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HomeMy WebLinkAbout1979-0218.Figliano.79-11-16INTERIM AWARD IN THE!MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE.BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Mr. Anthony Figliano And (Grievor) Ministry of Transportation and Communications (Employer) J.R.S. Prichard Vice-Chairman V.P. Harris Member S.R. Hennessy Member For the Grievor: ‘I.G. Scott, Q.C. Cameron, Brewin & Scott M. Pratt Ontario Public Service Employees Union For the Employer: D. K. Gray Hicks, Morley, Hamilton N.H. Pettifor Ministry of Transportation & Communications Hearing: October 26 and November 9, 1979 . . - 2 .- In this, grievance, the grievor, Mr. Anthony Figliano, a Clerk #3 in the Suppl~y and Services Division of the Ministry of Transportation and Communications, grieves his discharge from his position with the Ministry. His grievance (Exhibit 2) stated: "That I have been unjtistly dismissed from my position of Clerk #3 General." In relief the grievor requested: "That I be reinstated to the above position with full compensation and no loss of pay or credits." At the first hearing in this matter on October 26, 1979, counsel for the Ministry stated a preliminary objection to the Board's assumbtion of jurisdiction in thiscase; The Ministry argued that the grievor resigned from his position with the Ministry and that he was therefore not dismissed by the Ministry, As a result, the Ministry argued, the grievor had no right to grieve the matter and the Board had no jurisdiction to hear his complaint. This objection was communicated to the Union and the Board in advance of the hearing ,by letter (Exhibit 3) dated September 27, 1979 which read: Dear Sir: Re: Mr. A. Figliano - File No. 218/79 The Deputy Minister has received notification from the Registrar that a grievance alleging unjust dismissal has been filed, on behalf of the above-mentioned former employee of this Ministry, by the bargaining agent. This is to serve notice that the Ministry will make a preliminary objection at the hearing to the Board assuming jurisdiction, on the grounds that the employee was not dismissed, but, rather, submitted an unsolicited resignation, in accordance with Section 19 of The Public Service Act, R.S.O. 1970, Chapter 386, and that, in accordance with the same Section 19,‘the Deputy Minister, through his designee, withheld his approval of a later reguest by Mr. Figliano to withdraw his resignation. As Mr. Figliano has clearly not been dismissed or suspended from employment for cause, it will'ba the Ministry's position that there are no rights of grievance contained in the Crown Employees Collective Bargaining I’ -3- Act in respect of this matter end that there has been'no breach of the Collective Agreement in respedt of Working Conditions, end that the Deputy Minister, through his designee, has exercised his untrammeled management right, which is not subject to review by a Board. Yours truly,{ IJC:NHP:rd I. J.~COWen Director of Personnel C.C. Mr. G. Richerds~ Mr. R.J. Cartwright Mr. J.R. Scott As is usual in such cases, the Board, with the parties consent, agreed to hear evidence and argument on the question of whether or not t the grievor resigned in order to determine whether or not the Board had jurisdiction since the issue of a resignation is a questionof both fact and law. The Ministry also took, the position that if after hearing'the~- : evidence and argument, the Board were to deny the preliminary objection finding that the grievor was dismissed, then the Ministry would submit that the grievor was dismissed for just cause. In light of this alternative position it was agreed by the parties that in order to avoid bifurcating the hearing, both parties would adduce evidence and make argument on the question of just cause as part of their cases at the initial hearing. As a result of these procedural decisions, we heard evidence and argument on both the resignation and just cause issues. However, it'should be noted that at the conclusion of the Union's case, counsel for the Ministry elected to call no evidence on either issue, restricting his case to argument based on the evidence adduced by the Union. As a result, on the issue of just cause, there was very little evidence relating to the grievor's job performance on which a just cause argument could be made. Indeed, the only evidence was a memorandum (Exhibit 7) written by the grievor's supervisor commenting on his -4- attendance record. It stated: The memorandum is sent to you to document our discussion regarding your late arrivals to work since January 2nd, 1979. In the last three and a half (3-Jr) months you have been late a total of thirty times in seventy three (73) days. Although the time has been made up on each occasion it is still a black mark against your record as to your reliability in arriving to work each day. Your hours of work are from 8:15 a.m. to 4:30 p.m. An improvement in your attendance is expected immediately. J. E. Smith Head, JES/md C.C. T.M. Fraser Records Management Section During his argument, counselfor the Ministry agreed that no credible case for just cause for dismissal could be made on the basis of this relatively meagre evidence and as a result he indicated that he relied exclusively on the resignation issue. Thus, while nominally the case was argued with the alternative argument, ,the entire thrust of the case was turned to the resignation issue. AS a result, it was agreed.that if the Board were to find that the grievor had not resigned and had in fact been dismissed, the grievor should be reinstated to his 'position given the absence of evidence supporting the allegation of just cause. At various stages in the hearing counsel for the Ministry expressed his concern that while the grievance referred to the grievor's being "unjustly dismissed", the entire thrust of the Union's case centered on the question of resignation. Counsel appeared to be arguing that since the grievance referred to discharge, -5- the Union's case must be restricted to the question of just cause. Unfortunately, to the extent this was counsel's position, it demonstrated some misunderstanding of the grievor's necessary position. An employee who expresses his desire to continue working or to return to work and who is met by the employer's stance that he has resigned from his position has no alternative but to allege that he has been unjustly dismissed. While from the employer's perspective, the employee may,be v'iewed as having resigned, from the employee's ,perspective the employer's refusal to allow‘the employee to work is viewed as a dismissal. Therefore, it has long been accepted in arbitral jurisprudence that,the appropriate procedure for resolving these competing perceptions is for the employee to grieve alleging discharge and for the employer to state a preliminary objection ,alleging that the employee resigned. The arbitration board's function is then to proceed in two stages. First, the board must determine whether or not the employee resigned. If he did, the grievance is dismissed. However, if the board concludes that the employee did not resign, then it must consider whether or not the employer had just cause for dismissing the employee. If just cause is found, then the grievance will be dismissed on that ground. If just cause does not exist, the grievance must be allowed and the grievor reinstated. (For a summary of arbitral jurisprudence in this regard, See Brown and Batty, Canadian Lab0u.r Arbitration (1977). pp. 393-397.) This is exactly the procedure adopted by the Board in hearing this grievance. Given the Ministry's decision to rely exclusively on the resignation issue and to abandon the just cause argument, counsel for the Union quite properly focussed exclusively on the resignation issue in his argument at the conclusion of the evidence. I . _.’ \ -6- During his argument, counsel for the Union, following the usual practice, requested that the Board remain seized of the grievance on the question of compensation in the event that the Board were to reinstate the grievor. Counsel for the Ministry took no objection to this request, and the Board agreed to it. During argument, in response to a question from the Board, counsel for the Unionagreed that the Board was free to give'directions on its decision on the question of compensation for time off work in the event the grievor was reinstated and some argument was taken on the merits of this issue. At the conclusion of the hearing the Board indicated that in light of the circumstances of.the case we would try to issue a decision as quickly as possible to avoid further prejudice to the parties and that we would send a telegram to the parties summarizing our conclusions. This is the normal practice of the Board in cases involving'the potential reinstatement of an employee and it is a practice which in the past both the government and the Union have indicated their support for. In cases, where a telegram is sent the Board indicates in the telegram that written reasons for the decision will foll,ow,~.once the Board has had an opportunity to reduce its reasons to writing in a full award. The hearing was held on October 26, 1979. On Thursday, November 1, 1979 the following telegram was sent to the parties: "The Board orders that Mr. A. Figliano be reinstated as of Monday, November 5, 1979 with no compensation for time off work. Written reasons to follow in due i cour*e . J. Robert S. Prichard, Vice-Chairman, Grievance Settlement Board." The telegram reflected the Board's conclusion that the gri~eyor had not effectively res,Igned~from hi~..pos.~tion'wttb~.the'.~linktry, and that he had therefore been dismissed without just cause. The decision that there should be no compensation for time off work reflected the Board's conclusion that then grievor had through his own conduct contributed to the circumstances which led to the Ministry"s decision not to allow the grievor to continue work and that the Ministry should not therefore be obliged to compensate him for the time he was off work. We made this decisionexercising our authority under Section 18 (3) Of the Crown Employees Collective Bargaining Act, 1972, R.S.O. 1972, C.67, as emended. We have not yet issued our written award supporting these conclusions. The reasons are extended and relatively difficult, deriving from the collected jurisprudence relating to resignation. It is important that in order to guide the parties in future cases that these reasons be developed fully and carefully and this cannot always be accomplished with the same speed that the need for the result of the reasoning dictates. Thus, the,telegram is used to communicate the result, with the written award restating the result and adding the reasoning behind it. The Board will issue its reasons shortly in its final award in this matter. .'?ti All of the above serves as background to this interim award. Soon after the Union received our telegram, Mr. Pratt, counsel for the Union at the first hearing;contacted the Vice-Chairman of the Board, indicating that the grievor would have difficulty returning to work on November 5 because he was enrolled full-time in an educational progratmne at Humber College, Mr. Pratt asked if the Board would delay the reinstatement date to allow the grievor time to rearrange his affairs in order that he could return to his job without -8- jeopardizing credit for his academic work. The Vice-Chairman explained to Mr. Pratt that the Board had not consi.dered this question and that Mr. Pratt should contact Mr. Pettifor, counsel for the Ministry, to see if some mutually acceptable arrangement could be made with the Ministry to delay the reinstated date. Late on Thursday, November 1, Mr. Pratt delivered to the Board a letter asking the Board to schedule a hearing at the earliest possible date to consider the request for a delay in the reinstatement date since he had been unable to find a mutually acceptable arrange- ment with Mr. Pettifor. The letter read as follows: Dear Sir: Re: 218/?9 OPSRU (Mr. Anthony Figliano) and Crown/Ontario (Ministry of Transportation and Communications- I have received by telegram the Board's decision in this matter. While the direction to reinstate the Griever is ,what We desired, the timing of the reinstatement as established by the Board causes this Union to hereby ask for an immediate hearing so that We can seek a reconsider- ation of that timing. We raise the following points: 1. Griever is presently in full-time attendance at Humber College. The semester does not end until December 2Oth, 1979. 2. On Monday, November Sth, the Griever begins his week long Field Trip in Kingston, Ontario. I urge the Board to consider that the Griever only left his job and took up full time attenadance as a result of the unfortunate handling of this matter by the employer. To order re-instatement prior to the conclusion of the course would destroy all the Griever's academic efforts. Further to order re-instatement specific&ly on November Sth, 1979, gives the Griever a similar option to the one forced on him by the employer. In this case, if the Griewr goes on the Field Trip, he could be disciplined for being absent without leave. I hope you will be able to schedule a hearing almost immediately. If not, I urge you to direct a temporary postponement of the re-instatement till the matter can be heard. -9- I thank the Board for their previous speedy decision given the monetary problem that the Griever is in. If the Griever is given till December 20th for re- instatement,, I take it that on the strength of definitely having a job, he will be,.able to borrow from family or friends. Yours truly, M. Pratt, Grievance-Classification Officer. On Friday, November 2, the Board informed the parties by telephone that (1) the reinstatement of the grievor would be delayed to Tuesday, November 13, and (2) the Board would schedule a new hearing at an early date to consider the Union's request for a further delay. A telegram confirming these decisions was sent stating: The reinstatement of Mr. A. Figliano is to be delayed until Tuesday, November 13, 1979. A new hearing in this matter will be scheduled by the Registrar as soon as possible to consider the'union's request for further delay of the reinstatement order. Subsequent to this telegram, the Registrar scheduled the case for Friday, November 9 at which time we held a new hearing on the Union's request. Prior to the hearing, the Vice-Chairman of the Board sent a letter to the parties indicating that the Board wished to hear argument on (1) whether or not the Board had any jurisdiction to grant the order requested by the Union, and (2) assuming the Board did have jurisdiction, whetherthe request should-be granted.. The Board's letter read as follows: Dear Sirs: Re: 218/79 OPSEU (Mr. A. Figliano) and Crown in Right of Ontario (Ministry of Transportation and Communications) A hearing'on thee matter has been scheduled for Friday, November 9th at 2:30 p.m. at the Grievance Settlement Board in response to the Union's request in its letter - 11 - in the first telegram. Before turning below to the question of jurisdiction we want to make clear that the decision to delay the reinstatment did not represent a decision as to~our jurisdiction; rather, it reflected our belief that at that stage and prior to receiving submissions from the parties on the question of juris- diction, it was preferable to err in favour of a broad view of our jurisdiction and to exercise our discretion to delay the reinstatement for a week. Failure to have done so could have put the grievor in an unnecessarily difficult position of either forfeiting his educational programme prior to the Board's hearing his request for a delay or forfeiting the opportunity to return to,his position with the Ministry. It appeared to the Board that it was preferable to in a sense shield the grievor from the unfortunate choice pending the opportunity to hear submissions from both parties on the jurisdictional question. By inviting submissions at the second hearing as to the scope of our jurisdiction to modify our original decision we hoped to make clear that the jurisdictional issue was an open,one in our minds. m - At the second hearing the Ministry took the position that the Board was fun&us officio in the matter and thus lacked jurisdiction to delay the reinstatement order to December 20 or to grant the grievor any other relief. Counsel relied on a number of classic judicial statements oflthe fun&us doctrine including Lewis v Grand trunk Pacific (19131, 13 D.L.R. 152 (B.C.C:A.); Re Nelson Laundries Ltd. (1964), 44 D.L.R. (2d) 463 (B.C.S.C.); Brooke v Mitchell (18401, 6 M & W 473; Regina v Andrew= (1969) 8 D.L.R. (3d) 193, conf'd (1969). 10 D.L.R. (3d) : : -lO- to the Board dated November 1, 1979. At the hearing the Board will consider the Union's request that the date for the reinstatement of the griever to his position with the Ministry be postponed to December 20, 1979. At the hearing the Board would like to invite i ,' submissions on two matters in addition to any others which the parties may feel are relevant. In particular, the Board would like submissions on: (1) Whether or not the Board still retains any jurisdiction to grant the order requested j by the Union; that is, in light of the Board's decision to reinstate the griewr without compensation as of Tuesday, November 13, 1979, and in light of the request by the Union at the end of the first hearing that the Board remain seized with regards to matters of compensation, does it fall within the power of the Board to grant the request for the post- ponement; and (2) Assuming the Board does have jurisdiction to grant the request, should the request be granted. If the Board answers the first issue in the negative finding that the Board lacks jurisdiction, the sub- missions on the second will become irrelevant. However, in the interests of expediency we request that the parties make submissions on both issues at the hearing. Barring unexpected difficulties, the Board intends to give its decision on the request for the extension no later than Monday, November 12, 1979. Yours sincerely, Robert S. Prichani Vice-Chairman At the hearing on November 6, 1979, Mr. Ian Scott, Q.C. appeared for the Union and Mr. 0. K. Gray appeared for the Ministry to present argument on the.two issues raised in our: letter. During the course of his argument, counsel for the Ministry indicated his concern that by delaying the reinstatement date from November 5 to November 13, the Board had appeared to decide that it did have jurisdiction to modify its decision dated November 1 and embodied _‘I - 12 - 43 (Ont. C-A.); and Re Finlay Forest Industries v International Woodworkers of America (19751, 60 D.L.R. (3d) 556 (B.C.C.A.). He also relied upon Russell on Arbitration (18th edn.) at p.312 ff. and the arbitration award Re Air Canada (19731, 3 L.A.C. (2d) 375 (Johnston). In essence, as is stated in Brown & Bedtty, Canadian L&our Arbitration (1977), pp. 36-37 and 90-91, these cases hold.that once a board of arbitration has completed its decision-making and issued its decision, its jurisdiction is terminated and it has no power to render any further decision or award. However, where a board of arbitration reserves jurisdiction to deal with the question of remedy or parts thereof, its jurisdiction is continued to the extent of that reservation. Thus, where at the request of the parties or on its own initiative a board retains jurisdiction with regard to some aspect of the decision, the board is not functus officio. Thediff- icult question raised~ by this case is~ whether the reserv,at.ion of-juris- diction on one issue retains the Board's jurisdiction on all matters in dispute before the Board or only with respect to the matter specifically reserved. That is, is the 8:oard fun&us officio on all matters except those act&ally reserved or does the doctrine of functus apply only when the B,oard has disposed of all matters in dispute before it. If the latter view of fun&us were adopted as was urged by I counsel for the Union, we are of the opinion that the Board would have jurisdiction to entertain the request to delay the reinstatement order. As was stated above, we were asked at the first hearing and we agreed to remain seized of this matter with regard to the question of compensation. In the telegram of November 5 we dealt with the question of compensation for "time off work" but we did not deal with any other question of compensation and we did not reverse our previous agreement to remain seized with regard to compensation. Therefore, we retain I. : - 13 - jurisdiction at least on questions of compensation apart from compen- sation for time off work and if retaining jurisdiction on one issue were sufficient to bar the effect of .functlis officio on all:other issues, then we could consider the grievor's request for delay. However, we do not accept this expansive notion of our.juris- diction since we do not believe it is supported by the authorities and we are not sure that as a matter of policy that the Board's processes would in general be facilitated,by adopting such a notion. While we accept the fact that the doctrine of functus officio in arbitral proceedings originated in purely consensual commercial arbitrations and that it is not necessarily equally suitable in or applicable to a statutory labour arbitration tribunal such as ours, we do believe that at its heart lie certain desirable concepts. It offers finality to I proceedings, giving rise to final awards which the parties may interpret, . enforce or review. It creates an incentive for parties to put their full and best case before the Board at one time,.~subject to express reservation of certain matters to a subsequent stage in the proceedings. Perhaps most importantly it permits the parties and the Board to agree to bifurcate the proceedings between, for example, liability and remedy, without inviting a rehearing of the entire case at the second stage in the proceedings. While the cases on which counsel for the Union relied do to some extent support the proposition that there has been a "salutory trend away from the common law on the functus issue", they do not, in our opinion,go so far as to hold that retaining jurisdiction on one or more issues bars the doctrine of functus from applying to any issues dealt with by the Board. hone of Regina v Andrew= (supra), Re Consumers' Gas (1974), 6 L.A.C. (2d) 61 (Weatherill) or g Metropolitan Toronto Board of Commissioners of Police (19771, 14 L.A.C. , .Y 14.?, @'a) 1 (Arthurs1 support such an expansive notion of arbitral juris- diction. Rather, the better view is that jurisdiction is retained only, with regard to those issues on which jurisdiction is reserved either expressly or implicitly and those'is~sues.on which:-the board has. not reached a final conclusion. Whether or not jurisdiction is retained 'becomes therefore a question of fact to be resolved.by reference to the board's decision and the conduct of the proceedings before it, On the facts of this case, jurisdiction was reserved only with regard to compensation. In its decision by telegram the Board resolved the issue of reinstatement and fixed a specific date for it to take effect. In addition,the Board disposed of the issue of compen- 'sation for time off work. Therefore, these issues were disposed of by the Board and we are fmctus with regard to them. We therefore have no jurisdiction to change the date of reinstatement. Similarly, we have no jurisdiction to grant a leave of absence to December 20 since even taking an expansive view of the term "compensation" it cannot include a "leave of absence" in circumstance such as this. , Counsel for the Union made two other submissions to circumvent the effect of the fun&us doctrine. First, he argued that our telegram of November 1 was not a final decision for purposes of the doctrine. He argued that by virtue of Regulations 43 and 44 under the Crown Employees Collective Bargaining Act,,a decision of the Board must be signed by the Chairman of the panel hearing the case before it constitutes a decision for purposes of the functus doctrine. We do not accept this proposition, preferring to look to section 18(8) of the Act which permits us to determine our own practice and procedure. The Board has with the support - 15 - of the parties ,,evolved'its own procedures including giving decisions ' by telegram and we find no legislative enactment suggesting we are not free to do so. The telegram represented the Board's decision with respect to the matters dealt with in the telegram and thus the doctrine of functus officio applies from the date of the telegram. Secondly, counsel for the Union submitted that the Board's selection of a specific date for reinstatementwithout seeking the views of the parties in advance was a denial of natural justice. While in retrospect the Board recognizes that it may have been unwise to select a specific date without the benefit of the parties' submissions on.it, we do not believe it constitutes a breach of natural justice. The grievor, represented by counsel, was given an utifettered opportunity to present all aspects of his case before the Board including any matter regarding the date of reinstatement. His failure to advise the Board at a hearing in October of potential difficulties with a reinstatement date earlier than late December and the Board's subsequent selection of an earlier date can hardly be characterized as a breach of the obligation to give the grievor a full and fair hearing. As a result, neither of these two arguments are sufficient to bar the effect of the functus doctine. This conclusion as to the scope of the fun&us doctrine should not suggest that the Board is entirely happy with the result which it dictates on the particular facts of this case. Indeed the Board feels a distinct sense of discomfort with the result since the conclusion that we lack jurisdcition to consider delaying the reinstatement to December 20,depends entirely on the fact that the Board selected a specific date for reinstatement in its first telegram. The Board's . - 16 - decision to do so was motivated by a concern that the reinstatement be as early as possible since no compensation for time off work was * being awarded and the Board wished to indicate to the parties that the reinstatement be immediate. However, the selection of a specific date was done without a familiarity with the more comaon practice of other panels of this Board which have elected to use the phrase "reinstated forthwith". Absent special, circumstances or particular requests made by counsel to the contrary, in future cases the parties can expect the Board to abide by its more common practice. However, the advantages of avoiding the selection of a specific date for reinstatement have become clear only with hindsight and the doctrine of 'funct~s officio prevents us from changing our decision in this case. If the first telegram had simply stated that the grievor was "reinstated" or "reinstated forthwith" rather than fixing the specific date for his return, different consequences would have flowed from our decision. In that case, if the parties were unable to agree upon a mutually agreeable return date, either of them could have asked the Board to hold a new hearing in order to fix a specific date for reinstatement. In that case, the Board would not be functus officio since quite clearly the Board would not have yet decided the question of the date on which the grievor should return and we would retain jurisdiction to Set it. (See Re Consumers' Gas (1974), 6 L.A.C. (2d) 61 (weatherill). Approaching the task of setting the date and exercising Our authority under Section 18 (3).of the Crown Employees Collective Bargaining Act, we would have judged what was a reasonable date. The q&tion of reasonableness would have turned on an assessment of the relative prejudice to the Ministry and the griever of any - 17 - particular date. Based on the evidence before us which shows clear prejudice to the employee in being required to forfeit his educational prograreae after two and a half months of study and with just four weeks of study left and no prejudice to the Ministry in granting the grievor a delay in his reinstatement, the Board would most likely have set December 20 as the return date. While we recognize that the Ministry may have had evidence of prejudice from delay but for tactical reasons elected not to call it at either of the two hearings in this matter, on the record before us it is difficult to see why a delay to December 20 would not be appropriate. Thus, if the Board's telegram had been worded slightly differently, the grievor's request would very.likely have been granted. We wish to add that on the record before us, this delay would seem to be most consistent with the parties' interests and the public interest in the wise conduct of labour relations in the public service of Ontario. From our perspective, in the absence of prejudice to the'Ministry from a four week delay, it is difficult to see what interest is being promoted by requring the grievor to forfeit his educational programme at this stage. If the grievor returns immediately in order to save his job, it is unlikely that he will return feeling that he has been fairly and reasonably treated. Rather, he is likely to perceive that he was caught by a technicality, the effect of which the Ministry could have avoided through an exercise of its discretion. As, such, it would be understandable if he returned to his position without the degree of enthusiasm that would normally accompany a reinstatement decision. It is difficult to imagine this having a beneficial effect, on his work record. Similarly, from the point of view of the public interest, it is difficult to believe that it is a wise allocation of resourses in the public sector to force an employee to withdraw from a course of study at a publicly-funded institution, forfeiting all - 18 - credit, when he is so close to the end of the course. Given the cost of training students in such courses and the public subsidies which complement the student's tuition payments, we are disturbed to see these funds wasted in the absence of some competing interest in the form of prejudice to the conduct of the Ministry's l.abour relations. One possible explanation for the Ministry's reluctance to accommodate the grievor's desire to delay his reinstatement is dissatisfation with the Board's decision on the substantive question of the resignation. While we can no doubt understand the Ministry's unhappiness with that decision, we hope that that unhappiness is not vented by denying a reasonable accommodation of the Ministry's and grievor's needs subseq ent to that decision. The Ministry indicated indirectly that it may seek judicial review of the substantive decision and this, of course, is entirely proper. However, the ability to take that course need not be jeopardized by,a resolution on reasonable terms of the grievor's return date as any such resolution could presumably be without prejudice to the Ministry's right to seek review of the original decision. As we concluded above, we have no jurisdiction to order that the grievor's reinstatement be delayed to December 20, 1979. However, on the record before us we would very likely have made such an order if we did have jurisdiction. While we lack jurisdiction to make the order, we do hope that the parties will be able to reach an accommodation of their competing interests which will avoid the need to waste the money and time invested by the grievor in his educational programme without compromising the Ministry's labour relations activities. ; . . , \ . - 19 - 'As we ~stated above,, at the first hearing we were asked to and we did remain seized of'this matter with regard to questions of compensation. In our telegram of November 5, 1979 we dealt with the question of "compensation for time off work" by denying it completely. We did not, however, turn our minds to or make a decision regarding other forms of compensation. At the second hearing counsel for the grievor argued that in the event the Board did not delay the reinstatement of the grievor and if the grievor as a resultwere,to be required to return to work without completing his course to December 20, 1979, the Board should award the grievor compensation equal to the cost of tuition, the incidental student fee charged by HumberCollege and the books he had purchased as part of the course requirements. Counsel argued that the grievor's full-time enrollment in school was a form of reason- able mitigation in light of his inability to work at the Ministry and and that the grievor should be compensated for the costs incurred as a result of this mitigation given that he will now.be unable to complete the course of study. 'Responding to these submissions we have no doubt that we have jurisdiction to make the award of compensation. We were asked to remain seized with regard to compensation. The grievance sought "full compensation". We dealt with one aspect of compensation, that being compensation for time off work in the form of back pay. We denied such compensation. However, we did not with our telegram decide any questions relating to other heads of compensation and we are now free to do so. On the merits, we find the grievor's position persuasive. - 20 - On August 27, 1979 the grievor indicated his desire to continue innnediately in the employ of the Ministry. This predated the start of his%course at Humber College. Only after his request.to return to work was denied did he finally commit himselfSirreversibly to the course of study. In light of his inability to work at his job and his desire,~to upgrade his skills, we find that his decision to enroll full-time was a reasonable one and consistent with his duty to mitigate his loss pending the resolution of his grievance. If the Ministry now wishes to require him to abandon his studies late in the programme,forcing him to forfeit credit for courses and to do so in the absence of any evidence to suggest the Ministry would be prejudiced by permitting him to delay his return to December 20, 1979, we believe it is just and reasonable as an exercise of our authority under Section ~(3) of the crowr'Employees collective Bargain- ing Act to require the Ministry to compensate the grievor in full for the cost of tuition and the incidental student fee which he paid for the fall term. ,We do not wish to include compensation for the books since these will presumably be useful to the grievor in future part- time studies. We will remain seized in this matter in the event that the parties are unable to agree on the amount of compensation due as a result of this order. We wish to make clear, however, that this award of compensation is contingentuponthe Ministry's requirfng the grievor to abandon his course of studies and to return to work immediately. That is, the choice is in the hands of the Ministry, not the grievor. The grievor is not free to leave school and demand the compensation. Rather, the Ministry must decide whether to grant the grievor an unpaid leave of absence or delayed reinstatement to December 20 thus avoiding the obligation to compensate, or to require the grievor to .P - 21 - i. I return to work immediately and to abandkn his full-time course of study. The reason for putting this cho!ice squarely on the Ministry is to avoid any suggestion that the grievdr is anything other than fully commit- ted to his studies.,..His testimony and 'his counsel-.'s,:submission certainly / suggest he is and that he genuinely wishes to complete his studies through December 20. If the Ministry doubts this committment it can put it to the test by granting the leave of absence or delayed reinstatement. Finally, we wish to add a caution as to the implications of our decision. Our decision to reinstate the grievor was based,on an evaluation of the factual circumstances relating to the grievor's I alleged resignation and not on the qualbty of his work record. Similarly the decision to award compensation for tuition and fees is unrelated to his work record. The evidence we did have on the grievor's work record, while meagre, indicated something less than ideal performance particularly with regard toi lateness which by the grievor's own evidence is not an insignificant problem. The resolution of this grievance did not require the Board to draw any conclusions as to this work record and we do not plan to do so. However, the grievor should understand that this decision does not condone any shortcomings he may have as an employee/and he should not read it as a doing so. Rather, he should be aware that this deci,sion in no way restricts the right of the Ministry to take disciplinary steps against him if his performance onthe job is inadequate. Counsel for the Ministry gave tyo undertakings that counsel for the Union asked us to record. First, he indicated that in the Ministry's view the grievor is reinstated as an employee as of November 5, 1979 even in the absence of'his actual attendance at ~‘J ~,T. - 22 - usork. The importance of this is that the Ministry is assuring the grievor that he has-the right to bring a subsequent grievance relating to his treatment as of November 5, 1979 even if he does not return 'to work immediately pursuant to our initjal~ decision on reinstatement Second, counsel indicated that he was instructed by Mr. Cowan of the Ministry to inform the Board that in-light of the complex proceedings in thfs matter, no disciplinary steps would be taken. against the grievor as a result of his absence from work between November 5 and November 16. Both of these undertakings should assist in the satisfactory resolution of this situation. VI In conclusion, the Board lacks jurisdiction to vary its order reinstating the grievor as of November 5, 1979. The Board does have jurisdiction to award compensation to the grievor and does so in an amount 'equal to the cost of tuition and the incidental student fee at Humber College for the fall term. 'This compensation is payable only in the event that the Ministry requires the, grievor to return to work prior to December 20, 1979 and does not grant him a delayed reinstatement or leave of absence to that date. Finally, we wish to thank Mr. Gray and Mr. Scott for their very considerable assistance in this case. It is a pleasure,for the Board to have benefit of such fine argument. DATED AT Toronto this 16th day of November, 1979 a$kgJ J. R. S. Pnchard Vice-Chairman See *** V. P. Harris - Member See *** S. R. Hennessy - Member *** Mr. Harris and Mr. Hennessy will indicate their support for or dissent from this interim award as part of the reasons in our final award in this matter which will deal primarily with our reasoning regarding the resignation issue. -- J.R.S.P.