United Food and Commercial Workers International Union v. Jacmorr Manufacturing Limited, 1987 CanLII 3071

United Food and Commercial Workers International Union, A.F.L. -C.I.O.-C.L.C. v. Jacmorr Manufacturing Limited

[1987] OLRB Rep. August 1086

2059-85-U United Food and Commercial Workers International Union, A.F.L. -C.I.O.-C.L.C., Complainant v. Jacmorr Manufacturing Limited, Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members L M. Stamp and P. J. O 'Keeffe.

APPEARANCES: Larry Steinberg for the complainant; Steven J. McCormack for the respondent.

DECISION OF THE BOARD; August 17, 1987, as amended September 23, 1987

I

1. This is a complaint under section 89 of the Labour Relations Act in which the union alleged that the grievor, Connie Campbell, was dealt with by the respondent employer contrary to sections 3, 64, 66, 79(1) and 89(7) of the Act. The union contended that the grievor was the object of a concerted campaign of harassment, intimidation and innuendo, which ultimately culminated in her discharge (for the second time) on November 13, 1985. The union argued that this was but one element in a pervasive pattern of anti-union conduct designed to remove an active union member from the work place, and demonstrate to other employees what could happen to them if they opted to support the union. The employer argued that Ms. Campbell was fired for cause, and that even if anti-union considerations entered into the decision, she was "trouble-maker" who should not be reinstated.

2. In a decision of the Board dated November 28, 1986 [now reported at [1986] OLRB Rep. Dec. 1709], the Board reviewed the evidence and unanimously accepted the union's charac­terization of the employer's conduct. The Board found that the employer had indeed contravened a number of sections of the Act, and had also failed to live up to the settlement of certain earlier unfair labour practice complaints. The Board made the following observations and remedial direc­tions:

Remedy

75. We have already discussed Ms. Campbell's case at some length. We have no doubt whatso­ever that she was victimized because she was identified as a union supporter, but we are not entirely sanguine about returning her to a work place in which she will inevitably face the hostil­ity of both the employer and those employees who continue to oppose the union. If we are to carry out our statutory mandate, we should try to devise a remedy which, insofar as possible, puts Ms. Campbell and the union in the position that they would have been in had she not been unlawfully discharged and, again, insofar as possible, neutralizes the advantages which the employer may have gained by its own unlawful conduct. Those advantages include keeping her Out of the work place, for a year, while this litigation proceeded and the chilling effect which Ms. Campbell's discharge would likely have upon other employees who might fear for their jobs if they were identified as union supporters.

76. Boomer's response was heavy-handed and overt. Fler's response was more subtle and specif­ic. The message was the same: employees who supported the union would face reprisals. The fact that there was a network of anti-union informers~ prepared to report to Fler about the activ­ities of their fellow-workers, would only heighten the employees' apprehensions. In the circum­stances, it is difficult to construct a remedy which fully reflects the industrial relations reality, and the real possibility that, by its illegal conduct, the employer may well have accomplished its objective. There are not very many employees with the fortitude of Ms. Campbell and, in our experience, when employees are presented with the choice of renouncing their support for a union or facing employer hostility and reprisals, they often embrace the former option. A dis­creet discharge here and there may not even be particularly expensive or uneconomic from a long run point of view for (to adopt Boomer's phrase), a few selective discharges may "nip the union in the bud" - particularly if the employees victimized do not have an inexpensive and expeditious remedy for the violation of their statutory rights. They are faced with immediate unemployment and potential penury while this Board conducts its hearings and deliberates. It is not a well balanced equation, - particularly since the employer's superior ability to bear the costs of litigation may itself become a tactical consideration.

77. In order to redress an unfair labour practice complaint which necessarily effects the grievor, other union supporters, and the union itself, we make the following declarations and remedial directions:

78. We find and declare that the grievor, Connie Campbell, was discharged contrary to sections 64, 66 and 89(7) of the Labour Relations Act. We find and declare that she was discharged because of her trade union activity, not because of any default or culpable misconduct on her part. The allegations raised to discredit her were mere camouflage and a pretext to hide the employer's illegal intentions.

79. We direct that Ms. Campbell be reinstated in employment forthwith, to her former job, or some other job agreeable to her and for which she is suited, with full accumulated seniority.

80. We further direct that Ms. Campbell be compensated, forthwith, for all wages and benefits lost, and all other losses sustained by her between the date of her termination and the date of her reinstatement pursuant to this Board order. Such compensation shall include interest calculated in accord­ance with Practice Note 13 and must be paid, in its entirety, within twenty-one (21) days of the release of this decision. If such compensation is not paid, in full, or some question arises about the amount owing to Ms. Camp­bell, the present panel of the Board will remain seized and will schedule a hearing, on a peremptory basis, if necessary, to deal with the matter. We do not want Ms. Campbell to face the same difficulties as those employees discharged in October 1985, whose entitlement to compensation has still not been finally resolved.

81. For reasons similar to those enunciated in Radio Shack, [1979] OLRB Rep. Dec. 1220, affirmed by the Divisional Court at 80 CLLC at para. 14,016 and again at para. 14,017, the respondent is directed to post copies of the attached Notice marked "Appendix" after being duly signed by Mr. Fler, the respondent's representative. Copies of this Notice must be posted in conspicuous places on the employer's premises where they will most likely come to the attention of the employees. Reasonable steps must be taken by the company to ensure that the said Notices are not altered, defaced, or covered by any other material. Reasonable physical access to the premises must be given to the union so that it can satisfy itself that this posting requirement has been and is being complied with.

82. Given Ms. Campbell's pivotal role in organizing the union and the subsequent uncertainty, misrepresentation and inuendo surrounding her discharge advanced by the employer and certain friendly employee witnesses, we consider it imperative to demonstrate to the employees that their employer's position is not the last word or the only version of the truth, and that they can rely upon the Board to conduct an impartial adjudication of their rights. Employees, like Cliche, who engage in inappropriate conduct, cannot expect to shield themselves behind the Labour Relations Act, but, by the same token, union adherents, like Connie Campbell, cannot be victimized. To this end, and in order to help dispel any residual questions, concerns, suspi­cions, or fears of the employees, we hereby direct that the employer provide a copy of this decision at its own expense to all current employees. A posting of the decision is not enough. An employee who must scan a Board decision hurriedly, while at work, will not be able as easily to absorb its meaning and hence understand its significance (and his/her legal rights) as an employee who can read the decision, at home, in a more relaxed fashion.

83. In view of the opposition, by Fler and others, to Ms. Campbell's return, we believe she should be accorded certain specific protections lest the employer be tempted to treat the Board's Order in the same way as it treated the previous settlements - purporting to accept them, but, all the while, seeking some pretext to remove Ms. Campbell from the work place. We therefore direct as follows:

(1) For the period of two years from the date hereof, the employer must not hold any meeting with Ms. Campbell which involves or could potentially result in discipline, unless she is first given a full and complete opportunity to have present, the trade union representative of her choice.

(2) No discipline or termination shall be imposed upon Ms. Campbell unless she, and the union, are advised, in advance, in writing, of the specific rea­sons therefor.

(3) Ms. Campbell shall be allowed free access to her personnel file in order to review any and all documentation contained therein. Such file shall contain all material upon which the employer intends to rely in its dealings with her.

80. Finally, the Board directs that the respondent and its officers and any person acting on behalf of the respondent cease and desist from:

(a) interfering with the formation selection or administration of the trade union;

(b) refusing to employ, continuing to employ or discriminating against a per­son, in any way, because s/he was or is a member of the union or was exer­cising rights under the Act;

(c) threatening or penalizing employees because they have been or may become members of the union or have or may exercise any rights under the Act.

81. The Board will remain seized in case there is any difficulty implementing any aspect of this decision and remedy.

We should note those remedial directions were made pursuant to section 89(4) of the Act which reads:

Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if any­thing, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any col­lective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts

complained of; or

(c) an order to reinstate in employment or hire the person or employee con­cerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employ­ers' organization, trade union, council of trade unions, employee or other person jointly or severally.

[emphasis added]

3. At paragraph 81 of the decision, the Board indicated that it would "remain seized in case there is any difficulty implementing any aspect of this decision and remedy". The Board was subsequently advised that the parties have not been able to settle the amount of compensation to which the grievor is entitled, or the manner in which copies of the Board's decision are to be pro­vided to employees in the bargaining unit. On the first point, the employer claims that the grievor has failed to mitigate her damages and is therefore entitled to little or no compensation for the year she remained out of work. On the second point, the employer claims that it is sufficient to have a few copies of the Board decision in its business office so that if an interested employee wishes to come in and pick one up s/he may do so. The Board convened a further hearing to consider each of these issues.

4. It will be convenient to deal first with the distribution of the Board's decision. The Board will then turn to the more difficult matter of the amount of compensation payable to the grievor. This latter question involves a consideration of both the doctrine of "mitigation", and counsel's novel claim that the grievor is entitled to some additional compensation for the harass­ment, mental distress, anxiety, and dislocation associated with the illegal actions which the employer took against her.

II

Distribution of the Board's decision

5. The distribution direction contained in paragraph 78 of the Board's decision (repro­duced above) had a very specific remedial purpose. It was intended to ensure that all bargaining unit employees be aware of their rights, and the actual circumstances surrounding the grievor's ter­mination and reinstatement. The employer had gone to some lengths to harass the grievor, inhibit her contact with other employees, penalize her for mere discussion of the employees' legal rights, and portray her as a "troublemaker". The company was quite prepared to rely upon and repeat any rumour or innuendo which might cast her in a bad light; and given the readiness of the respon­dent's witnesses to lie before this Board, we were not al all confident that the employees would appreciate what actually happened, or the nature of these proceedings, unless they had their own personal copy of the Board decision to peruse at their leisure. That was important, where, as here, the company's anti-union campaign was based upon misrepresentation and threats or reprisals directed at those identified as, or suspected of being, trade union supporters.

6. During the course of the initial hearing the Board heard evidence about the way in which the company typically communicated with its employees. Pay cheques were handed out indi­vidually. Recall notices were delivered to the employees' homes by mail or courier. Disciplinary notices were also sent to the employees' homes. Where the employer considered it necessary to bring something to the attention of its employees, they were frequently given a personal copy of the document or notice. Such direct communication is perfectly understandable where one wants to ensure that the employees are made aware of the material in question.

7. In directing that "the employer provide a copy of this decision at its own expense to all current employees" it was the Board's intention, and expectation, that each and every employee in the bargaining unit would be given a copy of the Board decision. The Board did not specify whether the decision was to be handed out, mailed or delivered by courier, but the text of para­graph 78 clearly indicates that all current employees are to receive a copy of the decision that they can read in the privacy of their homes. There was no onus on the employee to come forward and ask for one, or to identify himself as someone who might be particularly interested in the contents of the decision - particularly since the decision was quite critical of the employer and would give some comfort to those individuals steadfast enough to remain union supporters despite the employer's egregious unfair labour practices. As the Board put it "it is imperative to demonstrate to the employees that their employer's position is not the last word or the only version of the truth, and that they can rely upon the Board to conduct an impartial adjudication of their rights". Information was an important antidote to the atmosphere created by the employer's illegal con­duct. That is why the Board directed the posting of a notice and the circulation of its decision.

8. What was the employer's response? Not to distribute copies of the decision to the employees. The employer took the position that the employees were not really interested in the decision and it did not want to go to the expense of making multiple copies. The employer announced that copies of the decision would be available in its offices, and if any of the plant employees were really interested they could come in personally and request one. The union objected that it was totally unrealistic to require employees to personally request copies of a deci­sion known to be critical of the employer, and to put themselves in the same physical circum­stances in which Ms. Campbell had earlier been subjected to harassment and invective.

9. We agree; and lest there be any doubt whatsoever about the intended effect of the Board's remedial order, we direct that a copy of the Board decision be delivered to or placed in the hands of each and every employee in the bargaining unit, at the employer's expense. To the extent that this may be considered a clarification or revision of the Board's earlier order, we make it pur­suant to section 106 of the Labour Relations Act.

10. It would appear, however, that it is unnecessary to comment further about this matter because we were advised by counsel for the employer that the evening before the second day of the "remedy hearing" (i.e. February 26, 1987 - the first day was February 13, 1987) the employer did in fact provide copies of the decision to all employees, despite its refusal to do so earlier. Thus, with the passage of time this aspect of the union's complaint may have become academic. If that is not in fact the case, we will entertain further submissions, in writing.

III

Mitigation - in general

11. In fashioning a remedy under section 89 of the Act, the Board has historically been dis­posed to borrow from the common law of contract and apply a principle analogous to "mitiga­tion" to reduce the compensation payable to an aggrieved party whose damages have been "artifi­cially" inflated because he has not taken reasonable steps to reduce them. In the case of an employee unlawfully discharged, this usually implies some obligation to seek alternative employ­ment. In Little Brothers (Weston) Limited, [1975] OLRB Rep. Jan. 83, the Board put it this way:

12. The grievor, however, is not entitled to any other compensation. When an innocent party experiences a breach of contract he is immediately shouldered with a duty to take reasonable steps to mitigate his losses. In other words, he must avoid avoidable losses and the justification for this duty stems from the policy that the purpose of damages in contract is compensation not penalization; (see E. Allan Farnsworth, Legall Remedies for Breach of Contract (1970), 70 Colum. L. Rev. 1,145). The Board has taken a similar stance in exercising its discretion under section 79 (now 89] of the Act to award compensation. It requires a complainant, who has been discharged, to take reasonable steps to mitigate his losses (see Metropolitan Meat Packers Ltd. 62 CLLC 16,230; Murray Bros. Limited [1969] OLRB Rep. Feb. 1,194; and De Carlo Shoe Co. [1965] OLRB Rep. June 224). The policy behind the imposition of this duty parallels that in contract. Section 79 used the word "compensation" and therefore if a duty to mitigate did not accrue to a grievor a monetary award given under section 79 would constitute something more than pure compensation. This is so in that the losses experienced by someone who does not attempt to mitigate are not, in a very real sense, all caused by the employer - a portion of the loss will stem from a grievor foregoing other income producing opportunities. To order an employer to compensate a grievor for this aspect of his losses would be to penalize the employer and section 79 is not designed to accomplish this end. If an individual wants to penalize an employer for a breach of the Act he must seek consent to institute a prosecution under section 90 [now 101] and, if granted, section 85, [now 96] upon the requisite proof, will accomplish the objective.

Similarly, in Ernie's Signs Limited, [1976] OLRB Rep. Aug. 404 the Board commented:

5. The purpose of ordering compensation in a case such as this is not to penalize the respondent but, as far as monetary compensation will allow, to put the grievor in the same position he would have been in if the violation of the Act had not occurred. There is, however, a duty which falls to the grievor and that is the duty to mitigate his loss. The common law doctrine of mitiga­tion has been set out in the Canadian case of Cockburn v. Trusts and Guarantee Co (1917), 1917 CanLII 10 (SCC), 37 D.L.R. 701 at p. 702:

"The principle upon which the appeal ought to be decided is expounded at length in the judgment of Lord Haldane in British Westinghouse Electric Co. v. Underground Electric Railways Co., [1912] A.C. 673, at pp. 683 and 690. After stating the general principle that when a contract is broken the injured party is entitled generally to receive such a sum by way of damages, as will, so far as possible, put him in the same position as if the contract had been performed - the damages being limited to those that are the natural and direct consequences of the breach - his Lordship proceeded as follows:"

"Their right to their livelihood was a matter of contract, and the body of legal principles so aptly named (until recently) the 'law of master and serv­ant'. 'But this first principle is qualified by a second, which imposes on the plaintiff the duty of taking all reasonable steps to mitigate the loss .. this second principle does not impose on the plaintiff an obligation to take any step which a reasonable and prudent man would not ordinarily take in the course of his business.'"

12. Each of these cases imports into the interpretation of the Labour Relations Act, certain common law principles "borrowed" from the law of contract; but it must be remembered that the common law position is not entirely analogous to the statutory context under review. At common law, human labour was merely a commodity - an article of commerce like any other. Workers could be readily disposed of, whether or not their employer had just cause, upon "reasonable notice" - which for manual workers was not much notice at all. Indeed, it is interesting to note that the Court decisions referred to in Ernie's Signs, supra, either were, or heavily relied upon, cases involving a breach of contract for the sale of goods.

13. The present situation is very different. There is no right to sever the employment rela­tionship for any of the reasons mentioned in sections 64, 66 or 71 of the Act, and the presence of such motivation is sufficient to render the employer's conduct illegal even if it is not the dominant one (see paragraph 4 of the first decision). Notice is irrelevant in this context. Indeed, as a matter of law, a worker discharged for trade union activity continues to be an employee despite his pur­ported termination, because of section 1(2) of the Act which reads as follows:

For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as the result of a lock-out or strike or by rea­son only of his being dismissed by his employer contrary to this Act or to a collective agreement.

Counsel for the union asks, parenthetically: "Why should an individual be required to seek alter­native employment when, at law, he remains an employee?"

14. This is not to say that the concerns underlying the principle of mitigation are entirely misplaced or have no application at all in the forum which we must administer. It is simply that one must remember that this is not an action for wrongful dismissal; but rather an effort to enforce statutory rights which rest upon an articulated public policy in favour of the establishment of collec­tive bargaining relationships (see the Preamble to the Labour Relations Act). That difference was referred to in P. J. Wallbank Manufacturing Company Ltd., [1980] OLRB Rep. Dec. 1797 at para­graph 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.

(See also: Beckett Elevator [1986] OLRB Rep. Nov. 1493).

15. There are additional policy and practical reasons why the common law approach to mitigation must be adapted to this special statutory regime - particularly in a case such as this. We have found here (as in many cases in which key union organizers are discharged) that one of the main reasons for terminating Ms. Campbell was to remove her from the work place and inhibit her ability to talk to other employees about the union or collective bargaining. Campbell was a leader who helped recruit union supporters. She became their principal spokesman. She was the catalyst that maintained the momentum of the organizing drive; and, afterwards, despite harassment, intimidation and discharge, she continued to serve on the bargaining committee and kept in touch with other union supporters to bolster their spirits. Her critical role was summarized in paragraphs 62 and 65 of the Board's first decision:

It was Campbell who initially mobilized the union supporters. It was Campbell who refused to bow to Boomer's intimidating and grossly illegal conduct - conduct which even the company does not now condone. It was Campbell who was the sole union enthusiast elected to the negoti­ating committee on Sunday, November 10, 1985 - just three days before her discharge and a week after she had signed the November 7 settlement on behalf of the union. It was Campbell who, to the employer's knowledge had held numerous meetings in her home to encourage employees to support the union. It was Campbell who had reminded Fler that the company was not above the law. She really was a principle source of "trouble", if by that term one means an employee's assertion of her legal rights or the obligation to bargain collectively. So long as she remained at work Fler and Boomer faced a challenge to their previously unfettered managerial prerogatives and in their effort to get rid of her, any pretext would do. We find that she was fired because of her trade union activity.

65. In fact, the employer had quite a bit to gain from firing the grievor - as Fler frankly indicat­ed, although putting a different construction on his motive. The grievor was a leader with cour­age and determination not to be bullied or denied her statutory rights. She was the one most responsible for mobilizing employee support for the union. She believed that "the law" would protect her. Her removal from the work place would undermine the cohesion of the union sup­porters, encourage and support union opponents, and send a graphic message to employees about what happens to those who challenge the employer's authority or assert their statutory rights. Ms. Campbell's fate would certainly give pause to any employee contemplating union office, a position on the bargaining committee or any other union role which would bring him/her to the particular attention of the employer. To be identified as a "key union supporter" is to court discharge - an action which would be abetted and applauded by the anti-union employees. Even if Ms. Campbell was ultimately reinstated (as we find she should be) the employer has been successful in keeping her out of the plant for more than a year. With the pas­sage of time, employee turnover, the continuing efforts of the anti-union employees, and the example of what befalls those who support the union too vocally, the union's support has, quite probably, been seriously eroded.

66. The employer's purpose was to expel the grievor from the plant and inhibit contact with other employees who might be sympathetic to the notion of trade union representation. That pur­pose was unlawful, as were the means employed to accomplish it. Yet on the issue of mitigation, the respondent contends that the grievor was compelled to seek employment elsewhere - which would have limited her opportunity to maintain contact with the ongoing lawful union activities of the respondent's employees or participate as their elected spokesman during the protracted negoti­ations for a first collective agreement. But that is precisely why the grievor was fired in the first place.

67. It is against this background that one must assess the employer's assertion that the grievor must seek work elsewhere (even though, at law, she remained an employee) or face the possibility that she will receive no compensation for her unlawful discharge. In effect, the employer seems to be saying:

"The Board has found that I discharged you to remove you from the work place and undermine the union's bargaining position. The Board has found that my purpose was to inhibit your con­tact with other employees, and limit the effect of your pro-union activities. But if you do not stay away from the work place seeking employment elsewhere, you will receive no compensa­tion at all. The law requires you to stay away and take up employment elsewhere until your right to reinstatement has been determined by the Labour Relations Board. If you continue to act as if you were an employee, and do not pursue an active job search, and if you continue to engage in those union or collective bargaining activities which precipitated your discharge, you will prejudice your claim to compensation."

In a case such as this, that submission has all of the appearance of a plea for a "free unfair labour practice"; or the company accomplishing indirectly, what it is prohibited from doing directly.

18. As the Board noted in Wallbank above, any assessment of a complainant's obligation to seek alternative employment must bear in mind that his principal objective is to get on with his unfair labour practice complaint and obtain reinstatement to his former position. In this regard, an unfair labour practice complainant is in a very different position from a plaintiff in a wrongful dis­missal action. The unfair labour practice complainant will not and need not be seeking permanent alternative employment opportunities, and to the extent that he is honest (or if asked in a job interview) he may well reveal that he has been discharged for trade union activity but is seeking reinstatement to his former job. That process may involve protracted litigation and absence from work to consult counsel or attend Board hearings. It may also involve continuing efforts to pro­mote employee self-organization or collective representation, just as if the grievor remained an employee - as, of course, at law, he does. No doubt this may limit the range of available work opportunities, (particularly if a prospective employer has anti-union sentiments), but that is a problem inherent in a situation where an employee has been illegally discharged and must resort to litigation to get his job back. And, of course, it is the respondent employer that is responsible for that.

19. We do not think that it is appropriate to abandon the notion of mitigation altogether as the Canada Labour Relations Board has done (see for example: Samuel John Snively (1985) 12 CLRBR (N.S.) 97; Victoria Flying Services Ltd. et al [1979] 3 Can. LRBR 216; and Gerald M. Massicote [1981] Can. LRBR 427). To adopt that approach in all cases would introduce into the Board's award of damages a "penal" quality which in our view is inconsistent with the purpose of section 89 of the Labour Relations Act. In this, we agree with the analysis of the Board majority in Little Brothers above. But, by the same token, we do not think the duty to mitigate parallels that of a former employee in a wrongful dismissal action. Under the Labour Relations Act, there are statu­tory and policy considerations which enter into the equation; and, in our opinion, the duty to miti­gate is not, and should not be the same as that imposed at common law in a wrongful dismissal action.

20. There are already powerful practical pressures on a complainant to seek alternative work. After all, he must still eat, and pay the rent, and he always faces the risk that his complaint will not succeed. It is unlikely that very many workers can really afford to remain idle for very long, awaiting a "windfall" at their employer's expense; and to the extent that he does earn income elsewhere, such sums should be deducted from any subsequent compensation award. However an employee discharged contrary to the Act is not like an employee wrongfully dismissed with no right or expectation of reinstatement. An unfair labour practice complainant need not devote his full energies to seeking permanent work elsewhere, nor must he discontinue his union activities in connection with his former workplace. He is entitled to conduct himself as if he were an employee temporarily and unlawfully put out of work, who will be returning to his job as soon as the litiga­tion process can be completed. Of course, if he misjudges the strength of his case, he may find himself without any job or compensation at all.

21. With these general comments, we return to the circumstances of the instant case.

IV

22. For the complainant, the work routine at Jacmorr was ideal. She and her husband were both employees, and they were able to "dovetail" their work schedules so that they could care for three small children. The plant was located close to their residence so that child-care responsibili­ties could be easily apportioned.

23. The situation became much more difficult following the complainant's unlawful discharge. She could no longer count upon a convenient work schedule. Transportation became a problem. Nevertheless, Ms. Campbell did make efforts to find alternative work. She monitored newspaper advertisements, sent resumes, and made personal visits to prospective employers in her immediate area. She was constrained by her child-care responsibilities and the economic reality that, at wage rates at or near the minimum wage, the cost of daycare would substantially consume any income she might earn. She was also constrained by the fact that she remained involved in pro­ceedings before this Board, and continued to serve as an employee representative in collective bar­gaining negotiations, which turned out to be a time consuming exercise. Eventually, she found a job working evenings and nights at a local pizza parlour, but was forced to quit when she found it too difficult to return home at 4 a.m. and arise with the children at 7 a.m.

24. In accordance with her counsel's instructions, Ms. Campbell recorded the details of her job search in a diary which could subsequently be produced if mitigation became an issue. Unfor­tunately, at the time of the compensation hearing, the diary was no longer available. Ms. Camp­bell's husband had destroyed it.

25. On the basis of the evidence before us, the Board is satisfied that the complainant made reasonable efforts to mitigate her losses.

V

Calculating compensation

26. Because Ms. Campbell was out of work for so long, the precise quantum of compensa­tion to which she is entitled will depend, in large measure, upon the assumptions which one makes about her probable career path between November 1985 when she was discharged, and January 1987 when she went back to work. This, in turn, requires an assessment of such things as the impact of periodic wage increases, overtime opportunities, and the likelihood of her receiving the productivity bonuses which she routinely earned in the period prior to her termination. Such items, of course, can never be determined with mathematical precision. The Board must make its best judgment on the basis of the evidence before it, and what seems most probable in all the circum­stances.

27. On that basis, (with an exception noted below) we are inclined to accept the assump­tions underlying the complainant's claim detailed on Exhibit A filed at the compensation hearing; namely:

28. After three months service she would have received a wage increase in the neighbourhood of 30 cents per hour;

29. Her wage would have risen to $5.75 per hour in August 1986 pursuant to the salary grid in the collective agreement which she helped negotiate;

30. After mid-September 1986 her hours of work would have increased and she would have been treated for all purposes as "full-time" (as she eventually was following her reinstatement in Jan­uary 1987);

31. She would have received a productivity bonus close to the maximum obtainable under the employer's incentive payment system;

32. She would have worked most available weekend overtime opportunities where, again, she would be entitled to incentive bonuses.

The basis for those assumptions was either substantially confirmed, or not plausibly disputed, by Frederic Radler, the employer's "comptroller" who gave evidence on the compensation question. However, the figures listed on Exhibit A for the period between July 1 and July 31, 1986 must be reduced by 25% because they included one week in which the plant was shut down and, while some employees did work during that week, the evidence does not establish that the complainant would have been one of them.

28. Having regard to the evidence before us and what we consider to be the most probable pattern of the grievor's earnings, we find that she would have received from regular wages, over­time opportunities, and incentive bonuses a total of $13,622.80. Interest on that sum calculated in accordance with Practice Note 13 to the date of the Board's reinstatement direction amounts to $707.34. In addition, the grievor would be entitled to vacation pay at 4% of her gross earnings between November 13, 1985 and July 26, 1986, being $262.56. From this total of $14,582.70 must be deducted sums actually earned from the trade union and the pizza place for which she worked, and the sum already paid to her by Jacmorr on a without prejudice basis. When those amounts ($487.46, $1670.24, and $1417.53, respectively) are taken into account, her wage claim (including interest and vacation pay) amounts to $11,007.47.

29. Having regard to the foregoing, the Board directs that the grievor be paid, forthwith, the sum of $11,007.47 (less statutory deductions).

VI

General Damages

30. The final head of compensation claimed by the complainant was described by her coun­sel in various ways, but, for convenience, we will refer to it as a form of "general damages" for the protracted pattern of threats and harassment to which she was deliberately subjected. In counsel's submission, those unlawful pressures had their impact, and demand redress quite apart from any "special damages" relating to the complainant's direct wage and benefit losses. We were asked to take into account and remedy the dislocation, inconvenience, and emotional stress associated with her unlawful treatment.

31. Counsel for the complainant urged the Board not to take a narrow view of its remedial jurisdiction nor limit its award of compensation simply because certain items might appear to be novel. So, he maintains, are the facts of this case. In this regard we were referred to the decision of the Divisional Court in Tandy Electronics Limited v. United Steelworkers of America et al (1981), 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29, where the Court commented:

So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent and provisions of the Act itself, then the award of damages is within the jurisdic­tion of the Board. The mere fact that the award of damages is novel, that the remedy is innova­tive, should not be a reason for finding it unreasonable.

Counsel asserts that the complainant's anxiety, apprehension, frustration and mental distress are the natural and intended consequences of the illegal actions taken against her. The fact that it may be difficult to calculate "general damages" to compensate her for these wrongs, is no reason not to try.

32. There is much to be said for the general thrust of the complainant's argument. The Act specifically identifies and prohibits various kinds of "intimidation", "coercion" and "threats" which are (and are intended to) have an impact other than direct economic loss, and the notion of "general damages" is certainly not novel. Nor is there anything unusual in the fact that "general damages" may sometimes be difficult to quantify. Courts address issues of that kind every day. In an action based upon negligence, general damages may be recovered for pain and suffering, injury to health and personal inconvenience - all rather difficult to assign a precise economic value. In an action for defamation, Courts grapple with the value of the plaintiffs reputation, and how best to compensate him for the ridicule or contempt in the community to which he may have been subject­ed. Indeed, even in a wrongful dismissal proceeding - an action in contract, not in tort - one can now recover damages for what is variously described as "mental distress", "injured feelings", "vexation", "anxiety", or "frustration", so long as those consequences are reasonably foreseeable and causally connected to the breach of contract (see: Brown v. Waterloo Regional Board of Com­missioners of Police (1982), 1982 CanLII 1939 (ON HCJ), 136 D.L.R. (3d) 49; and cases referred to therein). Adjudicators under the Human Rights Code now routinely award monetary compensation for "mental anguish" or for "humiliation" on language not unlike that found in section 89 of our Act. Thus there is some prec­edent - albeit in other contexts and other forums - for compensation beyond an immediate loss of wages or other economic benefits. It would be odd (or so counsel says) that a plaintiff could, at common law, recover damages for anxiety consequent upon inadequate notice of termination, but an unfair labour practice complainant could not recover full compensation for intentional harass­ment, intimidation, and coercion culminating in an unlawful discharge - all forms of deliberate mis­conduct expressly prohibited by statute.

33. Is the Board in such cases restricted to a mere declaration that the illegal conduct has occurred, and a direction, some weeks or months later, that it should not happen again? Is that the only remedy for an employee who has been harassed, intimidated, brow-beaten or persecuted but not actually fired? Can s/he only obtain compensation if the employer takes that final step, and then only for the wages lost? There are good policy reasons for rejecting that restricted view; for, to hold otherwise, would be to limit the Board in a number of extreme cases, to making only an express direction prohibiting that which the statute already clearly proscribes; and that would, in purely practical terms, virtually ignore all illegal conduct and consequences that did not result in direct economic losses to the aggrieved employee. But there is nothing in the statute which would foreclose monetary compensation for these independent breaches of the Act, and we see no reason to "read in" such limitation. Nor do we see any reason why this Board should be less sensitive than the Courts or other tribunals to the possibility that illegal conduct may give rise to a form of gen­eral damages.

34. This is not to say that the Board should award compensation in the form of "general damages" simply because it is affronted by the egregious nature of the employer's conduct or the "shocking high-handed and arrogant fashion" in which a particular complainant may have been treated (to borrow the language of Linden, J. in Brown, or Fitzpatrick, J. in Pilato v. Hamilton Place Convention Centre Inc.c.o.b. Hamilton Convention Centre (1984)) 3 C.C.E.L. 24). "Punish­ment" has no place in assessing compensation under section 89 of the Labour Relations Act - as the Board made clear in Little Brothers, supra, and the Divisional Court affirmed in Tandy, supra. Punishment is properly dealt with by the Courts under section 96 of the Act either for a breach thereof, or for a failure to comply with a Board determination. But in our opinion the facts and cir­cumstances of a discharge, and the events which preceded or followed it, may, in appropriate cases, sustain a claim for "general damages", in addition to any loss of wages or other employment benefits which a complainant may have suffered.

35. In the instant case, though, the problem is not really one of legal principle or labour relations policy. The difficulty lies in the fact that the claim for general damages (described, inter alia, with reference to "mental distress") surfaced only at the hearing convened to calculate the quantum of compensation payable to Ms. Campbell. This rather unusual damage claim, based upon quite debatable issues of law and policy was not raised in the initial proceeding before the Board and, accordingly, is neither recognized nor easily accommodated in the remedial order which the Board actually made (see paragraph 77 of the original Board decision). In the circum­stances we are asked, in effect, to amend our original remedial direction to include a novel general damages claim under the rubric of "implementing" a compensation direction which does not spe­cifically contemplate that kind of claim. Whatever its attractions (and in an appropriate case there may be many) we decline at this stage to do so here.

VII

Costs

36. Counsel for the complainant also claims "costs", which, he says, should include not only the legal fees expended in sustaining the complainant's position, but also certain out-of-pocket expenses (babysitters, travel, meals associated with her attendance at the various Board hearings etc.). However, in accordance with its usual practice, the Board is not persuaded that it should award "costs", even though we do not doubt that these sums were properly and necessarily expended to vindicate the complainant's position. The Board has generally taken the position that it would be inappropriate to award "costs" to a successful complainant, when its jurisdiction to award "costs" to a successful respondent remains in doubt. (i.e. if a complaint is dismissed). Costs should be reciprocal, and it is not clear that the statute permits that. Accordingly, the complain­ant's request for "costs" is hereby denied.

37. Having regard to the foregoing, the Board directs that the respondent pay Ms. Camp­bell forthwith the sum of $11,007.47 less any statutory deductions associated with the wage compo­nent of this sum.