Food and Service Workers of Canada v. Bond Place Hotel
[1983] OLRB Rep. January 24
0417-82-U; 0773-82-U Food and Service Workers of Canada, Complainant, v. Bond Place Hotel, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and B. L. Armstrong.
APPEARANCES: Mary Cornish for the complainant; M. Contini for the respondent.
DECISION OF THE BOARD, January 18, 1983
I. These are two complaints under section 89 of the Labour Relations Act which allege that Mr. Richard Dowdell and Miss Colette Granger were discharged contrary to the provisions of the Act.
The respondent has acknowledged that it did unlawfully terminate both Miss Granger and Mr. Dowdell. The parties are in disagreement as to whether or not Miss Granger and Mr. Dowdell adequately mitigated their losses flowing from their unlawful terminations.
A grievor in a section 89 complaint who has been improperly terminated has a duty to take reasonable steps to mitigate his or her loss by seeking alternate employment. A grievor who makes no real effort to obtain alternate employment or otherwise mitigate will not be entitled to any compensation for loss of wages. See, the Sutton Place Hotel case ([1980] OLRB Rep. Aug. 1250. However, the burden of proof that a grievor failed to take reasonable steps to mitigate falls upon the respondent. Further, as the Board noted in the P. J. Wallbank Mfg. Company Ltd. case [1980] OLRB Rep. Dec. 1797, 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, the onus on a respondent is not a light one. In our view, as long as the evidence indicates that a grievor has acted reasonably in seeking to obtain alternative employment after being unlawfully terminated, no deduction should be made from the amount of compensation payable.
Miss Granger worked for the respondent on weekends. She also worked at two other part-time jobs. Prior to her discharge by the respondent Miss Granger had started to seek full time employment to replace her three part-time jobs. Subsequent to her discharge, she actively continued to search for full-time employment. Miss Granger did make some efforts to find additional regular part-time employment, but such efforts were clearly secondary to her attempts to find full time employment. Miss Granger did obtain some "casual" weekend work.
We are satisfied that Miss Granger reasonably sought to mitigate her losses. In this regard we view her attempts to find full time employment as reasonable conduct. Accordingly, the respondent is liable for all of Miss Grangers' losses resulting from her unlawful discharge, less only a sum equivalent to what she actually earned while working at casual weekend work.
Mr. Dowdell worked for the respondent as a full-time short-order cook. Shortly after his discharge he registered with Canada Manpower. He also spent much time and effort looking for other employment. The respondent contends that Mr. Dowdell should have used the services of a hospitality placement agency rather than rely simply on his own efforts. In our view, Mr. Dowdell's efforts to find employment were reasonable, and his failure to utilize a placement agency does not detract from this fact.
In approximately mid-June of 1982 Mr. Dowdell received an offer of employment at a restaurant in Welland. Mr. Dowdell's parents reside in Welland, although at the time he himself was living in Toronto. Mr. Dowdell was advised by the restaurant that he would start working on a part-time basis, but that his position would shortly become full-time. Prior to Mr. Dowdell commencing the job in Welland, he received an offer of full-time employment from a restaurant in Toronto. Mr. Dowdell turned down this Toronto offer primarily because he had run out of money and felt that he would be better off working in Welland where he could reside with his parents. Unfortunately, the Welland job never did turn into a full-time position. Indeed, apparently because of poor business, the restaurant advised Mr. Dowdell that his hours were to be cut back. Mr. Dowdell at this point resigned from the job to look for other employment. We gather that his decision to resign immediately rather than continue working part-time while he looked for other employment, was motivated only by a desire to receive maximum unemployment insurance benefits.
In our view, in that Mr. Dowdell understood that the position in Welland would shortly become full-time, it cannot be said that he acted unreasonably in turning down the Toronto job. This is particularly so in light of the fact that he had run out of money subsequent to his unlawful termination by the respondent, and in Welland he could reside with his parents. However, in our view his action in quitting the job prior to having obtained alternate full-time employment was, in the circumstances, not a reasonable attempt to mitigate his losses. Accordingly, we are satisfied that there should be deducted from the compensation payable to Mr. Dowdell an amount equal to what he earned at the job in Welland as well as an amount equivalent to what he would have earned had he not terminated his employment.
The Board will remain seized of these matters in the event that the parties cannot reach agreement on the actual amount of compensation owing to Mr. Dowdell and Miss Granger.