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HomeMy WebLinkAbout1987-2545.Roberts et al.88-11-082545/61. 2561/01, 2560167. 2569/%1 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : OPSEU (Roberts, Rabley, Hugo & Bain) Grievor6 - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.L. Verity Vice-Chairper6On I.J. Thomson Member H. Roberts Member For the GrieVOr6: P. Peloso Counsel Gowling & Henderson Barristers and Solicitors For the Emulover: Hearing6: A.P. Taraeuk Barrister & SOliCitOr Central Ontario Industrial Relation6 Institute June 20, 1988 September 29, 1988 - 2 - DECISION The four grievors in this matter are part of a larger group of 35 Correctional Officers who filed individual grievances regarding unpaid lunch breaks (subsequently known as the Addison grievance). In the instant grievances, Messrs. Roberts, Rabley, Hugo and Bain were required to attend, and did attend arbitration hearings in connection with the Addision grievance in November 1987; namely, on November 18, 19, 25 and 26 respectively. However, all four grievors allege.that the Employer violated the provisions of Article 27.6.1 in failing to grant paid leaves of absence on all hearing dates for shifts scheduled on those dates. Briefly stated, the grievors claim that any scheduled shifts on hearing dates should attract the full benefits specified in the Article. Article 27.6.1 of the Collective Agreement reads: 27.6.1 An employee who is a grievor or complainant and who makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. The facts are not in dispute. Indeed, the Employer called no evidence after the Union's case was completed. The grievors are -3- Correctional Officers at Maplehurst Correctional Centre in Milton. Apparently there are three basic shifts at Maplehurst: schedul can be In November, 1987 all grievors worked rotat ing shifts ed three weeks in advance. The particulars of each grievance briefly summarized: #l. (Day Shift) - 7:00 a.m. - 3:00 p.m. #2. (Afternoon Shift) - 3:00 p.m. - 11:OO p.m. #3. (Night Shift) - 11:00 p.m. - 7:00 a.m. 1. The grievor Robert Roberts was scheduled to work the day shift on November 18 and 19 and the night shift on November 25 and 26. Management granted his request for leaves of absence under Article 27.6.1 for November 18 and 19, but denied the request for the number three shift on November 25 and 26. Mr. Roberts was obliged to utilize two lieu days for his absences on November 25 and 26. The remedy requested was "compensation to the equivalent of 3 days off or compensation to the equivalent of 16 hours at overtime rates". 2. The grievor Frank Rabley was scheduled to work the night shift on November 18 and 19 and was on scheduled days off on November 25 and 26. Rabley's request to have the night shift off on November 18 was denied. He was given approval to use November 18 as a vacation day off and was apparently off sick on November 19. The settlement request was a return of the sick leave and vacation credits used and reimbursement for “4 vacation or lieu credits". - 4 - 3. The grievor Peter Hugo was scheduled to work the day shift on November 18 and 19 and the night shift on November 25 and 26. His request for paid leave of absence under 27.6.1 was granted for the day shift assignments on November 18 and 19, but denied for the night shifts on November 25 and 26. He used a lieu day for November 25 and exchanged shifts with another Correctional Officer on November 26. Hugo seeks compensation "to the equivalent of l-1/2 days time off plus 1 day's pay for mutual shift change". ~- 4. The grievor Douglas Bain was scheduled to work the afternoon shift on November 18 and had a scheduled day off on November 19. For November 25 and 26 he was scheduled to work the day shift. The grievor's request for leave under Article 27.6.1 was granted for November 25 and 26. However, for the afternoon shift on November 18, the grievor was told to report to work at 7:00 p.m. Accordingly, he was granted a paid leave of absence for the first four hours of the afternoon shift. Subsequently, Mr. Bain submitted a second request for a leave of absence to work one-half of the afternoon shift on November 17, "in order to have proper preparation, rest and travel time". That request was denied by the Employer. The remedy sought was two lieu days and payment for 10-l/2 hours at overtime rates. All grievors maintain that they were unfairly treated and that the Employer's actions were unreasonable from the standpoint of health and safety, job performance, and the ability to fully participate in the grievance procedure. -5- The parties advanced differing interpretations of Article 27.6.1. At issue is the proper interpretation of that Article. Both parties agreed that there was no ambiguity. The Employer maintained that the provisions come into effect only where an employee would otherwise be working but for required attendance at the Grievance Settlement Board. Union Counsel contended that Article 27.6.1 must be interpreted in light of the employee's fundamental right to grieve. In particular, Mr. Peloso contended that if an employee was scheduled to work any of the three shifts within a 24 hour period, that employee must be entitled to the full benefits of the Article in question. In addition, the Union alleged that the Employer was estopped from applying its interpretation because of a long standing past practice to the contrary. Evidence of past practice was introduced by the Union solely for the purpose of establishing the doctrine of promissory estoppel. The real issue, we think, is whether or not the evidence supports an estoppel. William Gillies, a Correctional Officer at Maplehurst since 1975, testified on behalf of the grievors. He has held a variety of positions with the Union including two terms as Local President, Union Steward, and Provincial Chairman of wage negotiations. Mr. Gillies testified that until 1988, Management had granted Maplehurst employees time off without loss of pay or credits where an employee was a grievor and was required to attend Grievance Settlement Board hearings in the following circumstances: -6- 1. If required to work the day shift on a hearing date; 2. If required to work the afternoon shift on a hearing date: 3. If required to work the night shift either before or immediately following the day of hearing. Mr. Gillies was unable to understand why management had varied its practice in 1988. According to his testimony he was.aware of "many, but not all" cases at Maplehurst under Article 27.6.1. In cross-examination, Mr. Gillies testified that Management adopted the same policy for staff required to attend a grievance meeting under Article 27.6.2. He acknowledged that the language in Article 27.6.1 and 27.6.2 was similar and should be interpreted on the same basis. The grievors testified as to their understanding of the relevant past practice. Their evidence was of a general nature and supported the Gillies testimony. In particular., Douglas Bain testified that he had been granted time off pursuant to Article 27.6.1 for the night shift on July 19 prior to his G.S.B. appearance on July 20 (Exhibit 6). In his opinion, the policy at Maplehurst changed because of the large number of grievors in the Addison grievance. On the basis of the evidence adduced, the Board is not persuaded that this is an appropriate case to apply the doctrine of promissory estoppel. The essence of estoppel is representation by words or conduct which induces detrimental reliance. In a frequently -7- quoted passage, the principle was enunciated by Denning L. J. in Combe v, Combe [1951], 2 K.B. 215 at p. 220, [1951], 1 ALL E.R. 767 at p. 770: The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly,~then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. In Re Canadian National Railway Co. et al. v. Beatty et al. (1981), 34 O.R. (2d) 385, Mr. Justice Osler of the Ontario Divisional Court cited the principle enunciated by Denning L.J. in Combe v. Combe and added at p. 389: Elsewhere, Denning L.J. is said to have explained that the doctrine is only applicable where the parties have already entered into a definite and legal contractual or analogous relationship, when there exists some conduct or promise which induces the other party to believe that the strict legal rights under the contract will not be enforced or. will be kept in suspense and that "having regard to the dealings which have taken place between the parties" it will be inequitable to allow that party to enforce their strict legal rights. The doctrine of promissory estoppel has been expressed in differing ways on numerous occasions by both Judges and Arbitrators. -8- For example, Arbitrator Burkett expressed the concept in somewhat simpler terms in Re Hallmark Containers Ltd. and Canadian Paperworkers Union, Local 303 (1983), 8 L.A.C. (3d) 117,at p. 124: Promissory estoppel is a doctrine designed to prevent whatever inequitable consequences might flow from the strict enforcement of a contract where the party seeking to enforce the contract has made representations to the other party that it will not enforce its strict rights and the other party has relied, to its detriment, on these representations. In the instant matter, there was no'agreement between the parties that there was a course of conduct which constituted an Employer representation, promise or assurance. However, as indicated previously, the Union chose to call no evidence. In our opinion, the sufficiency of the evidence adduced is an insurmountable problem for the Union. The nature of the general evidence adduced falls far short of the sufficiency of proof required to establish a representation or promise by the Employer. On the second ingredient of promissory estoppel, namely detrimental reliance, there was no evidence whatsoever that the Union acted to its detriment on the alleged representation by conduct. For a representation to ground an estoppel, it must be shown that there was detrimental reliance upon that representation. Simply stated, the facts do not support a finding of detrimental reliance as there was no evidence that the Union, being a party to the contract, acted to its detriment. -9- * I A similar argument was considered by Vice-Chairman Knopf in OPSEU (Carter et al) and Ministry of Correctional Services 2291/86, 2292,‘86. On the authority of Mr. Justice Reid in Re Metropolitan Toronto Civic Employees' Union, Local 43 Canadian Union of Public Employees and Municipality of Metropolitan Toronto et al (1985), 50 O.R. (2d) 618, Arbitrator Knopf stated at p. 9: . . . For the doctrine of estoppel to'apply, detrimental reliance by the Union as a party to the contract, not just an individual employee, must be established. Later on the same page, the Vice-Chairman makes the following relevant comments: Detrimental reliance connotes lost opportunity and lost potential. The classic example of this is a union relying upon a practice or promise and thus being induced into a position of losing or passing over the opportunity to negotiate its desires into the collective agreement formally. We have no such suggestion here and no evidence of what effect, if any, this conduct had on negotiations. Vice-Chairman Knopf's comments apply with equal force to the instant matter. The entitlement of an employee to a leave of absence without loss of pay or credits falls to be determined by the application of the wording of Article 27.6.1. We agree with the position advanced by the Employer. Under this Article, the Employer is obligated to grant a leave of absence with no loss of pay and no loss of credits where an - lo- employee is a grievor or complainant and is required to be in attendance at a hearing before either the Grievance Settlement Board or the Public Service Labour Relations Tribunal. Article 27.6.1 comes into effect where the grievor or complainant, as the case may be, would otherwise be working but for the required attendance at the hearing. Put another way, Article 27.6.1 is triggered where a hearing is scheduled during any time when the grievor is scheduled to work. Indeed, the parties have addressed and limited the issue of compensation payable in these circumstances. In sum, no other compensation was bargained for by the parties. The interpretation urged upon us by the Union, we think, would have the effect of altering, amending, or enlarging the language of the Collective Agreement, contrary to the provisions of Article 27.16. The merit of any such amendment is, of course, a subject for collective bargaining negotiations. In our opinion, the decision of Vice-Chairman Palmer in OPSEU (W. R. McKie et al) and Ministry of Transportation and Communications 80/80, bears a striking similarity from the interpretation standpoint. In that case, the Board was required to interpret Article 27.7.2 (now 27.6.2), a similar although not identical provision to Article 27.6.1. The clause considered by the Palmer Board reads as follows: An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings. - ll- In the McKie grievance, the grievor was required to attend a Stage Two grievance meeting on a scheduled day off. At p. 6 of the Decision, Vice-Chairman Palmer stated: Quite clearly, the meaning of this clause is that where a grievance meeting is scheduled during times when the grievor is scheduled to work, the Employer is required to permit him to attend this meeting, pay him for the time while he is so engaged, and, finally, treat the time whqn he is at this meeting as if he had worked for purposes of credits for vacations and the like. Again, having set out this requirement for payment, there is no obligation for the Employer to go further. For all of the above reasons, these grievances are dismissed. DATED at Brantford, Ontario, this 8th day of November, 1988. M--r L /ee=-l-q +&~ERITY, Q.C. - VI&-CHAIRPERSON (Addendum Attached) I. THOMSON - MEMBER ~~xb+- H. ROBERTS - MEMBER 25wa7, 2567187, 2568/a?, 2569/a7 ADDENDUM It is with great reluctance that wish to include this Addendum. I sign this award. I do so however, but The evidence of the Union official was, and it was uncontradicted, that until April of 1988 the practice at Maplehurst was to grant a leave of absence with pay to anyone appearing before the Grievance Settlement Board either as a grievor or who was required to testify. As I stated this statement under oath was uncontradicted. He stated that until 1988 time off was granted,as set out in the last para of the Award on page 5 and the evidence set out on page 6. Now we have the Ministry allowing people off with no loss of pay or credits if they are on 'il shift. On #2 shift they are expected to report for work by 1900 hours and complete the remainder of their shift. On #3 shift they are denied any pay since they are expected to report for duty by 2300 hours. Unless ofcourse they wish to use a lieu day or vacation credit. Look at the situation for those on the #3 shift. He finishes his duty at 0700 hours, he must shower, shave, etc., change his clothes, have breakfast and drive into Toronto in rush hour traffic to be at the Grievance Settlement Board for 1000 hours. The Board usually sits until 1630 or 1700 hours. Then he drives out of Toronto in rush hour traffic, has his dinner and then gets, if he is lucky, 2 or 3 hours sleep before he must report for duty again at 2300 hours. He then puts in 8 hours in a most stressful, dangerous environment where he must be alert and on his toes at all times. Lets carry this perhaps a little further and say he is required to attend before the Grievance Settlement Board the following day again, perhaps even the next. He would be receiving about 2 or 3 hours sleep in every 24 hours. The Ministry position is "that's not our problem, take lieu days or vacation days at your own expense." This because he is exercising a right to grieve an injustice or to give evidence. What a short sighted position for the Ministry to take. If anything happened because of him not being fully alert the Ministry would want his head. I would urge the Union to try and persuade the Ministry to change their position now and make it equitable and fair for all instead of discriminating against some. If they cannot convince them to be reasonable now, then they should make every effort to change this unfair and discriminatory practice at the next negotiations.