A unionized Toronto Transit Commission (TTC) worker, who was fired for cause and later reinstated to his position, has been awarded $175,000 in compensation for the nearly four years he was off work.
The worker was fired on May 9, 2019, by the TTC for cause. The Amalgamated Transit Union (ATU) Local 113, grieved the termination. The employer later withdrew its allegations for termination and reinstated the worker on April 24, 2023.
The issue before the arbitrator was what compensation, if any, was owing for the period of termination, including pay and pension-related losses.
Diverging views on mitigation and compensation
In the union’s submission, the grievor was entitled to full compensation for his losses during the termination period, minus his income from mitigation efforts.
The union argued that the employee made “serious and sustained efforts” to find alternative employment, a task made challenging due to the COVID-19 pandemic. The union also claimed that the employer’s conduct warranted punitive and general damages, stating that it fell “so far below the standard of care” that a significant award was justified.
Conversely, the employer argued that the grievor’s mitigation efforts were insufficient, noting that more than 100 driving jobs were available in the Greater Toronto Area (GTA) for which he was qualified.
Management also indicated that the grievor declined positions offered to him by recruiters. The employer rejected any claim for damages, stating that their mistake in terminating the employee did not fall below any standard of care.
The award
The arbitration award took a more nuanced approach. The employee was found to have made some employment gains during the termination period but also missed opportunities for employment.
“Indeed, as the employer pointed out, there was evidence in the grievor’s own mitigation submissions of him being offered multiple positions from recruiters,” the arbitrator said. “There are numerous examples of the grievor declining job offers. No explanation for this was provided.”
Given these circumstances, the arbitrator directed the employer to pay $175,000 as wages less all normal and statutory deductions, subject to any Employment Insurance (EI) repayment obligations. The arbitrator rejected the union’s claims for punitive or general damages.
“The employer made a mistake, the union grieved, the mistake came to light and the grievor was returned to his position,” the arbitrator said. “There is no evidence of mental distress and nothing about the mistake management made that rises to the high legal standard set out in the authorities that must be met to justify the award of punitive or general damages.”
On the pension front, the arbitrator left it to the parties to resolve outstanding issues.
“The parties are directed to expeditiously determine whether the grievor is eligible to have some or all of his service credited for pension purposes for the termination period,” the arbitrator said.
“If this is permitted under the pension plan, the parties will cooperate in allocating from the $175,000 for each applicable year. To be very clear, however, there is no obligation on the part of the employer to pay any more than the $175,000 other than to pay its normal pension contributions for the period in question.”
For more information, see TTC v ATU, Local 113, 2023 CanLII 87759 (ON LA)
