experience I, accept that the grievor would generally have been in a better position to compete for promotions had he acquired the training and experience that he would have received during the six month temporary assignment. This is a factor to be considered in assessing damages. However, I also take into account the evidence that the grievor was close to retirement. The grievor's testimony throughout was premised on an assumption that he would have retired after five years following the six month temporary assignment. [20] I accept the union's submission that the offer the grievor received from the OEA was not one of a routine six month temporary assignment. As set out in the Board's earlier decision dated January 14, 2009, at para. 9, the grievor had been declared the successful candidate in a selection process for a permanent Employer Specialist position. He would have been offered the position but for the concern the OEA had about his advocacy skills. It was to address this concern that the grievor received an offer of a temporary assignment. Therefore, unlike the usual temporary assignment, where the employee may - 8 - reasonably be expected to return to his or her home position at the end of the temporary assignment, this was a temporary assignment subject to "a special arrangement" under which there was the potential of permanent employment at the end of the temporary assignment. Therefore, from the grievor's point of view, the loss was greater than the loss of a temporary assignment and the related developmental opportunities. [21] However, counter balancing this is the fact that the grievor did not at any time make the employer aware of the "special arrangement". Prom the employer's point of view what was requested and denied was a leave of absence to accept a six month temporary assignment and nothing more. Thus in his written request for leave the grievor states "I have been offered a six month secondment with the office of the Employer Advisor..." No mention is made of the potential for permanent employment. Moreover, as employer counsel pointed out, throughout his attempts to have the denial of his request for leave reversed, the grievor focussed on arguing that he would acquire skills and experience as Employer Specialist, which would greatly benefit himself as well as the WSIB upon his return to his home position. Therefore, the employer could not reasonably be expected to be aware that by denying his request for leave it may be jeopardizing a potential opportunity for permanent employment. [22] I find the employer's lack of awareness of any "special arrangement" as a factor that should be considered in assessing the quantum of damages. While recognizing that here the Board is faced with a breach of a collective agreement, as opposed to an individual contract, by analogy I find that "the Rule in Hadley v. Baxendale" that has been applied for more than a century in assessing damages for breach of contract to be of assistance here. Under this rule only damages that can be reasonably expected to be within the contemplation of both parties at the time they entered into the contract are recoverable. See, Hadlev v. Baxendale, (1854), 9 Exch,. 341. Particularly relevant is the following statement by Alderson B. at pp. 354-355. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and - 9 - communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. [23] There is no developmental opportunity that the Board has been made aware of that could reasonably replicate the development opportunity lost by the grievor. That loss must be remedied by compensatory damages, together with damages of the opportunity the grievor lost, to attempt to obtain an offer of permanent employment as Employer Specialist from the OEA at the end of his temporary assignment by allaying its concern about his lack of advocacy skills. [24] Neither party suggested a formula for computing damages in the present case. Employer counsel simply suggested that only a nominal amount should be awarded. Mr. Morrison sought an award of $50,000 net plus interest. Having regard to the relevant considerations discussed above, in the particular circumstances the Board concludes that an award of damages in the amount of $ 20,000.00 is reasonable. The employer is hereby ordered to make that payment to the grievor as soon as it can be reasonably arranged. For clarity, this award of damages is in addition to compensation the grievor has received already. Dated at Toronto, this 6th day of January 2011. Nimal Dissan'ayake, Vice-Chair