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HomeMy WebLinkAbout1992-3488.Lane.94-02-28‘: ‘1 r- / : .- c :-- ?t ;: 0NTA)RIO :,. (:-.: : EMPLOY& DE LA COURONNE * , i’ CROWN EMPLOYEES DE L’ONTARIO : GRIEVANCE ‘. SETTLEMENT CQMMISSIONDE ’ REGLEMENT ,BOARD- DES GRIEFS -. .’ * 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ~NTARR). MEG 728 TELEPHONE/T~L~PHONE: i4 76j 326- 1388 ,180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIOJ. MSG 128 FACS/MILE/T~LCC~~IE : (4 16~ 326- 1396 , I , 3488/92 c IN THE MATTER OF &N ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING'ACT Befqre ' THE GRIEVANCE SETTLEMENT BOARD BETWEEN 'BEFORE: r FOR. THE GRIEVOR -. 'FOR THE M.‘ Failes EMPLOYER Counsel Filion, Wakely 61 Thorup Baeeisters & Solicitors' HEARING: cum (L'ane) Grievor - and i : '. -L The Crown.'in Right of Ontario (Workers' Compensation Board) Employer M. -Gor?ski J.C. Laniei D. Montrose Vice-Chairperson Member Member P..Douglas National Representative -_ -' CtiPE Local 1750 r November 10, 1993 December 6, 1993 January 4, 1994 ,’ ,!‘. -. _. ; ‘ . w !.L % , 1 . I.NTER.IM DECISIO'N The Grievor, Andrea Lane, filed a grievance (Exhibit 1) on July 22, 1992, -with repect to the .alleged: "Failure to give priority consideration to.affected employees." The statement of the grievance is: The employer posted the position of "Program Support Clerk" salary scale 005 in Ottawa without considering affected employees contrary.to Articles 5 and.(6 of the - Collective Agreement. Under "Settlement Required," the Grieve-r requested: Full . redress including assignment granting me 'the position‘bf Program Support Clerk. Any other benefits, 'which would he usual for such a change in position. In order to understand the real nature of the grievance, which -the parties agreed to, it will be necessary to set-out certain facts that:preceded and. followed its filing. Ms. Lane, who had been employed by the Employer for approximately 15.years at the time of the filing of the grievance, had been notified, -in 1992, that she was an employee whose job would become. redundant as a result 'of. techno.logical and/or organizat.ional change., .as' dealt with in art. 6 of the collective agreement. At that time, she was an Exceptions Handling Clerk 2 employed in Records Management Branch of Employer's Toronto of,fice. Ms. Lane relied,upon rights granted under ,art. 6.07 of the : . . : . (‘,, : . . /’ - .. ..(,I i 3 2 collective agreement: "T.ransfer Arrangements," to obtain another. position: ,- Transfer A.rranqements An employee affected by technological and/or 'organizational change who declines retraining when their job is significantly changed, who is unable, to acquire the required skills through retraining- or whose job is made redundant, shall be given priority.consideration for vacant positions under Article 5.01(-a). This applies to any vacancy in the province. The costs- of relocation shall be paid by the employer. if there is no. alternative position at the.current or equivalent salary grade in the same Division, Branch or Regional or,. Area offi,ce or Information Service Office as the'case may be. I. Article 5.01(a)-; referred to in art. 6.07, is as follows: -, When a vacancy of a permanent nature'occurs or a vacancy of a temporary nature occurs and is expected to exceed thirty calendar days (for reasons other than vacations) or a new position is created within the bargaining unit, 'the.position will be-filled as follows: ,, (a') In accordance with Article 6 Technological 'and Organizational Change, first consideration will be given to placing employees occupying:‘the same or .. higher salary classification within the bargaining unit who are affected by organizational or'other changes which have resulted, or are likely to- : result, in. a reduction of the workfo.rce. \ 'The placement of affected employees shall be on the ~ basis of seniority, provided the' employee has the qualifications and ability to.perform the required , duties .in a competent, manner or can attain them within .an eight (8) month training period. The Iposition sought by Ms. Lane, relying on her rights under art. 6.07, as spelled out in art. 5.01(a), ;was that of,a Program Support Clerk in the Ottawa West Integrated Services Unit of the Employer. The vacancy,for the position sought arose as result of ,. 3 . the incumbent in the Program Support‘Clerk position, Linda Dickson, having applied .to be -appointed and being appointed to a new position of Payment Specialist. / Initially;Ms. Lane had been informed that she'would not be able to exercise her.rights to priority consideration for vacant positions underart; 5.01(a) for a number of reasons which are no longer 'material, and George E. Picken,. ,Executive.' 'Director, Adjudication and Rehabilitation of -the .Employer, Department II, notified her,,by letter-dated November 25, 1992 (Exhibit 31, that the sole reason,for the withdrawal of the posting with respect to the vacancy, above referred to, was the fact that Mr. Picken: l . . learned-that the former incumbent '[Ms. Dickson1 who returned to the position -did in fact do-so during the official trial period. I .did approach your Union representative about this and discussed it with him. .I have therefore concluded that the Ottawa West I.ShU. was within its rights to cancel the posting. Therefore, there is no.longer a vacancy at that level for which you may be currently considered. ' This advice was also contained in an. earlier letter to.Ms. I Lane; dated September 28, 1992, from-Pat Lammana, Director, Ottawa West I.S.U., where- it is stated: As you know, as part of.the Board's ongoi,ng efforts to find you suitable employment,, your applic'ation .and 1 priority placement status was being. considered for the position of Program Support Clerk in the Ottawa office. It is unfortunate, but we have recently been informed that the former incumbent of this position [Ms. Dickson1 has been unsuccessful in completing the 60 day trial period in the new position. As a result, the incumbent has been returned to their [sic1 former position of Program Support Clerk, and‘the.posting will be cancelled; c - _ .-. .., . . ._ . (;,,;.! ‘. L : . . _I 5 ‘1’. i 4 J The parties agreed that the issue to be decided by the,Board relates to whether Ms. Dickson had completed the in art. :5.06 oftrial period provided for. in the collective agreement: Trial Period The successful applicant will be placed in a new position and will be considered to be "on trial" for a per,iod of sixty (60)‘working' days. If, during that time, in the .opinion of the Employer, the employee is‘unsatisfactory, . or if the employee so requests, he shall be returned to his former salary classification and placed in a position for tih.ich 'he is qualified without.loss .of seniority. A subsidiary issue, should we find that Ms. Dickson had not completed her trial period, is whether the Employer was obliged to return her to her previous position as a Program Support Clerk in . . ._ , Ottawa. There were two ,groups of employees assigned -to the Payment Specialist position, which was a new ones created by the Employer, to be .filled in various office,s of the Employer throughout Ontario. One .group, which the parties referred to as "trainee,s," or "new" 1 employees, included Ms. Dickson. The other group, which, the -. parties referred to as the Tincumbent emplpyees," had f~ormerly been , , .employed, at various locations throughout the province by the Employer as '"Core or Verification Clerks," the terms "Core" or "Verification" " being used interchangeably. Only 'the trainees were given training by the Employer, which commenced,' for most of them, on or about May 1, 1992, which 1 5 : _ training was intended to be completed around June 22, 1992. Although May 4, 1992 was referred to be some management witnesses, the most frequent reference ,to the commencement, of the training L r \ 1992. .It was 'agreed that trainees were expected ' period was May 1, I to commence working as fully trained Payment Specialists on June 22, 1992 The incumbent employees, who did not receive any training in the Payment Specialist position, were expected to commence functioning in that position on June 22, 1992. , r Art.'6.06 of the cdllective agreement deals with "retraining": . . i Retraininq i ‘(iI Where, as a result of technological and/or organizational change, an employee's present . position is significantly changed,'requir+ng new or modified skills,. such employee shall be provided with the opportunity fo'r retraining. The Employer ', will: provide a period not" to exceed eight (8) .. months for this retraining during which time the .,employee must acquire the skills required. in! the changed ppsition. This training shall be at the expense of the Employer, and where practical, take :' A place during normal working hours. i (b)' 'Where, as a reswlt of tec:hnological- and/or organizational change, an employee's position . ,becomes redundant and they are placed.in a vacant, . . ' the terms of Article 5.01(a), if \ position under , necessary, they shall be provided with retraining. this retraining period will not exceed eight (8) months during which time the employee must acquire . the skills required to perform the duties of the 'I position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours. I ,’ (c) At-any time during the first sixty (60) days of the ./ ., : . . . ._ . .- , ; ii:.. i: .. ‘...: ., j. ., si ' 6 eight (8) month period set out in (a) and (b) above an employee who requests may discontinue their position and be considered again for placement under Article 5.01(a). It is understood that each employee shall only be entitled to two (2) priority placements as a result of a technological and/or organizational change affecting the employee's i po,sition. ' It was intended that both the trainee-and incumbent employees were to become Permanent Payment Specialists at the completion of their trial‘periods, but the parties differed as to when-the 60 working day trial period commenced. It'was acknowledged that in the case of Ms. Dickson, her trial period would have expired before .,.she indicated her desire to return to her previous position in Ottawa:. There was some conflict in the evidence as to whe,ther Ms. Dickson's .return to.her previous-)position. was as a result of her decision, the decision of the Employer, or whether it was a mutual r decision. For the purpose of deciding the issue before us,'it does not matter how the decision was arrived at. , Although given notice of (the. hearing and' of her right to ,: attend and participate in it, Ms. Dickson did not do so but arranged to have filed with the.Board a letter dated December 6, 1993 (Exhibit 81, ,. whi,ch is .as follows: To Whom it May Concern I I am writi,ng this letter to confirm the fact that,when I received my letter, from July 1992, concerning the trial period for the position of Payment Specialist that I was accepted in, neither management nor any Union representative approached me questioning the dates of the trial period - 22 June 1992 to 16 Sept. 1992. At the time, I.was having a few problems in the practical _. ’ .7 : part of the job., I tias relying on my trial period 'to .hel,p me with this. If I had -thought there was any question concerning the validity of the-trial period dates, I would have made the decision,'prior to the end, of July, to return to my old position, Program Support ' Clerk. Yours'truly Linda Dickson : Rrogram.Support Clerk Ottawa Regional Office Mr. Failes, counsel for the Employer, raised a.pre.liminary objection that raised the issue as to whether the Union was ~ .e,stopped from enforcing its right under the collective agreement because of the existence of an estoppel, assuming this Board would interpret 'the trial period under the collective agreement as / commencing when 'training started on or' about May 1, ,-1992.. The preliminary issue to be decided in this interim decision is whether the Union' is estopped from maintaining that the trial period affecting Ms. Dickson commenced at the beginn.ing of.,the. training period, ,on or ab,out May 1, 1992 or, to'put.it'anbther way, from denying that it commenced on June 22; 1992 when the training'period f \ had.been completed and Ms. Dickson was placed on the job to which she had been appointed. In order to understand how'the.alleged estoppei arose, it is necessary to consider certain evidence relied upon by,the Employer. The parties acknowledged that grievance 92-43, being a policy grievance filed by the Unio'n, related to the, "former core or verification clerks,." being the imcumbent employees, and that the i 8 . step 2 meeting,tiith- respect.to this grievance was held on July 2, i992. Grievance number 92-43 was not filed with us but we were . advised' that. it rel'ated to a concern of the. Union that the incumbent employees had not been dealt.'with in a manner that was "consistent between Toronto and the regional offices." Present at the second stage meeting with respect to.grievance number 92-43,were, for the Union/John Madden,, Chief Steward of Local 1750 of the Union, and Beth Harris,. who was a steward of the Local in Windsor, and who was the Secretary-Treasurer of the-local; and, for the Employer,,Bruce Homer, the ManagerEmployee Relations in Toronto and Ed Baldwin a Staff Relations Specialist. There is a significant difference between the evidence of the representatives of the parties who testified, 'as to what was said at the July 2, 1992 meeting concerning the,time when the trial period with respect to trainees was -to commence. i Evidence of Beth Harris .' \ Ms. Harris testified as follows: / 1. She was a member of the incumbent group of employees and was affected by grievance 92-43. 2. She was advised that she was 'an affected employee around . . .. .- (.:;-. I -( .- ‘!. ‘. n 9 February of 11992. . 3. When positions for the Payment Specialist'position were posted across the province, she submitted an application to Human. Resources in Windsor and was a successful candidate. ' 1_ ’ 4. A controversy arose concerning the way in which incumbents were placed in the Payment .Specialist position at the various offices of the Employer throughout the province. .5 f She.was communicated with by a number of incumbent employees, and was asked to see what could be done about the method employed for their placement .in the Payment Specia-list position. 6. 'Some incumbent employees were said to have been required to take a test; some were not; and there was a concern Iraised about the interview process, which was said to be different in various locations 0.f the Employer throughout the province. 7 .'- The above. concern 'led to. the filing of jrievance 92-43. ! Sixteen incumbent employees were said to have b,een'treated in a ' manner that was d'ifferent from other incumbent, employees. 8. There was sa,i.d to be a departure in the case of the incumbent employees 'from certain established policies of the Employer relating,to appointment to the position. ) 9; "She, started performing as a Payment Specialist in Windsor without training; her first day on the job being June 22,.1992. \ 10. After the matters .relat,ing to grievance 92-43 had been resolved, she raised an additional ,concern with respect to the incumbent employees concerning the trial period that would apply to .! , the members of that group. - : 11. This issue arose as a result of a number of the incumbent group having communicated with her requesting advice.as-to when / they.had to indicate their choice to decline to remain i‘n the new position... Their concern related to their belief' that the trial> . . ! period for incumbent emptoyees- started to run from.June 22,‘1992, '.. when;-they commenced working as Payment Specialists, and not .from approximately May 1, 1992 whenthe'trainees employees started their . r training period as Payment Specialists., i / 12. She was concerned that the Employer regarded the trial period ' with respect to the incumbent'employees as commenci:ng on May 1, 1992 - when they, i.n fact, did not commence toperform the work of Payment Specialists until June 22, 1992. , / 13. -The following memorandum (Exhibit 7) was put to Ms.-Harris: To: " All Payment Specialists, Systems Q.A. & Payment-Services Branch From: Valerie Martino,.Manager, Payment Services : \ Date: buly 3, 1992 -. 11 Subject: TRIAL 'PERIOD It is the policy of the Workers' Compensation Board that all employees who transfer laterally, upwards or downwards as a result of a posting will ,be on trial for a period. of sixty working days. The ,trial period is the time period during which a transferred employee occupies a new position on a trial basis. The sixty working day trial period for transferred employees.is provided for purposes of mutual assessment. It was originally thought and communicated to you that your trial period would-begin and span sixty working days from May 1, 1992. Employee Relations has further clarified the application of the, trial period.in relation to.the Collective .Agreement and Human Resources Policy. Your trial period of sixty days actually begins the day after you completed your training, June 22, 1992. This results in a scheduled conclusion of the trial period as September 16, 1992. For your information, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Valerie Martin0 cc..Branch File J. Witiuk ,T. Manwiler i / 14. At the meeting'of July 2,' 1992; the spokesperson of the - Employer,'Mr.' Homer, agreed that there had been inconsistencies in the treatment of incumbents appointed to the Payment Specialist position. Ms. Harris stated that it was agreed that the complaints had arisen after the fact and little'could be done to remedy what had taken'place but that steps would be taken to insure-that the situation would not be repeated. '1 / j, 12 .. 15.- She had referred, as the last item discussed. at.the July 2, 1992 meeting, to the fact that incumbent employees, unlike trainees, received no. training and only commenced. working as Payment Specialists on June 22, 1992, yet they were being required . . to make a decision based on their trial period commencing on May 1, 1992. Th.is was said to be unfair and contrary to the provisions of the,coll‘ective agreement. .The alleged unfairness related to ,their - having to make a decision whether they wished.to remain as Payment Specialists without a suitable opportunity to assess whether they _, wished to remain in the position. ', .16. She recalled that Mr. Madden indicated that the incumbent . I employees,should have their trial period commence on June 22, 1992. 17. There was a discussion with'respect to trainees, limited'to a reference to the fact that they had received training as Payment Specialists, w'hereas the incumbent employees had.not. i 18. There was no discussion with' respect to the tri'al period that was to apply in the case of trainees, the meeting being restricted to the concerns of incumbent employees affected by-grievance 92-43. : . 19.. Her understanding, at the conclusion'of'the meeting, was that Mr. Homer; as spokesperson for the Employer, had agreed with her and Mr. Madden that the trial period for incumbent employees would . . not commence until June 22, 1992, and that this tiould,be confirmed D _. . , . by him. 20. She received-Exhibit 7, which--was addressed to all Payment Specialists, around'July 3, 1992. 21'. She also recekved a copy of Exhibit 4, be'ing a letter dated . July 6, 1992, from Mr. Homer to Mr. Madden, which is as,follows: z Re: Grievance 92-43 . On July 2, 1992 Mr. E. Baldwin and I met with Beth Harris and yourself to discuss the above noted policy grievance .relating to the former Core or Verification Clerks. It was agreed' that all of the affected employees have ' been.placed, however, the process that.was used was not , consistent between Toronto and the regional offices. Changes- that are being considered in the recruitment- process and the co-ordinating responsibilities of+Human Resources should resolve this problem in the future. In the course of our discussion the subject of the trial period for the former Core or Verification Clerks was raised and I confirmed that the sixty days period would date from the time the employee was actually placed into their new position for.purposes ‘of Article 6.06(c). understand this date was June 22, 1992 in the Windso:' office. It is my belief that this addresses the.issues in this grievance and it is thereby resolved. Yours truly, ' B. Hoper Manager 7' Employee Relations c: A Hagan G. Picken H. McDonald 22.. A-fter reading Ex,hibit 7, she concluded that the information in 1 llf I -. : it was incorrect, and that it confli'cted with the agreement between the.parties entered into during the meeting of July 2, 1992. She stated that the memo was- incorrect in that it. referred to all . Payment Specialists, whereas it 'should have been limited to incumbent e:mpoloyees. ,i i 23. She informed' the new.employees in Windsor -that 'the'memorandum was incorrect; that she wished to clarify the situation and brought her concerns to her supervisor's attention; In cross-examination,L, she tias less positive about having done so and stated that that she 1 "thought" she had done so. ', ^ 24. On receiving Exhibit 7, she immediately called Mr. Madden and read its contents to him. Mr. Madden indicate.d to her that.he would wait for the formal response from Mr. Homer'to allow for the, correction of what they both believed to be a-."misconception." 25. She and Mr. Madden regarded Exhibit 4 as containing a correct / statement of the understanding of the parties with respect to the commencement of the trial period: time would only start to run in the case of the incumbent employees from the time when they commenced working in the new position on.June 22., 1992; and that no change in the start of the trial period for trainees had ever been : :. agreed to; ,26 l In her view, the.stage 2 meeting of July 21, 1992 only dealt \’ , 15 ) with .the case of incumbent employees, and she regarded Ms. , :' Martino's memo of July,3,, 1992 (Exhibit.7).to be a misconception of. what had.happened at that meeting, in that it ap@eared to also / extend the understanding to new employees.‘ , 5 Evidence of John Madden i f . Mr. J " Madden testified, as follows: T I 1, He became Chief Steward of Local 1750 in January of-1990, and occupied that position at all material times.. 2. In his 'capacity as Chief Steward, he was involved in the processing.of grievance -92-43, as well as the grievance before.the Board. Grievance 92-43 arose as a result of the~Union's perception th-at the're were a' number of irregularities involved. in the treatment of the incumbent employees who were designated as / affected employees and wished to become Payment Specialists. : r , .3. One of the- problems he encountered in investigating 'the L . . complaints was that the.Union would only obtain notice of which employees were affected employees after the fact. This information i was said to have been with the Organization and Technical Change Committee. I , / c A \ ._ :- _‘. (;:. . ( .-. . . c 16 4. In 'his view, some of the incumbents had been required to satisfy requirements contrary to the collective agreement, and this led to'the filing of grievance 92-43, i 5. -The step 2 meeting held on July 2, 1992, in Mr. Homer's office in Toronto at 2 Bloor Street East, was the first meeting held in c'onn.ection with grieva.nce 92-43. 6. The.discussion with respect to th,e trial period took place,- after the conclusion of the discussion with respect to the issues involved in grievance 92-43, which issues had been resolved.' The . . issue relating to the trial period was raised because it affected the same group of employees: the incumbents. ,' 7. He was satisfied, on the basis of Mr. Homer's representations, that the situation that the Union had complained about in grievance- 92-43 would not occur again because clear policy guidelines ,had been developed by the Employer.' 8. After the parties had agreed on the settlement of grievance 92-43, the Unibn's'concern about the time when the.tria.1 period,, ,_ commenced.to- run in the case of the incumbent employees was raised. 9., At that point, at the invitation of. Mr. Madden, Ms. Harris indicated that the incumbents had not ceased to carry out their previous duties and responsibilities as Core or Verification Clerks . : on May 1, 1992,, and did not commence carrying out their-new dutie‘s' \ and responsibilities as Payment Specialists until.June 22, 1992.. 1 They had been informed by the Employer that they would continue.to function as Core or Verification Clerks after May 1, 1992,, with I the-ir new department being a department in name only until June .22, \ 1992. -~ : 10. After 'Ms. Harris made the above remarks,:Mr. Madden said he Homer and stated that a similar issue had arisen in / addressed Mr. * the pastwhich had been settled on ,the basis of employees, in the position of the incumbent employees, not being considered to have commenced their trial period until they had officially commenced to carry out the duties and responsibilities of their new position. : 11. Mr. Homer indicated-that he was favourably disposed to the position of the Union.with respect to the commencement of the'trial period >for the incumbent employees, and said that he would shortly ."get back to" Mr.. .Madden to formally confirm the Employer's position. 12. He ,did not recall either himself or Ms. Harris making any reference to-trainees, except to-note that'the incumbents had no traing period, and stated that the discussion, throughout, focused on the incumbents. 13. He remembered Ms. Harris stating, t that in order for -the incumbents to have a reasonable period in which to.decide whether they wished to continue in the Payment Specialist position, their trial-period should not commence until June 22, 1992, the date when they would commence.to do the work of that position. 14.“ Exhibit 7 was read to him over the phone by Ms. Harris, .and : she'informed him'that she had spoken about it'to her supervisor. He informed her that he regarded the Union's position with respect to the trial period for incumbent employees to have been made clear to Mr. Homer at the meeting of July.21 1992, and that confirmation of the Union'.s position being satifactory to the Employer was expectejd from him in the next few days.- For this reason, no action was then taken to respond to the misstatement in Exhibit 7.. He did not intend to file a grievance unless Mr. Homer's response,.was unsatisfactory. \ 15. On the basis of the information contained in Exhibit 4,'.which was dated after Exhibit.?, he regarded the Union's v'iew and that of r the' Employer co'ncerning when the trial period begag to be the same and to relate-only to the incumbent employees whose situation was -discussed at the July 2, 1992 meeting. In the circumstances, he X I. regarded Exhibit 4 as being the final and,accurate statement of the Employer's position and as correcting what he regarded to be the error in Exhibit 7. 16. Given the Union's view of the running of the trial period, he regarded Exhibit'4 as being an affirmation of the Unionis view that the provisions of the,collective agreement were not.affected in the 4. case of trainees. 17: His first knowledge that Ms. Dickson had returned to Ottawa was when Ms. Lane contacted.him. 18. He attended the third step meeting with respect to Ms. Lane's grievance on October 9, 1992, which- is referred to in Exhibit 3. 19. At the meeting of October 9, 1992, he ra'ised the Union's Gosition that .Ms-. Dickson had been given a trial period contrary to the provisions of the collective agreement., 21. No one took notes at the July 2, 1992 meeting on.behalf of the Union, and he never received any-copies of notes for verification from-the Employer. '. Rvidence of Ed Balckh Mr. Baldwin testified as follows: _ 1. He is responsible for contract negotiation and administration, as well as for the handling of grievances at the upper level of .the grievance procedure. - .’ j _. ( \,. (; ,-.: \ -. _ .20 2. He took notes at'the July 2, -1992 'meeting for the .Employer, 1 but did not otherwise participate.in the meeting. /. I . - 3. MS. Harris raised the issue'of the trial period at the meeting and' indicated that .she'regarded the trial period to commence from the day an employee-commenced working on a job, in this case, Jurie / / 22, ,1992. He- stated that she said that .her view of the ) - commencement of the trial period applied to trainees-'and incumbents. " 4. After the meeting of July 2, 1992, he.told Ms: Martino, the Manager, Payment Services, on that day or onJu.ly 3, 1992, that the Union had requested-that the trial pe.riod for all employees, both trainees and incumbents; commence on July 2, 1992;'and that?the Employer had agreed that this should be the case; even though it 'I : represented a .departure from the language of the collective fl agreement. He 'added that, in his view,_the normal-trial period wouldhave ended around the end 'of July 1992 if ,the language of‘the ._ col.lective agreement had been followed. ii 5. After the meeting on July 2., 1992, there was no notification ' , ‘from the i Union that it had any other view concerning the commencementYof the trial period, 'and this was the case until,the meeting of October 9, 1992, being the third step.of the grievance procedure for Ms. Lane's< grievance, which led to Mr. Picken's letter of November 25,,1992 (Exhibit 3). _a , a 21 ._. 6? In cross-examination,,he stated that, in the past, the period , of training had been considered as part of an employees trial- ' : period. 7. He acknowledged that the first part of the meeting of July 2,. 1992 with respectto grievance 92-43 was restricted to a discussion of the issues in that grievance, which related -exclusively to ' incumbent employees, and it was only after the discussion concerning the immediate.concerns of the policy grievance had‘ended that Ms.. Harris raised the issue of the trial period. ‘. _) _- 8. In re-examination, he stated that Mr. Homer had indicated that a statement would be issued to Human Resources Specialists to give them guidance as to how to deal with the- case of ,affected ', employees, whose cases he regarded to.be covered‘by art. 6. . Evid ence of Valerie Martin0 i. ,. -. . . Ms. Martin0 testified, .as follows:. i 1. I. The. new'position of Payment Specialist that was. created in- 1992 was filled by employees at.18 work locations throughout the : province, and they 'were under the direction of,.supervisors at all of these locations. 2. She was involved in setting up the Payment Specialist . ..i2 position; created the necessary position specification, selection matrix, and was involved in the hiring process. She referred to- , Ms.. Toni Manwiler who was appointed as a new manager along with herself. Ms. Martin0 was responsible for all staffing and human resources issues in the summer of 1992, and.'Ms. Manwiler was responsible for the technical aspects of, the position. . 3. Ms-. Martin0 and Ms.. Manwiler each 'had nine supervisors reporting to '.them, and. each supe.rvisor was responsible for approximately 25 Payment Specialists. ,.. ; 4. Of the approximately 51 Payment Specialists employed in the summer of 1992, 14 were incumbents. 5. In addition.to.the 14 affected employees under art. 6, k. Martin0 also hired (in the summer of 1992) some other affected -_ employees who had priority placement rights-. 6. Of the trainees, all but four received training which took place from about May,4, :1992 to June,l9, i992. As the trainees were in different locations they did not all receive the same kind of training. 7. She referred' to some of the trainees as having received classroom training for the Payment Specialist position for-seven weeks. She -did not regard such employees to be "on the job" during the period of the seven weeks of classroom training.. 8. ,. If a new employee did not'have .any .classroom. training, 'the ,' .' trial period was regarded as commencing on May 1. 9. Some of the incumbents Aarted performing the Payment Specialist .job prior tc June 22, 1992. She referred to two pilot units, each with two incumbent employees that fell w-ithin that category. 10. She regarded the seven weeks classroom training afforded new employees as being abnormal .in that most of the .WCB employee training programs had a maximum duration:of four weeks. She added that not all the time was spent in classroom training, as there was combined'classroom and practice experience involved in the training process. 11. Sometime in June of 1992 she reached the conclusion that some of the persons hired as Payment Specialists (approximately nine) would have to be returned to their former positions. 12. Of the nine persons referred to, some had indicated a desire to return to their previous positions and some of them were being considered for r,eturn by the. Board because of perceived inadequacies. .24 13 L Prior to issuing Exhibit 7, she spoke with Mr. Baldwin on ,' communicating with Mr. Baldwin expression of concern fr.om a . ,in Windsor. Mr. Baldwin told her either July. 2 or 3, 1992. Her followed receipt by her of an supervisor of Payment Specialists that the trial period did not inc 1992.' lude the period prior to June 22, 14. Each of the 51 payment specialists received Exhibit 7, _ . including Wilma Haywood, who was located in Thunder Bay, and was, at that time, a member of the Union executive. ! . 15, Ms.-Martin0 had certain concerns, in July of .1992,,about Ms. Dickson's suitability for the position of Payment Specialist. As at.July 28, 1992, Ms.. Dickson, whose trial period would‘have then ended according to Ms. Martino's understanding prior to July 2.or' 3, 1992., had ‘not sought to return to her previous.,job in Ottawa, but did so, on or 'about September 14, 1992, the decision being a. mutual one between' her and. management. 16~ She attributed the,action of management and Ms. Dickson to be based on-the.understanding that her,trial period would'commence on June 22, 1992. and not' on May 1, 1992. "- She regarded her understanding to ‘be, correct because no o.ne from the Union challenged her view, as expressed in Exhibit 7, as to when the parties regarded the trial period to commence. i i i _. 25 s 17. No ; other Payment 'Spec,ialists returned -to: their previous 1 -_ positions between July 3;) 1992 and the, return of Ms. Dickson to her former position.. ' - 18. Between July i8; 1992 and September 16, 1992, there were a total of four employees, including Ms. Dickson, wh,o were advised _ that they would be returned.to their previous .position or who- t / ; advisedimanagement that they wished to be so,returned:,. ', 19. Exhibit.7‘had not been officially copied to.the Unjon,; \ Evidence of Deborah Latwinski .Ms. 'Latw.inski testified as follows,: / -1. She supervised Payment Specialists in the,Windsor office of ' i the WCB. ._ 2. She was familiar with Exhibit i, and no one:from .the Union ever questioned her about the validity of the statements"contai.ned ,in it during August or September of 1992. / . I /' 3. Ms. Harris never discussed the issue raised .in Exhibit 7 with ! -, her at any time. .;Q . Three ,Payment Specialists who worked for her discussed with : : 26 . . her the possibility of receiving an extension of the trial period. She referred to Cathy Carlson; who indicated that she was aware' : I that the trial periodmight be extended arid sought clarification as to' the meaning of the relevant provision of the collective agreement to her case.: 5 ; She, acknowledged that training had previously been considered part of an employee's trial period. 6. As at May 1, 1992 there were some trainees engaged in training for .the actual performance of the work'on June 22~ Two pilot groups that had been functioning since September of 1991. .' 7. Other than,the.l4 incumbents referred'to, there were eight priority placements from outside of the bargaining unit. 1 8. .' In June of 1992 management had reached a- decision with respect to approximately nine employees, including -Ms.. Dickson, who were expected to revert to their previous positions because.of perceived unsuitability for the Payment Specialist position. 9. She originally assumed that the trial period for all employees chosen for the Payment'Specialist position, would commence on May 1, 1992, ,but this was changed as a result of Exhibit 7. 10. She'had never seen Exhibit 4 prior to the hearing. . ‘.. 27 qrsument Of The Emplover Mr. Failes, counsel for the Employer, argued:. . 1. The issue of whether the parties agreed, at the July 2, 1992 meeting, that the trial period was extended with respect to all employees, represented a "red herring." , : 2. The fact 'that the representatives of the 'parties-might have had a different understanding as to what had'been concluded 3ith i : respect to the. extension of the trial period at the July 2; 1992 meeting was: irrelevant to the. issue .before the Board, on -the prelimanary issue. It was not necessary,.to 'establish what was agreed to at thatmeeting in order for the.Employer to establish'an estoppel. 3. The Union had acquiesced in the Employer's interpretatiqn,set out in.Exhibit 7 as to what was permissible under the collective agreement with respect to the commencement of the trial period for ali employees, both trainees and incumbents, as it did nothing t,o disabuse the Employer of its natural conclusion that the parties were ad'idem on this point. 4. The-contents of the July 3, 1992 memorandum of -Ms. Martin0 (Exhibit 7) were clear and were -understood by 'the Union i-n : 28 accordance with its clear terms. The Union did no-thing-to indicate to Ms. Martin0 or to anyone in Labour Relations-that it disagreed with the statements in the memo relating to the commencement of the trial period. This'was said to amount to a representation to the .' Employer ((and .in fact to all of' the new and incumbent employees, including Ms. Dickson) that the Union was agreeing that the trial period provided for under the collective agreement would commence onJune 22, 1992. ' 5. The Union, in seeking to enforce the strict terms of the collective-agreement, did so. to the detriment of those who relied / :* upon its above-noted representation, who were identified as the I Employer, and in-this. case Ms. Dickson.. 6. In response to the -Union's posit,ion that the Employer could not rely on the provisions of Exhibit 7, because it was not '_ addressed to the Union, it was submitted'that the circumstances of this case indicated that..the Union was well aware of the contents of that document and of t'he intention of the Emp,loyer to treat the . trial period.for all employees, both trainees and incumbents, as commencing on June-22, 1992, and not on May 1, 1992. This was so / because the Employer had, in Exhibit 7, communicated its intention to the 51 payment specialists, which group included two persons holding positions 'in the Union, (Ms. Harris in Windsor and Ms. Haywood in‘ Thunder Bay). In addition, Mr. Madden, a senior Union / official in charge of the grievance, was aware of 'the.contents of Exhibit 7, through his conversation with Ms. Harris,. / '7. Mr. Madden and Ms. Harris both und,erstood the contents ,of Exhibit 7 as being,a clear statement that the Employer intended to have the trial period commence on June 22, 1992 in the case of all : / of the Payment Specialists including Ms. Dickson. Argument Of The Union Mr. Douglas argued for the Union : 1. Ms. Martin0 had.initially informed both the incumbents and the' trainees who were appointed,to the Payment Specialist position that , the .trial period provided for in the:collective~,agreement would be the.same,for both‘groups. and would commence at the beginning of May 1992. 2. The sections .-relied upon as furnishing th-e.trial period were found in art. 5, as they, related to new employees, and art. 6 as they applied to incumbent employees. . . 3. If the trial period commenced toward the beginning of May, 1992, it would end toward the end of July 1992. 4. The provisions of the collective agreement and the practice of '_. .. ‘, ‘. I L : 30 'I . '. \ the"parties was to'regard a training period as part of the trial period. .. i .’ 5: -Insofar as the trainees'were concerned, the Union regarded the commencement of their trial period to be from when they commenced , training around May 1, 1992, in accordance with the provisions'of the collective agreement. ' J 2 6. Reference was made to the evidence of all of those who *. testified, including Ms. Harris and Mr. Madden, that the,incumbents had, initially,, been informed that the trial period,,:intheir case, would commence May 1, 1992, even though this would not afford them ,. a fair opportunity'to assess whether they wished'to remain in the \ _ \ Payment Specialist position because they'would not have been involved in any aspect of that position until June 22, f1992.. _j -1 7. The UrYion. 'did not regard the inf'ormation given to the ., ' incumbent employees at the beginning of May that the trial period. -. 0 -3 would start from.t,hat. time-as being.correct; ., \ / \ -_ 8 : 'Reference was made to the meeting of July-2, 1992, which was for the purpose- of addressing,the issues contained in grievance '92-43, being a policy grievance restricted to the complaints made' on behalf of-incumbent employees. i J i i i, : 9. It was submitted ‘that after the issues arising out of I . : \ 31 grievance 92-4.3 had been resolved,. _ the matter raised by Ms. Harris I and Mr. Madden concerning the commencement of the trial period, specifically addressed an additional .concern- of incumbent employees, being those involved in that grievance. ,Reference was made to the evidence to that effect from Ms. Harris and Mr. Madden and to the statement contained inExhibit 4, where, in the third paragraph, Mr. Homer acknowledges that: "... the subject of the trial period for the former core or verification clerks was raised and confirmed that the 60 day period date from the time the employee was actually placed into their new position-.for purposes of art. 6.06'(c). . ..)) 10. Reference was made to the fact that Ms. Harris -h.ad been 'employed with the Employer since 1987; had held a number of Union positions; and wasaware of the fact that a trial period had been considered part of a training period. Ms. Harris'was an incumbent employee and received no training. 11. It was stressed tha.t Ms. Harris spoke exclusively on behalf of incumbent employees at the July 2, 1992 meeting/and there was no basis for misconstruing the nature of her references to the trial: period as being exclusively referable to the case of such . 'employees. 12. Reference was made to,Ms. Harris' evidence, which stressed the unfairness to incumbent employees if they were treated'as if they' - ., 32 _. : .were :in a trial period, as at May 1, 1992, for a job they.did not . strart to perform until June 22, 1992. r. / 1 ‘_ 13. Reference was made to the.fact‘ that the. evidence. disclosed that Mr. Homer was-the spokesperson for the Employer and that Mr. ;Baldwin merely to,ok notes. . ‘1 14. It was empha'siied that Mr. Homer had confirmed that the incumbent employees would have their trial period commence-only on June 22,, 1992, and. that there .was no. reason to .disbelieve him, especia.lly. when the matter was further confirmed in his letter (Exhibit 4). 1 15.' We were asked to note-that Mr. Homer, who was the spokesperson for-the Employer at the July 2, 1992 meeting, did not testify, and . .. no reason was given for not calling him. We 'were asked to draw.an \ adver.se inference, .in the circumstances, that he was not called, as a witness because he would not have been able to contradict the evidence of Mr. Madden and Ms. Ha-rris as to what-he agrked to, and in what context. * 16. We were also agked to note that the hand-written minutes taken by Mr. Baldwin were never shown to the- Union,. 17,. We-were also asked to note Ms. Harris' evidence, as well as that of Mr. Madden, that they regarded the contents of Exhibit 7 to 0 , ( :.- ~ ‘_ (..;‘$Y ‘, 33 be incorrect,. 'and that Mr. Madden, had decided that it was unnecessary to do anything pending receipt of.the formal response from Mr. .Homer as to what'had been agre,ed to at the JULY 2, 1992 meeting. When Exhibit 4 was received, ,it was regarded as resolving : the matter, and as a correction of the error contained ,in .Ms. Martino's.memorandum (Exhibit 71.. '_ 18. It was submitted that the information contained in Exhibit 7 was obtained by Ms. Martin0 from Mr. Baldwin, and that it represented an incorrect understanding of what had taken place at the July 2, 1992 meeting. It was also submitted that Ms. Martino had incorrectly represented the position of the Employer, through Mr. Homer, its spokesperson at the July 2, 1992 meeting, as verified inExhibit 4. Discussion 1. The Employer relies on Exhibit 7 as establishing the basis for an estoppel, because the+Union had acquiesced in its statements to the detriment of both the Employer and Ms. Dickson. 2. We are unaware of any doctrine based on estoppel by mistake. The representation required to create an estoppel must be clear. In this case the juxtaposition of events discloses no intention on the part of the Union to acquiesce in the statements contained in Exhibit 7, and'the actions of its representatives was, in the .. circumstances, reasonable. y, 3. We are satisfied that the only employees whose situation was considered.‘at the meeting of July 2, 1992, were the incumbent employees. ,Mr. Homer's response to the Union addressed.the Union"s concern which was not with,the trainees. It was'not unreasonable, upon receiving Exhibit 7, for the representatives of the Union to wait a few days for the receipt of the formal response from Mr. Homer. ' Upon receiving it, there seemed to be no need to correct, _ what could be reasonably regarded as an erroneous statement made by, Ms. Marfino. We are affected' by the failure of Mr. Homer .to ,- testify, and of the fact that no reason was given for his failure todoso. ; 4. We do not believe that Mr. 'Baldwin had any intention.to /' mislead us, and we believe that -he honestly recorded what he believed' to have been agreed to. It is evident, that he I. communicated his belief to Ms. Ma,rtino, and this was rendered in . the f,orm of-Exhibit 7. .Our decision might have been different if we had heard from Mr. Homer, and he had. testified contrary to the evidence of Mr. Madden and Ms. Harris as to which employees were the subject of the the agreement verified in Exhibit 4. 5. We cannot regard the behaviour of Mr. Madden, after having the contents of Exhibit 7 read to him, or that of.Ms. Harris, after ,. 35 reading Exhibit 7, as amounting to acquiescence in the proposed _ ., conduct of Ms. Martin0 or.as as a representation tha.t would support ,r 1 a finding of-an.estoppel. I 6. ,-Nor do we find any evidence of undue delay on the part of the'. ' ' , Union so as to alter:our view of the matter. Reference was made to Exhibit 10, being a memorandum to Ms. Lane&from Rick Frappier, Manager S.upport Services Ottawa West I.S.U. dated July' 28, 1992, ‘L / which is.as follows TO FROM i : Andrea Lane, Excepti'on Handling Clerk II, ', > , Records Management. Branch, 15th Floor, Toro,nto i -\ : Rick, Frappier, Manager Support Services, .Cittawa West I.S.U. DATE . . . July 28, 1992 SUBJECT z' Grievance 92-78 , On July 24, 1992 our office received Grievance 92-78, in ' which, you state that "the. employer pqsted-the position of Program Support Clerk salary scale 005. in Ottawa .- without considering affected employees contrary to x I - Articles 5 and 6 of the Collective Agreement." \ This same issue‘:is being addressed in Grievance 92-79, as a Pol!i.cy Grievance.' As such, Grievance 92-78 will be kept in abeyance until a response is issued to the 92-79 Policy Grievance. Once issued, you will be copied on the response. For your information Rick Frappier Manager Support Service's l Ottawa West I.S.U. cc. CUPE 1750 Employee Relations Office . ! I ‘. L i ‘. 1 I I f t / . F J.. Madden --Chief Steward, L1750 _' . . '. F..Eiucci - President ~1750 P. Allan - Unit 14 Senior Steward; LX75'0 S. MacEachern - Senior Steward, Ll!750 .B. Look - Vice President Area &.R,egional,Offices, _ .L1750 -Y. Carr - Coordinator, Org. & Tech. Committee, L1750'- , .. t .7. In particular, reference was .made. to the' fact that 'the Employer stated that grievance 92-78. would "be, kept in abeyance '. until. a re.sponse is issued'to 92-79..policy grievance." '. 8. Reference was made to.the fact that no evidence was tendered that indicated any other mention of: a trial period for trainees or -;' v an extension of the trial period. 9. It was submitted.that it was not until the Grievor was.handed ,Exhibit 5', being-the,letter of September 28, 1992,tthat she or the '. Union had knowledge of the reason for the removal of the posti.ng of Program Support Clerk. I ‘. 10. RatheIr than there being a clear unambi,guous representation by I_ the Union that.the strict-terms of the collective agreement 'need . not be:followed in the case of trainees, we have a 'somewhat confusing situation in'which the Employer endeavours to ,rely~on the alleged acquiescence by the Union in the. statements 'set out'.in Exhibit 7. 11. 'At most, .each' party was confused as t,o what the other had agreed to. At best,. each honestly believed.the matter had been ,,. . '. .’ - : : ‘1 J : ..’ ‘. ;.. 1.. :i 2 ‘hr /, \ :.. .& : _.. ,-- .’ . . . i .‘, . . . . 37 _’ ..' resolved'in:.accordance.with. their understanding. , : .' .- : 12. I$ fadt , it- -a@pea'rs' that Mr. B.aldtiin conveyed, .albeit ..innocently, 'infor~mation to Ms. Martin0 which we find had not been : 'agreed to at the July 23.,1992 meeting: that the trial period for trainees and incumbents would commence on',June 22,. 1992. We find that Mr. Homer, for the Employer, agreed with,the Union. that the .trial period forincumbent employees would commence on-June 22, ^ 1 1992'. There was no evidence of any concern on the part of the. Union-to affect the -trial period of trainees, % . . * 131 -Although we are satisfied, that Ms. Harris ,was innocen,tly 'mistaken in her belief that she had bbnveyed her concerns about Exhibit 7, to her supervisor, in the circumstances .there-was no need for her.to do so; ‘The a<pearent confirmation by Mr.,Homer in ' :. Exhibit ,4-of the.Union's understanding of what had been tentatively. _ ,' agr.eed to at'the July: 2, 1992 meeting'with .respect t.o the tr.ial period applicable-to incumbents made the absence.of any r'esponse to Exhibit 7 understandable,: . ,. : 14. This'is -a caskwhere the Employer, in Exh'ibit 7, acted on the " : / basis 'of a mistaken assumption: that-Mr'. Homer'had agreed.to have the trial period for,trainees and incumbents commence on June 22, 1992 and not on May 1, 1992. The Union, it is argued, acquiesced in this mistaken assumption because it did nothin; to challenge it after receiving Exhibit 7, which amounted to a representation that I : created an estoppel. '38 4 . . . \ 15. We have found nothing-in the Union's behavi.our that was unfair or unreasonable. Having received a communication (Exhibit 4) from '. the Employer's representative that confirmed its understand.ing of 'how and to whom the trial period was to aphly, the Union's failure to follow-up on Exhibit 7 -is understandable, and -there was no evidence to show that it delayed raising its concern when it became aware of what the,Employer was doing in the case of trainees. The conditions for an estoppel do not exist in this case; '. , Decision . In all of the circumstances, the preliminary objection based : on the existence of an.estoppel is denied.. ( We have rec.&ested that the Registrar schedule a date for the . . continuation of the hearing.' .- .- Dated at Toronto this 28th.day of February,lggd. / D. Montrose - Member c