HomeMy WebLinkAboutBertrand 02-09-25
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CHILDREN'S AID SOCIETY
OF THE DISTRICTS OF
SUDBURY AND MANITOULIN
(THE EMPLOYER)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 668
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF M. BERTRAND
(01-668-061) .
ARBITRATOR:
HOW ARD D. BROWN
APPEARANCES FOR THE EMPLOYER:
Leah Clarke, Counsel
APPEARANCES FOR THE UNION:
Jim Gilbert, Grievance Officer.
HEARINGS IN THIS MATTER WERE HELD AT SUDBURY ON
OCTOBER 30,2001 AND JUNE 25,2002.
AWARD
2
The grievance dated April 6, 2001 is a claim that the Employer violated Article
12.06 of the collective agreement between the parties and requests reinstatement to his
previous position with seniority and pay. A preliminary objection as to the ärbitrability of
this grievance was raised at the first hearing by the Employer which submitted that the
Union was estopped from proceeding with the grievance and requested a decision by the
Arbitrator on that issue before proceeding with the merits of the grievance. The Union
objected to the bifurcation of the hearing and following submissions made, I ruled that the
Employer would proceed first with their evidence and the Arbitrator would make a
decision as to the Employer's request on its preliminary objection following the
examination in chief of their witness.
Having regard to the opening statements of Counsel, the testimony in chief of
Sylvie Renault, the Director of Human Relations for the Employer, I ruled orally at the
hearing as follows:
"It is my first requirement to determine jurisdiction to deal
with the grievance. In this case, the estoppel argument if
allowed would preclude the grievance from being processed
under the collective agreement and therefore the arbitrator
would have no jurisdiction to act. That is a discrete issue
which I find must be determined before proceeding with any
other issue arising in this matter. I will therefore deal firstly
and only with the preliminary issue raised by the Employer
and make that determination before proceeding with any
other issue in this matter, as if the Employer's application
succeeds, it will have an effect on whether the grievance
proceeds and in any event to what extent which could be
claimed."
3
The hearing continued with the cross-examination of the Employer's witness. At
the second hearing, the submissions for the parties on the preliminary objection were made
following which I reserved my decision without dealing in ~my way with the merits of the
grievance. This award is therefore restricted to the determination of the Employer's
objection to the arbitrability of the grievance.
Article 12.06 of the collective agreement is as follows:
"An employee who works for the Employer in an excluded
position for a period oflonger than nine (9) months, shall
lose all bargaining unit seniority and rights to reinstatement
to her former bargaining unit position."
The Grievor commenced his employment as a Social Worker in Family Service on
June 15, 1999 and was a member of the bargaining unit. That summer he applied and was
successful for a Supervisor position which he assumed on July 24th which position is
outside of the bargaining unit covered by the collective agreement. It is admitted that the
Grievor knew of terms of Article 12.06 that he had the right to return to the bargaining
unit within nine months. In January 2001, problems for the Employer arose with
scheduling and lead to a restructuring in the Employer's operation with the effect that the
Emergency Services component of the work performed by the Grievor in his position was
to be reduced by half On February 151 he was advised in the bi-weekly meetings of
Supervisers that this restructuring could affect his position. He raised the aspect of
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returning to the bargaining unit within the window to do so as of April 13th. In the
Union's submission, the Grievor was advised by Ms. Renault that they would attempt to
negotiate with the Union an extension of that time limit which is indicated in the
memorandum of agreement dated February 23,2001 as follows:
T%~hildr~n's .. La Société ~.~ i_de
"Hid SocIety fr ,~ à l'enfance---::
of the Districts of '8 des districts de
Sudbury and Manitoulin ..A Sudbury et de Manitoulin
-
319 boulevard Lasalle Boulevard, Unit 3Inni!é 3, Sudbury, ON PJA 1 W7 (705) 566-3113
.-Dãvid B. Rivard, B.S.w..M.5.W~R.5-w.
Ð=uû~Dir=r
David B. Rlvaro. B.5.5.. M_5.S~ T.5.L
Dirccteur gl!néröJ
F:w~\o!copieur - Main/principal
- Administration
. - Legalllégal
(705)52\-7372
(705) 521-737\
(705) 52\-7370
Memorandum of Agreement
Re:
Extension of Article 12.06 in the case of M. Bertrand
This will confirm that, without prejudice or precedent, both the Union and the
employer agree to extend the provision found in Article 12.06 of the present
collective agreement in order to accommodate the.return of Michel Bertrand to a
bargaining unit position in as efficient a manner as possible.
Due to the restructuring exercise presently underway. Mr. Bertrand will retain the
opportunity of returning to a barIJaining unit position until May 31, 2001.
For the Union:
~~ tJ./1 tr
Tl:J)~iJ
Date:
(cÆ)7 1-00 I
I .
c.c. M. Bertrand
5
On March 8th, the Grievor was advised that another person would have the full-
time job of Legal Service Supervisor which had been part of his position and on March
15th bye-mail requested Ms. Renault to be reassigned to the bargaining unit as soon as
. .
possible. Her reply of the same date was:
"Unfortunately, given the priorities of the Agency, the date
of your return to a bargaining unit position remains
April 30, 2001.
It is expected that you will continue to honour your
commitments and perform the tasks assigned to you with
the professionalism required of all employees..."
On March 29th, the Grievor was advised that his position was restructured and his
employment was ended as set out in the letter ofthe Executive Director to the Grievor
dated March 29th as follows:
Dear Michel Bertrand:
This letter will serve to confirm that your employment with this Agency is being
terminated effective today. Your pay and benefits will continue for a period of three
months, terminating June 3D, 2001.
The Agency will also pay up to a maximum of $1,000 for you to seek employment-
counselling services offered by Sheila Tyndall of People Plus North.
Please ensure that you turn over to your supervisor all office keys, desk keys, filing
cabinet keys, \.0. card, alarm 1.0. card, business cards, lap top computer, pager, tape ~
recorder, cell phone, and any other property belonging to the Agency.
Payroll will be in contact with you in the near future regarding your separation papers
and any monies owing to you.
s;nœ'ifl JJa)
David Rivard
Executive Director
c.c.
Human Resources
Payroll, Finance
Director of Services
6
The grievance was :flIed on April 6, 2001 and on April 11th, Mr. Gilbert requested a
time-limit extension to May 1st to which Ms. Renault replied on April 18th that:
"Please be advised that it is our position that this matter is
not arbitrable, and accordingly, a time extension is
irrelevant. Nevertheless, without prejudice to our position
and/or other preliminary objections we may raise to any
hearing of this matter, we will agree to an extension until
May 1 s\ 2001 pursuant to your request.
Ifno reply is received in respect to this matter by 4:00 p.m.
May 1st, 2001, this matter will be deemed to be abandoned."
By letter April 30th to Ms. Renault, Mr. Gilbert stated in part:
"This will confirm that the Union has investigated the matter
and has decided to pursue the grievance. While we have
not changed our position on the interpretation of the
relevant Article, we are of the view that, without prejudice
to any other matter, the February 23,2001 agreement
01 "
prevaI s...
The reference to the interpretation of the Article is to an email from Linda Aho,
President, Local 668 to Ms. Renault dated March 29th which is -
"In light of the circumstances presented to me at this time,
the Union is of the opinion that M. Bertrand is not a .
member of the CAS. bargaining unit of Local 668 and
therefore does not fall under the protection of the current
collective agreement."
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It is the position of the Union that the Grievor should be appointed to a vacant
position in the bargaining unit retroactively with seniority and benefits.
It is the Employer's position that it understood that the Grievor could not be
returned to the bargaining unit when he was removed ITom a supervisory position which
was not covered by the collective agreement and could be dismissed at the end of his
appointment under common law. The Employer understood that the Grievor could not
return to the bargaining unit and the removal of the supervisory position was not under the
terms of the collective agreement and was paid three months' salary at the supervision
rate. Based on the representation of the Union and on these facts, the Employer submitted
that the doctrine of estoppel applied to prevent the arbitration of this grievance.
As I ruled that the Employer will proceed first with its evidence and following the
evidence on the preliminary issue, I would make a determination on that issue before
proceeding in the matter.
Sylvie Renault, Director of Human Resources, testified that she first became aware
of the Grievor when she started on February 5th with the Agency, which was already in a
restructure mode. The Grievor was then in the position of Supervisor of Legal-
Emergency Services. She was told that this position would be abolished under the
restructuring of the Agency and that the Grievor would have recourse to the collective
agreement under Article 12.06 within nine months. As they were getting closer to that
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period, she discussed the situation with Ms. Aho and as to an extension of that time limit
in that the Agency wanted to ensure that the employee did not lose that protection by mid-
April. The time provided by Article 12.06 was extended by agreement to May 30th set out
in the Memorandum of Agreement dated February 23rd which she drafted and both parties
signed in her office. She was then off work for two weeks and returned on March 13th
when she was told of alleged incidents of misconduct by the Grievor. In discussions with
Ms. Aho, it was indicated that the Grievor could not assume the functions of the position
after the restructure in that the terms of Article 12.06 did not apply to him. It was at that
meeting that she was told by Ms. Aho that the employee did not have recourse to the
collective agreement and that Article 12.06 was not applicable because he had been
appointed to a permanent position outside the bargaining unit and that Clause applied only
to employees of the bargaining unit who were temporarily appointed to another position.
She said that was "news to me" and not how she read it and an extension of the time limit
had been agreed. She relied however on the position of Ms. Aho that this article did not
apply to the Grievor and based on the Union's representation, it was concluded that the
Employer could not appoint the Grievor to a bargaining unit position. She asked to have
the Union's position in writing and received an email dated March 29,2001 ffom
Ms. Aho (Exhibit 6) set out above.
Based on that communication ITom the Union she said the Grievor did not have
recourse to the collective agreement and Article 12.06 did not apply to him and therefore,
there was no longer a course of action for the Employer under the agreement. After
receipt of this email, the Employer decided to terminate the employment of the Grievor as
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his position would be abolished. His return to the bargaining unit was no longer an option
and his position no longer existed. She said that as well, the Employer had concerns as to
the Grievor's conduct. This lead to the letter of termination dated March 29th set out
above.
Ms. Renault said that without the Memorandum from Ms. Aho, the Grievor would
have been considered by the Employer a member of the bargaining unit and returned to a
position in the bargaining unit where his conduct could have been dealt with by the
disciplinary mea~ures in terms of the collective agreement but that route was not taken and
the Grievor was terminated as a permanent employee under the terms set out in this letter.
In cross-examination, Ms. Renault said that the Memorandum of Agreement was
written by her based on her discussions with Ms. Aho who had no input into its writing
and after signing, copies were madÿ for her and the Grievor who had questioned his status
as of April. Prior to this, the Employer thought that the Grievor had recourse to Article
12.06 but as the restructuring was not being carried forth in the same time frame, the
Grievor's return to the bargaining unit within the nine month period was discussed with
the Union as to the extension of time which was agreed in February. After she returned to
work on March 13th and her discussion with Ms. Aho, she told the Grievor of the Union's
position that he could not return to the bargaining unit following which there was several
discussions with the Grievor before March 29th. She referred to an email from the Grievor
dated March 15th requesting reassignment to the bargaining unit as soon as possible to
which she replied:
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"... Unfortunately, given the priorities of the Agency, the
date of return to the bargaining unit position remains
April 30, 2001..."
which was sent on March 15 at which point she said the Employer's course of action was
unclear but she had rejected his request to return to the bargaining unit as she did not have
confirmation of the Union position at that time and was waiting for written confirmation
by Ms. Aho. In the exchange of emails with the Grievor on March 19th and 20th, she said
the restructuring program had not changed and the Employer was continuing with the
agreed process but no decision had then been made as to the Grievorbecause she did not
have the Union's position in writing. She was not involved in the prior contract
negotiations and did not talk to the management team who were involved at that time as
to their views ofthose negotiations. It was after the position of the Union as to Article
12.06 was received in writing that she discussed the Grievor's position with Mr. Rivard,
the Executive Director when it was decided that as the Grievor was then not part of the
bargaining unit and as his position was abolished, he would be terminated from the
Agency on March 29th. The Grievor requested a Letter of Reference which Mr. Rivard
provided to him on March 30th following his terminatiòn of employment the terms of
which can overall be considered to be positive.
No evidence was given by or on behalf ofthe Grievor with regard to the
preliminary issue and upon my direction at the hearing on June 25th, the submissions for
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the parties on this issue were made following which the hearing was adjourned pending
the decision on this preliminary issue.
It is the submission for the Employer that it acted upon the words and conduct of
. the Union which represented in the discussions between Ms. Aho and Mr. Renault that
Article 12.06 of the collective agreement was not applicable to the Grievor who was not a
member and could not been returned to the bargaining unit. This statement by Ms. Aho
was confirmed in writing by her and on which the Employer relied in ending the Grievor's
employment because of a lack of position and his conduct. The Employer provided to the
Grievor three months' supervisory salary in lieu of notice and a Letter of Reference in
good faith and in accordance with the common law applicable to dismissal of employees
with two years' employment. It is submitted the Union cannot rely on the terms of Article
12.06 because it is estopped from so doing as all of the elements for the application of the
doctrine have been satisfied. When the Union represented to the Employer that Article
12.06 would not apply to the Grievor, it changed its position and dismissed to dismiss the
Grievor as a permanent employee as he was not a member of the bargaining unit and relied
on the Union's position to its detriment in dismissing the Grievor as an employee who was
not a member of the bargaining unit. Reference was made to the following awards: Re
Canadian Industries Ltd. and US.W.A.. L 63507 LA.c.(2d)110 (H.D. Brown)~ Re
United Glass and Ceramic Workers and Pilkington Brothers (Canada) Ltd. 22 LA.c.172
(Weatheri1I)~ Re Globe and Mail and Toronto Newspaper Guild. L 876 LA.c.(2d)70
(H.D. Brown)~ Re Ben Ginter Construction Co. Ltd. and I.U.O.E.. L 115,62
D.LR.(2d)485.
12
It is ~he Uruon's position that the Employer had by the grievance filed on April 6th
time to undo the action it took on March 29th against the Grievor which is distinguished
fl-om those long-term situations where an employer was found to have been unable to
change its position while here within a month the Employer knew that the Uruon would
grieve the filing of which in eight days thereafter ends an estoppel if it existed. The
Employer did not establish that it relied to its detriment on the Uruon's representation
concerning the Grievor so that there is no basis not to hear the evidence of the conduct
affecting the Grievor who should not be precluded ITom testifying. The Employer had an
option as to how it could deal with the Grievor and would not have taken any action
against him except for the Uruon's representation but could have returned him to the
bargaining urut and proceed with discipline. By letter to Mr. Gilbert dated April 18th ITom
Ms. Renault, it was clear that the Employer was aware of the Uruon's desire to proceed
with the grievance and the extension of time was granted with the Uruon's position being
clear. The Employer did not consider returning the Grievor to the bargaining urut prior to
his dismissal and as they did not turn their mind to that issue, it was submitted that there
was no detrimental reliance shown by the Employer. There was nothing to preclude the
Employer's actiòns which was detrimentally affected. The Memorandum of Agreement
which prevails extended the time under Article 12.06 for the Grievor's return to the
bargaining unit apart ITom the terms of Article 12.06. The Employer could have exercised
that choice so that estoppel should not be applied.
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It is necessary for the Arbitrator in these circumstances to determine the effect of
Ms. Aho' s letter to Ms. Renault on March 29th to decide whether this grievance can be
dealt with under the terms of the collective agreement oris barred under the application of
the estoppel doctrine. This issue bears directly on the jurisdiction of the Arbitrator who
must find his authority to act under the terms of the collective agreement and therefore, in
this case, requires a decision on the preliminary issue raised by the Employer as it
underlies the Arbitrator's authority to deal with the grievance on its merits under the
collective. agreement.
The principles involved in the application of the equitable doctrine of estoppel have
succinctly been set out in the Combe v. Combe case referenced at p. 8 of the Ben Ginter
decision (supra) and to follow that Court's direction, as to the requisite elements of
estoppel which must be established, it first must be found that a party to the collective
agreement has represented to the other party though words or conduct that:
"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 a previous legal relation as if no such promise or
assurance had been made. . . "
Further, the party must have accepted and acted upon its reliance on the representation to
its detriment.
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It was also held in the Ben Ginter decision that "when a Union says or does
something within the scope of its authority which gives rise to an equitable estoppel, that
estoppel operates as much against the employees as it does against the Union. If it was
otherwise, .it would not be just".
By the Memorandum of Agreement dated February 23, 2001, the parties agreed to
extend the time limits under Article 12.06 in view of the restructuring process then
proceeding as to the opportunity for Mr. Bertrand to return to the bargaining unit by
May 30th which exceeded the nine month limitation. Upon Ms. Renault's return to work
in March, her evidence was that the Employer was concerned about the Grievor's
behaviour and determined that he could not assume the functions of the job after the
restructuring. . In a subsequent discussion with Ms. Aho, Ms. Renault was told that the
Grievor did not have recourse to Article 12.06 because he had been appointed to a
permanent position and that term applied only to bargaining unit members who are
appointed to temporary positions. Ms. Renault requested confirmation of the Union's
position in writing and that was confirmed by the email sent by Ms. Aho on March 29th
which set out the Union's position that Article 12.06 did not apply to the Grievor. It was
upon that communication that the Employer then relied in dismissing Mr. Bertrand's
employment on that same day.
There is no evidence to contradict or qualify the testimony of Ms. Renault which
must in this regard be accepted and ITom which it must be concluded that the Union's
position as to the application of Article 12.06 in the circumstances of Mr. Bertrand was
15
made clearly and for the purpose of affecting the Employer's employment relationship
with him. By that position of the Union, he could not be considered as a member of the
bargaining unit and not therefore within the ambit of Article 12.06, the terms of which
while extended as to the effective time limit, the Union subsequently took the position and
made it clear to the Employer by express words by Ms. Aho confirmed by her email that
those terms would not apply to the Grievor. There is no doubt on the evidence that this
was the Union's position communicated to Ms. Renault both before and on March 29th.
Acting on that representation of the Union, the Employer terminated Mr. Bertrand's
employment as set out in Mr. Rivard's letter dated March 29th based on terms consistent
with the common law of employment terminations and not under the just cause provision
in Article 4 of the collective agreement.
Based on the opinion of the Union as set out in the email of Linda Aho on
March 29th, it was reasonable for the Employer relying on that statement to find that the
Grievor could not be returned to the bargaining unit upon restructuring of his position
regardless of the prior agreed time extension for the application of Article 12.06 and acted
accordingly to dismiss the employee, as the Employer accepted the Union's position that
Article 12.06 would not apply to allow his returnto the bargaining unit. Had the Union's
position been different and consistent with the time extension so that the Grievor could
have returned to the bargaining unit then the Employer could have taken disciplinary
measures pursuant to Article 4 to deal with his alleged misconduct. Such action was
foreclosed in light of the Union's representation by which the Employer was purposely
lead to believe that Article 12.06 would not be applied to the Grievor and thereby it
16
changed its position following the Memorandum of Agreement dated February 23rd and
was induced to act to its detriment in its subsequent action taken against Mr. Bertrand.
Having done so, the Union cannot then be found to assert a contrary application of Article
12.06 which has been qualified by its oral and written representation to the Employer.
Based on the Union's.representation, the Employer acted to terminate Mr. Bertrand's
employment with a financial separation and a letter of reference which can be
differentiated from remedies sought or considered under a disciplinary discharge for just
cause under the terms of a collective agreement and demonstrates the Employer's reliance
on the'Union's position which was relied on by the Employer which acted in good faith on
its representation to take this action against the Grievor to its detriment if the Union
proceeded with the grievance pursuant to the collective agreement.
The grievance was filed on April 8th by which the estoppel would end in so far as
the future application of Article 12.06 but cannot affect the action taken on March 29th by
the Employer based on the Union's representation to it at which time the estoppel
occurred and acted on by the Employer. The fact that there was a short passage of time
from the dismissal before the filing of the grievance does not remove the effect of the
Union's conduct as by then the Employer had on proper grounds, taken the action against
the Grievor in good faith relying on the Union's representation to it concerning the
application of Article 12.06 to the Grievor as it was entitled to do as to the status ofthe
Grievor employee who could as a result be treated as an employee of the Agency who was
not covered by the collective agreement. To later change the terms on which the
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Employer acted to dismiss the Grievor and to conclude that termination of employment
was a nullity would clearly be inequitable in these circumstances. The time from
March 29th to the date of the grievance although short, does not affect the bona fides of
the Employer's action taken against the Grievor which was based on the Union's position
on which it relied to take such action against Mr. Bertrand with the terms set out in the
Letter of Termination on March 29th in ending his employment. As stated in the
Pilkington Brothers award,
"The Union is therefore estopped in this particular case,
from relying on the language of the agreement because it in
effect agreed with the interpretation advanced by the
Company. Having allowed the Company to advance that
interpretation and act upon it, the Union in fairness cannot
be heard to say that the interpretation is wrong. . . "
The reverse of that fining applies in the present matter where the Union advanced
an interpretation of Article 12.06 which the Employer accepted and acted upon to its
detriment.
As all of the elements of the application of the Doctrine of Estoppel has been
established by the Employer in the circumstances of this matter, I find that the Union is
estopped from proceeding with the grievance under the terms of the collective agreement.
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On that basis, the Arbitrator does not have jurisdiction in this matter. These proceedings
are therefore tenninated.
. th .
DATED AT OAKVILLE TillS 25 DAY OF SEPTEMBER, 2002.
\J\~'\IV~
HOWARD D. BROWN, ARBITRATOR