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HomeMy WebLinkAbout1989-0195.Sysiuk.90-08-07f~= ONTARIO £MRLOYES GE LA COLIPONNE ~ CROWN E,¥tPL O YEE$ DE L 'ON TA ~-~ 0 '~ . GRIEVANCE C,ONINIlSSION DE BOA~;tD DES GRIEFS ;~0 DUNDAS ET~EET WEST, TORONTO, CIVT/,PJO, MSG 1Z6-SL'ITE 2700 ;rELF. P~,ONE/TEL[SPhONE TOO. RuE DUNDAS OUEST, TORONTO, ~Ot~TA~'~O) MSG 195/89 IN THE ~tkTTER OF AN A~RBITRATION Under CROWN EMPLOYEES COLLECTIVE BA/~GAINING ACT Before GRIEVANCE SETTLEMENT BOA-RD BETWEEN OPSEU {Sysiuk) Grievor ~.and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer - and - BEFORE: B. Keller Vice-Chairperson G. Majesky Membe.r D. Walkinshaw Member FOR THE B. Rutherford GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOE THE C. Slater EMPLOYER Senior Counsel Human Resources Secretariat Management Board cf Cabinet HEARING: March 16~ 1~90 'This issue arises as a resul, t of a wrievance alleging a violation of s. ~.20.1 of the collective agreement. The Board was told that the employer had admitted that it had breached the collective agreement but that the parties were u,'~able Lo agree all aspects of the remedy. That is the issue the Board is to decide. The parties are agreed on the following: 1) The employee is entitled to back-wages. 2) The period of entitlement is April 1 - Nov. 26, 1989. 3) Interest is payable in accordance with the normal practise of computing interest. 4) The issue of integration of damages is moot. The parties are unable to agree on whether the grievor is to be comoensated for his inability to' make the maximum allowable pension contribution. In other words, his maximum al'!~wable pension contribution in 1990 is reduced because of events the previous year and he therefore will pay a greater amount of income tax. He seeks compensation for the addi~icn~l ta×es paid re~ult~ng from his inability to contribute tke ~.~aximum RRSP amount. The argument on behalf of the grievor is that the grievor is entitled to be "made whole". That means that he would have, but for the action of the employer, been able to make full pension contributions thus gaining the maximum tax advantage. He requires compensation to be put into the position he would have been prior to the actions of the employer. The employer characterizes the issue as one of remoteness of damages.~ Counsel agrees with the "make-%~hole" principle but submits that the compensation sought by the grievor was not reasonably within the contemplation of the par~ies and thus too remote. In support, the Board was referred to a judgement of the High Court of Justice, Allen v Tandv Electronics Ltd. 2 C.C.E.L. 13'?. The plaintiff was dismissed but' subsequently offered ~ther positions with the employer that he refused. He eYentuaily found another job, at a lo%vet salary, six monShs later. Whi~e unemployed he ~ithdrew some R.R.S.P. funds to cover living expenses. ~e brought an action for d~]mages for' wro~gfu] dismissal. The court awarded compensation .less mitigation. plaintiff had sought damages for tax paid on R.R.S.P. withdrawals. The claim was refused~ The court acknowledged 'that there was some loss of benefits and interest but found they sufficiently remote t'o be disallowed. In the case of Kilby v Oxford Wharehousing Ltd. et al ! C.C.E.C. 217 (High Court of Justice), a claim for loss of investment income on the collapse of an R.R.S~P. was disallowed in the case of a wrongful dismissal because that item of damage was not within the contemplation of the parties when the emplcyment contract ~as entered into. Although neither case is on all fours with the instant case, tkey clearly lend support to the proposition of the employer with ~egard to the claim of the grievor. The Board does not take issue with the notion of making the grievor whole. However, there is no principle that does not have solve limitations, in our view the nature of the compensation s.~ug~t by the grievor i~ entirely too remote to be considered part of what has been customarily understood to be a make-who].e award and its pay~ent · is not ordered by the Board. To the extent that this was the issue to be determined, the grievance is denied. Nepeanthis 7th day of August 1990. M.B. I(eller, Vice Chairperson '/ . -' 0. madesky / / Member ~ D. Wa!kinsha~ Me~er