[1992] OLRB Rep. November 1209
2140-90-U United Food and Commercial Workers International Union, AFL, CIG, CLC, Complainant v. Peter Gorman & Sons (Wholesale) Ltd, Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.
APPEARANCES: Roman Stoykewych, Kevin Corporan, Kevin Benn and Deborah Smith for the complainant; Walter Thornton and Peter Gorman for the respondent.
DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; November 17, 1992
This is a complaint filed under section 91 [formerly section 89] of the Labour Relations Act. In a decision dated June 11, 1991, a majority of the above panel directed the respondent to reinstate Mr. Anthony and to compensate him for his losses with interest. The Board was asked to relist this matter since the parties were unable to resolve the amount of compensation, if any, owing to Mr. Anthony. During three days of hearing concluding on October 27, 1992, the parties presented their evidence and submissions on the issue of whether Mr. Anthony satisfied the obligation to mitigate his losses. The parties requested the Board to remain seized in order to deal with the quantum issue should it conclude Mr. Anthony was entitled to damages.
The complainant called Mr. Anthony to testify. The respondent called three individuals employed by three companies in Peterborough to give evidence. In making its factual determinations, the Board has carefully reviewed the oral and documentary evidence and the parties submissions. The respondent argues that the evidence should lead us to conclude that Mr. Anthony is entitled to well less than one-half of his damages as a result of his failure to mitigate his losses.
The Board does not propose to review in detail the evidence called by the parties. The complainant claims that Mr. Anthony is entitled to all of his losses arising during the relevant period, namely from November 6, 1990 to June 19, 1991. Mr. Anthony testified that within a week of his termination he began his job search and filed for unemployment insurance. He indicated that he checked the board at the Unemployment Insurance Office for employment opportunities. Mr. Anthony also registered with Manpower Temporary Services and was able to receive some part-time work from this source. He indicated that he approached Manpower Temporary Services on an average of once a week attempting to secure employment. Mr. Anthony did not subscribe to the local newspaper but would obtain a newspaper on an average of once a week in order to check for job openings. In addition, Mr. Anthony spent two or three days a week looking for a job. He was looking for work in areas where he had some experience and would pay at least seven dollars per hour. The complainant filed with the Board a document prepared by Mr. Anthony setting out the firms Mr. Anthony approached for work between November 1990 and June 1991. On average, Mr. Anthony contacted twenty firms each month and more often than not, left a resume or filed an application. Mr. Anthony testified that during the relevant period he did not refuse any job offer.
The three witnesses called by the respondent testified that they had jobs available and hired individuals during the relevant time frame. Mr. Anthony testified that he just did not think of approaching these employers. In reviewing the evidence, the respondent asks us to find Mr. Anthony was not a credible witness and to conclude that he did not make any serious efforts to mitigate his losses.
In their submissions, counsel referred to the following cases: Red Deer College v. Michaels et al., 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 (S.C.C.); Canada Post Corporation v. Canadian Union of Postal Workers (Teplitsky, unreported, January 22, 1992); Jacmorr Manufacturing Limited, [1987] OLRB Rep. Aug. 1086; Re City of Toronto and Canadian Union of Public Employees, Local 79 (1987), 1987 CanLII 8879 (ON LA), 29 L.A.C. (3d) 233 (Jolliffe); Re Carling O'Keefe Breweries of Canada Ltd. and Western Union of Brewery, Beverage, Winery & Distillery Workers, Local 287 (1984), 1984 CanLII 5217 (AB GAA), 20 L.A.C. (3d) 67 (Beattie); Re Canada Post Corp. and Canadian Union of Postal Workers (Belle) (1989), 1989 CanLII 9253 (CA LA), 6 L.A.C. (4th) 232 (Jolliffe).
In our view, the appropriate principles to apply when a failure to mitigate issue arises are contained in Jacmorr Manufacturing Limited, supra, and need not be recited here. On the evidence before us, the Board is unable to conclude that Mr. Anthony failed to mitigate his losses. It may be that some employers had job openings in Peterborough during the relevant period and that someone in Mr. Anthony's position could have tried harder to secure employment but these are not determinative of the issue before us. The Board is satisfied in the circumstances that Mr. Anthony made reasonable efforts to mitigate his losses and that he is entitled to be compensated for his losses.
Having regard to this conclusion regarding mitigation, the Board directs the respondent to fully compensate Mr. Anthony for his losses including interest calculated in the usual way. We continue to remain seized of the quantum issue.
DECISION OF BOARD MEMBER ROSS W. PIRRIE; November 17, 1992
I dissent.
The concern which caused me to dissent from the original award reinstating Mr. Anthony, namely his credibility, still persists. I don't believe Mr. Anthony made reasonable efforts to mitigate his losses.
Mr. Anthony's job search efforts are summarized in his own document which lists monthly, the establishments which he contacted. A cursory review of these lists indicate it does not represent anything like a reasonable attempt to find alternative employment. In terms of the quantitative aspects of the search, Mr. Anthony testified he would have spent less than fifteen minutes on average a day on each potential employment approach. Based on his list this would represent less than fifteen minutes a day devoted to finding employment. In terms of the qualitative aspects of this search it falls far short of a serious or meaningful attempt to find a job.
With respect to the Jacmorr Manufacturing case cited at paragraph six above, while the authors of that award set out some general comments which suggests a complainant in an unfair labour practice case involving a violation of the Ontario Labour Relations Act need not mitigate his damages, they went on to give consideration to that very issue. Their finding in that fact situation was that the grievor had mitigated her damages. As stated above I don't believe that to be so in this case.