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HomeMy WebLinkAbout1988-1429.Meeks.91-02-20 O,,VTA~;O EMP~.OY~$ DE I,.A COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEYANCE COMMISSION DE SETTLEMENT R =GLEMENT BOARD DES GRIEFS 180 OLJ~DAS STREET WEST, SutTE 2100. TORONTO, ONTARIO. MiSG 1Z8 TELEPHONE/TELEPHONE:, f4 ~6; $2'6- 1358 L~O. RUE DU.t'4OAS OLJEST, BUREAU 2100, TOI~ONTO fONTA.RIOJ. MSG ~ ,=AC$1I~41LE/TELECOPiE : 14 ~6,~ 326- t)96 IN THE MATTER OF AN AR~ITRATXON ..Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE' GRIEVANCE SETTLEMENT BOA~D BETWEEN 'OPSEU '(Meeks) ~rievor The Crown in'Right of'Ontario '- -' (Ministry ,of Natural ~Resources) ~ , Employer BEFORE: " E.K..Slone :. V~ce-Chairperson J. McManus Membe~ M. O'Toole Membe~ ' FOR THE A. Ryder GRIEVOR .Counsel. ~ Ryder, wh~tak&r,'wright &-Chapman '.~. ~Barristers & Solicitors .- FOR T~E M. Farson '* EMPLOYER ~. tCounsel Fraser & B~atty ~ ~ ~ : Barristers & Solicitors HEARING: June 20, 1989 .... .~ AUgust 21, ~2, 1990 A~ARD ~ntroduction The grievor Stan Meeks holds the position of Timber Technician with the Ministry of Natural Resources, working out of Tweed. His job involves planting and protecting trees. He is also active on the fire roster, fighting forest fires throughout the province during the summer months. He has been performing this auxiliary function for about twenty years. Stan Meeks is also a farmer. He and his family raise Hereford bulls on their farm in the'Tweed area,' About 35-40 acres of the farm is planted with hay, which i.s the principal feed for the stock over the winter months. Additional hay is grown on rented fields, ~n 1988, %he grievor had timed-his vacation to 'allow him personally to harvest his hay .crop." Unexpectedly, he was called for f~re duty and spent almost three weeks away from his farm. The short notice made it impossible to arrange for someone else to do all but a small pert of the haying.. As a result of the delay in harvesting, i% ~s alleged %ha% the hay crop was of a poorer quality, w}th a reduced nutmi%ive value to the animals. The grievance claims .compensation for this loss, which is said to have resulted directly from the Employer's unlawful cancellation of his vacation. Page 3 .The matter was heard over three days. Huch of ~he time was spent hearing She testimony of experts oh'.ruminant nutc~ion and the botanical ~ual~t~es of hay, w~%h emphasis on the l~fe cycle of ~he plants and the~ chemical c~m~osit~on.at.various stages deve?opment. We also heard from the ,gr~e¥or h~mself, and several ministry ~taff called by the Employer, .. .. ,. .. The matter Was'ably.argued by way of writtQn,submissions, for which we are g~ateful to counsel' Issues' A 'number o~ : ' ' issues must be examined: 1, Did %he cancellation of the grievor's.vacation amount to ~reach of the Col lec%ive Agreement.'? 2. Does %his Board have ~urisd~l;ion ~o award damages? 3. What is the cluantum of damages s~fered by the' gri~vor?. 4,' Are any or all of the clamages unrecoverable because they were' 'nOt in' {he contempla%.ion cf.:the parties,, were %00 · ~ .remote, or because of a failure on the part of the grievor to m~t~gate h~s damagesg. :- .. ..~ ~ .~ . .. Issue 1: D~'d't~he 'cancellation of 1;he ~r-ievor'.s.vacation amount a breach of %be Collective A,~reement? ~On.the, evidence it was.clear that the gr~evor' in 'i"988~had made very.de.f~nit.e plans to do his haying dur'ing his v~cation period. Whereas in previous years he had m'a:~e it known'that he -was w~lling to "go. north" to fight; fires, in the year' in'question he had said that; he was unwilling ~o go, I'n th6se 'prev~.'°us years he had been able %o enlist the help of friends, family' and neighbours to do the haying, but ~n ~3~8 he made ~o such arrangements. In May '1988 he put in for his vacation time, to commence June 20 'through July 22. The vacation was approved in writing by the Employer {E×.IO), Later in Nay, a request was received by the Tweed district from the Huronia regional headquarters, asking about Stan,Meeks' availability for fire duty ('Ex.8). The request was denied (Ex.9). The fire roster for the Tweed district was also promulgated (Ex.6), and clearly showed that Stan Meeks was no~t willing to go north. We accept that the local, although perhaps ngt the district management, were'quite aware of the grievor's personal situation. Specif*ically, ~they knew that he planned to 'use his vacation time to harvest h'is hay crop. On J~ne'21 after the grievor,had, already started his vacation and was beginning to do the haying; he received a phone call from his'colleague Jan Doef at the M~nistry, who said he was calling at the"request.of their supervisor Mr. Alec Denys. Doef advjsed.,the..grgevor ~hat there were bsd fire conditions Up north due to the drought, and asked him if he was wi}l'ing to;go north to fight. The,grievor told Doer that he was haying and would suffer financially if required to go. While not flatly refusing · to·go, the 9Eievor made it fairly clear that he'woul'd °n~y~go if compelled. Page 5 The griever explained to us t,nat he believed that he could not refuse an order to go. When be received a further call the next d~y telling him to "pack his bags" and advising him when the van would be picking him up, while no on~ issued a direct order, he nonetheless felt that he was being ordered 'to go. Counsel for the Employer was critical of the griever fOr not being more definite in his refusal to go, if only tb underscore the damage that he would su~fer by being unable to harvest his. crop, We. cannot agree with this criticism, From what'we w'ere able.to' . gtean from his testimony, it would have been out of character'for the grieyoc .to have made a fuss, He felt that his situation was known and %hat his wishes had been °verrul~d, His loyalty and sense of duty prevailed, Furthermore, haw h~ 'refused"to'go 'he would have risked cr'iticism for .6pt observing '~he "obey now,_. grieve.later"-rule, ,. " It"a]s9 dO~s'not make sense to suggest" that 'the griever woul~ have wi.']l~n~ly abandoned His hay c~o~ tO go north, All of the circumstances point"compelli~gl¥'to a'managemeht order, ~e'%her~fore'find as a fact that .the Employer revoked the grieVor's vacation and ordered him to go north to fight fo'res~ fires, .We also find that the Employer, as represented by the local m~nagers~' was wel~ aware or'the gr'~evOr's .personal ~itUa~ion; and that it might.cause him f.ilnanc pulled away from his hayin9. '"- '. Page 6 It is very relevant to note that anoth'er employee in the Kemptville office, Bob Cessidy, was taken off the dispatch list at his request because he wished to take his vacation. He was not called to 9o north. [t was the testimony of Oon Kennedy, the then-regional fire management coordinator, Chat the Hinistry policy was not to send employees who were unwili'ing to 9o north. He also testified that he did not know that the grievor had been taken off his vacation and that he had expressed a desire not to go north, The grievor argues that his rights under Ar~ic'le 47 (governing vacations) o¢ the Collective Agreement have been infringed. Article 47.7 reads: 47.7 An employee ~ith over six {6) months of con~fnu~u~ service may, with the approval o~ ~he Deputy Minister, take vacation to ~he extent of hfs vacation entf~lemen~ and his vacation credits shall be reduced by any such vacation taken. For th is purpose, an em¢loyee may include any continuous service as an employee f.n-the Public Service of Ontario i~wediaCely prior to his a¢pofntmen~ to ~he civil*service, . In the case of DaCosta, 570'/84 (Samuels), .the Board stated p.ll of %he decision: ~ "..this must be taken to mean real vacations, or efl'ecti~.e vacations. It would not make sense for the Union to bargain for .vacations and then permit Hanagement to effectIvety preclude any real vacation through capricious scheduling of vacations Or scheduling done In bad faith or in a discriminatory fashion." Page 7 it is therefore argued that the discretionary power of management to schedule vacations must be made "fairly". A fortior~ the dec~sion to revoke a vacation already scheduled mus~t be made with due.regard for the principles of fairness. These principles are well known in the 8oard's. jur~sprudence, hav~ng been succinctly stated in KuYnt.ies, 513/8.4 (Ver'ity), where it was stated at-p,16-7; "1. The Uectslon must be made in good faith and without d i scri mi nation. 2, It must be a genuine .exercise of di.~cretionary power as opposed to rigid policy adherence. 3. .Consideration must be given to the merits of the indivlduai applic~ion under 4, All relevant facts must be considered and conversely /rreieva~t consider~ions must be rejected," On balance, we are c°mpelled to'accep~ the gr~evor's-, ar9ument that the decision ~o revoke ~is vacation was no~-made fairly, The ~c~ual dec~sion-maker, H~, Denys, was not called to explain his decision, On the evidence before us, the dec~sion call ~he griever wh~le Cass~dy was exempted and a number of wJllin~ s[aff were not cal{ed ~pon, ~annot he-'said.to have been arrived at ~n good"~a~th and"wi%h°ut'discri~ination;' Al:~hough counsel for the 'E'mp~oyer'has ~r~ued'forceful'ly'that the. revocation of ~he griever's vacation was ':a reasonable and expeditious effort to-meet a clear and pressing.-need",-the Employer has fa~led to explain W~y the well-establ~shed policy to respect the wishes of the employees was Overridden in the griever's case. We cannot say tha~t the merits of-the griever's Page 8 situation were properly cons,dared, when a clear policy was either overlooked or ignored° Possibly there was a breakdown in communication between the district and the region.-Had Denys advised Kennedy of the grievor's desire not to go, and %hat he was being recalled from his vacation, possibly the order would not have been carried'out. Whatever the reason, the grievor cannot be blamed, We find that the Employer has breached the Co]lective Agreement to the detriment of the grievor. We must now consider the grievor's remedy. Zssue 4: .Does this Board have .Jurisdiction to sward dama~es~ There is bol~h direct and indirect authority for the proposition that this Board may award damages for a breach of the Collective Agreement. The Employer has not really argued. otherwise, but because it is a somewhat rare exercise of our jurisdiction some brief comment is warranted. · In the case of Kelly 371/84, Vice-Chairperson Saltman awarded damages to the grievor for a breach of Article 18 of the Collective Agreemen, t, which deals with health and s'afet~y. More gene.ral.ly, the statutory jurisdiction of this Board in s.19 of the CECBA is ~o "decide the matter", and we would be sterilizing our powers if we did not grant a remedy that appropriately answers the need. In this case, it is difficult t° Page 9 see how any remedy other %hah damages would provide any relief. Of course, in assessing damages we must follow %he same. principles which guide the common law courts. Issue 3' What is the Quantum of damages suffered by the ~rievor? The grievor's claim der. ives from the fact;, which we accept, tha~ the quaTity and value o¢ his hay crop diminished between June 21, 1988 when he was taken north, and July 12, 1988 when he returned and was able to resume haying. The grievor had made an in~tia3 assessment in'Augus-~ 1988, when he submitted a claim for compensation (Ex.3), that ~he' protein' value of, his C.rop was ..reduced by 5%. The. esti'mated amount of ~ost protein, in his approximately 144 tonnes of"ha~' was therefore 7.2 ton. nes.~ The cost of protein supplements to replace that amount of prote.~in =was $750,0. The' 55 ~igure must be regarded as suspect, however. ' There was undisputed evidence that 1988 was a hot and dry year, ahd hay -'"crops generally had~matured faster than usual, The grievor's Crop-was thus already overripe by June· 20, and woul~d' not have ~been at' its best. .In Ex.3 the griever stated: -"Iai conversation with the area Agriculture Representative indic'ated 'that delays in har, v.e~s~ing 'during the three weeks in Question, in an ~vera~e yea~, would result %n reduction'~of prot;ein of between 3~ and '5'~'. The resulting 3os.s this year, being a very hot an~t dry one, will be closer t6 '5~ as"'a' mi,nimum,:? (emphasis ou rs ) P~ge?O' Dr. David Mower gave expert testimony for the grievor, and stated that the protein loss resulting from changes in the £ chemfcal composition of the plants - particularly the pmotein- rich legumes such as alfalfa - would 'be compounded by the effects of "leaf shattering". In other words, some of the protein would have been los~ because the dry leaves would shatter in the harvesting process and not be recoverable. Dr. Mowat felt that a $% overall'protein loss was "in'the neighborhood". The Employer's expert Gwen McBride estimated that the loss between june 21 and July 12 was'at most 1-1/2~. She based that estimate i~ part on hay samples from the grievor's farm in 1987, taken in connection with a government program, which indicated a hay crop that was generally low in legumes and %bus low in protein to begin with. While no samples from 1988~were available, there was no evidehce'tha~ any reseeding 'had taken place which would have drastical~y,i'ncreased the alfatfa content o-~ the crop. In fact, ~here was evidence Of nitrogen.fertilizing that would have promoted the growth of grasses to the detriment of legumes. Zt was argued by the griev°r that %he hay samples from the previous year were no~ properly representative of the hay on his farm, since they were'taken by Summer students and were a. very small random sampling, .There is some validi,ty to this observation, The grievor did not .keep samples~from 1.988, which would have been helpful, but no one on behalf of the Employer at the 't~me Questioned his'assessment of ~.]s loss. indeed, in a letter from Alec Denys to his regions] director {Ex,4) on Aug.,st 1~, 198B, .he passed on the griever's request for compensation with his personal endorsement "I have checked the facts presented by Mr, Meeks and find them to be accurate," The griever cannot be faulted,for believing that the quantum of his claim was not being disputed, but rather the liability to compensate him was the only real issue. However, ~e must consider what evidence we do have and g~ve it whatever weight it seems to-merit, in the context of all the evidence p~esented, The 1987 samples must be given some weight, Having heard and. weighed all %he evidence concerning the nugrieng conten~ of the grievor's hay, we make ghe followSng ~ind~ngs of' fac%::. -. 1.~ The ha.~ on the. Meeks farm, including rented'f~elds', had a ' lower le'gume-conten~ than the ~rievor would have liked to -th~nk, .and therefore.a.lower protein content'than' he co~tende'd.'~It is~unnecessary to make'a finding as to the 'precise protein content of-.~he griever's hay, ai~hough we do "' "not-need to find the protein content to have', been ~uite as low as the 8~ or 9~ found in the 1987 samples. ~ 2. THe .hay crop was already damaged by June 21, 1988, owin9 to the unusua] drought, Even had the griever not ~een taken Page12. away from his haying, he woulO have harvested a croo containing less protein and other digestible material than was usual. He would have had to provide some protein supplements to his herd in any event. 3. Had he not been ca]]ed away, the gFievor would likely have had his crop in the barn two weeks (g~ve or take a couple of days) earlier than he did, allowing for several rainy days which according to the weather records would have slowed him down a 1ittle bit. 4. The coop as harvested had become further over-mature during that period of time, which resulted in a protein loss of about 1-1/2~ (as compared [o the already over-mature hay in the f~elds on June 21). [n making this finding, we accept the evidence of Ns. NcBride, who ~esti~ed ~hat the protein lose was at most 1-1/2~, Or. Nowat was less definite in his. estimate of the protein ~os~, bu~'a~ one poin= in his testimony gave a range o~ between 1~ and 2-1~2~, so our finding is not out of line with his views either; Leaf shattering probably created an'additional toss of protein in the range of 1~. 'We find the total protein loss, therefore, to have been 2-1/2~ - being half What the grievo~ estimated at the time. 5. The lost protein could have been made up. by soybean meal at a cost of $3,750.00 at 1988 prices. ~age~3 The grievor's claim for damages ~as not-limited to the cost of repl'acement protein, however. 'I'n a summary...(Ex,12)~ he- configured his damage claim in the 'following way: A." $1,200 for contractors and neighbours who were able partly to .harvest liis hay' duri'ng his. absence_; B. $1,819.10 paid to purchase feeds 'and'protein'. supplements; C. $~,546.00 for the value'of his dwn grain which-had to be fed I;o the herd; ' D. $240 ~o compensate for bulls ~hat were underwe~gh~ as a result of sligh~ undernourishment, E, .$2,400 fo~ the 3oss. ~n vel'ua o?'eigh~ bulls which -failed to measure up ,to standard and had ~o be converted into steers; and were'so.~ld as such. at the 4ower price. (No claim is made on behalf of the-bulTs themselves for loss of &hjoymeht of. life or-reduced s=ation ..in ~ife,. a].=hough they no doubt experienced this~ ) F, $2,900 for a'dd~ona~ Caf'tying .costs of a group, of breeding females.which fai]ed.~o ma~ure as qu~c'kly 'as · expected, and ha~l to. be held out ot= the breedjn',g...herd -- for an additiona] cy, c. le. G., $800-..~n interest cha.rges ?or a 4oan made necessary by The ~o~al of these heads O¢'damages'~s $10,905,'10,, , Issue 4, Are any or el'i of 'th~ dama~s Unrecoverable because %hey were no~ in the .contemplation of %he partial, were ~oo remo1;e, or ~e¢~use of a failure on ~he part of · mitigate his damages? ~.' .. , "~he £~ployer contends that. tho dema~ee r~moge,. ~hich is~r~all¥, anogh~r way of sa¥in~ gDa[ ghe'~ ~or~ nog ' Page14 in the contemplation of the parties, The basic test for remoteness of damage was articulated ~n the case of Hadley v. Baxen~ale (1854} 9 Exch. 341 (H,L,), The test is two-pronged: 1. Where no special circumstances are communicated: Would a reasonable person foresee at the time 'of entering into the contract that loss of the type occasioned might occur upon a breach? 2. Where special circumstances are communicated: Would a reasonable person, having knowledge of the special circumstances existing at the time Of the contract, .foresee the type of' loss suffered? The Employer. argues that at the time the ¢ollective~ Agreement was entered into between the Ontario Public Service Employees Union and Management Board of Cabinet,, it was not contemplated by the 'contracting Parties, tha~ the loss of an employee's vacation might result in business losses of the type claimed here. I~ support of tha~ p~oposition, ~counsel for the Employer points out that s.20 of 'Regulation 881 under the Public Service Act prohibits a public servant from engaging in any outside work or busi. nees that interferes with the performance of his dutie~ as a public servant, 'In answer to the basic remoteness Droposi~ion, we do not agree that the damages claimed are too remote,' Whil~ Hadley is obviously still good law, and some of the general statements made therein are quite helpful, one should 'not lose sight of the fact that the case itself involved a 'commercial contract to Uo one thing- deliver a broken milt ahaft for. repair, The analogy to an employee in the Ontario Public Service governed by a collective P~ge15 agreement negotiated by others on his behalf, fs Questionable. It is.not fair to suggest that the Union and Employer representatives negotiating a collective agreement ~ad to have specifically contemplated this ~ype of occurrence. Nor in the~ contex~ of %he ongoing, broad employer/employee relatt'°nshi~ musg the a~alysis be confined to ~he ~ime of entering in~o Che agreement. In our vSew, it 5s proper to look to ghe know3edge possessed by ~he-local-representatives of ~he Employer (namely' Hr, Denys) a~ or before the g~me of ~he breach (i'e, when ~he griever's vacation'was revoked). In ~he case a[ hand, it was well known to the Employer that-the griever was a ~armer, and ghag his "vacag~ons" were used nog for recreagtonal purposes 'bug to augment his livelihood by,working on the farm. We suspect ~hat ghe grie¥or ~s far from u~!oue ~n ghe more ~ura~ pargs of the province.~ ., ' The su~g~'s%ion~%ha~. Reg.881 has any application muS~ be rejected. ~I~ ~s no~ a conflic~ of in[crest per se go'have'a source of l~velihood o[h~r than one's ~ob as a public ~®rVan~. Havihg f6und t~at ~he.gr~e~or is entitled ~o ~e com~ensa[ed, we mu's~ consider' whether..he did,everYthing reasodable to mitigate Page16 In our view, had the grievor immediately purchased high quality protein supplements (i.e. soybean meal) instead of trying to get by as he did with cheaper liquid supplements and corn, many'of his losses could have been avoided, To the extent that we find the Employer responsible for the reduced qua'ity of'the hay crop, the sum of $3,750 spent on soybean meal ought to have put the grievor into the same position that he would have been in had he not.been taken north. That is not to say that this amount of supplement would have been enough 'to sustain the herd, since we have also found that the hay'crop was poorer to begin with, and would probably have needed some supplementation anyway. For whatever reason, the grievor made a miscalculation in July or August of 1988. He'ought to have foreseen the damage that might be sustained by his herd' by'not replacing the protein with soybean meal. He could have avoided the $5,540 in losses due to the poor development of the herd. He fai~led to m~%igate these losses, which are therefore not recoverable-~rom the Employer. The $800 interest charges are also not recoverable, because if the grievor had properly mitigated his damages the bulls would have been up to. par and the loan'would not have'been needed. Also, interest is specifically added to an' award of damages, and to allow it as a separate head wou~d amoun= to double compensation. Paget7 The grievor'8 argument that he could not affoCd to buy the soybean supplement does not serve as an excuse for h'is f.ailu~e to mitigate. There is a genera] rule of ]aw that impecuniosity is not an excuse rot railure to mitigate. More't~ the~ po~-nt ~n this case, however., is that ~he grievor could not ha~ been'entirely ~mpecunious. Wh~le up nor%h he earned a s~gn~can~ amoun~ of overtime pay, ~n ~he range of severa3 thousand dOllars;'wh~ch Could' have been dedicated, to purchasing ~eed Also, he'had some bank cF.ed~% available ~o, h~m, namely the loan ~acili~y on which he pa~d the $800 of interest, tn our ¥iew, the gr'~evor ha~ no[ shown that he was ~ncapable of.mitigating. ~he only ~tem-f~om the gr~evor's lis~ o~ damages ~hat could no~ have been a¥oided was that par[ of the $1,200 Cla~med for c'ontractors ~ha~ represen%ed an actual ou~of-pOcke~ expense. 'Zn ~act, ~he grievor 'testified %ha% $300 was spent f'o'P' the rental of equipment,' wh+le %he $900 balance was on3¥ hi~ e~ma~e of the. value of the work done by h~s ne~ghbours. The latter d~d ~he work, but refused payment; [nstead,-the gr~evo~ ~a[er d~d work for ~hem ~n a rough bar,er arrangement. G~ven that there was not ~n actual ou%-o~-Pocke~ expense ~or th~s $900, and that the work done by the gr~evor tO repay his 'ne~ghbours roughly approximates the work that;'he would have had to do himself tO harvest the hay tha~ h~s neighbour~ d'td, we do not feel that this sum represents 'an-actual loss that. would be recoverable as damages. Only the $300 ~s therefore allowed. Page18 Conclusion We accordin91Y allow the grievo¢ the sum of $4,050 as damages, comprised of $3,750 for the reduced nutrien~ value of his hay, and $300 for out-of-pocket expenses' This sum is awarded as at the time when the grievor ough~ reasonably to have purchased supplemental feeds, which for easy figuring we place at September 1,. 1988, The $4,050 will therefore bear interest from that date until the payment is actuall'¥ made. Since no submissions were made to us as to the appropriate rate of interest, we wil~ leave it to the parties to agree on the rate, ~ai3ing which the board will remain seized o¢ jurisdiction and entertain brief written submiSSions on the issue, tn the even~ such submissions are made, the~nion aha33 make the initial submission, the Employer shall have ten days' after receipt of the Union's submissions to respond, and ~he union sha33 have a further five days to rep~y. Dated a~ Toronto this '20r. h day of. February ,1991, ¢ Eric K. Slone, Vice-Ch~irpereon John D..NcNanus, Member "I DISSENT (Dissent attached) Michael O'Toole, Member DISSENT . · · The initial issue for determination is whether the revocation of the ~rievor's scheduled vacation was a breach of Article 47.7 of the Collective Agreement. The resolution of t~is'isSue requires the following t~o-fold analysis:-. -*~ a) Was the grievor given an order to go north to fight forest b) If so,'was such an order a. breach.of.the Employer(s.* obligations under Article 47.7? I will address the above matters seriatim. It is cl'e~r that in his conversations with Mr. Doef no express order was issued to the grievor to go north. Can an order to do so be fairly implied from all the circumstances surrounding such conversations? While it would not have been unreasonable for the grievor to protest against going north directly to Mr. Denys, Z am satisfied, for the reasons given by the majority, that the absence of such protest does not vitiate the reasonableness of the grievor's belief that he was required to go .north. Accordingly, it is appropriate to imply such an order. In making such an order did the Employer improperly revoke the grievor's vacation entitlement under Article 47.7? As I read such article, the Employer may revoke an employee's vacation for sufficient business - related reasons. Therefore,~ the issue here is whether there were such reasons for cancelling the grievor's vacation. There is no dispute that the reason for the Employer's action was the need for a division boss to fight forest fires in the north. Accordingly, there was orima.facie an adequate business basis for the cancellation of the grievor's vacation. However, the majority attempt to impugn such~cancellation on the ground.that it was done in a discriminatory'fashion. Specifically, it is stated at page 7 that "the decision to call the grievor while Cassidy was exempted and a number of willing staff were not calledupon, ~annot be said to have been arrived at in good faith and without discrimination. This statement,- however, cannot stand up to scrutiny on several counts. First, the need was for a division boss to'go north. Cassidy and the grievor were the only such employees in the region. Accordingly, the fact that other willing staff were not called upon is irrelevant. Second, discrimination occurs where similar cases doAnot receive similar treatment. To successfully invoke this principle in the circumstances of this case, it must be established that the grievor's situation was similar in all material respects to that of Cassidy. It is true that Cassidy~ and the grievor were both on vacation at the time.of the call-up. However, that is where the similarity between them ends. Cassidy was far away in Vancouver while the grievor was in the region. Thus the grievor was much more accessible to both the Employer and the fire than was Cassidy. Accordingly, their circumstances were materially different so that the allegation of discrimination fails. In the result I would have held that the revocation 'of the grievor'~ vacation was not a breach of the Collective ~greement and dismissed the grievance. M.F. O'Toole, Member