International Union, United Automobile. Aerospace and Agricultural Implement Workers of America, (U.A.W.) v. P. J. Wailbank Mfg. Company Ltd., 1980 CanLII 909

Ontario Labour Relations Board

[1980] OLRB Rep. December 1797

0958-79-U International Union, United Automobile. Aerospace and Agricultural Implement Workers of America, (U.A.W.), Complainant, v. P. J. Wailbank Mfg. Company Ltd. Respondent.

BEFORE: G. Gail Brent, Vice-Chairman, and Board Members CA. Ballentine and J. A. Ronson.

APPEARANCES: H. P. Rolph, Jack Pawson, Norman Church and J. Kube for the complainant; A. A. Morscher and A. J. Wallbank for the respondent.

DECISION OF THE BOARD; December 16, 1980

1. By its decision dated October 23, 1979, the Board found that Mr. Norman Church was discharged for reasons contrary to the Act and ordered that he should be reinstated with full compensation. That order was made in the knowledge that Mr. Church's status was in dispute and would be settled by another panel dealing with the complainant's application for certification, and, of course, was made dependent on the Board's jurisdiction to order reinstatement.

2. On April 30, 1980, the application for certification was granted and the panel of the Board dealing with that determined Mr. Church's status. On August 22, 1980. the present panel issued a further decision reaffirming its decision of October 23, 1979. In both the October 23, 1979 and August 23, 1980 decisions the Board remained seized of the matter for the purposes of assessing compensation should the parties be unable to agree. The parties have been unable to agree on most aspects of compensation, so the Board will make the assessment.

3. Mr. Church was discharged on or about August 22, 1979 and was reinstated on September 1, 1980. The compensation claimed was set out in a letter to the Board dated September 16, 1980. Although that claim was amended by a subsequent letter to the Board and by agreement of the parties, the particulars set out in that letter are still valid as a listing of the items claimed, and will be used by the Board as a framework for its decision. The items and amounts claimed are as follows:

(a) Loss of Wages

It is agreed that the maximum number of working days claimed are 40 for calendar year 1979 and 158 for calendar year 1980. This accounts for the period from the work week beginning October 22, 1979 to the work week beginning August 25, 1980, inclusive. The parties agreed on a detailed statement of the actual working days broken down by weeks, which will be used for reference should the Board determine that there was a failure to mitigate at any time.

The parties have agreed that the wage rate for Mr. Church was $9.54 per hour in 1979 and would have been raised to $9.76 per hour as of January 1. 1980. According to the Board's calculation, the amount claimed for loss of wages is:

1979 40 days at $76.32 $ 3,052.80 1980 158 days at $78.08 $12,336.64 Total Claimed $15,389.44

(b) Vacation Pai' and Vacation

The parties have agreed that Mr. Church will receive one week's vacation in December 1980, and that this 1980 vacation entitlement will thereby be satisfied. The parties agreed that Mr. Church was entitled to four weeks of vacation in each of 1979 and 1980.

(c) Unemployment insurance Contributions

The parties have agreed that the respondent will pay the appropriate sum to the Canada Employment and Immigration Commission as its portion of the contributions for unemployment insurance on behalf of Mr. Church. The amount of that contribution will be dependent upon the Board's determination in relation to wages.

(d) Canada Pension Plan Contributions

The parties have agreed that the respondent will pay its portion of the contributions to the Canada Pension Plan on behalf of Mr. Church. The amount will be dependent on the Board's award in relation to wages.

(e) O.H.I.P.

The parties are agreed that the respondent will reimburse Mr. Church for O.H.I.P. premiums paid by him between February 1, 1980 and September 1, 1980, subject to the Board's finding as to Mr. Church's duty to mitigate during that period.

(f) Safety Shoe Allowance

The respondent has agreed to pay Mr. Church $15.00 if the Board orders that compensation for lost wages is due to him for 1980.

(g) Prescription Drugs

The respondent has agreed to reimburse Mr. Church for the amount paid for prescription drugs during any period which the Board determines if the respondent is liable to him for lost wages.

(h) Life Insurance

The parties have agreed that at the time of his discharge Mr. Church had life insurance coverage for $20,000.00 paid for by the respon­dent. The parties are agreed that he should continue to receive this coverage, but the respondent wants the Board to make it clear that Mr. Church will be receiving this amount coverage only because he had it at the time of his discharge.

(i) Pension

The parties are agreed that Mr. Church could be reinstated into the pension plan. In order to re-establish his pension position at the time of his discharge, the money paid out to him and to the respondent will have to be returned to the insurance company. In addition, money representing contributions from both the respondent and Mr. Church for the period of his unlawful discharge will have to be remitted to the insurance company so that Mr. Church's ultimate pension entitlement will not suffer.

(j) Christmas Turkey

The parties have agreed that Mr. Church will receive two turkeys in 1980.

(k) Registered Letter

The parties have agreed that Mr. Church will be paid $1.50 to reimburse him for the amount of a registered letter concerning his reinstatement sent to the respondent.

(1) Interest

The complainant has asked that interest at the rate of 12.5% be paid on one-half of the wages claimed from August 22, 1979 to September 2, 1980. The amount of interest claimed, based on the revised wage claim is $961.84. The respondent did not dispute that interest should be paid.

4. The Board has recently reaffirmed its position that a person who has been discharged has an obligation to take reasonable steps to mitigate his loss (see Sutton Place Hotel, [1980] OLRB Rep. Aug. 1250). In dealing with the common law duty to mitigate in the context of unlawful discharge cases, the Board must also keep in mind that, unlike at common law, a successful complaint almost always results in the reinstatement of the discharged employee. It would be shortsighted indeed to ignore the availability of this remedy and the frequency of its use when determining whether someone has taken reasonable steps to mitigate the loss. In other words, in an action for wrongful dismissal at common law, a discharged employee would be claiming an amount equal to his earnings for the period during which the court determines that he should have had notice of his discharge. He would not be entitled to reinstatement, and therefore has no need or interest to keep himself in a position where he can take up his old job again; on the contrary, his interest lies in picking up the pieces and embarking on a new enterprise as soon as possible. Where reinstatement is available as a remedy, and commonly awarded, it would be unrealistic to ignore that the discharged employee has every reason to believe that he may be returning to his old job. The interpretation of his obligation to mitigate must be considered in light of his obvious interest in keeping himself in a position to resume his former employment.

5. The case at hand also has an unusual aspect, given that October 23, 1979 the parties knew that Mr. Church would be reinstated if his status as an employee under the Act were determined by another panel. On April 30, 1980, Mr. Church's status was established. The Board considers that, as of April 30, 1980, the respondent was under an obligation to reinstate Mr. Church forthwith. The testimony of Mr. Wallbank that he knew, after the April 30th decision was released, that Mr. Church would have to be reinstated, but that he was awaiting the outcome of the judicial review of that decision before acting, is of great significance in assessing the true extent of any confusion about the decision of October 23, 1979. The original objection to jurisdiction was based on the question of employee status. Once it was determined that Mr. Church was an employee, the matter of his reinstatement was finally settled, and one must be somewhat skeptical of the need for clarification of the original order. Accordingly, the Board will not consider that Mr. Church was obliged to mitigate his loss after April 30, 1980, when the respondent knew it was obliged to reinstate him and chose not to do so. From April 30, 1980, to September 1, 1980, the respondent could have diminished its potential liability by fulfilling its obligation and reinstating Mr. Church. Therefore, full compensation will be awarded from April 30th to the date of his reinstatement.

6. For the purposes of examining whether Mr. Church fulfilled his obligation to mitigate, the Board will only consider the period up to April 30, 1980. Based on the evidence, it is accepted that up to the end of 1979 Mr. Church was actively engaged in trying to arrange to buy an interest in a small spring company in Brantford. The arrangement was abandoned on the advice of his bank manager when satisfactory arrangements for control of the business could not be worked out. During this same period, and throughout the relevant period, Mr. Church had registered with Canada Manpower in Woodstock, and was receiving unemployment insurance benefits. The essence of his uncontradicted evidence was that he sought work generally and regularly in the Woodstock, Paris, Brantford area. He lives in Princeton, which is situated on Highway 2 between Woodstock and Paris. During that same period, the complainant caused inquiries to be made in its Woodstock and Kitchener area locals to determine whether there was a job for Mr. Church.

7. The evidence adduced by the respondent was that throughout the material period there was a chronic shortage of spring makers and that there were spring making companies within 50 miles of Princeton which would have hired an experienced spring maker, even for a short period of time. None of the complainant's evidence contradicted the bulk of this evidence. It would therefore seem logical to conclude that Mr. Church probably could have had a job as a spring maker in the period between October 22, 1979 and April 29, 1980, had he presented himself to the spring making companies in the area. It is probable that Mr. Church would have known of the existence of these companies or would have known how to find out where such companies were located. The latter conclusion can be drawn when one considers that Mr. Church had around fifteen years in the spring making business.

8. On the other hand, there is no doubt that Mr. Church made efforts to find work other than as a spring maker during the period in question. That he was unsuccessful is not surprising when one considers the general economic conditions. It is also clear that Mr. Church registered with Canada Manpower as a spring maker, but was never referred to any spring making companies, even though everyone concerned with hiring spring makers for those companies testified that he had placed standing orders for spring makers with Canada Manpower.

9. In assessing the evidence in order to determine whether Mr. Church's actions have been unreasonable, the evidence of Mr. Van Hees should be ignored. Mr. Van Hees operates an employment agency which specializes in placing skilled and management personnel. He contacted Mr. Church in late October, after the decision of the Board, to inquire whether Mr. Church was interested in obtaining a job. It is apparent that Mr. Church suspected that Mr. Van Hees had been prompted to contact him by the respondent, and that he was somewhat suspicious of and bitter towards his former employer. Under these circumstances his remarks to Mr. Van Hees, who was given his name by the respondent, cannot be taken at face value. It is not unreasonable for someone in Mr. Church's position to be less than enthusiastic about possible job opportunities presented by a stranger who telephones out of the blue, and is suspected of being an agent of his previous employer.

10. The onus is on the respondent to show, on balance, that Mr. Church failed to take reasonable steps to mitigate his loss. The Board considers that the activities begun by Mr. Church shortly after his discharge and before the outcome of the complaint against the respondent with a view to becoming a partner in a spring making business were completely reasonable. Moreover, his decision not to go through with the plan on the advice of his bank manager was equally reasonable, and made for apparently valid reasons. During that same period he was also registered with Canada Manpower and was seeking work generally in fields other than spring making. It is surely not unreasonable to be seeking other non-spring making alternatives during that time, especially when there was a good chance that he would be able to be in the spring making business for himself. It is therefore reasonable to conclude that Mr. Church's efforts up to the end of 1979 were both real and reasonable attempts to mitigate the loss.

11. From January 1, 1980 to April 29, 1980. Mr. Church was no longer engaged in attempts to buy into the spring making business. He was making efforts to find work, but it seems probable that those efforts were not directed toward gaining employment as a spring maker. The respondent has adduced evidence from which it is probable to conclude that there was work available as a spring maker within a 50-mile radius of Mr. Church's home. Although it is probable to conclude that Mr. Church could have found work as a spring maker, one must not ignore the fact that he was making attempts to find other work, that he had registered with Canada Manpower as a spring maker and should be entitled to reply to some extent on that agency to search its information banks for standing orders for spring makers, and that he was at all material times aware of the Board's order that he should be reinstated if he were found to be an employee under the Act. Once that order has been made known, it is not unreasonable for someone to view his re-employment as imminent and to regard himself as looking only for a temporary job. It is not totally unreasonable to seek temporary employment in areas closer to home and in fields other than one's trade. In the instant case, even if the Board were to accept the respondent's assertion that Mr. Church totally failed to fulfill his duty to mitigate, the respondent has adduced no evidence to show what he might have earned as a spring maker during that period.

12. In dealing with an allegation that Mr. Church failed to mitigate his losses during any period, the Board must also keep in mind that the onus on the respondent should not be regarded as a light one, because the situation is one where the party who has breached the Act and acted wrongfully toward the employee is demanding some action from the innocent injured party. (see discussion in ('heshire and Fifoot's Law of Contract.) It would seem reasonable, and in keeping with this philosophy, that where the respondent has satisfied the onus of showing that there was no reasonable attempt to mitigate during any period, the approach which should be taken in decreasing the claim should be that taken in Manning v. Surrey Memorial Hospital Society (1975), 1975 CanLII 1035 (BC SC), 54 D.L.R. (3d) 312 (B.C.S.C.). In that case the learned judge reduced the claim for compensation for wrongful dismissal by the amount that the evidence showed that the plaintiff would probably have earned if he had acted reasonably during a specific period. In other words, even though the plaintiff's salary was $2,000 per month, and it was found that he acted unreasonably for three months, his claim for one year's salary in lieu of notice was only reduced by $1,500 because that was the amount he could probably have earned in the three-month period.

13. In the case at hand, it is reasonable to conclude that Mr. Church did not take all reasonable steps to find a job in his trade from January 1, 1980 to April 29, 1980. Further, it is reasonable to expect him to seek work in his trade, especially when there were, in all probability, spring making jobs available within a reasonable distance from his home in Princeton. There is no evidence from any source as to what Mr. Church would have made had he acted reasonably in the period January 1, 1980 to April 29, 1980. It is likely that the rates of pay for spring makers vary from employer to employer within a given range; however, the only information the Board has is what he would have made had he been employed by the respondent during the period. The Board does not know how this figure relates to the wages paid by other spring makers in the area. The Board does know and can take notice of the minimum wage rate payable in Ontario. It is further reasonable to assume that a skilled tradesman working in his trade would earn more than the minimum wage. Following the approach set out in paragraph 12 herein, it is probably more reasonable not to permit the respondent to benefit automatically from such an assumption, to the extent that its wage rate is accepted as being the norm for spring makers in the area. The Board is therefore left with the option of using the minimum wage rate or of arbitrarily setting a more realistic rate somewhere between the minimum wage and the respondent's wage scale. The respondent should probably bear the cost of the Board's uncertainty as to what Mr. Church could have earned in that period.

14. For all of the above reasons the Board orders:

(a) that the respondent pay to Mr. Church the amount of Eleven Thousand Three Hundred and Eighty Nine Dollars and Forty-Four Cents ($1 1,389.44) on account of lost wages. That amount is calculated as follows:

Original claims as per paragraph 3, item (a) supra $15,389.44

LESS:

Amount which probably could have been earned in

the period Jan. 1/80 to April 29/80 inclusive 4,000.00

Balance $1 1,389.44

(b) that the respondent conform to its agreement concerning vacations as expressed in paragraph 3, item (b) of this decision;

(c) that the respondent remit its portion of contributions for Un­employment Insurance and Canada Pension Plan as agreed to in paragraph 3, items (c) and (d) of this decision;

(d) that the respondent reimburse Mr. Church an amount equal to OHIP payments paid by him between April 30, 1980 and September 1, 1980;

(e) that the respondent pay Mr. Church Fifteen Dollars ($15.00) by way of safety shoe allowance;

(f) that the respondent pay Mr. Church Eighty-Eight Dollars and Fifty-Seven Cents ($88.57) as reimbursement for prescription drug expenses incurred after April 30, 1980 and before January 1, 1980;

(g) that the respondent obtain life insurance coverage for Mr. Church in the amount of Twenty Thousand Dollars ($20,000.00), being the amount of coverage enjoyed by Mr. Church at the time of his discharge;

(h) that Mr. Church be reinstated into the pension plan in accordance with the terms set out in paragraph 3, item (i) of this decision and that the amounts to be paid into the pension plan by both the respondent and Mr. Church be determined in consultation with the carrier of the plan;

(i) that the respondent give Mr. Church two turkeys for Christmas 1980;

(j) that the respondent pay Mr. Church One Dollar and Fifty Cents ($1.50) by way of compensation for the cost of a registered letter sent to the respondent;

(k) that the respondent pay Mr. Church the sum of Seven Hundred and Eleven Dollars and Eighty-Four Cents ($711.84) by way of interest calculated in accordance with paragraph 3, item (I) of this decision.

15. In view of the fact that the parties have agreed that the Canada Employment and Immigration Commission should have returned to it, pursuant to sections 51 and 52 of the Unemployment Insurance Act benefits paid to Mr. Church and have agreed that it would be appropriate for the Board to make a direction to the respondent to remit the appropriate amount to the Receiver General for Canada, the Board directs:

(a) that the respondent ascertain whether an amount would be re­payable to the Receiver General for Canada, pursuant to section 51 of the Unemployment Insurance Act, 1971, as amended, for all or any part of the period since Mr. Church's discharge; and

(b) that the respondent deduct the amount which would be repayable to the Receiver General for Canada from the amount to be paid Mr. Church pursuant to this decision and remit the former amount to the Receiver General For Canada as repayment of an over­payment of benefit.