CASE-NO : AH362

DATE : 04/7/95

PARTIES : CN CCROU

COMMENTS:

CASES# :

TEXT :

 

 

AWARD

 

This matter had been returned to the arbitrator, by the parties, in light of their inability to agree on compensation. In September of 1990, the grievor, Mr. H.C. LeGrow was required to absent himself from work for an extensive period by reason of a compensable injury for which he was in receipt of Workersí Compensation Benefits. In July of 1991 he was terminated by the Company by reason of its allegation that he was gainfully employed in the administration of an equestrian centre which he operates jointly with his spouse. The Union grieved his discharge and in October of 1994, the Arbitrator reinstated the grievor, remaining seized in respect of the issue of his compensation.

 

The parties are now unable to agree on that issue. The Union submits that the wages lost by Mr. LeGrow, by reason of his discharge. would amount to approximately $152,000 and that, when mitigating factors are taken into account, including his contribution to the equestrian centre, the amount which he should now be paid in the way of compensation would be $140,000.

 

The Companyís position is substantially different. Firstly, it would assess the wage loss suffered by Mr. LeGrow as being $129,000. Its position is based upon his previous attendance rate which the Company assesses to be 86%. The Company next addresses the issue of mitigating factors and comes to a substantially different conclusion than does the Union. Firstly, it questions the reliability of a financial statement provided by the grievor, the author of which appears to be unknown and which does not appear to be audited.

 

Taking the approach that the amount payable to Mr. LeGrow should be reduced by reason of the value of the capital improvement which his contribution brought to the equestrian centre and also looking at the cost to the equestrian centre to purchase the services which he provided, it arrives at a final figure of $51,000 as the compensation which, it submits, is payable to the grievor.

 

In the arbitratorís view, there is substance to the concerns which underlie the calculation advanced by the Employer. It is fair, I think, to take the approach that the grievorís prior attendance rate should be looked at by way of fairly estimating what his loss of earnings would truly have been. It is also valid, to think, to give some significant value to his contribution to the equestrian centre. It does not appear disputed that over the period of some three or four years the centre moved from a position of net annual loss in the order of $48,000 to a position of a net profit, albeit at the modest figure of some $3,000.

 

When all of these factors are considered, the arbitrator is satisfied that the compensation payable to Mr. LeGrow should be closer to the figure that is advanced by the Employer, although I am not persuaded that its position is fully acceptable. In the arbitratorís view, the figure of $75,000 would be appropiate as reasonable compensation for the grievor when all the above factors and consideration are taken into account.

 

The arbitrator, therefore, directs that the Company pay forthwith to Mr. H. C.LrGrow the sum of $75,000, inclusive of interest, in full compensation in respect of his claim in this matter.

 

DATED at Toronto this 4th day of July, 1995.

 

 

Michel G. Picher - Arbitrator