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HomeMy WebLinkAbout1992-2878.Fitch.97-11-04 I' - t ~ ONTARIO , EMPLOYES DE LA COURONNE f GROWN EMPLOYEES DE L'ON1"ARIO ell 1111 GRIEVANCE COMMISSION DE jwo SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M6G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 I 180,RUEDUNDASOUEST BUREAU600, TORONTO (ONJ MSG IZ8 FACSIMILEITELECOPIE (416) 326-1390 I I GSB # 2878/92 OPSEU # 92H126 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before , THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fitch) Grievor - and - I The Crown in Right of ontario I (Uxbridge/Stouffvil1e Ambulance service.) I Employer BEFORE N. Dissanayake Vice-Chair E Seymour Member .1 F Collict Member FOR THE C. DiFranscesco GRIEVOR Counsel ( Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P Whalen (July 18 and August 20, 1996) EMPLOYER Counsel J. Middlbro' (April 29, 1997) Counsel Middlebro' & Stevens Barristers & Solicitors HEARING July 18, 1996 August 20, 1996 April 29, 1997 I '" ~. ,~ flf~ 2 SUPPLEMENTARY DECISION The grievor, Mr Graham Fitch, was employed at the Uxbridge/Stouffville Ambulance Service in the capacity of full-time ambulance attendant from September 1990 He was dismissed from his job on December 8, 1992 Following a grievance filed on his behalf, by decision dated August 8, 1995 the Board concluded that the employer had failed to establish just cause for his dismissal He was ordered reinstated with full compensation The grievor was offered reinstatement by the employer effective October 9, 1995, but the grievor opted not to return to his _. ~ former employment The parties are in disagreement as to the quantum of il compensation, if any, the grievor is entitled to from the date of his ~..- discharge until to October 9, 1995, specifically as to whether he complied with the duty to mitigate his losses The grievor"s formal education consists of grade 12 equivalent and successful completion of the Ambulance Care Program at Humber College in 1986-87 In addition he had taken several courses related to ambulance and rn emergency health care FOllowing his graduation from the Ambulance Care Program, he was employed at a number of ambulance services as ambulance attendant and air ambulance dispatcher, before joining the employer in September 1990 as a full-time Ambulance Attendant Therefore, it is fair to say that at the time of his discharge his -education and experience was solely in the field of ambulance and emergency care The grievor's testimony-in-chief -- While performing his full-time duties with the employer, the grievor had been employed part-time as a dispatcher at Air Ambulance Dispatch {"Air ~, "',j ,~ 3 Ambulance") at the Medical Air Transport Centre in Toronto, on an assignment through the Government of ontario Go-Temp Service Subsequent to his discharge, the grievor continued to work for Air-Ambulance He testified that he informed his supervisors at Air Ambulance that he was in a position to do more shifts than before and that he got increased work which brought him sufficient income to get by despite the loss of his full- time job Therefore, initially he did not search for other work He testified however that by late spring/early summer of 1993 his hours at Air-Ambulance started to decrease gradually From 3 to 4 twelve hour shifts per week, by June it reached a point where~he rarely worked two days in a row The grievor testified that he lived in a rented apartment in Port Perry at the time On top of the $700 monthly rent, he had payments to make on a new car he had purchased in October 1992 He found it difficult to make ends meet As a result he gave up his Port Perry apartment 'and moved in with his sister's family in Toronto, and lived rent free The grievor testified that after some time he felt that he could no longer impose upon hi s sister's family Besides, his income from Air Ambulance was decreasing Starting around June 1993, while on the phone I with dispatchers in various ambulance services throughout Ontario, the grievor -began to make inquiries about the j'ob market in the ambulance field The North Bay dispatcher informed him that Tamagami Ambulance may be hiring a part-time ambulance attendant The grievor testified that by this time he was keen to get back to his career as ambulance attendant He successfully applied for that job In October 1993 he quit his Air Ambulance job and took up the Tamagami position ~ E', 4 At Tamagami, he worked on an on-call basis carrying a pager He received $1 00 an hour on call pay For actual ambulance calls he received approximately $ 16 00 to $ 17 00 an hour for the duration of the call with a three hour minimum The grievor testified that as it turned out, he received very few calls In fact, he did only four ambulance calls until he left Tamagami in February 1994 During this period he lived with friends outside Mattawa rent free In return he baby-sat his friend's child Yet he found it a struggle financially ~ The grievor testified that before moving to Tarnagami he had met Mr Keith Baker of the Metro pati-ent Transfer Services, a company in Scarborough, offering non-emergency medical ambulance services In February 1994 he contacted Mr Baker and received an offer of a regular part-time job He accepted and moved to Toronto, where he lived with his mother for a month before renting an apartment with a friend in Mississauga The grievor worked at Metro Patient Transfer until June 1994 He testified that he found the daily drive to work from Missi13sauga to Scarborough across the top of Toronto stressful He therefore applied for and obtained a job with Park N' Fly, which was located closer to where he lived At Park N' Fly, the pay was comparable to the pay rates at Metro Transfer His job was to drive a bus from the Park N' Fly parking lot to the terminals at Pearson airport \ -- The grievor found out that the Dixon Hotel Airporter ("Dixon" ) was looking for a bus driver Approximately in August 1994 he applied for and obtained that position The Dixon job did not last very long either The I ,,~ ~- 5 grievor testified that he was very anxious to get back into an ambulance attendant job He testified that he had throughly researched the job market in Western Canada over the telephone He found out that British Columbia was not hiring Alberta had some possible openings, but wanted the grievor to pay for testing of his qualifications Saskatchewan had employment opportunities and also accepted his qualifications at par He obtained a leave of absence from Dixon and went job hunting in Saskatchewan According to him, in September 1994 he flew out to Regina and from there rented a car and ~drove from town to tow~, meeting with -people and dropping off resumes at numerous~ambulance services" As a result of these efforts he was able to secure a job in Melville, ,~ Saskatchewan starting in November 1994 The grxevor testified that at Melville, he drove both ambulances and a wheel-chair bus He received on-call pay of $ 24 00 for 20 hours and $ 20 per patient plus 20 cts A kilometre for ambulance calls The grievor testified, however, that he ended up mostly driving the wheel-chair bus, because he only received 3 or 4 ambulance calls a month In his continuing desire to work as an ambulance attendant, he kept looking out for other job opportunities In March 1995, the grievor secured a 3/4 time ambulance attendant job - at North Battleford, saskatchewan The North Battleford Ambulance Service maintained a crew at base on 12 hours shifts The grievor was on call 24 hours a day, five days on and five days off and received on-call pay of $ 1 25 an hour -- -.-. ~..:: ~' 6 The grievor testified that he was fairly content with his job with North Battleford, until Dutchak Holdings purchased that operation in August 1995,. The owner of Dutchak Holdings, Mr Dutchak immediately reduced the on-call time of the attendants Moreover, he stopped calling in attendants to do city calls, if the base ambulance was out of town Mr. Dutchak did those calls himself The result of these changes implemented QY Mr Dutchak was that the grievor's hours and income were drastically reduced ~ The grievor testified that while in Melville, he had met a young lady wi th whom he subsequently lived together Sae had three children and attended college He grievor became financially responsible to support < his financial :~ this family The grievor found that he could not meet obligations on his reduced income He sought permission from Mr Dutchak to seek another full-time jOb while employed at Dutchak Holdings, but was refused As a result, the grievor quit his job and obtained a new job as Front Desk/Switch Board clerk at Tropical Inn, a hotel in North Battleford The .~ grievor testified that after a couple of weeks of unpaid training, he started that job in September/October 1995, and worked there for 3 weeks As of October 9th, 1995, he was still employed at the Tropical Inn The grievor testified that between his dismissal on December 8, 1992 until the end of September 1995, he was regularly employed except for a total of 3 to 4 months -- ~. -e- 7 Grievor's testimony in cross-examination The grievor testified that after he was dismissed on December 8, 1992 he did not immediately start a job search because he was able to earn a reasonable income from his part-time job at Air Ambulance However, by late spring 1993 his hours started to decrease By June it became a concern He conceded however that he did not actively look for work in June because he anticipated getting his job back with the employer as soon as the criminal trial ended After he was acquitted on July 28, 1993, he wai ted through the month of August for Mr Peter Carell, the owner of ~ Uxbridge-Stouffville Ambulance Service, to apologize to him and recall him to his former position When this did not happen by mid-September, he J started to make inquiries about job availability from various dispatchers he was in contact with by telephone while doing his duties at Air Ambulance He said that he made 3 to 4 inquiries a day until he was satisfied that a particular area not was hiring The grievor testified that whenever he got a tip that an employer maybe hiring, he sent off a resume to that ambulance service When asked how many resumes he sent, he stated that he sent one to Niagara along with a covering letter When he had no response, he called and spoke to the manager, who told him that his resume had been placed on file When asked what other applications he made, the grievor stated that he sent a resume to Marathon near Thunder Bay He could not recall whether he followed up this application The grievor testified that in September -- 1993 the North Bay dispatcher indicated to him that Tamagami and South - River may be hiring He sent resumes and was called for an interview by South River He went for the interview in September and was told to keep , ~, 8 in touch, but no job offer was made The same week he had an interview with Tamagami The grievor testified that he drove up to Mattawa where he had some friends and attended both interviews from there The grievor admitted that the Mattawa area appealed to him because he had friends there and that he had applted for a job in the area in 1991 Had he received a job offer at that time he would have quit his job with the employer The grievor testified that once he got the Tamagami job and moved to the area, he made two applications to the North Bay Ambulance Service, one for a dispatcher position and one for an attendant position He also drove to - Sudbury and inquired personally about the helicopter service, the dispatch centre, and the Sudbury Ambulance Service He testified that he was ~ advised by the North Bay Service as well as the Sudbury employers that he , was ineligible because the jobs were bilingual All of the rejections were conveyed orally, so he did not have any rejection letters Once he started working at Tamagami on a part-time basis in December 1993, he made no formal applications elsewhere Up to the time he resigned from Air Ambulance in October 1993, he had earned $ 23,563 33 When asked why he would quit that job to go to Tamagami for an on-call job at $ 1 00 an hour with no shifts guaranteed, he gave three reasons First, the hours at Air Ambulance were gradually declining Second, he wished to work as an ambulance attendant and the Air Ambulance j~ ~s as a dispatcher Third, he felt he was inconveniencing his sister's family by living there, whereas his friends at Mattawa were happy to provide him free board and lodging in return for his baby-sitting services Under questioning, he conceded that he took a financial risk 5y quitting the Air Ambulance job to take up the Tamagami job - ( j ;;.' .~ 9 When asked why he did not keep his Air Ambulance job and attempt ~o find other part-time work to supplement his income, he testified that he did According to him he applied to Mississauga, streetsville and Georgetown, all by telephone He did not know the names of the persons he spoke to at any of these places He admitted that the only written application he had made was to Niagara He testified that he kept away from the Durham Region "because of Mr Carell" At Tarnagami, the grievor did orientation in December 1993 and started work in January 1994 His T-4 slip for 1994 shows his income from Tamagarni to be $ 632 88 For part of October and all of November and December, 1993 he had no income at all, except approximately $ 45 00 he was paid for 3 hours of orientation in December He admitted that he quit Air Ambulance in mid October 1993 and moved to Tamagami, but his Tamagami job did not start till January 1994 At Tamagami, through January and February 1994 he did not look for other work In the two months he had only about 30 hours of work in total So in February he contacted Mr Baker who offered him a regular part-time job with Metro Transfer in Scarborough starting in mid February The hours were irregular on an as needed basis and the pay was $ 7 00 per hour The grievor worked at Metro Transfer until June 1994 During that period he did not search for other jobs In June he quit and accepted the job at Park N' Fly He said he made that move because Park N' Fly was closer to his residence and Park N' Fly paid $ 9 00 per hour He testified that through this period he spent in Toronto he made no ,~; 10 applications to ambulance services in Ontario because by then he had decided that he ~as not going to find any ambulance work in Ontario When asked what efforts he made to find jobs outside the ambulance field, the grievor replied "not much because in the back of my mind I was hoping to move out West to get back to my ambulance career" While working at Metro Transfer he had researched the job market in Saskatchewan and B C In July he quit Park N' Fly, and took up the Dixon Hotel Airporter job, even though it paid $ 60 00 a week less He said that he did that because - at the Airporter he did rotating shifts which allowed him to enjoy evenings on most days He did that jOb until he moved West to Melville, ,,,,4 Saskatchewan in November 1994 He agreed that at Melville he made less than what he would have earned had he stayed at the Dixon Airporter The Melville job was also an on-call job with no hours assured The work involved driving a bus He quit Melville to go to the job in North Battleford at the end of March 1995 Under questioning he said that he made that move because the income was better and the North Battleford job was an ambulance job He testified that during his tenure there from March to August 1995 he was quite content and did not look for other work, until the operation was taken over by Mr Dutchak When asked why, given his stated goal of working in the ambulance field, he quit an ambulance job to work in a hotel, the grievor testified that he could not manage to support himself, his girl-friend and her 3 children on the money he made at North Battlefield after the Dutchak take over He had anticipated that at Tropical Inn he would make more working full-time at near minimum wage, than he would have at North Battleford ~ ~ 11 He was employed at Tropical Inn as of October 9, 1995, the agreed to cut off date for his compensation claim Employer counsel put to the grievor documentation showing that in the one month period the grievor worked at the Dixon he had made approximately $ 350 00 a week and asked why he quit to go to the Tropical Inn at $ 176 00 a week The grievor testified that he anticipated that soon his income at Dixon would have decreased even below $ 176 00 a week The Employer's Evidence ~ The employer's evidence was adduced through Mr Peter Carell the -~ owner of-Uxbridge-Stouffeville Ambulance Services He testified about a ?~~ survey of ambulance services he had conducted in the Fall/Winter of 1995 In addition he filed copies of the employment classified section in the Toronto star for each first Friday of the month between November 1992 and August 1995 Mr Carell's testimony-in-chief ~ Mr Carell testified that the purpose of his survey was to see what the general employment picture was in land ambulances services in Ontario similar to Uxbridge-stouffeville in the years 1993, 1994 and 1995 His survey report was based on responses received from 98 ambulance services following a survey form sent by him According to it, a total of 575 jobs were filled by the 98 services that responded in the years 1993, 1994 and 1995 Mr Carell testified that larger ambulance services in the greater Toronto area did not respond to his survey-because their method of record keeping did not allow them to properly respond to the questionnaire Nor did his survey include the 19 government operated ambulance services in I ) I I .; - 12 Southern Ontario He testified, however, that from conversations he had with managers in these ambulance services, he had personal knowledge that these services were actively hiring in the 3 year period under survey Mr Carell's testimony in cross-examination Under cross-examination Mr. Carell agreed that the public reputation and the reputation in the ambulance service industry was very important for any ambulance service. He ladmitted that if he knew that a job applicant had been fired from another ambulance service for an alleged sexual assault, he would be concerned about hiring ~hat person However, he stated that if the person had been acquitted at a criminal trial "You have to respect that and life must go on", and that he would not necessarily avoid hiring the person When asked if so why he did not reinstate the grievor after his acquittal, Mr Carell testified "because a grievance was already in progress independently" A sample of the survey form circulated by Mr Carell was filed The relevant part of the text of that form reads as follows Dear Sir/Madam Re New Staff Hired -Calendar Years 1993, 1994, 1995 I am conducting an emp;'oyrnent survey subsequent to a Grievance Settlement Board award and so I am in need of some general information Would you please look over your records and fill in how many staff you hired, 'for FOR ANY REASON, during the calendar years 1993 through 1995 Your name Date completed 1993 1994 1995 TOTALS Full-time - Part-time Casual -'> TOTALS I . ."r ," 13 The results of the survey relied on by the employer were based on 98 of these survey forms filled and returned by 98 ambulance services The results indicated that in the 3 years a total of 575 positions were filled, consisting of 91 full-time, 275 part~time and 209 casual positions Mr Carell admitted that he did not know what qualifications the applicants who filled these positions had Union counsel pointed out that the survey focussed on "staff hired" and suggested that the respondents would have included non-ambulance positions filled such as dispatchers, $ecretaries and mechanics Mr Carell responded that he had not thought about it, but stated that he had only paramedic jobs in mind when he prepared the survey form He conceded that the form did not draw a distinction between paramedic and other jObs, but stated th~t he did not think that any of the responding services would have hired mechanics because to his knowledge only large services hired mechanics and the bulk of the responding services were relatively small He conceded that he did not know which ambulance services hired secretarial and clerical staff Mr Carell also admitted that where a survey form indicated that a full- time position was filled, it was possible that it was filled by granting a promotion to a part-time or casual employee The general principles of law The leading case relating to the duty to mitigate is Red Deer College v Michaels, (1975) 57, D L R (3d) 386 S C C where Laskin C J made the following remarks at p 390-1, which have been often quoted in arbitration awards -- - In the ordinary course of Ii tigation respecting wrongful dismissal, a plaintiff, in . 14 , offering proof of damages, would lead evidence / respecting the loss he claims to have suffered by reason of the dismissal He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages If it is the defendant's position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge's assessment of the plaintiff's evidence on avoidable consequences ~ The Red Deer College judgement dealt with an action. for wrongful dismissal After referring to the passage above, arbitrator Rayner in Re McDonnell Douglas Canada, (1989) 9 L.A C (4th) 387 made the following observations at p 388-9 Later in the judgment the court placed the onus on the defendant, not the plaintiff However, in Re Metropoli tan Toronto Board of Com'rs of Police and Metropolitan Toronto Police Assn (1977) 14 LAC (2d) 1 (Arthurs), the arbitrator in referring to the Red Deer case indicated that the custom in labour arbitrations is that the employer had the onus of raising the issue of mitigation if he wishes to have evidence adduced on that issue but that once the issue is raised, the onus is then on the employee to show that he has taken all necessary steps to mitigate This "custom" has developed because in the vast majority of cases the key iss~e is one of "just cause" and the parties are content to leave questions of compensation and mitigation to the parties with the arbitrator only dealing with the issues if it becomes necessary to do so In Re Carling O'Keefe Breweries of Canada ltd And Western Union of Brewery, Beverage, Winery & Distillery Workers, Loc 287 (1984), 20 LAC (3d) 67 (Beattie), the reasoning in Red Deer was also explored and the concluE~on reached that if the employer challenged the attempts at mitigation, the employee had the onus of showing that he had taken reasonable and prudent steps at mitigation ...Z' '.'l) ;ij 15 The issue of who ultimately bears the evidentiary onus may be debatable although my own preference would be to adopt the approach taken by arbitrator Arthurs but in the instant case the question of onus is not determinative because the grievor did lead evidence as to what he did to seek alternative employment In the present case as well, the question of how exactly the onus shifts is not of significance The employer led evidence as to what employment, in its view, was available to the grievor The grievor testified as to the extent of his attempts to obtain employment The Board ~ must determine in light of all of the evidence, whether the employer has satisfied its ultimate onus of establishing that the grievor had failed to comply with his duty to mitigate his losses In Re Construction Aggregates Ltd, (1991) 21 LAC (4th) 370 (McPhillips) at p 374, the Board described the task of the respective parties in a dispute relating to the duty to mitigate Therefore, in assessing whether the grievor mitigated his damages, the available job market must be considered However, the less evidence there is with regard to legitimate efforts made by the employee, the less evidence will be required of the employer to show there were available jobS which could possibly have been obtained Put another way, from a practical point of view the evidentiary onus on an employer will increase in proportion to the degree of effort which has been put forth by the employee In Re McMillan, 967/93 (Dissanayake) at pp 7-9, this Board stated The grievor did not testify that she did not seek alternate employment because she felt that no employer would hire a discharged employee accused of serious misconduct However, in his submissions union counsel raised this as a justification for the grievor's mlnimal efforts The Board reiterates that the duty is only to make reasonable efforts, not to actually find employment To assume that one is not going to be successful in finding employment is to engage in pure speculation Just as much as there is no guarantee that ~ ~~ 16 the grievor would have found employment had she made reasonable efforts, there is no assurance that she would ~ot have been hired either, particularly by employers other than in the ambulance service sector To accept the union's approach is in effect to create a legal principle that an employee who is discharged for alleged misconduct is exempt from the duty to mitigate. The Board agrees with Arbitrator Rayner who in Re McDonnell Douglas Canada Ltd (Supra) at pp 391-2 rejected such a principle In essence, the union's argument, on this point, abolishes any duty to mitigate, and with respect, I cannot accept it It may well have been difficult for the grievor to find other employment but the duty of mitigation does not require the grievor to find other employment but rather to take all reasonable steps to seek other employment If, after a reasonable search, the grievor cannot find - another job, then the company must accept the consequences of its improper discharge and compensate the grievor so as to make him whole 'iC However, if a reasonable search for other " employment is not undertaken, and only the grievor can conduct such a search, one cannot say whether mitigation was possible The duty to mitigate is so well established, and for good reasons, that I cannot abolish it even in the circumstances of this case Union counsel contended that the employer's survey was not scientific and did not establish that any of the available jobs would have suited the grievor in light of her full-time job, which she worked on the basis of a rotating shift schedule However, the employer's onus does not go so far as to prove that the grievor would actually have got one of the available jobs The employer has established that positions were available for part-time ambulance attendants in the same geographic zone where the grievor had been employed It is the grievor, and not the employer, who is aware of the personal restrictions she had in terms of travel, schedule, family obligations etc If she had made a reasonable job search and was able to show that none of the available positions were suitable, she would have been in compliance with the duty to mitigate However, where she has not even tried, no one really knows whether any of the available positions would have suited her To accept the union's position is to assume that because the grievor held her full-time dispatcher position, there would not be any part-time position which she could possibly have fitted in . I ~ 17 CONCLUSION The task of the Board is to apply the general principles of law to the facts before it, and determine whether the grievor could be said to have taken all reasonable steps to m~tigate his losses In this regard the Board notes the observation of Lord Haldane in British westinghouse Electric Co V Underground Electric Railways Co , (1912) A C 673 at pp 690 that the duty udoes not impose on the plaintiff an obligation to take any step which a reasonable and prudent man would not ordinarily take " _. An observation must be made about the credibility of the grievor's evidence as to his job search efforts He specified certain workplaces he ;t~ approached with the hopes of finding employment However, in addition he also testified in very vague terms that he Umade inquiries" from or that he ~sent off resumes" to, many ambulances services He testified that in Saskatchewan he Udrove from town to town dropping off resumes" Yet he did not name the workplaces He kept no list and had no notes relating to his efforts Under cross examination, he stated that when he submitted resumes, he also included a covering letter to each employer However, he ~~ did not produce a single copy of a resume or covering letter that he had sent According to him he did not retain copies of any of that documentation He also did not produce a single rejection letter His position was that he received none because all of the rejections were received verbally The union submits that this testimony of the grievor must be accepted as true because it stands uncontradicted .- In the Board's view, that does not logically follow It must be rememb~ied that the job search activity was undertaken by the grievor The employer was not in any way involved ., v . 18 in that activity No employer is in a position to monitor what a discharged employee does in an effort to find employment It is therefore not rea~onable to expect any employer to be in a position to contradict an employee's testimony in that regard The fact that the employer did not contradict the evidence of the grievor does not necessarily mean that the Board must accept all of that evidence as credible and truthful The Board must still assess the credibility of the evidence by cqnsidering a number of factors including the consistency of the evidebce and the inherent probabilities of the testimony ~ In Re Vulcan containers (Canada) Ltd, (1970) 21 LAC 167 (Christie), the grievor produced a list of employers she allegedly approached The Board at p 168 observed about the absence of corroboration and its impact on the grievor's credibility There is no corroboration for the grievor's testimony that she did in fact approach these companies other than her husband's testimony that he dropped her in the area on the days stated and picked her up on his way home from work in the evening The grievor testified that she applied to a great many companies in addition to these on her list but that she "got sick and tiredff of writing down their names In my view this statement casts some doubt on her credibility, at least with regard to her job hunting efforts In that case the grievor had some corrOborating evidence, albeit very weak, from her husband In this case there is nothing other than the grievor's assertions The only corroboration is with regard to jobs he actually was successful in obtaining The Board found the grievor to be a very intelligent and articulate person It is very hard to believe that if the grievor made all of those applications as he claims, he would not ~ ~, 19 '- have kept some record The absence of any letter of rejection causes the Board further concern about the credibility of the grievor's evidence In any event, the Board is of the view that even if the grievor's testimony is accepted, it does not fully meet the test of "all reasonable effortsH required of him The union stresses the fact that the grievor was employed throughout the period of some three years, except for 3 or 4 months It is pointed out that, the grievor even secured jobs below the rank of ambulance attendant, and suggests that thereby he even exceeded the _duty he had to meet ~ 'i'~ In many cases relating to mitigation the dispute is whether the grievor unreasonably failed to look for lower ranked jobs when it became apparent that employment of equal rank was not available In the present case, the grievor was employed for the vast maj,ori ty of the time but all of his jobs were s~gnificantly lower ranked than the position from which he had been dismissed Does this necessarily mean that the grievor exceeded or at least met the duty to mitigate as the union suggests? We -., do not think so The duty on the grievor was not to look for any employment It was to take all reasonable steps to mitigate or minimize his losses If by making reasonable efforts the grievor could have avoided all of his losses, the duty to mitigate requires him to do so He did not fully comply with his duty by mitigating only part of his losses By his own admission, by June 1993 the grievor became very concerned because his hours at Air Ambulance had significantly dropped At this point, it was incumbent upon the grievor-to take all reasonable steps to seek a full-time position as ambulance attendant in order to replace the I :'~ '(J 20 income he lost as a result of his discharge from Uxbridge-stouffville That is what a "reasonable and prudent" person would have done While the grievor made some attempts, they were half-hearted and casual Even on his own testimony, his job search consisted mostly of inquiries made from emp~oyees working as dispatchers at other ambulance services The inquiries were made whenever the grievor had to contact such dispatchers as part of his duties as dispatcher at Air Ambulance He conceded that he made only one written application to an ambulance service, namely the Niagara Ambulance Service The grievor made very minimal efforts at _ seeking positions in southern Ontario Southern ontario has a number of large ambulance services In addition there were some 19 government ._ _u operated ambulance services in Ontario He made little or no effort to seek employment with these employers He testified that he had no chance of succeeding in Southern Ontario because of the stigma of the pending criminal charges against him He testified that he did not try in the Durham Region "because of Mr Carel 1 " However there is no evidence to suggest that Mr Carel 1 did anything to impede his chances of employment or that if he did, that other employers would have been influenced by Mr Carell Besides, as cases such as Re McMillan (supra) and Re McDonell Douglas (supra) point out, the duty on the grievor was to make an effort He was not entitled to assume that he would not succeed, particularly considering that he had been acquitted of all criminal charges by the end of July 1993 While some employers may have continued to be prejudiced, it is entirely possible that others may have sympathised with the grievor It is precisely because of this unpredictability that arbitrators have h~ld that employees discharged for alleged serious misconduct are not entitled to assume that they are not going to be successful in finding employment '\ . . 1'.1 21 The Board is convinced that the grievor was content to do whatever job he came across through acquaintances or "tips" as long as it was adequate to get by, because he was confident that he would be reinstated .-- at the conclusion of the arbitration That, in our view, explains why he left Southern Ontario for the North He preferred to live in the North and , took the opportunity to tryout his preferred life-style, while waiting for reinstatement He also testified that he liked living in the West for a number of reasons E'or instance he said that the people there were friendlier The Board is satisfied that the grievor did not move to -Northern ontario and subsequently to Saskatchewan because he had exhausted all reasonable efforts to find employment in Southern Ontario without ''!''f .-..' success In fact, the evidence indicates that he made very minimal efforts to seek job opportunities in Souther Ontario, where a number very large private ambulance services and equally large government ambulance services were located This situation is somewhat analogous to the situation faced in Re , Canada Post Cort> , (1989) 6 LAC (4th) 232 (T A B Jolliffe) The grievor filed a job search list of 170 employers she had contacted, most of them by telephone At p 2.39 the arbitrator observed "It is most telling that she produced 10 pages of. hand-written notes listing approximately 170 job contacts with a wide range of potential employers without generating so much as one real job application she can remember and no rejection letters" At p 240 the arbitrator concluded I have no doubt that she was, unless something extraordinary had turned up for herL quite content to await the hearing and eventual arbitration decision, collecting unemployment insurance in-the meantime In my review of the IO-page document listing her employer contacts, it is apparent that overwhelmingly the jobs listed thereon are sales clerking, clerical, entry ;oj ,... c' 1J 22 level administrative or lower level management of the type which, the grievor so often noted, did not come up to her salary expectations Indeed it is fair to say that the evidence of that grievor with regard to job search effort, which the Board found to be inadequate, was stronger in that she directly contacted 170 employers by telephone and was able to list who was contacted The one difference is that she was unsuccessful in obtaining even a lower ranked job through her efforts In the present case the grievor contacted very few potential employers qirectly He did not provide a list of employers he made inquiries about or the places where he sent off resumes to However, he was successful in securing some lower ranked jobs through his causal efforts While the grievor in Re Canada Post partially mitigated her losses through unemployment insurance benefits, the grievor did so by doing low paying jobs However the fact is that his efforts at finding an equally ranked and equally paying job which would have fully mitigated his losses, were very minimal A reasonable and prudent man, to use the terminology of Lord Haldane, would have made a significantly more serious effort to find a full-time position as an ambulance attendant in one of the many ambulance services in ontario Considering that the grievor did obtain some employment for the vast majority of the time, the fact that those j,obs were not adequate to mitigate or avoid his losses fully, and the fact that the grievor only made half hearted and casual efforts at finding jobs whi ch woul d have fully mitigated his losses, the Board concludes that the grievor only partially met the duty on him to mitigate his losses I I I i ( ..' 'W 23 The next issue to be determined is whether the employer has adduced adequate evidence to establish that had the grievor fully complied with his duty to mitigate, he might have found employment which would have avoided all or some of the losses, for which he now seeks compensation There is no doubt, as the union points out, that the survey conducted by the employer was not scientific and had some flaws Partic~larly, while disclosing that a certain number of positions were filled in the three year period, the survey does not indicate how many of those were ambulance -attendant jobs for which the grievor would have been qualified Nevertheless, what it does establish is that 91 full-time, 275 part-time . , 'q and 209 casual positions of some sort were filled in these ambulance services While the evidence is that some larger ambulance services employ some clerical staff and even mechanics, the survey did not include the I larger ambulances services in Ontario, including the 19 government operated ones Mr Carell testified that they did not respond to his survey because their record keeping methods did not permit them t,o provide the requested information While the survey results were not one hundred percent reliable, on the basis of all of the evidence it is reasonable to conclude that the bulk of the 575 positions filled in the three'year period, and particularly the 91 full-time positions, would have been ambulance attendant jobs The point is that the grievor did not make a serious effort to canvass the many ambulance services within ontario As held in Re Construction Aggregates Ltd (Supra) , given his minimal efforts, a high evidentiary onus ought not be placed on the employer The employer has no obligation to show that the grievor wouladefinitely have secured one of the positions available All that it 'has to prove is that there were positions available for which the grievor was qualified to apply See, Re ,\.. '. i? 24 MacMillan, (supra) The Board concludes that the employer has met this standard of proof I In conclusion, the Board finds that the grievor satisfied the duty I to mitigate fully only until the date he quit his position at Air Ambulance in October 1993 He is entitled to full compensation for that period However, after that period, he only partially satisfied his duty to mitigate The Board must, as best as it can, determine that portion of the grievor's losses which is attributable to the inadequacy of his efforts at mitigation during this period The Board~ concludes that, in the circumstances his entitlement to compensation for lost wages should be ~~ reduced by fifty percent after the date he quit the Air Ambulance job In other words, he is entitled to be compensated only for one half of the amount of wages he would have received, but for the dismissal Of course the actual amounts he earned during the whole period will be deducted from the amount of wages lost from the employer Further, he shall be entitled to interest on the amount of compensation owing pursuant to this award, calculated in accordance with the principle known as "the Hallowell Rouse ., Formula" as set out in Practice Note 13 of the Ontario Labour Relations Board Practice and Procedure The employer' is directed to pay to the union, the amounts calculated to be owing pursuant to this decision, within 60 days of the date this decision is received by the employer In the event that the parties are unable to agree upon the calculation of particular items of compensation, those amounts not in dispute shall be paid-within the 60 day period ,,- ~ ~ 25 \ In order to enable the parties to do the appropriate calculations the Board was called upon to rule on some incidental issues between the parties The Board rules as follows Baseline for calculating salary The Board rules that the loss of the grievor's part-time position at Air-Ambulance cannot be reasonably attributed to the employer Therefore, income from that part-time employment should not be taken into account in calculating the baseline salary At the same time, all of the grievor's income from Air Ambulance in the year 1993, ~ should not be taken as mitigation because he would have had a certain amount of income from Air Ambulance even if he had not been dismissed However, considering the evidence that the grievor was able to perform more work for Air Ambulance after his dismissal at Uxbridge-stouffville, the Board directs that the rate of income at Air Ambulance for 1992 prior to his discharge be used as the rate of income he would have had at Air Ambulance in 1993, had he not been discharged from his full-time position Only the additional amounts he made at Air Ambulance following his discharge by the employer are subject to mitigation Income Tax Implications The Board agrees with the reasoning in Re Grenius, 1495/89 (Fisher) that a make-wrlole award should take into account adverse income tax implications for the grievor Therefore the Board orders that the employer gross up the amount of the additional amount of tax liability resulting to the grievor as a result of receiving compensation for lost wages in a lump sum as a result of this decision "~ i's 26 Period of Entitlement The Board's decision directing reinstatement was dated August 8, 1995 The evidence indicates that pursuant to that direction the employer offered reinstatement effective September 25, 1995 The grievor indicated to the employer that because he had to relocate from Saskatchewan he needed more time to return to ontario and resume his employment Then the employer set a reinstatement date of October 9, 1995 On October 3, 1995 the grievor informed the employer that he would not be returning to employment with the employer In these circumstances the employer submits that the period of entitlement should end as of the date of the Board's decision (August 8, 1995) , whereas the union claims compensation up to October 9, 1995 The Board rules that since the grievor could have resumed his employment with the employer as of September 25, 1995, that ought to be the cut-off date for his entitlement The Board remains seized with jurisdiction to deal with any disagreements between the parties in calculating the amounts of compensation resulting from this decision Dated this 4th Day of November 1997 at Hamilton, Ontario ~~~-4 l. N ssanaya e Vice-Chairperson "Concurring" E Seymour Member ,- "Concurring" F Collict Member \