SHP 373 SUPPLEMENTARY

SUPPLEMENTARY AWARD

By an award herein, dated January 5, 1993 the Arbitrator allowed the grievance of Machinist Anthony Brunt, finding that he was “entitled to the protections of the ESIMP upon the abolishment of his supervisory position, effective June 30, 1991.” The Arbitrator retained jurisdiction with respect to the issue of compensation. It now appears that the parties are disagreed on that mater, and seek further direction from the Arbitrator.

Central to the dispute between the parties is whether Mr. Brunt should be entitled to compensation for a period of time during which he was laid off by the Company, and as the Arbitrator has found, should have been placed on ES status, when he undertook full-time law studies at the Faculty of Law of Dalhousie University. Mr. Brunt commenced his law studies in September of 1992. Also at issue are whether the Company was entitled to deduct from its compensation to Mr. Brunt earnings which he made with an outside employer during the period of his layoff, and whether he should be compensated for overtime opportunities missed on the occasion of some eighteen general holidays during his layoff. Additionally, the Union seeks the payment of interest on all monies owing. By the agreement of the parties this award will limit itself to determining the principles to govern the issue of compensation.

I deal firstly with the issue of whether, as the Company maintains, the grievor’s undertaking a full-time law course would, in the circumstances, disentitle him to any compensation for that period. The Company’s position is that Mr. Brunt should not be compensated for any time which he spent as a full-time law student, on the theory that he could not then be mitigating his losses by seeking alternative employment. In that regard the Company relied, in part, on the decision of this Arbitrator in Re Canada Post Corp. and Canadian Union of Postal Workers (1991), 21 L.A.C. (4th) 400 (M.G. Picher). In that case it was found that a reinstated postal worker was not entitled to compensation for a period of time, during discharge, when she enrolled in a full-time program of studies. To the same effect the Company relies on CROA 1926.

The Arbitrator has no difficulty with the general principles enunciated in the two cases referred to by the Company. They arise in the context of discharges, and relate to the duty of mitigation. Essentially, they stand for the proposition that an employee who enrols full time in a course of studies is, absent evidence to the contrary, taken to have abandoned any attempt at mitigating his or her economic losses by seeking alternative employment. On the facts of the instant case, however, those principles do not apply.

It is common ground that the grievor should, by reason of the initial decision herein, have been on employment security (ES) status at all times material to the dispute presently at hand concerning his compensation. As an employee on employment security he was, of course, subject to recall to work by the Company, and would lose his ES status if he failed to protect any assignment directed to him. In fact, however, the Company, erroneously as the Arbitrator has found, considered that Mr. Brunt was laid off. He would then have had a right of recall to work and could, without offending any principle of which I am aware, have enrolled himself in a university course pending recall. Even if it is accepted, as I believe it must be, that an employee who is erroneously laid off and grieves to recover his or her job is nevertheless under an obligation to mitigate economic losses, regard must be had to the specific facts of each case to determine what would be the appropriate standard of mitigation.

There was, on the peculiar facts before the Arbitrator, apparently nothing inconsistent with an employee being on employment security, and drawing benefits in that regard, while attending full-time studies or, for that matter, as the ES rules allowed at the time, being gainfully employed in some other job without any reduction of benefit. Critically for the instant grievance, it is common ground that after he was reinstated by the direction of the Arbitrator Mr. Brunt continued to pursue his full-time law studies, notwithstanding that he was returned to the employment rolls of the Company, either on employment security or as a machinist with regular assigned duties. There is, therefore, reason to doubt the suggestion of the Company that in the context of employment security, as it existed in 1991, if the grievor’s rights had been respected he could not have been on employment security while also being enrolled in full-time studies. The Company’s own acceptance of the subsequent continuation of the grievor’s studies when he was restored to ES status plainly supports the Union’s position on that issue.

It is also significant that the Company apparently took no initiative to close the grievor’s employment file or to treat him as having abandoned his employment by reason of his having enrolled in full-time studies. On the contrary, following his reinstatement, to facilitate the completion of his academic year, the Company granted him a temporary leave of absence between February and April of 1993.

The Arbitrator can appreciate the perspective which underlies the original position of the Company. An employer might reasonably conclude that an individual who has returned to full-time studies has decided to effectively abandon their employment. That can only be confirmed, however, based on compelling evidence as, for example, when such an individual declines a recall or, in the case of employment security, fails to protect available work in accordance with the rules of the ESIMP. Neither of those alternatives was realized in the case of Mr. Brunt, however. Based on the evidence of his performing work for the Company while continuing in full-time law studies, there is in fact reason to believe that he might well have responded to calls to available work while on ES status in 1991 and afterwards. In that circumstance the Arbitrator cannot see on what basis a make-whole order should deprive him of his lost wages and benefits for that period. Given the extraordinary circumstances of an employee on ES, I am compelled to conclude that normal obligations of mitigation operating in a circumstance of outright termination do not apply in the case at hand.

For the foregoing reasons the Arbitrator declares that Company was incorrect in finding that the grievor's attendance in full-time university studies was a violation of an obligation of mitigation which it maintains he would have owed the Company. It should be stressed, however, that that finding is particular to the unique circumstances of employment security, and its related rules, as existed in 1991, and the facts of this particular case.

The same general principle applies, in the Arbitrator’s view, to the issue of the deduction of earnings which Mr. Brunt made from outside employment during the period he was treated by the Company as being on layoff, and which the Arbitrator found should have been a period of ES status. Although the situation could no longer arise under current ES rules, in 1991 it was entirely proper for an employee in receipt of ES benefits to earn wages from outside employment, without any reduction of the individual’s wages and benefits receivable under the ES system. On what basis, therefore, can the Company now purport to deduct from the wages which Mr. Brunt would have realized as an employee on ES his earnings from outside employment? To do so would plainly fail to make him whole. Had he been on ES at the time material, Mr. Brunt could have held outside employment and kept all of his earnings from it, without any reduction in his ES payments. The same must hold true of any make-whole order. The Arbitrator therefore declares and directs that the sum of $5,327. earned by Mr. Brunt is not to be deducted from the compensation payable to him by the Company.

For the record it should be noted that in light of the initial findings with respect to the issue of mitigation, the Union no longer advances any claim with respect to vacation entitlement on the part of Mr. Brunt.

As concerns the issue of the grievor’s claim to lost overtime opportunities for some eighteen general holidays which occurred between his layoff and reinstatement, the Arbitrator notes that the Company agrees that he should be compensated for those opportunities, but only to the extent that it can be determined that a junior employee did in fact work the days in question. It appears to be common ground that as a senior employee, even on ES status, the grievor would have had the opportunity to claim such work over persons with less seniority. The Arbitrator therefore notes the agreement of the parties on this issue of principle, remits this aspect of the matter to them for further examination and retains jurisdiction in the event of any further dispute on this aspect.

The Arbitrator is not persuaded, in the circumstances of this case, that it is appropriate to make an award of interest in favour of the grievor. For reasons which it best appreciates, the Union has taken a number of years to bring this matter to a final conclusion as concerns the calculation of the grievor’s compensation. The lapse of some seven years since the original award in this matter obviously reflects the fact that the matter was not one of great urgency for the Union or the grievor, who it appears has since entered upon a second career as a lawyer. In the circumstances, however, it would in my view be inequitable to fasten the Company with a substantial cost of interest for the delay in payment, when the Union and grievor are themselves principally responsible for the delay. The request for the payment of interest is therefore denied.

The Arbitrator continues to retain jurisdiction in respect of all aspect of this dispute, including any issues relating to the interpretation or implementation of this award.

Dated at Toronto, April 28, 2000

(signed) MICHEL G. PICHER

ARBITRATOR