GSB #1478/89
OPSEU #89E768
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Paul Gibson)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Solicitor General and Correctional Services)
Employer
BEFORE Susan D. Kaufman Vice Chair
Pamela Munt-Madill Member
Jacqueline G. Campbell Member
FOR THE Alick Ryder, Q.C., Counsel
GRIEVOR Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE Sunil Kapur, Counsel
EMPLOYER McCarthy Tétrault
Barristers and Solicitors
HEARING June 14, 1995; August 15, 16 & 17, 1995; September 1, 1995; January 8, 1996; February 6, 1998; April 1, 1998; May 4, 1998; January 21, 2000; February 10, 2000.
Decision
In our Interim Decision of July 28, 1999, we determined that we had jurisdiction to decide an appropriate remedy for the grievor and reserved on that determination, for the reasons stated therein.
We received the Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision (No. 1052/94) pertaining to the grievor’s claim/appeal [cited in Quicklaw as [1999] O.W.S.I.A.T.D. No. 1220] after our Interim Decision had been issued. The WSIAT Decision allowed Mr. Gibson’s appeal in part, stating that it was “satisfied that the worker’s exposure to named substances in the workplace did represent a significant contributing factor in the development of a permanent respiratory impairment”. It referred Mr. Gibson back to the Workplace Safety & Insurance Board (WS&IB) for an “assessment of the degree of his entitlement to benefits for permanent impairment”. Subsequently, a Claims Adjudicator of the WS&IB advised Mr. Gibson, in writing, “a zero per cent pension is recommended for respiratory impairment”.
We have considered these decisions and the further submissions of the parties given on February 10, 2000.
Over ten years have passed since the grievor was unjustly dismissed. We are of the view that it is no longer appropriate for this panel to defer to the WS&IB or to the WSIAT before determining a remedy in these proceedings.
Mr. Gibson was unjustly dismissed on October 20, 1989 while suffering the ill effects on his health of the poor air quality engendered by the duct cleaning in the workplace. Some time in 1991, after the Wilson panel determined that he had been unjustly dismissed, his status as employee was reconfirmed, and his claim for long term disability benefits (LTIP) was honoured by the group insurer retroactively to October 25, 1990. Thus, as a result of the wrongful dismissal, Mr. Gibson received neither his wages nor LTIP benefits from October 20, 1989 to October 25, 1990.
The usual remedy for unjust dismissal is reinstatement or, if reinstatement is not possible, damages in lieu of the wages the employee would have earned had s/he not been dismissed. As the grievor’s retirement date was reached on January 31, 1994, reinstatement is not possible.
In seeking an appropriate remedy, the function of this Board is not to punish the employer, but rather, to address the losses incurred by the grievor as a result of the unjust dismissal. Often, the amount of compensation in such cases will not be perfect, and will not place the grievor is precisely the economic position he would have been in, but for the action or inaction of the employer. This is such a case.
We are unanimously of the view that Mr. Gibson is entitled to receive, as damages for having been wrongfully dismissed on October 20, 1989, his wages as a Maintenance Mechanic 3 for the period from October 20, 1989 to October 25, 1990, as well as the Custodial Responsibility Allowance to which he would have been entitled had he not been dismissed.
The evidence did not disclose that the grievor ever became sufficiently recovered from his multiple medical conditions to return to work after October 25, 1