[1980] OLRB Rep. August 1250
2029-79-U Hotel and Club Employees' Union, Local 299 Toronto of the Hotel and Restaurant Employees' and Bartenders' International Union, (A.F.L.-C.I.C.-C.L.C.), Complainant, v. Sutton Place Hotel and Dennis Commercial Properties, Respondents.
BEFORE: R. D. Howe, Vice-Chairman and Board Members J. D. Bell and O. Hodges.
APPEARANCES: Alick Ryder, Q. C., and Marilyn Nairn for the complainant; P. M. Rusak and Agilmar Lenz for the respondents.
DECISION OF THE BOARD; August 21, 1980
In a majority decision dated March 26, 1980 concerning this section 79 complaint, the Board found that "the company violated section 58 of the Act when it terminated [Mr. Gordon Garland's] employment" on January 8, 1980 and directed "that Mr. Garland be reinstated into his employment with Dennis [Commercial Properties] forthwith and that he be compensated for his lost wages resulting from his unlawful termination", with the compensation bearing interest in the manner described in Hallowell House Limited,[1980] OLRB Rep. Jan. 35. The Board remained seized in the event the parties were unable to agree on the amount of compensation owed to Mr. Garland.
Since the parties were unable to agree on the amount of compensation owed to Mr. Garland (the "grievor"), a hearing was held on July 31, 1980 at the request of the complainant to determine the amount of compensation owed to the grievor.
Counsel for the complainant contended that the grievor was entitled to compensation in the amount of $2,503.30. Counsel for the respondent, on the other hand, contended that the grievor had failed to mitigate his loss during the period from the date of his discharge (January 8, 1980) to April 1, 1980, the date the aforementioned decision of the Board was received by Dennis Commercial Properties (the "Company"). Thus, she contended that the grievor was not entitled to any compensation from the Company for that period, although she conceded that the Company was liable for compensation from April 1, 1980 to April28, 1980, the date on which the grievor was reinstated, subject to deduction of any sum which the grievor may have earned between those dates.
The grievor testified concerning his efforts to obtain alternate employment. Although counsel for the Company questioned the grievor's credibility, the Board, having regard to such factors as the consistency of his evidence, the firmness of his memory, his ability to resist the influence of interest to modify his recollections, his capacity to express his recollections clearly, and his demeanour, is of the view that the grievor was a highly credible witness who testified in a candid and forthright manner.
The grievor has both a bachelor's degree and a master's degree in geography with emphasis on urban geography and urban regional planning. After obtaining his bachelor's degree from the University of Western Ontario, he was employed first by the Ministry of Housing and then by the Ontario Housing Corporation until he enrolled in a master's degree programme at the University of Toronto. Upon graduation in December of 1978, he sought professional employment commensurate with his educational qualifications but was unable to obtain such employment due to "tight hiring" and a slowdown in the economy. After several months of unsuccessfully searching for professional employment, the grievor decided to seek a position in which he could use his trade skills as a painter. By checking the Canada Manpower call board he became aware of, applied for, and obtained a position with the Company as a painter commencing on June 15, 1979. It was from this position that he was discharged on January 8, 1980.
After his discharge, which came as a severe shock to him, the grievor spent some time attempting to "regroup" himself and to initiate and prepare for legal proceedings to obtain reinstatement. He also began to check two Toronto newspapers on a daily basis for urban planning ("professional") and painting ("trade") positions. Beginning on January 11, 1980, he typed and mailed at least 21 letters to prospective employers in the urban planning field, many of which were followed up by telephone calls and personal interviews. On January 17, 1980, he registered at the Toronto Canada Manpower Centre as an unemployed painter and attended at that Manpower office at least once a month to check the call boards for professional and trade positions. As a result of his efforts, the grievor obtained short-term professional employment in late February with Clayton Research Associates. He also subsequently found work as a helper installing drywall on a building which was being renovated.
No evidence was adduced by the Company to refute the grievor's testimony that no trade position was available during the time period in question due to the state of the economy combined with the normal seasonal fluctuations in the painting trade which result in a dearth of painting jobs during the winter season.
The grievor stated quite candidly that he spent about 85 per cent of his job search time pursuing a professional position and only about 15 per cent in pursuit of a trade position. Although counsel for the Company vigorously argued that this statement proved that the grievor had not made a reasonable effort to mitigate his loss by attempting to obtain alternate employment as a painter, there is nothing to suggest that the grievor would have been any more successful in mitigating his loss if he had spent more time pursuing a trade position and less time in pursuit of professional employment. Although counsel contended that the grievor should have checked the Canada Manpower call boards more frequently than he did, in the absence of any evidence that painting jobs were available during the period, there is nothing to refute the grievor's contention that this would have been a waste of his time. Moreover, the grievor's testimony, based upon his past experience, that Canada Manpower contacts registrants in the event that it has an order forjobs which they are capable of performing, was also not refuted.
A person who has been discharged has a duty to take reasonable steps to mitigate his loss by seeking alternate employment (see Ernie's Signs Limited, [1976] OLRB Rep. Aug. 404; Lyman Tube Division, Jannock Industries Limited, [1974] OLRB Rep. July 456; and Murray Bros. Lumber Co. Ltd., [1969] OLRB Rep. Feb. 1194). Whereagrievor makes no real effort to obtain alternate employment or otherwise mitigate his loss, he will not be entitled to any compensation for loss of wages (see Cords Canada Ltd.,[1973] OLRB Rep. Aug. 429 and Little Bros. (Weston) Limited, [1975] OLRB Rep. Jan. 83).
The burden of proof that the grievor has failed to take reasonable steps to mitigate his loss falls upon the respondent, as indicated by the Supreme Court of Canada in Red Deer College v. Michaels and Finn, 75 CLLC ¶ 14,280 at pages 581 and 582:
"...The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff. The reference in the case law to a 'duty' to mitigate should be understood in this sense.
In short, a wronged plaintiff is entitled to recover damages for the losses he has suffered but the extent of those losses may depend on whether he had taken reasonable steps to avoid their unreasonable accumulation....
In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismissal. He may have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant's position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial Judge's assessment of the plaintiffs evidence on avoidable consequences....
- A statement of the Board's general practice concerning mitigation is contained in the Ontario Society For the Prevention of Cruelty to Animals (Ontario Humane Society), [1973] OLRB Rep. Sept. 474, at page 476:
"It has been the Board's practice that registration with the Department of Manpower and a Claim for Unemployment Insurance which are usually made simultaneously are reasonable steps taken by a discharged employee to mitigate his loss."
A personal canvass for alternative employment has also been viewed by the Board as being important to the issue of mitigation (see Little Bros. (Weston) Limited, supra, and DeCarlo Shoe Co., [1965] OLRB Rep. June 224).
In the Ontario Humane Society case, supra, the grievor waited "approximately a week or ten days before registering with Manpower and was not able to give the Board the date when he did register. In the circumstances of that case, the Board found that the grievor did not take proper steps to mitigate his damages during that period; accordingly, the Board denied the grievor compensation for the period in question. Counsel for the respondent argued on the basis of that case that the grievor in the present case should be denied compensation from the date of his discharge (January 8,1980) to date on which he registered with Canada Manpower (January 17, 1980).
The Board had held that the failure to register with Canada Manpower is not determinative of the issue of mitigation (see Offset Make Up Limited, [1969] OLRB Rep. Dec. 1152). Whether or not a grievor has taken reasonable steps to attempt to mitigate his loss is a question of fact dependent upon the particular circumstances of each case (see Murray Bros. Lumber Co. Ltd., supra, at paragraph 11). Although the grievor could have registered more promptly with Canada Manpower, we are not prepared to find in the circumstances in the present case that his failure to do so constituted a failure to take reasonable steps to mitigate his loss, since the grievor was taking other reasonable steps during that period to attempt to obtain alternate employment as indicated in paragraph 6 of this decision.
While the grievor might have been found to have acted unreasonably had he sought only employment in his profession and not in his trade, the Board is of the view that it is reasonable for a person such as the grievor who is qualified not only for a trade position as a painter but also for a professional position as an urban planner, to take steps to attempt to obtain professional employment in addition to taking steps to attempt to obtain trade employment. The reasonableness of the grievor's actions is confirmed by the fact that he succeeded in procuring professional employment, albeit on a short-term basis, the earnings from which must be taken into account in reducing the compensation for which the respondent is liable. The Offset Make Up Limited case, supra, cited by counsel for the Company, is authority for the proposition that a grievor with craft (such as the "paste-up man" in that case) acts reasonably in holding out for a job in his craft and not attempting to find employment outside his craft during a short term of unemployment (less than one and one-half months in that case). However, it is not authority for the proposition that a person acts unreasonably if he exceeds the normal mitigation requirement by attempting to find employment not only inside but also outside his craft, nor is it authority for the proposition that a person who has more than one "craft" acts unreasonably if he attempts to locate employment not only inside the craft at which he was working at the time of his discharge but also within his other craft.
As submitted by counsel for the complainant, the fact that the grievor did more in his efforts to obtain a professional position than was necessary to satisfy the requirement of a reasonable mitigation effort, does not necessarily indicate that he did not take reasonable steps to attempt to obtain employment in his trade as a painter.
Having regard to all the evidence and the submissions of the parties, the Board finds that the grievor took reasonable steps to attempt to mitigate his loss in the circumstances of this case.
The evidence establishes that the grievor would have received $2,920.00 in wages from the respondent between his date of termination and his date of reinstatement. From this amount must be deducted $533.00 which the grievor earned from other employment during that period. Although it was contended on behalf of the respondent that a further deduction of at least $40.00 should be made because the grievor was unable to work due to illness on at least one day during that period, it appears on the evidence before us that if the grievor had not been terminated by the respondent, he would have received a sick leave credit of one and one quarter days per month. Thus, it has not been proved that this further requested deduction would be appropriate in the circumstances of the present case. The respondent is also liable for interest in the amount of $98.44 on the grievor's wage loss of $2,386.50 in accordance with the interest calculation set forth in Hallo well House Limited, supra.
Counsel for the complainant also claimed that the grievor was entitled to vacation credits of five days, being the vacation credits which would have accrued to the grievor if he had not been unlawfully terminated. Counsel for the respondent opposed this claim. After noting that the Board, in paragraph 18 of its majority decision dated March 26, 1980, directed that the grievor "be compensated for his lost wages resulting from his unlawful termination", counsel argued that vacation credits were not encompassed by the term wages
The purpose of a remedial order under section 79 is to put the grievor who has been wronged in as good a position as he would have been in if the respondent had not violated the Act. If the grievor had not been discharged but rather had been permitted to continue working to earn the aforementioned wages, he would have accumulated five days' vacation credits. Accordingly, the Board finds that the grievor is entitled to vacation credits of five days.
The Board, therefore, directs the respondent Dennis Commercial Properties, to pay the sum of $2,484.94 and provide vacation credits of five days to Mr. Gordon Garland in compensation for his unlawful termination.