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HomeMy WebLinkAbout1985-1470.Ginn.89-09-21 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMlSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU2100 (416) 598-0688 1470/8 5 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Ginn) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before : For the Grievor: Vice-Chairperson Member Member A. Barrett I. Freedman M. O'Toole L. Steinberg Counsel Koskie & Minsky Barristers & Solicitors J.L. Thomson Counsel Hicks Morley Hamilton Barristers & Solicitors Stewart Storie For the Employer: July 10, 1989 Hearing: 1 In January, 1983 the employer formally announced the move of its Kipling warehouse to a new warehouse then under construction in Oshawa, in the Regional Municipality of Durham. About 100 employees were relocated as a result of the move which was phased in over a two year period. Pursuant to Article 31 of the collective agreement, employees are reimbursed for certain expenses on transfers. an employee moves at least 20 kilometers closer to the new location, he or she is entitled to be reimbursed for a range of out-of-pocket expenses including, inter alia, legal fees and land transfer tax incurred in the purchase of a residence. These house purchase expenses are only payable If the employee's previous residence has been sold, or in the case of employees moving from rental accommodations, such accommodation is not available at the new location. move their residence as a result of the relocation of the warehouse could do so any time between February, 1982 when the building of the warehouse was officially approved and January, 1986, one year after all employees were fully relocated at the new warehouse. If Employees wishing to In the instant case the grievor. was fully relocated in Durham by late 1984 or early 1985. thereafter for a time, the grievor lived in a rented two- bedroom apartment in Downsview with his wife and two children, paying $600.00 per month rent. The grievor testified that in the late Spring of 1985 he started looking for equivalent rental accommodation in Oshawa. vacancies in the Oshawa area were 0.1% and he said that he was unable to find comparable accommodation at a comparable cost Prior to the move, and At that time apartment within a five to seven kilometre range of the new warehouse in Oshawa. In late August, 1985 he found a house to buy about five kilometers from his work place at the exceptionally good price of $40,000.00. He bought the house and moved in November 1st. Then he made a claim for the legal fees and disbursements 2 in connection with his purchase pursuant to Article 31.5 (b) (ii) which reads as follows: ''Purchase: purchase of a residence which are due to legal fees, disbursements and land transfer tax are allowable for reimbursement up to a maximum of one and one-quarter' (1 1/4%) of the purchase price provided that, as part of the transfer, the employee's previous residence has been sold, or in the case of employees moving from rental accommodations, such accommodation is not available at the new location (satisfactory receipt required)." Expenses incurred by employees in the The grievor's request for reimbursement of these expenses was denied by the Manager of Warehouse Operations in a memo dated December 23, 1985, for the stated reason that the grievor could not claim house purchase expenses unless his prior residence had been sold. grievance stating that he should have been covered under the second qualification in the Article because “such accommodation is not available at the new location.'' In response the grievor filed a This Board must determine the scope of the word “unavailable” in Article 31.5(b) (ii) . The union suggests the purpose and meaning of the clause is that an employee must “try as best he can to trade like for like", and if he can't he is entitled to buy and be reimbursed for purchase expenses. The employer does not suggest that the employee must prove that finding suitable rental accommodation is an actual impossibility, just a practical impossibility in all of the attendant circumstances. In our view both the proposed interpretations are similar and boil down to a “reasonableness” test. The employee must make reasonable efforts to find reasonably equivalent accommodation within a reasonable distance from the new location at a reasonably similar price. decided on its own facts and the employee bears the onus of proving that all reasonable efforts were made by him, with no success. Each case must be 3 On the facts of this case, the grievor and his wife testified that they were looking for a two-bedroom apartment in a high rise building, close to transportation, schools and shopping. found either suitable apartments that cost more than $600.00 per month, or unsuitable apartments that cost less. suitable apartments in the right price range but no vacancies were available and they would have been required to go on a waiting list. and twenty apartments within the five to seven kilometre radius of the new warehouse in Oshawa over an approximate four month period and was unable to find anything suitable and available. It was during this apartment search that he happened to discover the advertisement for the very reasonably priced house and realized immediately that this was a better deal than any rental accommodation. In the tight market that existed at the time, they There were The grievor said he looked at between fifteen The employer concedes that the 'rental market was tight during those four months the grievor was looking for rental accommodation, but points to the following evidence as indicative of the fact that the grievor did not make a sufficiently thorough search to bring himself within the exception of accommodation “unavailability”: 1. The grievor searched only in a five to seven kilometre range of the new warehouse and did not explore the contiguous areas of Whitby, Pickering, Ajax and Scarborough (with the exception of one or two new apartment buildings in Pickering which were too expensive) or even the outskirts of Oshawa. 2. The grievor did not enquire of his colleagues at work about what accommodation they had found and if they knew of vacancies. 3. The grievor did not have his name placed on any apartment waiting lists. 4 4. The grievor limited himself to a four month search when in fact he had a great deal more time available to him both before and after the relocation. 5. The grievor did not employ a home locating service. 6. The grievor did not advise the employer of his difficulties in finding suitable rental accommodation either before or at the time he submitted his claim for the house purchase expenses. Applying the reasonableness test to the grievor's search for accommodation in this case, and bearing in mind that the grievor bears the onus of establishing that he made all reasonable efforts to find reasonably suitable accommodation, we find that the grievor has failed to meet the test. We are certainly not surprised that he leapt at the exceptional opportunity to purchase that came up, and he clearly made a sound decision. The purpose of Article 31.5, however, is to compensate employees for expenses incurred as the direct result of a transfer. The grievor wasn't “forced” to buy a house because he couldn't find suitable rental accommodation. He elected to do so because an opportunity arose. We are not satisfied on the evidence that the grievor made a sufficiently extensive search for rental accommodation that we can conclude it was “unavailable” in a practical sense. 5 Accordingly, the grievance is dismissed. DATED at Toronto, this 21st day of Sept., 1989. ANNE BARRE ,'Vice-Chairperson "I dissent" (without written reason: I. FREEDMAN, Member M. O'TOOLE, Member