HomeMy WebLinkAbout1979-0079.Travers.82-02-11&fore : --
m. s. Gotige , Course1
Caneron. Brewin & 5cott
Ifearinnq :
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SUPPLEMENTARY AWARD #2
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This award is the Second Supplementary award in this case, which
had its beginnings in the Crievor’s discharge from his job as Correctional Officer 2
for assault on an inmate of Niagara Detention Centre. He was ordered reinstated
forthwith, by this Board, to a “substantially equivalent position” in the :Ministry of
Correctional Services in May, 1980. The Board was then acting under the authority
of s. 18(3a) of The Crown Employees Collective Bargaining Act, S.O. 1972, c. 67, as
amended S.O. 1978, c. 79, which prohibits the Board from reinstating an employee
to his former position if he has applied excessive force to a resident of a
correctional facility. Following the reinstatement order, the parties failed to
agree on what constituted a “substantially equivalent position”, and eventually they
returned to this Board for a ruling. A Supplementary Aw%d was issued on June 18,
1981, ordering that the Grievor be reinstated into the position of Clerk 3 General
at the Hamilton-Wentworth Detention Centre. This occurred on. August 10, 1981.
Since that date, the parties have been unable to agree on the issue of compensation
owing for the period between May 29, 1980 (the date of the order of reinstatement)
i and August 10, 1981 (the actual date of reinstatement). Therefore, they have
returned for a further ruling from this Board to settle the compensation issue.
It is the submission of the Union Counsel that the Grievor should
receive full compensation for the period ,May 29, 1980 to August 10, 1981 subject
to deductions for amounts earned elsewhere during this period and for a $700.
advance paid to him by the ‘Ministry in 1980. This would be calculated so as to take
‘into account the terms of the order of the Board in the first Supplementary +.ward,
which reinstated the grievor to the Clerk 3 General position at the rate of pay for
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a Correctional Officer 2 of his experience in ?Jay, 1980; this rate was to oe
maintained until the Clerk 3 General maximum salary reached that level. The
calculations, using these criteria, are as follows:
(I) To May 1, 1981 - $8.14/hour x 36% hours/week x 48 weeks =
$14,163.60
(2) May 1, 1981 to August lo,1981 - $8.40/hour x 36Y~ hours/week x
I4 weeks = $ 4,263.OO
Total $18,426.60
‘(3) Less amount earned elsewhere
(4) Less $700. advance
$10,106.36
$ 700.00
$ 7,620.24
The Union also requested that interest on this sum be granted in accordance with
the formula and principles in Re Air Canada and Air Lime Employees’ Association
(19811, 29 L.A.C.(Zd) 142 (Picher) and C.F.B. Borden Board of Education and
Federation of Women Teachers’ Association (unreported, February 3, 1981,
Swinton).
The Union argued that full compensation must be made to the
Grievor in order to give effect to the Board’s first Award. That Award reinstated
the Grievor with a heavy penalty - in effect, a suspension of almost 15 months. To
reinstate the Grievor in August, 1981 without any backpay would increase that
already heavy penalty significantly - in fact, almost doubling it.
Counsel for the Employer made several arglunents in the
alternative. First, he argued that no compensation was owing because of the
peculiar facts of this case. Whereas an employee who is reinstated in the average
case returns to his prior job, in this case, s. 18(3a) precluded that result. Instead,
the Grievor was reinstated to a substantially equivalent position. The parties were
left to interpret the meaning of that phrase for the first time, as that section was
of recent origin and had not been utilized by the Board in other cases. Because of
c the uncertainty, Counsel argued that the Employer should not have to pay
compensation until the Board gave guidance as to the meaning of the term - on
June 18, 1981. To do otherwise, he claimed, would penalize the Employer and
benefit an Employee who was already guilty of serious wrongdoing.
In the alternative, he argued that any obligation to pay
compensation arose only on January 21, 1981, when the position to which the
Grievor was ultimately assigned at the Hamilton-Wentworth Detention Centre
finally came open. The Board had stated in its Supplementary Award (p. 11) that in
this case the Crievor should not be allowed to. bump an innocent employee when /
there were other alternatives available. ,
The Employer also made two arguments based on mitigation
principles, which would preclude almost any compensation to the Grievor. First, it
was argued that the Grievor should have taken reasonable steps to mitigate his
losses over this whole period by finding alternative employment. Evidence was
presented of the places at which the Grievor had applied for work and the earnings
he made over the period, but the Employer argued that these efforts were
insufficient.
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i Secondly, Counsel argued that the Crievor should have mitigated by
accepting the position which the Empioyer offered him after the first Award of
.Liay 29, 19SO. That job was a Clerk 3 General at Mimic0 Correctional Cenrre, ar
the maximum salary for the Clerk 3 range. The Grievor lives 103 miles away, so he
was offered relocation expenses. There is some debate as to whetiter the offer was
with or without prejudice to -a grievance that this job was “not substantially
equivalent”. ?he Union felt that to take the job was to preclude further discussion;
the Ministry felt that they indicated no position to that effect (nor to the effect
that further discussion was open).
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Finally, Counsel for the Employer argued *that the Board has no
jurisdiction to deal with compensation for the period June 18 to August 10, 1981
because the last paragraph of the Supplementary Award was phrased as follows:
There will be no order as to
compensation for the period between the
date of the original award and the
present award, as the Board has been
requested not to deal with that matter.
Should the parties fail to reach
agreement, the Board will retain
jurisdiction to deal with the matter of
compensation or any problems arising
out of the implementation of this award.
This final jurisdictional issue is not one which needs a great deal of
discussion. If the paragraph is read as a whole, the Board has retained jurisdiction
to deal with compensation after June 18. The reference to compensation up to the
“present” (June 18) award is not exhaustive of the Board’s jurisdiction to address
compensation. The Board is reserving jurisdiction to deal with compensation for a
fixed period, as the parties requested. It also retained jurisdiction to deal with any
other problems arising out of the implementation of the award: undue delay in
l reinstatement and the consequent need to compensate for that new aggravation of -
! loss might well be a problem arising out of the Supplementary Award.
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That brings us to the issue of liability for compensation and duty to
mitigate. First, does the Employer have an obligation to compensate the Crievor
for the period from reinstatement on May 29, 1980? It is our view that the
Employer has such an obligation.
The Board cannot argue with the Employer’s submission that there
was a great deal of uncertainty with regard to the meaning of “substantially
equivalent position” in s. 18(3a). Indeed, we acknowledged the difficulty of
interpreting the section in our Supplementary Award and indicated that each
decision under that section will have to be made on a case by case basis.
Nevertheless, that fact cannot relieve the Employer from its obligation to take
immediate steps to find a position which seems suitable when a Grievor has been
reinstated under the terms of that section. To reach any other conclusion is to
leave a Crievor, who has been subjected to a penalty fixed by this arbitration
board, in a position where the penalty becomes more and more severe while the
Employer seeks a position for him. That result is inconsistent with the aim of
s. 18(3) of the Act, which allows the Grievance Settlement Board to set a penalty
which seems ,just in the circumstances.
No doubt, some people will be concerned that this decision will
allow a Griever to sit back and review positions offered by the Employer until one
satisfactory to him is found or until he decides to seek the assistance of the
Grievance Settlement Board. There are, however, practical constraints to such
Employee inaction: an Employee who refuses a job which the Board later rules to
be substantially equivalent would have great difficulty in convincing the Board that
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he is entitled to compensation for the period prior to the Board’s order. The danger
of such an adverse ruling will be an incentive to the Griever to accept what might
reasonably be regarded as a substantially equivalent position or, at least, as a
temporary substitute.
This brings us to the mitigation issue. We are not prepared to
accede to the Employer’s argument that an Employee in the Griever’s position is
required to mitigate, in the sense of seeking alternative employment. We are not
talking here of a breach of contract nor a discharge situation, where mitigation is
relevant to a compensation dispute; we are speaking here of an award by this Board
ordering that the Grievor be reinstated forthwith in LMay, 1980. It would be unfair,
indeed, to ask the Griever to seek alternative employment when he has just been
reinstated to a job with his prior Employer. Furthermore, his prospects would be
very limited if he went job hunting for a temporary position, for an indeterminate
period, pending reinstatement. What Employer would want to hire him?
That is not to say that the Grievor can ignore the Employer’s
reasonable offer of a new position at his previous sa1ar.y pending resolution of the
dispute as to what is “substantially equivalent”. It may take time for a suitable
position to be found or for one to come open (recognizing the reluctance to bump
another Employee). Counsel for the Employer suggested that the Climico job
should have been accepted on a temporary basis by the Crievor. We have difficulty
with that view, for the reasons which we gave earlier in finding that the job was
not substantially equivalent: there was either a commute of 103 miles involved or
relocation to an expensive housing market; there were family ties in Ridgeway; the
pay was lower than he had been earning; and no one discussed the possible
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temporary nature of the position. On these facts, it would be unreasonable to
expect the Griever to accept this job in mitigation.
The Board need not deal here with the issue of bumping, as
requested again, by Mr. Goudge for the Union. We did not rule on the necessity for
bumping in the first Supplementary Award because a substantially equivalent
position was already available at the time of that hearing at Hamilton-Wentworth.
To fix on the date that the ultimate position became vacant for
compensation would be unfair to this Grievor or to one in a similar case, for the
penalty fixed by the Board would then be extended for an indeterminate period
until an opening arose.
The difficulties in resolving the compensation issue, as well as the
reinstatement issue, demonstrate once again the tensions between ss. 18(3) and
18(3a) of the Act. The Board is empowered to substitute a penalty, but its
discretion is limited in a certain class of cases. The Board must interpret s. I8(3a),
insofar as it can, to reinstate the Griever to a substantially equivalent position
with a penalty which is not rendered “unjust” because of the difficulty in finding a
suitable position. It may be preferable, in the future, for the Board to consider
reinstatement anywhere in the Government service, rather than to the >linistry of
former employment, so as to facilitate settlement.
In this case, the Board orders that the Crievor be compensated for
the period :&lay 29, 1980 to August 10, 1981 in the amount of $7,620.24.
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The Employer argued that compensation should stop after lune !A,
because any delay in reinstatement resulted from the absence of the Union’s
representative, Lillian Stevens, on vacation in July. After hearing evidence, ‘we
accept the Union’s argument that Mrs. Stevens contacted the iMinistry in late June,
after receipt of the Board’s Supplementary Award, and sought implementation.
The .Llinistry delayed in responding, and she was next contacted while.on holidays.
Matters were not resolved until she returned in August, at the Union’s request.
We do not feel that the Union was responsible for the overcall delay.
Indeed, the Ministry could have contacted the Griever directly to see if he wanted
the job, rather than wait for the Union. Direct contact occurred a year before
with regard to the Mimic0 job. Therefore, compensation is owing until
August 10, 1981.
That brings us to the issue of interest. Interest has not been
awarded traditionally by arbitration boards, and this Board is no exception.
However, in three recent cases, Air Canada and C.F.B. Borden (above) and
Knudson and ‘The Crown in Right of Ontario (Liquor Licence Board of Ontario,
348/80 (Samuels) interest was awarded, using the.formula adopted by the Ontario
Labour Relations Board in Board Practice Note No. 13 (September 8, 1980). There
is an extensive discussion about the authority of boards of arbitration to award
interest and the rationale tnerefore in the Air Canada award. Essentially, the
rationale is one of compensation: an Employee who has been deprived of funds
because of an unjust discharge or suspension is deprived of the opportunity to use
those funds. He may even be forced to borrow funds, which in these days of high
interest rates is an expensive undertaking. In order to ensure that the Employee is
compensated because of this deprivation of funds, and is put in the position in
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which he would have been had he not been denied remuneration, he must be given
interest on the sums owing. Such an award is not to be regarded as punishment of
the Employer, but as compensation to the Griever.
In this case, we order that the Crievor be paid for the period
May 29, 1980 to August 10, 1981 in the amount of $7,620.24, as calculated, with
interest calculated on the basis of the formula adopted by the Ontario Labour
i Relations Board, in’practice Note No. 13, as requested by the Union. This Board
will retain jurisdiction to deal with any problems arising out of the implementation
of this Award.
DATED at Toronto this 11th day of February, 19S2.
Prof. K.‘Swinton Vice-Chairman
“-I dissent” (see attached)
Mr. E.R. O’Kelly ,Member
"I conm"
Mr. D. Anderson .L\ember
DISSENT
213/78 and 79/79 O.P.S.E.U. (David Travers)
I dissent from the majority award in this case which I feel
is unduly generous to the grievor. The employer acted promptly on
the Board's original award of May 29, 1980 by offering Mr. Travers
a position at the Mimic0 Correctional Centre together with a
re-location allowance. He decided not to accept this job and
the Ministry therefore advised him on July 11, 1980 that he was
on leave of absence without pay until a position was found. Mr.
Travers decided to take the gamble that he would get a position
and location more to his liking.
Inasmuch as the parties could not agree on a position they
returned to the Board for direction. The Board ordered re-instatement
to the position of Clerk 3 General at the Hamilton-Wentworth Detention
Centre on June 18, 1981. The question of compensation was left to
the parties to resolve.
The position at the Hamilton-Wentworth Detention Centre became
available January 21, 1981. In my view compensation should~ only be
allowed for the period January 21, 1981 to August 10, 1981 with. a
pro-rata offset for the grievor's earnings of $10,106.36 and also
less the $700 advance. The majority award noted that interest has
not been awarded traditionally by arbitration boards. I would not
have awarded it in this case.
,' ~. , ~:c- I' / .' .L ~.~ ~._.~ ~~.-..~~.~--._
E. R. O'Kelly
Member