HomeMy WebLinkAbout1988-0406.Hoogsteen.89-05-05 · i~ ·,i~"ONTA RIO EMP!,.OYE$ DE LA COUR'ONNE
· ' C.ROWNEMPLOYEE$ OEL'ONTA.RIO
"~ GRIEVANCE C,OMMISSION DE
S~TLEMENT REGLEMENT
BOARD. DES GRIEFS
4180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSO 1Z.~- SUITE2100 TELEPHONE/T~L_~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU2100 (,;~6) 598-0~8a
o,~o6/os
"IN' THE MATTER'OF AN A~BITRATI'ON
"~' THE CROWN EMPLOYEES COLLECTIFE .BARGAINING. ACT
,..~ '.Before · .~ ·
-- -- '' '' : Ir '' ' ~' '.-. THE GRIEVANCE SETTLEMENT.BOARD.
Between: OPSEU [ Hoogsteen) Gr:ievor
- and -
The C~own In R~Gh~ off On~ar-~o .
- -- (Mlnls.~y"of Community & $oci~l Servi.c.e} F~nployer
'* B'~'fore: - "'" - ; L-;N.V' :D;~ssanayeke - ,..Vice-Chairperson
J ' Solberg Member
E, Orslnl .Member
APPEARING FOR R. Healey
Gowllng and Henderson
~'~ '-:" * Barristers and-Sollci, tors.'
APPEARING FO~ D,~, Labord
THE EMPLOYER:'-'- counsel. .,-
Hicks Morley Hamilton
Barristers and Solicitors
Hearing: Feb~uaFy- 9, 1989
2
DECISION
The facts pertinent to this grievance were agreed
upon and recited to the Board at the hearing. The
grievor is employed as a Residential Counsellor 2 in the
Cedargrove Unit of the Oxford Regional Centre. On the
relevant dates, namely April 28,.29 and May 5, 9, 1988,
the Management,had. de~ermined that the minimum staff
complement required.for the Ward known as Glenwoo~ I was
4 employe~s between 7:00 a.m. - 7 p.m., 3 employees
between 7:00 p.m. - 9 p.m., and 2.employees between 9:00
p.m. - 7 a.m. On the days in question, the Supervisor
Mr. Ken Lindsay decided upon arrival at work that there
were insufficient employees to meet the minimum staffing
requirements. Since'he could not find any additional
employees at work who can be.assigned duties, Mr. Lindsay
himself'assumed the duties of a Residential Counsellor
2, while at th~ .same. time performing his usual
supervisory d~ties.
The grievor had placed'his name on a "call-in" list.
While it is clear that ~his is a list on. w~ich employees
wishing to work over~me are expected to place their
name, we have no information as to'how the list was
utilized by management. We have no information as to
whether the call-in for overtime was based on seniority
3
or on-a..rotational system.. Nor is' there any'indication
as ~o'hsw ~he.grievo~.was,'r~ked in'this list. However,
the parties agree th~fthe grievor'had a regular day off
on..Apri~-29, and..was off-on vacation on May 5 and May 9.
Tb~ .griever c~aims that ~bY counting himself in the
~. minimum staff, compl~ment' ~he supervisor denied him the
o oPD~rtunitz :~o ~ork.6v&rti~% on those days. It is his
.. contention .that,Mr. Li~ds,ay .sho~l~ .have called him in to
perform, the available ~ork on an overtime basis
~ounsef"~o~' the~gr'iev6r concedes that there is no
prgvision.~n .the..coll~ctive' agreement dealing with. the
~ assignme~-..of 'o~rtime .o~'. ~: ~ ' '
.... determlnat~on of the
~ staffing..compl'e~nt~ .~hi~ ',~can ,b.~. said to have .been
--contravened :~y ,the .Em~l°yer~s_.c~n~ct. Nevertheless,
h'e r~ies on the doctrin0"]of '~' '<~' .
promissory estoppel on .the
basis' 9f.. a..~morandu~ dated De~ember 18, ~986, which
..._ reads.:.-., ..,
To': ALL'..STAFF ]'` ~ .:: D~te: December: 18, 1986
~A~ ~ffACE~ UNIT. '
, ,. RE; fiOVERING FOR.SHORTAGE OF STAFF'
'I have.been~sked 'f~.'try to.~larify the policy
for Park~P~ace Uni~ a~,i.t pertains to coverage
for staff shorta~ej due to illness, etc. The
f~llowing, statem~t.s, were agreed upon by the
Supervisors of. this Unit and I'hope will make
the position clear.
1. Residential Counselling staff when
absent, will not be replaced by a D.S.P.
instructor to carry out 'the regular
4
duties of the absent Residential
Counsellor. D.S.P'. instructors will
continue to held on the residences as
they presently do but will not be "fill-
in" staff to cover, the absence of the
Residential Counsellor. ~
2. When a D.$.P. Instructor is absent, a
Residential Counsellor will· not be
assigned to carry out the 'regular duties
of that D.S.P. instructor. It should be
noted however,' that When a D.S.P.
instructor is absent and no replacement
is available~-'~the Residential staff of
the residence for whom the-program is
cancelled w~ll be required to'--do some
activity with. those residents.
Residential staff will" not take over the
duties of the absent instructor but will
have to find alternative activities for
the residents from the residence to which
they are assigned.
3" Residence Supervisors will not normally
be counted in the minimum number of~ staf~
that are scheduled·to work on.any given
day. ~owever, Residential Supervisors
may cover for interim periods' of ·time to
make up an unexpected staf~ shortage.
They should not schedule themselves, on a
regular basis to make up the minimum
numbers but retain the right as the
manager responsible for their area to
cover the needs of their residents and
staff in the most effective and efficient
method possible, which sometimes will be
by covering the area themselves for
" interim periods of time.
May I add that I believe that our
responsibility to our·residents requires us to
be somewhat flexible in meeting unforeseen
problems aS they aris~ within a ~iven budget
and. with a given n~mber of staff.-I thank you
for your excellent co-operation in the past
and look forward to its continuation in the
future. '~.
"signed" i ~ ~
B. Murphy, . . .. .~_
Unit Program DireCtor, :
Park Place.unit.
. - Counset~. rel~ies,- on .Hanwell, 509/82 (Swan).. as
'.:~standing for' the proposition that- the doctrine of
promissory EStoppel canrbe invoked to.support rights not
. found in the collective agreement. In Hanwell (supra)
the .Board ~referred to. the ~e~isiq~-.iof the Ontario
_Division'alzgpg¥.t_.ia Re dN/~P{.i.i(~9~I), .~40.R. (2d) 385,
and observed.~ as. f611ow~~. 9~ pp_. · 11r13: - ,
Briefly. pu~ ,i ~Ke .~CN/CP case . expands the
_.~__ ~_. ~o~tri~e~3f..estoppe!, which is t'~aditionalty
...~2 ...... '.applied..t~ keep a party fr0m'~h6-collective
agreement which has repres'ehfea-!~o another
party 'that it will not enforce.~its strict
..... ~'.rights under the collective agreement from
subseguently insisting upon those very rights
to. the detriment of the other party. In
".CNfCP, the.es.toppel, was not in redaction to the
non-enforcement of express rights under the
-... .collective' agreement,, but ..,with- the
continuation of certain benefits Which were
...... no.t'in any~way p~ovided fo~ expressly in the
collective agreement, but which had come to be
~.~3 - r~lied upon. by persons . covere~~ ~nder the
collective agreement by virtue of some thirty
.~.--: ..years of.aDplicatiqn.. .Thus the CN/CP case
permits an estoppel to be ~used as the
.... foundation of' a claim by one party against
-. ~''. another .for rights which are not-:set out in
"'- the collective' agreement, rather than merely
'" as 'a defence' against the exercise of rights
'~. '. set out in,the col'lective agr. eement but which
have.been-._suspended by a representation not so
set out~. , ~.. .. ~
6
What ~ stands for, in short, is the
proposition that the doctrine of estoppel may
be used to alter the legal relationship
between the parties, and not merely the
collective agreement,.provided that the other
requirements of the .doctrine,.are met. Those
requirements are variously stated in the
cases, but they include at .least the
requirement that one party must have
represented to the other, whether by expressed
words, by.implication or by conduct, that it
would act in ~a'.certain way,~ and .the~other
party must have relied upon that
representation in .ordering..its own affairs
subsequently. Some of the cases suggest that
.the second party must alter its own affairs to
its detriment, although precisely what
'constitutes that ,detriment is not entirely
clear from the jurisprudence. If the CN/CP
case is adopted, the inference i~~ that the
1coal ~elationshiD between the parties may be
altered not only by suspending Dositi%e
provisions of the collective a~reement, but
'also by representations that' a certain non-
contractual practice willccontinue even if the
collective agreement is not altered to include
it.
:~ .(Emphasis added)
It is our conclusion .that promissory estoppel and
the rationale in Hanwell (supra), can ha~e no application
to -the facts before' us. After reviewing the law as
stated.'.by the Divisional Court in CN_Q_N~, at page 13 the
'Board i~ Hanwell (suDra)~concluded as follows:
~ On the facts of the present case, we
think that an. estoppel, in CN/CP terms has
clearly been made--out...He=e the Employer had
in place, long before collective bargaining
began, a policy relating to relocation
expenses. UPon examininq the adequacy of that
~olic~, the Union determined that there was no
necessity to Dot that policy into the
collective agreement, and' the collective
agreement was therefore structured without an~
' '~' provision relating to this matter,
. ..(Emphasis added)
' ' At-p' 14 the Board went on to state:
In 6ur-'vie~,~- this set of facts .clearLy
constitutes an estoppel in the expanded sense
of the doctrine found in the CN/CP case. The
precise nature of this decision should be,
however,.very narrowly stated. In odr view,
the Employer has become estopped by its own
%onduct' from. denying, for 'the term. of 'the
present collective agreement (and afterward,
''~.~ unless ~oticeis given'tot he.Union in time to
. .permit. it to bargain collectively on the
~ubject)' that-the relocation,expenses'policy
applies to all relocations taking place under
Article '4'in.-adcordance with its terms, and
from refusing to pay employees in accordance
with fhe policy. It may-not'be ~that ever~
policy which the Employer has promulgated will
be similarly f~xed by the doctrine of
..eSt6ppel. In the ~resent case, there is the
significant fact~ that the collective agreement
expressly mentions the relocation expenses
policy in-Article 24, an articIe which applies
notwithstanding the provisions of Article
.... and does so in' such a way 'as -to make it
obvious that the Employer must have been
representin~'that'pavments were %ntended to be
made under Article 4 and would continue to be
SO made. While it. is obvious that this
.finding is close to the limit of the doctrine
~-~-~ of estoD~el~even as ~et out in CN/CP case, it
_appears to be in accordance with the
= expression-6f that policy ~as set out by the
arbitrator and as approved by the Divisional
- Court. ''~ ~-
(Emphasis added)
In contrast, ih' '~he present 'case, there is no
suggestion that the-method' ~of'overtime.allocation or
staff complement was ever'the subject of negotiations or
$
discussion between the Employer and the trade union.
This is not surprising because section 18(1) (a) of the
Crown EmPloyees Collective Bar~ainin~ Act, makes
complement and assignment exclusive functions- of
management. The document relied upon by the grievor is
a memorandum issued by the Director of the Park Place
uni~ and addressed to "All staff, Park Place Unit". It
clarifies the director's policy as to how he intended to
deal with a certain situation at ~hat ~nit. The very
first sentence bf the memo ma~e~ i~ clear that its
purpose is "to try to clarify the policy for Park Place
Unit as it pertains to coverage for staff shortages due
to illness etc." In our'View such a policy cannot give
rise to promissory estoppel. This memorandum cannot be
seen as a representation "that a certain'non-contractual
practice will continue even'~f the collective agreement
is not altered to include it.'''
In any event, we find that the conditions required
for the application of estoppel are not'present here. it
is clear from the memorandum that it only addresses the
situation at the Park Place Unit. There is no
representation therein as to what policy will govern the
situation at the Cedargrove Unit where the grievor
worked. Furthermore, we have no evidence of detrimental
reliance. The evidence that the grievor was one of an
9
unknown, number of employees who registered their names
onlthe call-in list and the fact that the grievor was on
a day off or on vacation on the days in quesaion in our
view is not detrimental reliance. Beside, there is no
evidence to suggest that if Mr. Lindsay,decided to call-
in an employee, the ~r~evor would have had a right to be
the one to be.calleu in.
got th~ foregoing r=aso~s, w= find that a cas= ~,=~
not been, made~'"~ ~or the application' of promissory'
estoppel. Since =hat was. the sole basis of '=he
grievor's claim this grievance must' fail. Accordingly,
the same'is here~y dismissed. In view of our finding it
is not necessary for us to decide the broader issue'
rai~ed by ~he employer that estoppel can never apply
against the exercise of functions, designated as
exclusive management functions under s. 18 of the ~
EmploYees Co%%ect~ve Bar~ainino Act.
Dated this 25th day of Ma~, 1989 at ,
Nimal V. Dissanayake
· ~ Vice-Chairperson
J.Solberg, Membe:
Or~ini, Member