OPSEU Local 560
To:	All Members of OPSEU Local 560
From:	OPSEU Local 560 President Ted Montgomery
Date:	February 19, 2002
Subject:	Update:  Further Decision re Larry Olivo - Judicial Review

As many of you are aware, Local 560 Vice President Larry Olivo was fired by the college in 1998 on the basis of what we knew and said from the beginning were false accusations made by Mel Fogel, and endorsed by Vice-President Wayne Norrison.  Mr. Fogel, then Director of Employee Relations, has since left the college.

The Board of Arbitration reinstated Prof. Olivo to his position with full salary and benefits.  At the time of his reinstatement, the college took the position that Mr. Olivo was reinstated on the basis of a technicality. The Board had ruled unanimously that the college’s delay of several years before bringing the accusations to Prof. Olivo’s attention was in itself enough to reinstate him and compensate him for all his losses, plus interest.  The Board also made it clear in their decision that the dismissal was unwarranted and unfair.  The union distributed copies of the decision to all faculty members so they could see for themselves what was actually written.

But the dismissal of Prof. Olivo was not just unfair.  Neither was it merely the result of a mistake by the college.  It is quite clear, on the facts of the case, that the college proceeded against Prof Olivo out of malice, with the intention of harming him and harming the union local.   For this reason, Prof. Olivo also claimed punitive and aggravated damages against the college for the malicious and improper behaviour of its agents.

Arguments on this issue were made to the Board of Arbitration in February 2001.  The decision was finally handed down just before Christmas.  In a decision of nearly one hundred pages, the Chair of the Arbitration Board says clearly that the focus on Prof. Olivo was misdirected, and that the college’s conclusions about Prof. Olivo were without substance.  The college can no longer maintain that Prof. Olivo was reinstated on a technicality.  Most of the arbitrator’s decision is devoted to an argument that the Board has no authority to grant punitive and aggravated damages.  For that reason, it says it can make no award of damages to punish the college for any maliciousness and improper behaviour.

When an employer is found to have mistakenly terminated an employee, the reinstated employee is “made whole,” i.e. gets back all lost salary and benefits.  Punitive damages go further and are a means to prevent employers from malicious or arbitrary dismissals, carried out sometimes just to make life difficult for the terminated employee.  This arbitrator’s failure to acknowledge the need to distinguish between mistaken and malicious termination gives license to employers acting maliciously or deliberately in bad faith, knowing there is no risk of further penalty or cost to themselves.  We think this is wrong.  OPSEU has decided that it cannot accept a situation where there is no remedy when its members are subject to malicious attacks by the employer’s representatives.  This arbitration decision would reverse a precedent established by the courts regarding such matters being a part of the jurisdiction of boards of arbitration.  Because of this, OPSEU has applied for judicial review of the arbitrator’s decision in the courts to reverse it, and ensure that arbitrators deal with and punish managerial misconduct.

Even now, the college has not apologized to Professor Olivo.  It still has not accepted responsibility for the wrong-doing of its managers in this matter.

I’ll report further as this matter progresses.

Ted Montgomery, President OPSEU Local 560
 

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