In COPE v IAM Local 1922 ( 2026 CanLII 42517 ) Arbitrator Christopher White found that the Grievor was dismissed without just cause but as reinsatement was not a viable option, he instead awarded compensation in lieu.
Traditionally there have two ways of approaching how to calculate these damages . This is how the Arbitraor described the two methods:
With respect to the method to be used in calculating damages in lieu of reinstatement, arbitral caselaw identifies two methodologies that have been widely used. The first is the fixed-term method which assumes that, but for the improper termination, the terminated employee would have continued in employment with the unionized employer until an anticipated retirement date (e.g. age 65). The damages calculated in respect of that period are then reduced to reflect contingencies that might otherwise have caused the employment to end at an earlier date. Contingencies considered by arbitrators using this method vary widely and very much depend on the specific circumstances of the case. The second method is the common law approach that calls on the arbitrator to utilize the factors generally considered by the courts in wrongful dismissal cases in their determination of a reasonable notice period where no just cause or contractual stricture otherwise governs. Many arbitrators using this method provide an enhanced notice period to the grievor as compensation for the lost value and protections offered by the collective agreement that are unavailable to a non-unionized employee.
The arbitrator then decides that the enhanced common law approach is the better method:
I have carefully considered all the decisions provided to me and have come to the conclusion that the common law approach is to be preferred. In particular, I find the reasons of Arbitrator Jones in Board of Governors of Mount Royal University v. Mount Royal Faculty Association (supra) to be particularly compelling. Ultimately, the requirement to predict contingencies, especially when a long potential period of service remains in a grievor’s employment with the terminating employer, creates too much uncertainty and speculation. It may be noted in any event that the contingencies applied by many arbitrators using the fixed term approach result in damage awards that are not dissimilar to those that would have been produced by an enhanced common law approach.
The arbitrator then takes a two step approach to determine the proper notice period ;
First he determined that the common law notice period considering the usual Bardal Factors was 3 months .
Then he multiplies that number by 1.5 to take into consideration that the loss of a unionized position involves loss of the enhanced job security that flows from being covered by a collective agreement.
He therefore awarded 4.5 months notice in lieu of reinstatement .
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