AH - 202
IN THE MATTER OF AN ARBITRATION
THE CANADIAN TELECOMMUNICATIONS UNION,
DIVISION NUMBER 1
CANADIAN PACIFIC LIMITED
IN THE MATTER OF THE GRIEVANCE OF Andre Dyotte
Sole Arbitrator: Harvey Frumkin
There appeared on behalf of the Company:
D. W. Flicker
There appeared on behalf of the Union:
By its decision of October 4th, 1978, the Tribunal ordered reinstatement of the Grievor with full rights and benefits, following a hearing of the grievance on its merits in which the Tribunal found that the Company had not established just cause for the discharge of the Grievor. Insofar as the parties indicated to the Tribunal at the time, that there had been discussion respecting an offer of reinstatement made to the Grievor at an earlier time, which gave rise in their view to the issue of whether the Grievor would be entitled to full retroactive salary, the Tribunal made no determination of the question of damages, but reserved jurisdiction on this question.
Pursuant to the reserve of its jurisdiction made by the Tribunal the parties reconvened before it, on December 4th, 1978, at which time further proof concerning the issue of damages was presented to the Tribunal, so that it might be in a position to fix the damages to which the Grievor would be entitled as a consequence of his unjust dismissal.
At the hearing at which the Company was represented by Mtre Flicker and the Union by Mtre M. Rivest, the Company informed the Tribunal that it took no issue with the Grievor’s claim that despite efforts he was not able to secure alternate employment as might have for effect to reduce the extent of the damages suffered by him, following the dismissal. It was moreover agreed that had the Grievor been retained in the employ of the Company from the date of his dismissal to the date of reinstatement following the decision of the Tribunal, he would have earned the following sums:
a) March 1oth to April 14th, 1978 inclusive $1,598.27
b) April 17th to October 6th, 1978 ‘’ $7,863.75
c) October 9th to October 11, 1978 “ $ 189.02
d) Overtime allocation $ 288.43
The Company’s sole contention was that following the Grievor’s dismissal, it had offered to him reinstatement with an indication that some less severe from of discipline would be imposed by way of the grievance and arbitration procedure with such lesser from of discipline. It contends that this offer was made in late March or early April, 1978, at a meeting which Mr. H. P. Sharkey, Actin Regional manager for the Company and Mr. Destounis, a senior Union official were present. According to the Company this willingness to reinstall the Grievor in his position was reiterated at several subsequent meetings. It concedes that while it indicated in making its offer that some alternate from discipline would be applied, nonetheless, it would have been open for the grievor to grieve against such alternate from of discipline and thus, it would have been incumbent upon the Grievor to accept the Company’s offer and consequently mitigate the damages incurred.
For its part, the Union contends that the Company’s offer was not to the effect that the Grievor’s discharge would simply be modified by some lesser from of discipline against which the Grievor would still retain the right to grieve. Rather, contends the Union, the Company’s offer was in the from of an offer of settlement to dispose of the matter and included a requirement that the Grievor acquiesce in the penalty to be imposed and acknowledge some culpability in connection with the incident originally giving rise to the dismissal.
The Tribunal would accept that a Grievor whose grievance seeks compensation in the form of damages has a duty to pursue reasonable steps in order to mitigate the amount of damages that he will incur. A grievor cannot stand by imperious to accumulating damages, without taking reasonable steps to minimize such accumulation.. Thus, a grievor who has been subjected to discharge cannot refuse an offer of reinstatements and persist in the face of such refusal, to claim compensation for lost salary during the period following the offer. There would be nothing to prevent an employer from reinstating an employee whom it has discharged on disciplinary grounds pending the grievance procedure and without prejudice thereto. Such a state of affairs would not impede continuation of the grievance procedure already begun, nor a final determination on the issue of just cause for discipline and a consideration of the justness of the sanction imposed in the form that it ultimately took at the stage of the arbitration hearing.
An offer of reinstatement however, must be simply that and would not qualify as such, where it takes the form of an offer of final settlement of pending difference raised by the grievance or where it demands some acknowledgement of culpability on the Grievor’s part or an undertaking of a nature as to be incompatible with continued proceedings upon the grievance. Under such a state of affairs, it would be up to the Grievor and his representing Union as to whether he wishes to settle the issues raised by his grievance on the basis offered by his employer, but such a course would not be pre-requisite to a claim for compensation to redress damages incurred following the offer.
The question which the Tribunal must consider rests in a determination of the substance of the Company’s offer respecting reinstatement of the Grievor. In the is regard, it would fall to the Company to show that an offer of reinstatement was made to the Grievor without prejudice to this rights upon the grievance, such that there would have been no justification for the Grievor’s refusal of such offer.
The Company adduced verbal evidence as to the purport of the offer respecting reinstatement that it made. Evidence adduced by the Union revealed that in its view, such offer was not made in the for that the Company suggests it was. The Tribunal having head the differing views of the content and thrust of the Company’s offer, is inclined to discount the verbal evidence, particularly in view of the fact that in two letters, bearing date May 16th, 1978 and June 14th, 1978, respectively, the Company sets forth the essence of its offer in writing. An excerpt of the letter of May 16th, 1978, reads as follows:
“In your letter you have touch on the discussions which had been held between Messrs. Destounis, Carbray, and myself during your absence from Canada, and between yourself, Messrs. Parnell, Dunstan and myself on April 12th, 1978, whereby I had indicated my willingness to reconsider the penalty assessed as a result of the investigation, provided Mr. Dyotte acknowledges that his remarks could have been misunderstood by Mr. Raymond to constitute a threat. I am still prepared, of course, to modify the assessed penalty as discussed”
Again, a paragraph taken from the Company’s letter addressed to the Union date June 14th, 1978, sheds further light upon the nature of the offer.
“In making the decision to terminate the services of Mr. Dyotte, we gave consideration to the length of his service, however, the gravity of the offence dictated the severity of the judgement. After representation from yourself and the Regional Chairman, it was decided that consideration would be given to restoring Mr. Dyotte to service, with no loss of seniority, but with a suitable penalty provided Mr. Dyotte would provide us with a guarantee, written or verbal, that there would be no further incidents of this nature and a suitable apology made for the incident that occurred. We also made the concession that the apology could be in the form of a claim of misunderstanding. At both meetings, the Union claimed this was unacceptable and the meetings were broken off.
As previously stated, our position is unchanged, and without the necessary apology we cannot consider returning Mr. Dyotte to service. This is the Company’s final position.”
It is clear that the Company’s offer was conditional. In the first letter reference is made to an acknowledgement “that his (the Grievor’s ) remarks could have been misunderstood by Mr. Raymond to constitute a threat”. In the second letter the Grievor is required to furnish a guarantee that there be no further incidents and furnish a suitable apology for the incident. The letter makes it clear that the apology is a pre-requisite to reinstatement. It would appear evident that calling for an apology on the Grievor’s part as a condition of reinstatement would place in serious doubt whether the Grievor would have been permitted to persist in the grievance in that the apology would of itself have constituted some acknowledgement or admission of culpability on the Grievor’s part. The Company’s offer in imposing the conditions that it did, could have been easily construed as well as a settlement offer, whereby the pending differences between the parties would be resolved once and for all by reinstatement and the substitution of the discharge by some lesser from of discipline. The Tribunal cannot see that the Grievor would have been obliged, pretending as he did at the time that his discharge was unjustified and that he was guilty of no misconduct, to submit to such conditions in order to sustain his claim for compensation for lost wages following the offer. Indeed, to have done so may have severely prejudiced any right which he was pursuing at the time through the grievance procedure.
If it was the Company’s intention to modify the discharge by substituting a lesser form of discipline envisaging ultimate reinstatement of the Grievor, with the object of mitigating the damages that he was sustaining and which it itself could ultimately have been called upon to bear, its offer should have been made clear and unconditional. In this regard, the Tribunal cannot see as a permissible condition to reinstatement where this object is desired, that a grievor be required to apologize, in any way acknowledge his guilt, or make any undertakings of a nature as would infer misconduct on his part. If indeed, any conditions of some other nature were required in order to facilitate the reinstatement and where compliance with same might be construed as a waiver on the Grievor’s part of his right to continue grievance proceedings, the employer’s offer should be explicit in reserving to the Grievor his right to take issue with the discipline imposed. The Tribunal has little hesitation in concluding that such was not the case in the present instance.
The Grievor in presenting his claim for compensation, seeks a sum of $250.00 for “out of pocket expenses, transportation, meals, lodging in effort to mitigate monetary losses”. The Tribunal cannot grant this aspect of the claim. The direct cost incurred by the Grievor as a consequence of the discharge is lost pay. It might be that the loss actually incurred would be somewhat lesser than this amount, where alternate income has been earned, which would not have been earned had the Grievor been retained in his position. The Tribunal cannot see how a claim for compensation should go beyond this and expenses which may have been incurred through seeking alternate employment cannot be entertained. To do so, in the present case, and considering the evidence adduced, would require the Tribunal to venture into the area of speculating upon economies achieved or expenditures encountered. This, the Tribunal is not prepared to do.
In the instance before the Tribunal it cannot see how the Grievor’s claim can go beyond lost wages during the period that he was off work.
For the foregoing reasons, the Tribunal fixes the compensation which the Company shall be required to pay to the Grievor at $9, 939.47.
Montreal December 5th 1978