Employee wanted bonuses paid out during the period she would have been working had she not be wrongfully dismissed
This instalment of You Make the Call involves a dispute over how much should be paid to an employee who was reinstated after a successful grievance.
Paulette Garon was an Ontario-based employee of food and condiment manufacturer Smucker Foods. On Feb. 3, 2010, Smucker terminated Garon’s employment. Garon filed a grievance for wrongful dismissal and, 13 months after her firing, an arbitrator ruled in her favour. Smucker was ordered to reinstate Garon to her old position with no loss of seniority. The arbitrator found an eight-month suspension should be substituted as discipline and Garon should be paid for the subsequent five months.
Garon returned to work on March 16, 2011, and was paid an amount equal to what her pay, minus deductions, would have been for the period from the end of her suspension to her reinstatement – totaling more than $16,000. However, Garon argued that she should also be paid a performance bonus that all employees received in late 2010 as part of a plant closure agreement with the union, as well as a gratuitous holiday bonus paid to all employees in December 2010. The total of these two bonuses would have been $1,230.70 had Garon been working for Smucker at the time.
However, the employer argued that Garon, in fact, should repay part of the compensation awarded her because she failed to mitigate her losses. In the summer of 2011, Smucker inquired as to Garon’s efforts to mitigate by looking for other work after she was fired. The union had informed Smucker that Garon had not made any mitigation efforts between her termination and reinstatement. No effort was definitely not a reasonable effort, which should be factored into the amount Garon warranted in damages, argued Smucker. Garon was in the process of paying back $10,000 she had received as employment insurance and had spent most of the rest of her award on home renovations.
You Make the Call
Was the employee entitled to the bonuses on top of the compensation she was awarded?
OR
Was the employee not entitled to the bonuses?
If you said the employee didn’t deserve the bonus compensation, you’re right. The arbitrator noted that where the union acknowledged there was no attempt by Garon to mitigate, the onus was not on the employer to prove a lack of mitigation. However, Smucker’s inquiry and raising of the issue was too late to affect the initial award, said the arbitrator.
The arbitrator found that in the initial grievance, Smucker didn’t raise mitigation efforts at any time. Once the award was issued and the compensation paid, Garon was free to do with it as she wished and it was past the point where the employer could contest it. The time to do that was during the wrongful dismissal grievance, said the arbitrator.
“Even though (Garon) may not have been entitled to receive (the original award) in light of her lack of mitigation, the employer chose to pay it to her without making any inquiry as to her mitigation efforts,” said the arbitrator. “As it now is, however, (Garon) would be greatly prejudiced if the employer were permitted to change its mind and successfully assert that her failure to mitigate should be taken into account.”
