GSB #0757/93

OPSEU #93E057

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

OPSEU (Meagher)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care) Employer

BEFORE Susan Stewart Vice Chair

FOR THE David Wright

GRIEVOR Counsel

Ryder Wright Blair & Doyle

Barristers & Solicitors

FOR THE Mary Quick

EMPLOYER Counsel

Legal Services Branch

Ministry of Health and Long-Term Care

BY WRITTEN SUBMISSION

DECISION

In a decision dated May 7, 1995, a panel of the Grievance Settlement Board of which I was the Vice-Chair upheld the dismissal grievance of Mr. L. Meagher and reinstated him to his position as a social worker at Whitby Psychiatric Hospital. I was recently asked to determine two issues which the parties have been unable to resolve. The parties made written submissions with respect to those issues, which relate to a claim for course expenses and a claim for interest on dental bills.

The claim for interest on dental bills relates to dental work which would have been covered by the grievor's dental plan had his employment continued. Mr. Meagher was reimbursed by the Employer for the principal amount of the dental expenses on November 27, 1998, however he was not reimbursed for interest in the amount of $65.69 which had accumulated as of October 6, 1998, prior to payment. It is the position of the Union that the interest payment is properly payable to compensate Mr. Meagher for a cost that he would otherwise not have incurred, as in the ordinary course of employment his dental expenses would have been paid forthwith. It is the Employer's position that because the charges accumulated subsequent to Mr. Meagher's reinstatement, they should not be considered to constitute a natural and direct consequence of the breach.

I turn now to the claim relating to course expenses. Following the termination of his employment, Mr. Meagher enrolled in computer courses at the Toronto School of Business. His expenses for tuition, books and interest on student loans totalled $7,718.00. He had not attempted to find work within the field of social work because he considered it futile to do so, given his termination by the Ministry of Health. At the relevant time he was 54 years of age. Mr. Meagher applied for a number of positions but was unsuccessful. Because computer skills were listed as a requirement for many positions and he did not possess those skills, Mr. Meagher decided to obtain computer training. He obtained information about computer training at a community college, however there were no immediate openings. He enrolled in a seven module course called Micro-Computer Business Applications offered by the Toronto School of Business, which ran from May to October and included training in accounting, database management and word processing. He also enrolled in a program of training relating to the administration of hotels, which was offered free of charge to students enrolled at the school. Mr. Meagher ultimately did obtain employment, at a hotel where he utilized his computer training. However, he was only able to obtain this employment on a casual basis, working weekends when regular staff was not available.

I turn first to the claim for interest on dental expenses. I am unable to accept the Employer's submission that this should not be considered a natural consequence of the breach. Mr. Meagher incurred an expense for which would he would ordinarily have been reimbursed promptly. Although he made payments on the account, there was an accrual of interest because of his apparent inability to make full payment of the account. In my view, the interest that he was responsible to pay is properly viewed as reasonably forseeable and therefore a claim for which he is entitled to be reimbursed.

I turn now to the claim for educational expenses. There is no real dispute about the relevant principles. A discharged employee has an obligation to mitigate losses by searching for employment. Accordingly, in cases such as Re Canada Piost Corp. and Canadian Union of Postal Workers (Beale) (1989), 6 L.A.C. (4th) (Joliffe) and Re Coast Mountain Buslink Co. and Independent Canadian Transit Union, Local 11 (Schultz), [1999] B.C.C.A.A. No 424 (Ready), arbitrators have allowed retraining or educational expenses on the basis that they were reasonable expenses incurred pursuant to the obligation to mitigate. In other cases, such as Brown and West Coast Air Ltd. 1999 C.L.A.D. No. 282 (Savage), an adjudicator dealing with a dismissal under the Canada Labour Code rejected a dock worker's claim for costs for courses in transcendental meditation, tai chi, and nutrition on the basis that it was concluded that the courses were taken for reasons of personal interest rather than the pursuit of employment. A similar result prevailed in Re Canada Post Corp and P.S.A.C. (Liley) (1990), C.L.A.S. 146 (Devlin) wherein a claim for costs associated with a business management training course was rejected on the basis that the evidence did not indicate that the course increased the grievor's "marketability" or that the grievor made any efforts to find employment requiring skills that he had obtained in the course.

In her submissions, Ms. Quick noted that the expenses in issue here were much larger than those allowed in the cases referred to. She also argued that the course expenses ought to be viewed as expenses incurred in connection with a personal interest rather than as legitimate expenses incurred in connection with the obligation to mitigate. Ms. Quick also questioned the interest expense associated with the grievor's student loan, and in that regard referred me to Re Canada Post Corp. and Canadian Union of Postal Workers (Noel) [1998] C.L.A.D. No. 236 (Outhouse) wherein the arbitrator awarded interest at prime rate, notwithstanding the fact that the grievor had obtained a bank loan at a higher rate. In his submissions, Mr. Wright argued that the educational expenses that the grievor incurred were legitimate costs incurred pursuant to his obligation to mitigate his damages. He emphasized that Mr. Meagher ultimately obtained work in which his newly acquired skills were utilized and submitted that the grievor's claims should be allowed.

The critical question is whether the expenses are reasonable in all the circumstances. While Ms. Quick is correct in her observation that the cost of the course here exceeds that in issue in other cases, the