HomeMy WebLinkAbout1975-0006.Noble.77-03-08Before: D. M. Beatty Chairman
G. K. Griffin Member
S. R. Hennessy Member
For the Grievor:
G. Richards, Ontario Public Service
Employees Union
For the Employer:
N. Pettifor,, Ministry of Transportation
and Communications
Hearinq:
February 21, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario
CROWN EMPLOYEES -~ ‘416 964-6426 suite 405
GRIEVANCE SETTLEMENT 77 Bloor Street Kit
E0AR0 TORONTO, Ontario
M5.S lM2
IN THE,MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE-GRIEVANCE-SETTLEMENT BOARD
Between: .Mr. S. C. Noble
And
Ministry of Transportation & Communications
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In an earlier award between these same two parties
this Board articulated its conclusion on the merits of
Mr. Noble's grievance against his dismissal in the following
terms:
.%n&g faiZed to prove some culminating or
final incident for which discipline could
properly be imposed, it necessarily folkms
that the gr-ievor must be exonemted of any
wrongdoing. In the resuZt, and for the
reasons given we wouZd order the gr-ievor
to be reinstated, forthz-ith, to the position of Highway Equipment Operator 3, in the
Ministry ‘6 Listmel Branch, with fuuZ1
compensation, benefits and service credits
from the date of his dismissal less any
monies he would not othemise have received but for his dismissal. In the wztikely event the
parties have diff<culties in the implementation
of this award, this Board will remain seized of
those inatters.
Re Noble 6/75.
Although, as we anticipated, the parties did not have any difficulty
in agreeing upon the governing principles by which Mr. Noble's
compensation was to be calculated, or upon the major heads of
compensation that flowed therefrom, two narrow and very specific
points of detail have created some differences between the
parties and have caused them to submit those matters to us for
our determination.
Both of these issues flow from and concern the employment
the grievor was able.to secure with E. and E. Seegmiller Limited
following his dismissal and prior to his reinstatement by this
Board. In that regard it was agreed between the parties that
Mr. Noble was hired by this company as a Heavy Equipment Operator
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during the period from September 8, until December 3, 1975.
Moreover, on the evidence adduced before this Board it is agreed
that in this capacity Mr. Noble was paid on a bi-weekly basis
and that his hours of work, as calculated on that basis, varied
between a maximum of 98 and projected minimum of 61. As well,
and again on the agreement of the parties, it is a matter of
record that in travelling to and from his home td this employment,
Mr. Noble was required to drive some 5,576 miles, exclusive of
those miles that he would normally have been required to drive
had he been reporting for his regular employment with this Ministry.
Against those specific facts, the parties have submitted to this
Board the following points of difference. Firstly, the parties
were unable to agree whether Mr. Noble should be entitled to
exclude from those "monies he would not otherwise have received
but for his dismissal" the earnings that may be credited against
those hours he worked for E. and E. Seegmiller Limited, in excess
of eighty, in each two week period, as being in excess of the
normal hours of work that prevail in the Ministry. As to the
second matter, the parties were divided as to what rate of compensation
should be paid to Mr. Noble for the transportation costs associated
with his travels to and from his place of employment during the
interval he was obliged to remain off work from the Ministry.
As noted above and these two specific issues aside, the
parties themselves were able to agree upon the governing principles,
against which the amount of compensation that was due and owing
to Mr. Noble following our order of reinstatement was to be
settled. However and their consensus notwithstanding, we think
it important, both for the guidance of others, and to put in its
proper context our decision in this particular case, for us to
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generally outline the principles on which the damages that flow
to a person who has been improperly dismissed ought to be
calculated. In doing so we would note that these principles
have been derived from and reflect the principles of the cormnon
law pertaining to the compensation that ought to be paid generally
by persons who have breached their contracts. As such it is
not surprising that these principles have been uniformly accepted
by arbitrators in the private sector with respect to breaches
of collective agreements. Essentially, it was and remains the
overriding and governing perception of the common law jurisprudence
that in cases of breach of contract, of which the collective
agreement is but one example, the purpose of an award of damages
is to put the aggrieved party in the same position he would have
.
'been in had there been no breach of contract. Thus and.as stated
by one board of arbitration:
Stated in tke abstract, the relevant principZe
is quite clear. The purpose of dcnnages for
breach of contract is not to punish but to
compensate, and the function of compensation
is to place the aggrieved party in a monetary
position as near as possible to that in which
he would have been had the contract been perfoned.
Re Canadb Johns'ManviZZe Co; Ltd. 11971) 22 L.A.C. 396, 397-6
(Weilerl.
Against that general principle however,the common law in general,
arbitrators in particular, have engrafted certain basic qualifying
or limiting rules. of these, the, principle that requires the aggrieved
party to make reasonable efforts to reduce and mitigate his
losses is relevant to the issues separating these two parties.
This principle, again derived from the comnow law, has been
described in the following terms:
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The principZe upon which the appeal ought to
be decided is expounded at Zength in the
ju&ment of Lord Balckzne in British Westinghouse
Electric Co. v. Underground Electric Railways Co.,
1191a ,A.C. 673, at pp. 689 and 690. After
stating the general principle that when a contract
is broken the injured party is entitled generally
to receive such a sum by my of damages, as wil2,
so far as possible, put him in the same position
as if the contract had been performed - the d&ages
being Zimited to those that are the natural axd
direct consequences of the breach - his Lordship
proceeded as foZlovs:-
"But this first principle is qualified by
a second, which imposes on the plaintiff
the duty of taking all reasonabZe steps
to mitigate the loss . ..'I
r, . . . this second principte does not impose
on the plaintiff an obligation to take
any step which a reasonabZe and puaknt
man would not ordinarily take in the course
of his business."
Re Cockburn vi 'Trusts and Guarantee'Co. (1917) 37 D.L.R. 701 at p.702,
55 S.C.R. 264, quoted in Re Vulcan Containers 'lCaMda'Ltd. 119701
21 L.A.C. 167, 170 (Christie).
Applied to the circumstances of dismissal cases, it is this duty
which obliges the employee to make reasonable efforts to reduce
his losses by searching for alternate employment."-%-Canadian
Salt Co. Ltd. 119741 7 L.A.C. l2dl 197 (Fergusonl; Re~CiviZ Service
Association of~Caada (1972) 24 L.A.C. 26 lBrml. However and
while the law imposes a duty on the employee to make such reasonable
efforts to mitigate his losses, it is also, generally recognized that
he will be entitled to offset against the compensation received
from such alternate employment those~expenses which he necessarily
and reasonably incurred in searching for and maintaining that
alternate employment. ~Re~Canadiar~Pacific RaiZw@'Co. (1964)
15 L.A.C. 160 Gaskin).
Against those overriding considerations it follows that as
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a general proposition all of the monies earned by Mr. Noble in
his,employment with E. and E. Seegmiller Limited are monies
which, but for his dismissal, would not have been earned by him
and should therefore be deducted from the compensation that he
would have earned had he remained with the Ministry during the
period in question.' 'Re ~Capitat'Wire'Cloth~Ltd. (1975) 10 L.A.C.
12dl 151 (Abbott); Re Board of Governmwbf Riverdale Hospital
11974) 7 L.A.C. 12dl 414 @rownl; Re ~Firestom'SteeZ Prodtits
of ~Camda'Ltd. 6 L.A.C. (2dl 16c'WeathmiZZ). Were it otherwise,
and were the grievor entitled to claim the compensation that he
otherwise would have received had he not been dismissed and
simultaneously retained his earnings from E. & E. Seegmiller,
the grievor would have been put in a better position than if the
contract had been performed. Put somewhat differently, if one
were not to deduct the monies that were earned by the grievor
and which would not otherwise have been earned but for his dismissal,
the very purpose of requiring an aggrieved person to seek out
alternate employment would be frustrated and the duty to mitigate
would be rendered superfluous.
Accordingly it follows from these principles that in the
absence of any evidence by which one could distinguish or segregate
any of the hours worked by Mr. Noble for E. and E. Seegmiller Limited,
this Board must treat all of the earnings received by him from
that employment as earnings that he would not otherwise have
received but for his dismissal. As such, it follows from the
principles noted above that all such sums must be deducted from
the amount of money he would have earned had he not been dismissed
from the Ministry. Put somewhat differently, and while we do not
wish to be taken as expressing any opinion on this issue, even if
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an argument could be made that Mr. Noble would not, under the
rubric of a duty to mitigate, be obliged to work more than forty
hours per week, nevertheless the fact remains that he did work
the hours indicated and did receive straight time earnings therefrom.
As such, without attempting to fully delineate the nature of the
duty to mitigate, those earnings are monies which are relevant
to defining the grievor's actual loss and accordingly must be
taken into account in determing the sum of monies due and owing to
him. In short and while we express no opinion onwhether someone
such as Mr. Noble would be required, under a theory of mitigation, to
work all overtime hours offered to or requested of him, in the
circumstances of this case, if Mr. Noble is to be placed in the
same position as if the collective agreement had not be violated,
then all of the monies actually earned by him from that alternate
employment must be deducted from the compensation that he otherwise
would have received had he not been discharged.
On the second issue, we have already noted that it follows
from the duty that is imposed on a claimant to mitigate his losses,
that he is entitled to deduct those expenses necessarily and
reasonably incurred in discharging that duty. Indeed, in the
circumstances of the instant case, there is no evidence before
this Board to substantiate nor did the employer in any way advance
the claim that the transportation cost associated with the grievor's
efforts to mitigate his, losses was either an unnecessarily or
unreasonable expense. Nor did the employer offer any evidence or
present any argument that alternate means of transportation were
available to this employment which were more economical. To the
. . __I
-a-
contrary, drawing on a distinction apparently recognized in the
Federal Public Service between an employee using his own private
automobile for government business at his own behest rather
than at the employer's request, the employer in this case argued
that an allowance, reflecting only the "operating costs" (e.g.
gas, oil, maintenance, etc.) associated with his travelling and
excluding such other "costs of ownership" as depreciation, insurance
and licence fees, finance charges, etc. was the proper basis on
which the expenses Mr. Noble incurred in mitigating his losses
should be calculated.
In~our view and whatever merit the distinction drawn
by the employer may have in other contexts for other purposes,
it is simply not relevant to the issue before us. Very simply
and even on the employer's own terms, it is clear that it was
as a result of the duty imposed by law on the grievor to mitigate
his loss and not on the basis of any personal predilections
that Mr. Noble was obliged to make use of his car. Moreover
and more critically, given the issue before us, to the extent
that there was no suggestion that this travelling expense was
either unnecessary or unreasonable, then it follows that all of
the costs associated with the travelling to and from his place
of alternate employment were a part of the actual loss tliat
the grievor suffered as a result of his dismissal and he is
entitled to be compensated for them. Put succinctly, there is simply
no basis, given the issue before us, on which we would justify
allowing the grievor tom deduct from the earnings he secured
from his alternate employment only his "operating" costs and
r? ,.;
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not those other "costs of ownership". In short, there is, in
our view simply no basis for excluding any part of the grievor's
actual costs of transportation which were incurred in his attempt
to mitigate his losses. In our view, once proven, all of those
costs were "necessarily and reasonably" incurred in his attempt
to reduce his losses. Accordingly and in the circumstances of
this case, we would order that the grievor be allowed to deduct
from the earnings he received'from E. and E. Seegmiller Limited
the total costs incurred in travelling to and from the place of
employment which may be computed on the basis of nineteen cents
a mile for the first five thousand miles travelled and fourteen
cents per mile for the remainder. In our view such a sum fairly
represents the total costs, both "operating" and "ownership"
that were necessarily and reasonably incurred in earning his
wages at E. and E. Seegmiller Limited. In selecting these
figures as fairly and accurately reflecting the costs of
transportation that are associated with the use of a private
automobile, we would note that we have used as our guide
Article 28.1.2 of the current collective agreement between the
union and the employer. That is, in our view and by the parties'
own agreement, such figures represent a fair and accurate
assessment of the average total costs in operating and maintaining
an automobile. Accordingly, and in the absence of any evidence
or suggestion that the grievor's costs materially or substantially
differed from that norm, we are disposed to accept the rates
agreed to by the parties themselves.
In the result, and for the reasons given, this Board
orders that:
a) the grievor be required to credit towards the
"monies he would not otherwise have received
but for his dismissal" all of the earnings he
received during the course of his employment
with E. and E. Seegmiller Limited; and
b) the grievor be entitled to deduct from those
"monies he would not otherwise have received
but for his dismissal" as reasonable and
necessary expenses incurred in earning those
monies a sum to be calculated at the rate
of nineteen cents per mile for the first
5,000 miles and fourteen cents per mile for
each succeeding mile, to cover the costsof
'. transportation associated with his securing
and maintaining that alternate employment.
Dated at Toronto this 8th day of March, 1977.
I co-
G K Griffen
Member
.r concur
S. R. Hennessy
Member