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HomeMy WebLinkAbout1996-0083.Cunningham et al.98-12-18 ONTARIO EMPLOYES DE LA COORONNE CROWN EMPLOYEES DE L'OwrARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 190, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACS(M(LE/TELECOP(E (414) 326-139tS GSB #0083/96, 0084/96, 2041/96 2042/96 2043/96 OPSEU 96DI94-195, 96H136-158 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cunmngham et al) Grievors - and - The Crown m Right of Ontano (Metro Toronto Housmg Authonty) Employer BEFORE Paula Knopf V Ice-ChaIr FOR THE Richard Blair GRIEVORS Counsel Ryder Wnght Blair & Doyle BarrIsters & SolICItors FOR THE Bnan Loewen EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARINGS Apnl 11, September 2, October 3 and 10, 1997 November 10, 199 December 4, 1998 SUPPLEMENTARY DECISION ThIS award anses out of a senes of gnevances filed as a result of a maSSIve reorgamzatIon resultmg 10 the layoff of 14 people from the Metro Toronto Housmg Authonty (the Employer) All 14 gnevors, who were employees wIth consIderable semonty, received layoff notices. The Umon filed gnevances challengmg the reorgamzatIOn and also challengmg the creatIOn of the posItIOn of Project Manager The gnevances also challenged the assignments to the Project Manager positIOn. Therefore, the gnevances that were filed ranged from mdlvldual gnevances to Umon gnevances seekmg an undo 109 of the re-orgamzatIOn and appomtment process The lItIgatIOn whIch would have been reqUIred to hear the ments of all the gnevances would have been extremely complex and lengthy To the credit of the parties and their counsel, there was an agreement to engage 10 a mediatIOn/arbitratIOn process from which evolved the decIsIon Issued by this Board on December 1, 1998 That decIsIOn resolved all but the remedial aspect of the gnevances. In a nutshell, that decIsIOn awards $180,000 to be distributed by thIS Vice-Chair among the 14 gnevors The craftmg of the remedIal order IS a very sensitIve and dIfficult problem. There are 14 mdlvIdual gnevors All of them applIed for the Project Manager posItion. It was a newly created position at a higher salary Therefore, It was out of reach for dIrect assignment. Only one gnevor successfully attamed that posItIOn on a permanent basIs Two were aSSIgned to the position on a temporary basIs Some gnevors applIed and were mtervIewed for the posItIon but did not succeed Other gnevors were not even mtervlewed. Thus, we are dealIng with 14 gnevors but only three positIOns, two of whIch were awarded on a temporary baSIS Even 10 a best case scenano for the Umon, not all the gnevors could have had a reasonable expectation of success 10 their malO claIm for relIef, WhICh would have been a direct assignment to the new positIOn. Therefore, determmmg - 2 - the amount of compensation appropnate for each gnevor IS very difficult In order to understand the situations of each gnevor and the consequences of the layoff notices upon them, It IS valuable to set out each of their Individual circumstances 1 Susan Anderson She successfully competed for and obtaIned the only Project Manager position on a permanent baSIS. This gave her an Increased salary and she has sustained no direct or finanCial loss as a result of the layoff However, she seeks nominal damages as a result of the stress she endured as a result of the receipt of the notice oflayoff and haVing to compete for the position. Her senIonty dates back to 1990 2 Mon Tam After the layoff, he was laterally assigned to another position With no loss of salary His senIonty dates back to 1980 This person also expenenced the stress of the receipt of the layoff notice 3 Carlo POggIO He was awarded a temporary pOSitIOn as a Project Manager as a result of the competitIOn. ThiS Increased hiS salary for a six-month penod. At the conclUSIOn of the temporary assignment, he has contInued In an actIng capaCIty In a position at a hIgher level than hIS home pOSitIOn. However, there IS no secunty at thIS higher level If thIS acting assignment IS terminated, he could be returned to hiS home posItIon or be given a lateral assignment and be returned to hIS ongInal rate He seeks compensatIon for the loss of permanent Income at the Project Manager level and a direct assignment to the Project - 3 - Manager Job on a permanent basIs He seeks $50,000 00 In compensatIon. His senIonty dates back to 1992 4 DaIsy Wong She successfully obtamed a temporary assignment m the competItIOn for the Project Manager posItion. When that temporary assignment ended she was put m a posItIon which IS lower than her home positIon but was red-circled at her ongmal rate She has suffered no actual loss and has had some mcrease m salary whIle under the temporary assignment. But she seeks compensation for the "proJectable loss" from the failure to obtam the permanent assIgnment She seeks the same remedy as Mr PoggIO on the same basIs Her senIonty dates back to 1990 5 Ron Legault Upon receIpt of his layoff notice, Mr Legault deCIded to work through the notIce penod. Upon termmatIOn, he received a severance package amountmg to two weeks' salary per year of employment. At that pomt he was two years short ofbemg able to claim full penSIOn. Dunng the notice penod, whIle he continued workmg, he was unsuccessful m bemg able to find another position with this employer He now receives a pension whIch amounts to less than 25% of his last year's earnIngs 6 Lloyd McDougall Mr McDougall opted to take a "pay In lIeu" package rather than to work out the notIce penod His senIonty dates back to 1987 He has been able to obtam some - 4 - work m order to mitigate his losses However, he has suffered financially as a result of the layoff 7 Mike Zentena Mr Zentena worked through his notice penod He was not able to obtam any other poslttons dunng that penod despite the fact that he competed for several vacancies After his layoff, he received Employment Insurance until January 1998 He has worked hard to try to mitigate his losses Fortunately, m July 1998 he obtamed a permanent position but his annual salary wIll be approximately $5,000 00 less than what he was makmg for this employer His semonty dates back to 1990 8 Terry Gunton Mr Gunton elected to take pay m beu of notice because he felt confident that he would be able to start up his own busmess as an electncal contractor Unfortunately, that venture did not Yield suffiCient mcome to support his famtly However, he has been resourceful and has recently begun a new busmess m the transportatIOn mdustry He estimates that he has spent approximately $43,000 00 m order to start up the new busmess and "to keep his family afloat." His semonty dates back to 1989 9 Joe Szamozl Mr Szamozl deCided to work through the notice penod Dunng this ttme he competed for and obtamed a pOSitIOn m the CUPE bargammg umt. However, this pOSitIOn pays 30% less than the pOSition he had held With this employer at the time of the - 5 - layoff Smce then, he has successfully competed for and obtamed another posItIon whIch gives a higher salary, but IS still approximately $12,000 00 less than he had been earnmg at the tIme of the layoff 10 Sean Convery Similar to Mr SzamozI, Mr Convery worked through the layoff penod and apphed for and succeeded m obtammg a Job m the CUPE bargammg Unit. He holds the pOSItIon now on a temporary basIs but hIS salary and his tenure will be secured by paragraph 3 of the Order of thIS Board dated December I, 1998 However the Job he now occupies pays considerably less than the position he held With thIS employer He estImates hIS losses to be approxImately $10,000 00 for each year 11 Bnan Cunningham Like Mr Szamozl and Mr Convery, Mr Cunningham worked through hIS notIce penod, competed for and obtamed a posItIon m the CUPE bargammg Unit But he too IS earnmg considerably less than he was earnmg at the time of the layoff SImIlarly, while hIS salary and tenure will be secured by paragraph 3 of the Order of thIS Board dated December 1, 1998, he seeks compensation for the ongomg loss of salary 12 Ray Rozmskl Mr RozmskI elected to take the pay m heu of notice He had been confident that he would be able to obtam alternative employment. However, he was very distressed to discover that the skills and traIning that he had expenenced With thIS employer were not competItive m the pnvate sector He had a great deal of trouble m - 6 - obtaining and/or maintaining employment He faults this employer for failing to give ItS employees a competitive level of training and expenence m current software programs in this industry He has survived smce the layoff by a senes of contract pOSitIOns and receipt of Employment Insurance benefits However, he has suffered tremendous financial losses His semonty dates back to January 1991 13 Amin Wallam Mr Wallam worked through hiS notice penod and was unsuccessful in finding a matching pOSitIOn. At the time of hiS layoff he had only five years to go in order to obtain hiS full pensIOn under "Factor 80" The layoff was particularly difficult for him to endure because hIS family was undergomg hardship because of the III health of hIS WIfe Since the layoff, he has receIved some Employment Insurance benefits Further, smce November 1997 he has been working in a contract position With MTHA at a salary of approxImately $21,000 00 less annually than hIS onginal pay rate He estimates that he has incurred a personal debt of $20,000 as a direct result of the layoff It should be noted that the Order of thIS Board dated December 1, 1998 appomts Mr Wallam to a sIx-month contract pOSItIon at an SO 1 level effectIve "January 2, 1998 or such other date as may be agreed." Mr Wallam's semonty dates back to 1989 14 Pat Guanno Mr Guanno had ten years' semonty at the time of hIS layoff He worked through the notIce pOSItIOn. While he competed for other pOSitIOns, he was unsuccessful in obtaining employment. After the layoff, he has survIved on Employment Insurance benefits He has taken vanous assignments With pnvate contractors whenever possible He has tned on many occasions to obtain pnvate positions but has been unsuccessful He - 7 - and family have suffered enormous emotiOnal and financial strams as a result of the layoff. Currently he IS m the process of trymg to start up a new busmess Arguments Presented Regarding CompensatIOn Many of the gnevors appeared before thiS Board and/or made wntten submissions seekmg compensatiOn as a result of the notices of layoff The requests for compensatiOn ranged from the seekmg of nommal damages to requests for full compensatiOn for all losses suffered, mcludmg emotiOnal distress All their submissions have been carefully considered, Counsel for the Umon spoke on behalf of all the gnevors and offered thiS Board some suggestiOns regardmg what would be appropnate consideratiOns to take mto account m dlsposmg the funds that are available for the gnevors It was suggested that the followmg "circumstances" could be considered as relevant (a) The questiOn of whether there has been any actual monetary loss (b) The Impact of the failure to obtam the higher rated salary of the Project Manager positiOn even If there has been no actual reductiOn or loss m salary (c) ConsideratiOn of whether people successfully obtamed alternative employment. (d) ConsideratiOn of the fact that people took severance packages or early retirement rather than remammg through the notice penod and - 8 - allowIng themselves to remaIn eligible for other assIgnments or competitIOns (e) Their semonty Further, counsel for the Umon stressed that each of the gnevors presented and represented legItImate but competIng Interests. This Board was asked to weIgh all the legItimate Interests and to reach a dISpoSitIOn of the funds that would be fair and eqUItable to all concerned. The Decision The medIatIOn/arbitration process adopted by these parties resulted In the decIsion dated December 1, 1998 which Includes provIsion whereby the Employer would pay a total of$180,000 00 and thIS Vice-ChaIr would determIne the amounts which would be payable to each Individual gnevor In order to decide who should be In receipt of these momes and how much each should receive, several competIng Interests have had to be taken Into consideration. I agree with counsel for the Umon that all the factors which were suggested above must be considered In addition, I have also taken Into consideration the fact that all the gnevors were seekIng the Project Manager positIOn, but only one permanent pOSitIOn and two temporary positions were Identified Therefore, It cannot be conSIdered that all of the gnevors could have succeeded In a competItIon for so few vacancies or opemngs I have also tned to factor In the eVidence regardIng the ments of the case and the difficulty the gnevors would have faced In tryIng to succeed. In additIOn, It IS my responsibility to take Into consideratIOn the gnevors' responsibility to mitigate their losses In thiS regard, I must say that I was Impressed by all - 9 - the eVIdence regardmg the efforts the gnevors have made 10 trymg to mlmmIze theIr losses All have been engaged 10 extensIve efforts to find alternatIve employment. Some have succeeded better than others On the eVIdence avatlable to me, I find It Impossible to say that anyone has fatled 10 theIr duty to mItIgate It must also be stressed that the eVIdence establIshes that all the gnevors who suffered actual losses have suffered greatly TheIr familIes have been put under great stram. They have suffered major economIC losses The $180,000 00 WhICh IS available to thIS Board to dIstribute to the gnevors IS not suffiCIent to compensate thIS group of gnevors for theIr actual losses Therefore, the awards whIch follow do not attempt to replIcate, nor do they replIcate, the actual wage losses Nor should these amounts be conSIdered to be a form of severance pay All the gnevors eIther receIved severance payments when theIr employment was termmated or have contmued to work WIthout severance payments, but are suffenng greatly reduced salanes Therefore, the funds bemg dIstributed as a result of thIS award should Slmply be conSIdered as thIS Board's determmatlon of the most eqUItable and appropnate method of dlstributlon of the funds available pursuant to the Order of December I, 1998 Finally, I have determmed that the gnevors should be dIVIded mto four categones While there are mdIvIdual vanatIOns wIthm each of these four categones, the amounts of momes available and vanatIon of CIrcumstances are not suffiCIent to JUStIfy a mmute dIfferentlatIOn (WIth the one exceptIon whIch IS noted below) Accordmgly, I have dIVIded the gnevors and the compensatIon packages mto four groups as follows - 10 - 1 Those who suffered no actual or direct economic losses - Anderson, Tam, Poggio and Wong None of these gnevors has suffered any direct loss as a result of the receipt of the notice oflayoff It IS true that only Ms Anderson has obtaIned the pOSitIOn of Project Manager on a permanent basIs. However, the other three gnevors have not suffered any direct losses either While the other three gnevors may have had the expectation of a higher salary on a permanent baSIS, the fact remainS that they have remained employed, lost no money and, In the case of PogglO and Wong, have received higher payments than available In their ongInal positions Given that there are not sufficient funds to compensate for the actual losses suffered by the remaining gnevors, and given that there are no losses suffered by these four gnevors, It IS mappropnate to award any damages to these four gnevors Includmg nominal damages Therefore, In the cases of the gnevors Anderson, Tam, PogglO and Wong, no compensation shall be payable 2 Those grievors who received pay in lieu of notice - McDougall, Gunton and Rozinski. It IS always a difficult chOice for a person to deCide whether to take pay In heu of notice or to work out the notice penod TraditIOnally, when one elects to take pay In heu of notice, one gets the benefit of the lump sum payment and IS deemed to have severed any other claims against the employer In the case of these gnevors, they chose to forego the - 11 - opportumty to compete for other vacancIes or obtaIn dIrect assIgnment Into other posItIons or vacancIes that may have become avaIlable It IS temptIng to declare that havIng made theIr electIon, these gnevors are not entItled to any further compensatiOn. However the fact remaInS that they all were reluctant to leave employment. They have suffered grave financIal consequences as a result of the receIpt of the notIce oflayoff TheIr nghts to full pensIon have been drastIcally curtailed TakIng Into consIderatIon a balancIng of the fact that they dId elect the payment In lIeu of notIce and the fact that they have suffered economIc consequences as a result of the forced retIrement, I have concluded that the appropnate amount of compensatiOn IS $7,500 00 for each of them. 3 Those who worked through the notice period but obtained no other employment with thiS employer - Legault, Zentena, Guarino and Wallani These people have suffered the greatest economIC loss because they have had no steady source of Income SInce the actual termInatIon of theIr employment. All but one have all been unable to obtaIn permanent employment and they have suffered great economIc and emotIonal hardshIp TheIr CIrcumstances are very sImilar However, It should be noted that Mr Wallam IS In slIghtly dIfferent CIrcumstances than the others He did obtaIn a contract from MTHA and has been workIng on that basIs for some tIme Further, the Order dated December 1, 1998 confirms that there IS another contract posItIon that wIll be awarded to Mr Wallam at the SO 1 level. ThIS should be taken Into consIderatIon In the compensatiOn award. AccordIngly, It IS ordered that Messrs Zentena, Guanno and - 12 - Legault each be paId the sum of $25,000 00 It IS ordered that Mr Wall am be paId the sum of $22,50000 4 Those who worked through their notice period, competed for and obtained lesser paying jobs - Convery, Cunningham and Szamozi These three gentlemen stIli have the benefit of permanency of pOSItIOn WIth thIS employer Therefore, they are In better ongOing posItIOns than some of their colleagues However, these three gentlemen are enJoymg ongomg economIC losses because the positions that they now hold pay consIderably less than the positIons they were m before These gentlemen are to be commended for the dlgmty and commItment they have shown to this employer and their famIlIes by accepting these positIOns They are also to be commended for their success In mltlgatmg their losses However, despite these efforts, they have all suffered slgmficant economIc Impact. Accordingly, each IS awarded the sum of $20,000 00 ConclUSion As a result of the foregOing, I order that the $180,000 should be dIstributed to the gnevors as follows Anderson $nil Tam $ml POggIO $ml Wong $nil McDougall $ 7,500 - 13 - Gunton $ 7,500 ROZInskI $ 7,500 Legault $25,000 Zentena $25 000 Guanno $25,000 Wallan! $22,500 Convery $20,000 Cunningham $20,000 SzamozI $20,000 These amounts, minUS the appropnate statutory deductIons, shall be made as soon as IS practIcable I remain seized WIth any Issues an Sing out of the ImplementatIOn of thIS Award. Before concludmg, It IS appropnate to commend counsel for both partIes, RIchard Blair and Bnan Loewen, for theIr professIOnalIsm and mtegnty throughout the medIatIOn/arbItratIOn process Each represented hIS clIent superbly and worked tIrelessly towards the resolution of an extremely complex and dIffIcult senes of gnevances I would also like to thank each of the mdIvIdual gnevors who made representatIons to me on the questIon of remedy and the gnevors who took the time to make wntten submiSSIons I found all their comments and suggestIons to be of great aSSIstance - 14 - Finally, the Employer IS ordered to pay the amounts determmed above to each mdlvldual gnevor as soon as possible DATED at Toronto, Ontano thIS 18th day of December, 1998 Paula Knopf Vice-Chairperson