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HomeMy WebLinkAbout1980-0187.Dallas.81-06-16GRIEVANCE Between: Ms. D. Dallas Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Prof. K. P. Swan Vice Chairman Mr. F. T. Collict Member Mr. G. Beaulieu Member For the Grievor: Mr. A. Heisey, Counsel Blake, Cassels & Graydon For the Employer: Ms. J. Baker, Counsel Hicks, Morley, Hamilton, Stewart & Storie ..J-. Hearing: April 1, 1981 -2- SUPPLEMENTARY AWARD In our award on this matter, we found that the grievor had been unjustly discharged from her empl'oy- ment as a'part-time cashier, and left the matter of remedy to the parties for agreement, failing which we remained seized of jurisdiction to resolve the matters outstanding. The parties informed us, in due course, of their inability 'to resolve certain issues, and we reconvened~on April 1, 1981 to-hear argument related to the final disposition of this matter. Evidence adduced at the original hearing indi- cated that the grievor would have lost her employment at Store No. 486 on January 12, 1980, since as of th~at date all part-time cashiers at that store were replaced by full-time employees. The parties were able to agree on a sum of $840.95 as compensation for earnings lost from the date of the discharge until JanuaryJ12, 1989. Beyond that date,.however, they have been unable to agree on an amount to compensate for loss of earnings. Neither have they.been able to agree on what rights, ,if any; the,grievor may be able to. assert in respect of future employment At the hearing on the issue of remedy, evidence was adduced~.which may be simply summarized without refer- ence to specific testimony, Which was basically not in contradiction. The grievor did not immediately look for -3- work after her discharge, but began to search for another job about March or April 1980. She found work as a demonstrator for T & L Food Displays on weekends in the spring and autumn of 1980. From mid-December 1980 to March 1981 she worked as an assembler for Estee Lauder Cosmetics, on a regular 40-hour week. From March until ' the hearing on April 1, she was unemployed. <t appears that., .of the part-time cashiers who were terminated (in the sense that they were non longer scheduled for work) on January 12, 1980, none had been re-hired at any other store by April 1, 1981 On the other hand, other'part-time cashiers were‘still employed at other stores in the Scarborough area, a numberof people were taken on for seasonal work over ,' the Christmas season, and at least one person who was taken on for the first time for Christmas 198O.(Ms. Brenda Dee, at Store No. 486) isstill being scheduled on a r.egular.basis. Based on these facts, how'may the grievor's remedy~ reasonably,be constructed? .The purpose of damages and, indeed, all remedies for contractual breach is to put the aggrieved.party in the same posi- tion she~would have been in had there been no breach.- here, no unjust discharge. To January 12, 1980 that end may be achieved by-.the payment of.the agreed sum. , : i ?- r, < ! -4- After that' date, when the grievor's employment would have been terminated without liability on the Employer's part, what did the grievor lose, if anything? In our view, her loss is best described as the denial of an opportunity, even a preference, for employment as a part-time cashier at another store. Apart from the unjust ~discharge, she could have taken full advantage of her years of experience with the LCBO, .her good work record and even the obvious good- will of the LCBO's customers to seek employment else- where as a part-time cash~ier. Despite the Employer's evidence that hiring.part-time employees-is a store manager's.prerogative, and nothing would stop any manager from hiring a cashier who had been discharged at another store, we think this is an extremely unlikely event. In our view, the discharge'effectively prevented the grievor from.seeking further employment at another. LCBO store, and thus denied her the benefit of her accrued experience and service. It is, of course, not.possible to say for certain that she would have been employed anywhere. It appears that no'other employee terminated on January 12, 1980 has been re-employed, but any number of factors not common to the grievor's situation could have influenced that result. The grievor has thus lost a chance for em- ployment, and not employment itself, and hour award must _' / -5- take account of that difference. In addition, we do not think, having beard argument on the subject, that the Ietter of Agreement referred to in our main award.would have been of any direct assistance to her., We stress, however, that we consider the griever's loss to be real, and not speculative; mere difficulty in calculation is no reason to deny recovery of damages. , Given that the grievor was unable to provide evidence of the hiring of any new part-time cashiers in the area for which she would have applied until the 1980 Christmas season, we think it is reasonable to find that she would not have been able to turn her previous exper- ience into actual employment until then. On the other hand, the evidence clearly indicates that experienced held is in great~demand for the Christmas season,. and we think it virtually.certain that<the grievor would .have found employment for the period November 1 - December 31, 1980. During this period she was either working part-time,. seeking work, or working full time, so she has satisfied the requirement to mitigate her loss during this material time (although at an earlier date her entitlement to damages might have been reduced by her failure to seek work). Her damages for this period ought to be calcu- lated by allowing her weekly hours equal to her hours, in 1979 up to the time of her discharge, and then to December -6- 31, 1980 on the same basis-as the damages already calcu- lated by the parties,for the period to January 12, 1980 (pro-rated, of course, to December 31). From this ought to be sutt&ted her actual earnings from other employment on a week-for-week basis. To avoid any uncertainty, in any week in which the griever earned more than,what her ', weekly earnings at the LCBO would have been, as calculated above, she will receive no damages, but any excess will not be allocated to any other week; the griever is entitled - to any extra earnings from full-time work. We turn finally to her remedy for the period from January 1, 1981; During this period, the griever would have continued to have 'an opportunity to seek em- ployment with the LCBO; but her chances for a regularly scheduled position would have been slimmer than for seasonal work. The lack of evidence makes it impossible to determine what her chances would have been, however, and we feel unable to make any estimate of damages on this basis. On the other hand, we think it likely that she would by now have been able to find work with the LCBO, since at least one other new part-time. cashier is now working in the Scarborough area. - We'think that the only way to resolve all of these difficulties .in' calculation, anq to ensure real justice.t.0 the grievor, is to fashion a remedy.to cut across all of the uncertainties and to give the griever a ,- -7- fair chance,at re-employment. We understand that the Employer has del'egated entire authority for part-time employees to store managers, but this purely internal arrangement cannot be raised to frustrate relief under' the collective agreement or the Crown EmpZoyees Collective Bargaining Act. The evidence before us in both hearings makes it clear that the grievor is entirely qualified for employment as a part-time cashier, and that her discharge was clearly wrongful. We therefore 'order that, before any new employee is added-to the list of regularly scheduled part-time cashiers at any store within a reasbnable distance of Store No. 444, the open- i ing shall be offered to the grievor. The calculation of a "reasonable. distance" has given us some trouble, since ,. transit routes, location of shops and walking distances, number of'.transfers'and other factors can all affect the -travelling time involved. we therefore order that the Employer immediately consult with the griever land the Union, so that she may, from a list of Metropolitan Toronto stores and their locations,indicate at which stores she would be prepared to accept part-time work. The griever is otherwise entitled tp no com- pensation from-January 1, 1981;since in'our view the possibi1it.y of .re-employment inherent in our remedy adequately reflects the chance of re-employment on a permanent basis which she lost. Obviously, the wider , - 8 - the range of stores for which she indicates availability, the greater will be her chances of an early offer. O&X order in this respect will expire if, having been offered a regularly scheduled position at any of her list of stores on at least two weeks. notice, the grievor refuses the offer. Finally, we do not think that the griever's lost opportunities would be limited to regularly-scheduled work, and we therefore,order that she be offered temporary or seasonal work at the selected stores before any new em- ployees are scheduled for work. .Refusal or acceptance of these opportunities shall not, however,, have any effect on our order inrespectof,a regularly-scheduled position. We regret, in the context of this part of our award, the necessity to intrude into the internal operation of the LCBO; we would have been far happier if the parties could have reached some reasonable accommodation in respect of future employment. They did not, however, do so, and the Employer raised the entirely artificial delegation of authority to store managers in implicit defence of its own.positdon. In our view, -. simple reinstatement in em- ployment would overcompensate the grievor, 'while leaving her to make the rounds of‘store managers clutching our' earlier award asan employment reference wou1.d under- compensate her, if not deny her just recompense entirely. We would,still prefer that the Employer take active steps to intervene with its store managers to find the grievor employment forthwith. Until it does, our order seems to : -9- be the only just, if cumbersome, response. To summarize, the‘grievor is entitle~d to: 1. Damages to January 12, 1980 in the agreed sum of $840.95. 2. Damages for loss ,of seasonal employ- ment for the period November 1 - December 31, 1980, calculate,d as described above. . 3. The right to first chance for seasonal, temporary and/or regularly- scheduled employment as a part-time cashier on the terms set out above. As there are matters still to be, calculated and resolved, le any im- we remain seized to the extent necessary to sett difficulties which the parties may experience in plementing this award. DATED'at;Toronto this 16th day. of June 1981. Prof. R.P. Swan, Vice Chairman "I concur" Mr. F.T. Collict, Member "I concur" Mr. G. Beaulieu, Member