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HomeMy WebLinkAboutHaslam 05-11-15 nJI. V J::.j~ ,'"'.t\lUJ::.I\Un ~ IßIVVv ~~/~~/~VV~~~V;V~ r.t\A O~v'VOI ~~~~ '. t . ~ I ~ IN THE MAITER OF AN ARBITRATION BETWEEN RENFREw COUNlY AND DISTRIcr HEALTH UNIT (Employer) AND ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 487 (Union) AND IN THE MATTER OF THE GRIEVANCE OF JOHN HASLAM Before: Philip Chodos, Arbitrator Appearances: For the Employer: Lynn Harnden and Catherine Bloskie For the Union; Carolyn LeChelI1Ïnant-Chandy HEARD AT PEMBROKE, ONTARIO, OCTOBER 7, 20°5. IßI VVq ~~/~Q/~VUu ~V;v~ r./\A O~v VOl ~V~~ 1\./\ V J::.j~ ,v./\l!lJ::.I\Un AWARD : ; [1,] The Grievor, John Haslam, is a Public Health Inspector employed with the Renfrew County and District Health Unit (RCDHU). Mr. Haslam has grieved the EDlployer's decision to deny his request for a one time additional two weeks of vacation effective December 1, 2005. Mr. Haslam contends that as an employee with 25 years of service he is entitled to this benefit under the RCDHU's long-sez-vice award policy. [2] The facts in this case are largely not in dispute. Mr. Haslam was first hired as a Public Health Inspector by this Employer on December 1, 1980. He was continuously employed in that capacity until April 30, 1982 when, as ,a result of budgetary cutbacks, he was laid off for a period of four months. Mr. Haslam testified that when he was re-e:rnployed as of September 7, 1982, he was told by the Director of Environmental Health, Jim Watt, that they would "take up where they left off' and that he would suffer no 10s5 as a result of the lay-off. Mr. Haslam stated that this understanding was later confirmed by the Financial Director, Don Scott. [3] In 1995, Mr. Haslam applied for vacation leave. He was advised that he did not have enough vacation leave credits for some of the vacation time that he was requesting, given that his start date was considered as being September 7, 1982. He brought this matter to the attention of Norm Lemke, who was then the Financial Director. Mr. Lemke responded in a memorandum dated July 21, 1995 (Ex. 6), that "the break in service, which is less than one yeClT willll.ot disqualify the previous service. n Mr. Lemke went on to observe that Mr. Haslam's service as of December 31, 1994 included the period of January 1 to April 30, 1982 (Le. four . months) and September 7 to December 31. 1982 (i.e. an additional four months), as well as his service prior to 1982. [4J Mr. Haslam referred to an extract from the E:rnployer's "Personnel and Policy Procedures Manual" dated January 1994. This extract, which addresses long-service awardsl provides that employees will receive a lO-year pin for 10 years of service, a 20-yeaI:' ring for 20 years of service, and two additional weeks vacation in the yeÆtr that the employee attains 25 years of service. Mr. Haslam recalled receiving am empty box at a Board of Health dinner in 1994 becaUse the Employer had run out of pins. He had obtained a document dated September 1994 listing those persons entitled then to service recognition awards; his name was listed under the heading for those employees who had 10 years of service (Exhibit 17). A handwritten document entitled "Service Award PresentCltions - November 22, 1994" showed Mr. Haslam as having a start date of September 7, 1982, and indicated that he was entitled to receive the 10- year pin. Mr. Haslam testified that he did not make an issue at that time about his length of service. Renfrew County and District HeCllth Unit and Ontario Public Service Employees' Union, weal 487 and John lIaslam IßI VVV ~~/~O/~VVu iv;v~ r./\A O~v VOl ~~~~ 1\./\ V J::.j~ , v./\RjJ::.I\UI' Page: 2 of 9 [5J According to Mr. Haslam, in November 2001, a list was circulated with the names of employees eligible for the 20-year ring. One of his fellow employees, I{qthy Best, noticed that his name was not on the list. She contacted Michael Klatt, the Coordinator, Environmental Health, and advised him that Mr. Haslam's name was not on the list. Mr. Klatt then wrote a 1I\emorandwn to Noreen Woodtke, who was the Senior Secretary responsible for arranging awards. In this memorandum, Mr. Klatt stated the following (Exhibit 12): "Would you please arrange to include John Haslam on the li:;t of Health Unit staff eligible for service awards to be presented on November 30,2001. Would you also mind advising him by letter that he is included in this employee recognition euentfor over 20 years of loyal and valued service to the Health Unit. This oversight was recently brought to my attention on November 2Q, 20QJ and when the matter was brought to your attention by myself on November 21J 2001. you said that Administration records indicated that because of a short interruption in employment he was not eligible for service recognition at this time and would become eligible September 2002. According to Administration records he became a permanent employee starting September 1982. I trust if you scrutinize (he attached document dated July 21, 1995 you will agree that in fact John Haslam is indeed eligible for recognition as an employee of the Health Unit with 20 years of seruice. You will note that Administration files should already include a copy of the attached memo, nevertheless, I have attached a copy of it for your convenience." [,..] [6] It should be noted that Mr. Klatt attached to his memorandum a copy of Exhibit 6, Le. the meII1orandum from Mr. Lemke concerning the calculation of Mr. Haslam's service. [7] Mr. Haslam also wrote to Ms. Woodtke on the snme day concerning his length of service. In his IIlemol"andum he noted that: "The September 1982 date was my return to work, not my date of hire. I request that you investigate and correct the error as soon as possible so that the records can be set straight once and for all." Ms. Woodtke replied to Mr. Klatt by memorandum dated November 21, 2001, wWch stated (Exhibit u): "As you will recall, a memo (see attached) dated October 24J 2001. was sent to all management staff with an attached list of Health Unit staff eligiblefor service awards. The intent of the memo was for management to provide input regarding any potential oversights which could then be researched. Renfrew County and District Health Unit and The Ontario Public Service Employees' Union, Local 487 and John Haslam nJI. V J::.n ,v./\lIlJ::.I\Un IßI VVO ~~/~O/~VV~~V;V~ r./\A O~v VOl ~v~~ Page; 3019 . - There is a 4 to 6 week lead time for ordering service awards and urifortunately it Ž$ too late to order a ring for John and receive it prior to the November 30th, meeting. Therefore, Doctor Corriveau advÍ3ed that John would be invited to attend a Board of Health meeting at a later date to receive his award for his loyal and valued seroice to the Health Unit" [00'] [8] Mr. Haslam, who was copied on this memorandum, advised Ms. Woodtke next .day that he had in fact infonned the administration of the "discrepancy" in July 1995. According to Mr. Haslam, as a result of these exchanges, he received his 20-year ring on November 30, 2001 again in the form of an empty box, as the ring was not ready. Sometime later Mr. Haslam received a copy of the Board of Health (which is the govemingbody of the Health Unit) Minutes which noted that the policy concerniug long-service awards had been revised. The revised Policy stated that; "Service shall be calculated on the basis of continuous employmentfrQm the last date of hire." The revision date for this policy extract is May 2002 (Exhibit 5). Upon learning of this revision Mr. HaslaIll wrote to Mr. Klatt on November I, 2002, expressing his concern that he might experience difficulties with respect to his service credit when he attained 25 years of service. He received no reply to this lI1emoral1dum. [9] On April 13. 20°5, Mr. Haslam sent an e-mail to Bob Schreader, the Coordinator, Environmental Health, in which he noted that: "...J am in my 25th yea.r of employment. According to the Policy ma.nual I will receive an additional 2 weeks vacation that must be used between Dec. 01 and the end of the calendar year. Could you please confirm this info with administra.tion so I can make the appropriate arrangements as I am currently carrying 25 days vacation plus afloat date" (Exhibit 19). In a second e-mail of the same date, in response to a query from Mr. Schreader, Mr. Haslam stated that: "The Dec. 017 :1980 date comesjrom the LOCal 487 Seniority/Date of Hire list that was provided to the Union by administration on Janua.ry 21/2005. Further, it is l~ted ÍJ1 sentence 7011 the memorandum of settlement between OPSEU and the Renfrew County and District Hea.lth Unit dated at Pembroke on the 18th of December, 2003." The "sentence 1" (i.e. paragraph 7) i¡¡ the Me~orandum of Settlement referred to by Mr. Haslam provides that: "It is agreed that the service date for Mr. John Haslam is December 1, J989 and January 411999101' Ms. Melissa O'Brien" (Kwbit 2). [10] Mr. Schreader advised Mr. Haslam that the Board of Health had concluded that he was not eligible for the 25-year service award in light of the Board's current policy (that is, Exhibit 5). Mr. Haslam then filed this grievance. Renfrew County and District Health Unit and The Ontario Public Service Employees' Union, Local 487 and John Haslam 1\./\ V J::.n ,vl~Du:.I\Un '!!JVVI ~~/~O/~VV~ ~V;V~ r./\A O~v VOl ~~~~ Page: 4 of 9 . [l1Jln cross-examination, Mr. Haslam acknowledged that there is nothing in the collective agreement per se respecting the long-term award policy. Mr. Hasla.l11 noted that he was on the bargaining committee that led to the integration of the Public Health Inspection employees into the bargaining unit represented by OPSEU, Local 487. He maintained that the Memorandwn of Settlement was intended to put to rest the issue of the date-or-hire in the context of the long- service awards. With respect to his receipt of the la-year pin in 1994, Mr. Haslam stated that there Was a discrepancy at the time about the date of the lO-year award. While he felt that this award was given to him five years late, he did not refer to it in his letter of November 8, 1994 (Exhibit 17). [12J Catherine Bloskie is the Director of Corporate Services for the RCDHU. Ms. Bloskie testified that the Board of Health made the revisions to the long-service award policy because there had been situations where employees had left the Unit and later returned. One such individual, Ron Hartnett, had resigned following a notice of lay-off and was employed elsewhere before returning. Another employee, a Public Health Nurse, Nancy MacVicar, had also resigned and then was rehired. [13] Counsel for the Union submitted that the issue here is whether the long-service award policy is consistent with the collective agreement. While it is not disputed that the benefit can change, for example, instead of a ring the policy can provide for additional holidays, nevertheless a long-service award must be consistent with the understanding of service set out in the collective agreement, specifically Article 9.05. Furthermore, the Memorandtlln of Settlement, which is incorporated as part of the collective agreement, specifically sets out December 1, 1980 as the service date for Mr. Haslam. Counsel cited several awards which have enunciated the principle that an employer's policy cannot be in conflict with the collective agreement: Re Lumber & SaWIllill Workers' Union. Local 2~q7 and KY'P Co. Ltd. (1965), 16 LAC. 73 (Robinson); Re Canadian Motorwavs Ltd. and Teamsters Union. Local.93ß. (1988), 34 L.A.C. (3d) 76 (McLaren); and Re Municipality of Metropolitan Toronto and Canadian Union of Public Emuloyees. Local 43 (1987),28 L.AC. (3d) 230 (Brent). [14] Counsel maintained that paragraph 7 was intended to clarify definitively Mr. Haslam's service date for all pUrposes. Ms. LeCheminant-Chandy submitted that this provision creates a substantive right in the collective agreement. She also submitted that the fact that Mr. Haslam only received his la-year pin in 1994 is no indication that he accepted that 1982 was his start date. She obselVed that in Exhibit 17 another employee, Barb Hooper, is noted as having a start date in 1975, notwithstanding that she received the la-year recognition pin in 1994, as did Mr. Hasla.m. Counsel also noted that Mr. Haslam testified that he was granted the 20-year ring in Renfrew County and District Health Unit and TIle Ontario Public Service Employees' Union, Local 487 and John. Haslam IßI VVO . -- ~~/LO/~VV~~V;v~ r./\A O~v VOl ~~~~ 1\./\ V J::.n , v.t\l11J::.I\Un Page: 5 of 9 - - 2001, which, she submitted, constitutes an admÌssion by the Employer ß3 to his date of hire. In addition, there is the seniority list (Exhibit 8). which also notes that the hiring date for Mr. Haslam is December 1, 1980. Counsel also referred to Mr. Lemke's memorandum of 1995 respecting service for vacatio.Q entitlel11ents. [15] Ms. LeCherninant-Chandy maintained that it was reasonable for Mr. Haslal11 to rely upon these acts of the Employer. Counsel asserted that Mr. Haslam believed that the question of his service date had been definitively answered by the Employer. He only raised this matter again because he would need SOme lead time to make his vacation plans. Ms. LeCheminant- Chandy submitted that in these circumstances the principle of estoppel applies. In support of this submission she cited e R Huber and Co. Canada td and Inter ationaI Woodworker of America (1976). 11 L.A.C. (2d) 309 (Shllne). Counsel emphasized however that the grievor here is asserting a substantive right arising out of the Memorandum of Settlement. [16] The Employer's counsel replied that this dispute does not engage the jurisdiction of the grievance and arbitration process since it does not involve a conflict with any provision in the coUective agreement. The long-service award policy establishes the 11Iles for eligibility for awards; however, there is no obligation on the part of the Employer to adopt eligibility rules for discretionary benefits that correspond to I11les the parties adopted in the collective agreement. [17] Mr. Harnden noted Ms. Bloskie's testimony to the effect that there were other employees who had breaks in service, and that the Board of Health wanted to adopt a similar approach with respect to all employees. While there may be a coincidence of terminology between the awards program and the collective agreement, that does not mean that the Employer's discretion is hamstrung by the collective agreement. If the award system had added to vacation entitlements going forward, then it might il11pinge on the collective agreement; however, here it is a one-off benefit. [18J Mr. Harnden maintained that the case law is consistent that where there is a gratuity or indulgence that is not referenced in the collective agreement, the arbitrator has no jurisdiction to entertain a dispute as to whether an employee is eligible for that gratuity. In support of his submission. counsel cited the following awards: Re Browning HalVe" Ltd. and_Ne\'lfouncUärnl Association of Public Employees. [1992] 26 LoA.C. (4th) 35 (Clarke); Re Four Seasons Hotel and Hotel. Restaurant & Culinary Emplovees & Bartenders' Union. weal 40, [1994] 46 LAC. 367 (Hope); Re C EK TV and Commu 'cations Ener and Pa erw rkers' Union f Ca ada cal fusM, [2002] 105 L.A.C. (4th) 385 (Burke); Re Ontario (Ministry of Finance) and ?-P.S.E.U. íCberwono2rodzky), [2004J 1.27 LAC,. (4th) ISO (Gray); Re Toronto District School Board and Renfrew County and Džstrict Health Unit and The Ontario Public Service Employees' Union, Local 487 and John Haslam IßIVV~ ~~/,LO(~VVP ~V;Vv rÜA oiv VOl ~~~~ 1\./\ V J::.n , vJ~DlLI\Uj~ Page: 6 of 9 - . [19] With respect to the application of estoppel, Mr. Harnden submitted that the Grievor has acknowledged that the Board adopted a new policy in 2002, Whatever occurred prior to that date) it is clear that Mr. Haslam knew that the rules had changed; that is, the Employer said that it was amending the policy to provide that the calculation of service would be from the last date of hire. Accordingly, Mr. Haslam was put on notice that this was a live issue. Therefore, it was open to the Union at that point to put into play the issue of long-service awards at the bargaining table. That is) by 2002, it was clear that any previous representations no longer had effect. Mr. Harnden also noted that Mr. Haslam will receive, in due course, the 25-year long- service award. [20] Counsel for the Union responded that it is in fact alleging a viola.tion of the collective agreement, specifically Article 9, and the Memorandum of SettIel1lent. Ms. LeCheminant- Chandy also noted that in many of the cases relied upon by the Employer, the collective agreement is completely silent with respect to the matter at issue. In this instance, there is a provision that forms the basis of the Grievor's claim. She also submitted that the evidence demonstrates that this is not about a gratuitous benefit, but rather a service-date and a date-of- hire, which was to have been resolved as a result of the Mel1lorandum of Settlement, and would have conferred the benefit as of December of this year. Reasons for Decision [21.] This grievance has arisen because of the Employer's decision not to grant Mr. Haslam a one time additional two weeks vacation as of December 1, 2005. Mr. Haslam maintains that he is entitled to that benefit as provided in the Emp]oyer's policy concerning long-service awards, as he has the requisite 25 years of service. In this respect, he relies on his initial date of hire, which is Decell1ber 1, 1.980. [22] The Employer on the other hand maintains that in accordance with the revised 2002 policy approved by the Board of Health, long-service awards are calculated as of the last date of hire. In Mr. Haslam's case that is September 7, 1982,as of result of Mr. Haslam having been ]aid off earlier that year and then rehired in September. Renfrew County and District Health Unit and The Ontario Public Service Employees' Union, Local 487 and John Haslam . 1\./\ V J::.H ,v./\DIJ::.l\Uj~ IßIV~V . ~~/.~O/~UV.V. ~V;Vv r./\]... O~v VOl ~~~~ Page: 70f9 - - [23] The Union contends that paragraph 7 of the Memorandum of Settlement (supra), dated December 18, 2003, as well as Article 9 of the collective agreement, comer on Mr. Haslam an enforceable right under the collective agreement. In the alternative, the Union argues that the Employer is estopped froIIl denying Mr. Haslam this benefit as a result of representations made to him to the effect that his service should be calculated from the first date of hire; that is, December 1, 1980. [24] Article 9 of the collective agreement, entitled "Seniority", contains a number of provisions respecting matters in which seniority has applicatioh, including probation, lay-off, recall and bumping rights. Article 9 also provides for a seniority list (paragraph 9.04). Article 9.05 reads as follows: "9.05 Service shall be defined as the length of continuous employment with the Employer. Seniority shall be defined as the length of continuous service in the bargaining unit and except m; specifically provided, shall be on a bargaining unit wide bask" [25] I agree with counsel for the Union that the Employer cannot unilaterally invoke a policy that is inconsistent with the collective agreement; the arbitral authorities are enmely consistent on this point. However, with all due respect, I do not be1ieve that this is what we are dealing with here. It is not in dispute that the coUective agreement wakes no reference to the Employer's long seIVice awards policy, It is in fact clear that the awards for long seIVice (whether it is a pin, a ring or one time additional vacation leave) are a gratuitous benefit emanating from the Employer. This collective agreelI1ent is completely silent on the matter of long seIVice awards. While the Memorandum of Settlenlent lIlakes reference to the service dates of two employees, including Mr. Haslam, in my view; this provision is hardly sufficient to transform what had been for years a gratuitous benefit into an enforceable, substantive right. An exaInination of the authorities submitted by the Union in fact reinforces this conclusion. For ~ample in Re Municipa1i1y of MetroDolitan Torontç (supra) the Employer attempted to invoke an "absenteeism control policy" that would in certain circumstances require the automatic production of a medical certificate, notwithstanding a clause in the collective agreement that provided that a medical certificate was not required when eIllployees are absent for less than three consecutive days. In allowing the grievance, the arbitration board made the following observation (at P.23B): "...it is our view that art. 15.16 of the collective agreement is of prime importance in trying to ascertain what the parties have agreed to in relation to the administration of the sick-leave plan... Renfrew County and District Health Unit and The Ontario Public Service Employees' Union, Local 487 and John Haslam 1\./\ V J::.n . vl1JlIJ:.I\Vj~ IßI V~~ ~~I ~"t)1 !i;!LY_'2'._.~V; Vv rfu\. O~v uO I ~v~~ Page: 8 Qf 9 - . Naturally, three Ï$ nothing in art. 15.16 that would preclude the corporation from demanding medical certificates whenever it had reason to believe that the claim for benefits was not on account of illness. It did not agree to forgo its right to ensure that it only pays out claims in cases afillness. Because art. 15.16 deals only with the administration of the sick leave plan it certainly cannot be interpreted to preclude the corporatiQ11jrom exercising its right to discipline employeesfor jU$t cause if they have abused the plan, or from engaging in any programme which may monitor attendance etc. It does in our view, preclude the corporation from unilaterally altering the te17TZS of art. 15.26 by substituting for the general rule it agreed to some other general rule for satisfying itself that sick-leave payments should be made. In other words, having agreed with the union that sick-leave payments for legitimate illness of less than three consecutive working days would not be dependent on the filing of a medical certificate, it cannot make sick-leave payments dependent on medical certificates for absences of less than three days unless it has reason to doubt the validity of the claim." [26] What clearly distinguishes the Metropo1itan Toronto casefrOin this case is the existence of a specific provision in that collective agreement concerning the very matter which the Employer attempted to address in its policy concerning absenteeism. The arbitration board in that case stated unequivocally that were it not for the specific provision in the collective agreement (i. e. article 15,16), the employer would be free to enforce its absenteeism policy. However, it must be emphasized again that in the instant case there is no mention anywhere in the collective agreement of the long-service awards. Accordingly, it cannot be said that the Employer's policy with respect to the long service awards or any revisions thereto is inconsistent with the collective agreement. [27] With :respect to the application of the principle of estoppel, I am in agreement with the employer's submissions that it would have been open to the Union, in response to the Employer's decision to revise its long service policy, to bring this matter to the bargaining table in 2003, and that having put the the Grievor on notice that the policy was being modified, he .. could no longer rely on any earlier representations in respect of that matter. [28J I believe that the foIl owing observation by Arbitrator Munroe in Re Pacific Fore~ :eroducts Ltd.? NanaÍmo Division and P.P.W.C.. Local 7 (1983), 14 L.A-C. (3d) 151, at page 161, cited in Re Board of School Trustees of S~ool District No. 38 (Richmond} (supra), is quite apposite in the context of the Union's estoppel argument: "[TJhe doctrine of estoppel is not something which an arbitrator should seize upon to jU$tify the imposition of an individualized, intuitive, (md ill-defined brand of 'Justice". It has Rerifrew County and District Health Unit and The Ontario Public Service Employees' Union) Local 487 and John Haslam nJI. V J::.n ,v./\lTIJ::.I\Un IßI V~~ ~~/~O~~VVp ~V;Vv ~~A O~v VOl ~~~~ Page: 9 of 9 .: .: its limits. Obviously, it should not be utilized to lend contractual or quCl$i-contracrual significance to Q wholly gratuitous benefit or indulgence which clearly was not intended to carry any contractual freight, and upon which the beneficiary has placed no identifiable reliance, even though the abropt withdrawal thereof might strike the arbitral eyes as "unfair" or as "bad industrial relations". [29] Accordingly, this grievance is denied. I would however take this opportunity to note the observation of the Employer's counsel that Mr. Haslam will be entitled to receiv~ the one time . additional two week vacation leave effective December 1, 2007. DATEDATOTl'AWA, November1S, 2005. R.enfrew County and District Health Unit and The Ontario Public Seroice Employees' Union, Local4B7 and John Haslam