Loading...
HomeMy WebLinkAboutBartley 03-10-02 IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT BETWEEN The Ontario Public Service Employees Union ("the union") AND George Brown College of Applied Arts and Technology ("the employer" or "the college") And in the matter of the grievance of Sonia Bartley ("the grievor"), dated October 24, 2001. BEFORE: R.O. MacDowell (chair) J. Campbell (college nominee) S. Murray (union nominee) APPEARANCES: For the union: David Wright (counsel) S. Bartley Nick Tsurozzi For the college: Lynn Thomson (counsel) Sally Roy David Ivany A hearing in this matter was held in Toronto, Ontario, on June 19, 2003. AWARD I This arbitration proceeding arises from a grievance that was filed by Sonia Bartley ("the grievor") on October 24, 200'1. Ms. Bartley claims that as a result of a letter that she received from the college in Sel~tember '1990, the college must now create., and appoint her to, a "plumber's position" in the support staff bargaining unit. The 1990 letter was from a local manager at the college, who informed Mr. Bartley that if she (Ms. Bartley) completed the apprenticeship training program upon which she was then embarking, there would be afulltime plumber's job for her at the end of it. Simply put, the grievor contends that the college is obliged to honour what she describes as a "promise" that was made to her, personally, about 13 years ago: a "promise" to place her in afull time plumber's job, when she had completed her apprenticeship and acquired the necessary "Certificate of Qualification" to work as a plumber - something that Ms. Bartleydid just prior to filing her grievance in 2001. As the grievor sees it, the college made her a "promise" in 1990, and it is now obliged to abide by that "promise". In the grievor's submission, it does not matter that it took her 11 years to successfully pass the qualifying examinations. Nor does it matter that by the time she got her Certificate of Qualification (in 2001), there were no longer 2 any plumbers employed by the college (because, in 1996, all of the plumbers' positions were eliminated in accordance with the provisions of the collective agreement). Nor does it matter that as part efthat elimination efthe plumbing positions in 1996, Ms. Bartley's own position as a "plumber's apprentice" also disappeared. Or that she was laid off and opted to take a clerical job. Finally, in the griever's view, it is equally irrelevant that there have been several collective agreements since the enethat was in place when the "promise" was made; because in the griever's submission, her claim does not really rest on any collective agreement provision, but rather on the free standing "promise" that was made to her back in 1990. The grievor's position is that the "promise" given in 1990 was an independent, open-ended and unqualified undertaking, that could be "redeemed" whenever she successfully obtained her certificate of qualification - regardless of: the passage of time; the elimination of all of the plumbing positions in 1996; her own decision to go back to a clerical job after being "laid off" as an apprentice plumber; and the negotiation of several collective agreements. The griever asserts that when she passed her plumber's examinations in 2001, her part of the "deal" was fulfilled, and the college was then bliged to create a job for her- even though, by that time, the college had not employed any plumbers for a number of years and (from its perspective) did not need any plumbers. The union concedes that there is nothing in the collective agreement to support the griever's claim. There is no alleged breach of the agreement, as written. Nevertheless, the union says that (1) a "promise" was made to the grievor in 1990, (2) that the griever acted upon that "promise", "to her detriment", and (3) that in these circumstances, the equitable doctrine of estoppel can be invoked to give legal force to the representation made to the griever 13 years ago. The union further submits that this "equitable" basis for enforcing the 1990 "promise", can be accessed by the union (on behalf of the griever) via the grievance-arbitration procedure under the current (2000-2003) collective agreement. It does not matter that the representation was made in 1990 when another collective agreement was in force. For as the union sees it, the 1990 representation was unlimited in time, so that the doctrine of estoppel can be invoked whenever the griever secured her certificate of qualification - regardless what has happened since then, or how many collective agreements have subsequently been concluded. The union acknowledges that the promise/representation in 1990 was not made to the union itself, but rather flows from the dealings between an individual employee and her manager. However, counsel for the union submits that the union is entitled to adopt and ratify that "personal representation", just as if it had been made to the union directly; and having endorsed the 1990 4 representation (which the union did when the grievance was filed in 2001 ), the union can then seek to enforce it, on the grievor's behalf, through the current grievance- arbitration procedure, and relying upon the doctrine of estoppel. In the union's submission, the decision of the Divisional Court in Re Metropofitan Toronto Civic Employees Union and Municipafity of Metropofitan Toronto et al (1985), 50 O.R. (2d) 618, is no longer "good law". That decision appeared to confine the application of estoppel to dealings between the union and employer- that is, to representations between the parties to the collective agreement. However, according to the union, the decision in the Metropofitan Toronto case, has now been superseded by the Divisional Court's later ruling in Ontario Pubfic Service Employees Union v. Her Majesty the Queen in Right of Ontario (Ministry of Community and Social Services) (1995), 27 O.R. (3d) 135. That case held that the "representations" necessary to ground an estoppel were not confined to "representations" between the parties to the collective agreement, but, as a matter of law, could also be triggered by a representation made by the employer to an individual employee. The union submits that whatever the law was formerly thought to be, it is now established that the doctrine of estoppel can be used in a collective bargaining setting, to .qive legal force to private dealings between an employer and an individual employee - even when no specific provision of the collective agreement is engaged. In the union's submission, that is what should happen here. The union submits that there was a representation made to the griever, personally, in 1990, which the union has ratified/adopted in 2001 (by filing a grievance on the griever's behalf); and in the union's submission, it would be unfair to allow the employer to resile from that "promise" now. The union therefore urges the Board to find that the employer is "estopped" from "reneging" on its 1990 "undertaking", and must newcreate a plumber's job for the griever. The union does not suggest that the employer must maintain the grievor in a"redundant" position, for which there is no work. However, as the union sees it, the employer must create such position for the grievor, and put her into that position, even if the employer immediately lays her off in accordance with the provisions of the collective agreement. The acknowledges that this latter scenario (a job opening and immediate layoff) may seem a little unusual. However, in the union's submission, it could still have some real advantages for the griever, because, upon layoff, she could exercise her bumping and/or severance pay rights, from a higher pay band. (Prior to 1996, a fully qualified plumber was paid at pay band 11, while in recent years the griever has been paid at pay band 7 - although as noted above: there have been no plumbers in recent years, and the griever has never actually worked as a journeyman plumber, because the positions were all eliminated before she completed her apprenticeship). The union asserts that creating a plumber's position in this way is not an artificial exercise. B ut, even if it is, creating a job for the griever is what is necessary to ensure that the college follows through with the undertaking that it made in 1990. As the union sees it, the position is very simple: the griever was promised a plumber's job in 1990, and that is what she should get today. The union also points out that it was the college that decided to eliminate the plumbers' positions in 1996- legally, (the union did not complain about it), but nevertheless, unilaterally. So in the union's submission, there is nothing particularly onerous in requiring the employer to reverse itself and create a new position, in order to make good on what it told the griever back in 1990. The college replies that the doctrine of estoppel has no application on the facts of this case, and that whatever expectations the griever and her manager may have had in 1990, those expectations have been completely overtaken and abrogated by subsequent events. The college asserts that the alleged "promise" is simply not as open-ended and unconditional as the griever claims it is; moreover, the letter cannot be looked at, in isolation, and to the exclusion of everything else that has happened at the college since 1990. The fact that the grievor was in a trades position in 1990 (as an apprentice, hoping to become a fully qualified plumber) and was told that if she stuck to it, she would move to the top of that trade category, does not mean that the college was obliged to maintain that category forever, or is now required to resurrect it, in order to create a job for the griever. When the trade category was validly eliminated in 1996, so was any expectation that the griever would eventually have a job in that category. The college points out that the grievor was put in a "trades" stream back in 1990 and given training and a salary increase, as the college said that she would be. There was no misrepresentation about that. Thereafter, though, she never progressed past the apprenticeship level - either within anything like the time frame initially discussed, or until some years after all of the plumbing positions had disappeared (including her own apprentice position). And in the shadow of the elimination of all of the plumbing positions (precipitating the griever's own layoff in 1996), the griever rejected a severance package and, opted instead, to return to another clerical position in the bargaining unit. In the college's submission, that is the end of the matter. The employer concedes that in 1990, it was anticipated that if the griever worked her way through the apprenticeship training process, she could expect, within about five years, to be a fully qualified plumber and to be employed by the college in that capacity. However, in the employer's submission, subsequent events supersede whatever expectation flows from the comments made to the grievor six years before. In particular, the events of 1996 (and the settlement of a complaint filed by the grievor about the elimination of her apprentice position) clearly put the grievor (and the union, which was a party to a 1996 settlement) on notice that a plumbers job was no longer "in the cards" - even as a possibility. In summary, the employer says that whatever the expectations may have been in 1990, it was clear to everyone by 1996, that there were no longer going to be any plumbers jobs at the college. And against that background, it is inappropriate and wrong to force the college to "create one" now. The college further points out that in 1996, when the trades group was being laid off and the grievor was looking for options, no one ever suggested that she (but none of her more senior and more qualified coworkers), might still end up with a plumber's job, at some indefinite time in the future. The grievor's present claim was never identified or discussed. On the contrary, the elimination of the plumbers positions, the options then considered, and the choices ultimately made by the parties in 1996, irrevocably closed that door on any questions surrounding the grievor's status or the possibility of working as a plumber. The door was closed in 1996; and in the college's submission, that door cannot, and should not, be pried open in 2001-2003, via the doctrine of estoppel, based on something that the grievor was told, in very different circumstances, many years before. The college submits that the circumstances of this case do not make out the elements of estoppel. But in any event, the college submits that any "estoppel" (if there was one) was ended long ago; and that it would not be appropriate to use that doctrine to give legal force to a representation, long since superseded, to the knowledge of both the union and the grievor. Nor should the Board force a legal framework on individual dealings that were never intended to have legal import - let along an impact 11 years later, in entirely different circumstances. II In a preliminary decision, released in the November 2002, the Board sketched in the background of the case, reviewed the parties' positions, and considered whether the equitable doctrine of estoppel might conceivably require the employer to create a plumber's position for the grievor. We put it that way ("might conceivably"), because the parties initially approached the issue solely as a matter of the "/urisdiction" -- which is to say, whether the doctrine of estoppel was arguably available to support the grievor's claim, not whether the Board would be persuaded to apply it in the circumstances of this case. lO In other words, in the first phase of the hearing, the parties addressed the "personal estoppel question" (i.e. the availability of estoppel based upon an individual representation) as a "preliminary", "jurisdictional issue" - reserving their right to argue about the application of that doctrine later, if the Board concluded that estoppel was available to the griever in these circumstances. The earlier Board decision sets out the background of the case in little more detail. The decision also sets out the Board's response on the "jurisdictional question". However, we do not think that it is necessary to repeat that analysis here. It suffices to say that (1) the earlier decision should be read together with this one; and (2) that the majority of the Board concluded that the equitable doctrine of estoppel (as most recently formulated by the Ontario Divisional Court) was arguably available to the griever, and therefore might provide a foundation for her claim, even though the "representation" upon which it was based was made to the grievor herself, rather than to the union-party to the collective agreement. We found that this Board "had/urisdiction" to consider the application of an estoppel based upon individual employee dealings, and that the events leading up to the grievance did not deprive us of that "/urisdiction". However, the panel was careful to point out that it was making no determination whatsoever with respect to the appficafion of the doctrine of estoppel, prior to giving the parties an opportunity to introduce whatever additional evidence or arguments they thought might be relevant to that issue. We were careful to emphasize (as did Adams J. in Ministry of Community and Social Services), that there is a distinction to be made between havinq /urisdiction and the exercise of such/urisdiction. Finally, we noted that it was for the board of arbitration to determine what estoppel might mean, or how it should be applied, in the context of the particular case before it. Adams J. put it this way: It must be remembered that our courts lack original jurisdiction with respect to the enforcement of collective agreements and in regard to lawsuits brought by or against trade unions: see The Rights of Labour Act, R.S.O. 1990 c. R33. There is therefore little acquired experience in our courts to assist them in resolving these kinds of cases. For this the same reason, recourse to the courts by unsuccessful grievors is problematic. Indeed, it is doubtful that any other forum is available should boards of arbitration reject these employee claims. On the other hand, labour arbitrators are usually chosen by the parties because of their particular labour relations expertise and more permanent grievance tribunals, such as the Grievance Settlement Board, build up an impressive similar expertise. The Board therefore, is in the best position to work out and assess the important policy implications of permittin.q access to the doctrine of estoppel by individual employees .qoverned by this particular statutory framework. While there may be strong labour relations policy considerations which support the dismissal of the grievance, there was no superintending iurisdictional constraint which "bound" the Board to decide as it did [that the representation necessary to ground an estoppel could only be between the union and the employer]. The Grievor's treatment was obviously unfair. The Board must take responsibility for the determination of her grievance, whatever that outcome may be. [emphasis added] In other words, as Adams J. explains: estoppel is a flexible instrument, that should be applied in a manner that is "fair" to both the legal framework governing collective bargaining, and the particular (including personal) ]2 circumstances of the grievance under review. Moreover, it is for the arbitration board to decide whether, (or the extent to which), a legal doctrine borrowed from the general law, should be applied in a collective bargaining context. III VVhat was Adams J. getting at when he suggested that there are "stron.q labour relations/}oficv considerations" which militate a.qainst using estoppel in the manner urged by the union in the case before him (and in the present case as well)? In our view, Adams J. was referring to the very same factors of law and policy that made arbitrators reluctant to resort to estoppel in the first place; and he was saying that those matters could be taken into account when it came to the exercise of jurisdiction, even if they are not "iurisdictionar' in themselves. Or to put the matter another way: however elastic the doctrine of estoppel may be in the labour relations world, and however different it is from what a court would do in a common law contractual setting, the equitable discretion that lies at the heart of the doctrine, must be exercised in a manner that is sensitive to the overall leqal and labour relations setting - and not just the alleged unfairness articulated by an aggrieved individual. Not to put too fine a point on it: estoppel (as an "import" from the general law) has to be given a labour relations meaning and content; and, as we have indicated in our earlier award: creating enforceable unwritten obligations on this basis, does always not sit comfortably with the general law of collective bargaining, (for example, the statutory requirement that collective bargaining obligations must be in writing), or with the specific language found in most collective agreements (precluding arbitrators from adding to the written bargain), or with the practical considerations enunciated by Arbitrator Weatherill in his text. It injects uncertainty into the relationship when rights rest on something other than what the parties have actually negotiated, and that uncertainty inevitably gives rise to conflict (see again the hundreds of estoppel cases now foot-noted in the leading text on labour arbitration). Moreover, the notion of an estoppel based upon individual dealings between manager and employee, sits even less easily in a collective bargaining world, where the statute typically precludes individual dealings. For, with the greatest of respect for Adams J., the conclusion of Reid J. in Municipafity of Metropofitan Toronto (which was thought to confine estoppel in a collective bargaining context to representations between the bargaining parties) is far more congruent with the legal scheme of collective bar. qainin.q between union and employer than some notion of "individual bargaining", in which direct dealings between employer and employee are transmuted into legally enforceable obligations, extrinsic to the collective agreement, and applicable in respect of that employee alone. From a contractual point of view, promissory estoppel is normally thought of as something that only operates as between the parties to the contract (which employees are not); so from this perspective, Reid J's opinion is consistent with the law of contract, as we understand it. But, quite apart from that, individual dealings, unsupported by the agreement, yielding legally binding conditions, pertaining to an individual employee and not others, seems inconsistent with the collective bargaining scheme, in which it is the union, and the union alone, that is ostensibly empowered to a Iter an employee's legal rights. Different rights, or individually bargained conditions of employment, do not sit easily in this scheme -- as the Ontario Court of Appeal has recently ruled in Re Board of Governors of Loyafist College of Appfied Arts and Technology and OPS£U Docket C37988, decision issued March6, 2003). And, in our view, nothing in the Bibeault case (which Adams J. referred to, but which had to do with the successor rights provisions of Quebec legislation, not estoppel or collective agreement interpretation) qualifies Reid J.' s decision in this regard. Indeed, in a whole series of cases referred to in Loyafist College, (and perhaps including Noel v. Societe d'energie de la Baie James [2001] 2 S.C.R. 2001 ) the Supreme Court of Canada has emphasised the primacy and exclusivity of the legal relationship between the union and the employer, to the exclusion of an assertions of rights by individual employees. In fact, the union in the instant case, does not really quarrel with that proposition. That is why the union hypothesizes a kind of "inchoate right" generated in 1990 as a result of discussions between the employer and the griever, which, was not crystallized and capable of enforcement until the union itself accepted and ratified it, 10 or more years later. Because, as the union sees it, absent such union endorsement, the griever has no "legal rights" at all, however clear the promise may have been, and however unfair the situation may seem to her. In this respect the union's endorsement of the "private dealings" becomes a critical factor in their enforceability - and bridges the apparent anomaly of individual bargaining altering an employee's legal position. It is an interesting argument. But it also highlights the tension between collective bargaining through designated provincial bargaining agents, and the kind of individual interaction which is here said to create enforceable rights, outside the collective agreement. As a general matter, though (and to the extent that "policy considerations" can be gleaned from the governing legislation and the words of the collective agreement), one finds little "policy support" for the notion of "personalized estoppels" that give individual employees rights that are different from those in the collective agreement - and potentially different from other, similarly situated, employees in the bargaining unit, to whom representations have not been made. Indeed, the notion of "individual estoppels" hearkens back to the notion that a collective agreement is just a bundle of individual contracts of employment - something that the courts have clearly rejected. Nor does Adams J. point to any support for that proposition, other than the Bibeault decision, which, as we have noted above, deals with something else. In this respect, therefore, Adams J. seems to have broken new ground. Finally, the novelty of the union's claim is only heightened by the fact that under the Cofleges Collective Bargaining Act, collective bargaining does not take place between the union and individual employers at all, but rather on a provincial basis, between the union and the Council of Regents, (which is the statutory employer party to the collective agreement). Yet on the union's theory, additional legal obligations can be created by local dealings between a local manager and an individual employee- producing a set of individualized rights and outcomes entirely unknown to the union at the time, but available for adoption/ratification, and enforcement, ten years later, under an entirely different collective agreement. VVhen viewed in that light, we think it is fair to say that the union's claim is an unusual one- even though there is some recent authority that supports it. l? This is not to say that estoppel can never be used to transform a "representation" to an individual employee into an "enforceable legal obligation", or that individual rights can never be created outside the parameters of the collective agreement. The recent law supports the opposite view. And there is also something to be said for the proposition that parties should be held to their promises - even if they do not fit, strictly, into the written legal framework that binds them. However, we think that a board of arbitration should be very careful about using estoppel in this way, lest it undermine both the certainty of the written document, and the union's status as exclusive bargaining agent. At the very least, the claimant should be able to make out the traditional elements of estoppel (representation, detrimental reliance, etc.), and should also be able to show that the exercise of such equitable discretion "makes labour relations sense" in the circumstances, and is necessary to rectify a manifest unfairness. IV In the instant case, the grievor was told in 1990 that if she successfully completed a period of apprenticeship, passed the required provincial examination, and received her Ontario Certificate of Qualification, she would have a permanent job as a plumber. The grievor was also told in 1990, that the apprenticeship would normally take about five years. However, there was no discussion about what might happen if the griever took longer than five years (much longer as it turned out) to obtain her C of Q. Nor did anyone anticipate that a business reorganization might eliminate the plumbers positions, so that by the time of the griever actually completed her apprenticeship (11 years later) there might not be a plumber's job available for her. And we think it is fair to say that, in 1990, no one thought much about whether this interchange between a local manager and an individual employee, might affect Ms. Bartley's "legal rights" and the college's "legal obfigations" -- either at the time, or eleven years later, in different circumstances. It was an entirely practical interchange - with the grieve r asking whether if she embarked upon the apprenticeship road there would be a plumber's job for her at the end of it, and her manager replying (as was then thought to be the case) "yes". There is nothing to indicate that the participants in this interchange were thinking about "legal rights" at all. So what should one make of this "representation" and alleged "promise"? Is it the unqualified, open-ended, "guarantee", that the griever claims it is?. In our view the answer in "no". In our view, it is important to construe this alleged "promise" reasonably, and objectively, and in context, and as a reasonable employee should have seen it at the time. And in our opinion, when looked at that way, no reasonable employee would construe the letter received from the college in 1990 as an undertaking not only to wait more than twice as long as the mentioned norm for completing an apprenticeship, but also as an iron clad, unconditional "promise", to put her in a position that no longer existed - and which had not existed for years, because it had been properly eliminated under the terms of the collective agreement. No reasonable employee could construe the letter that Ms Bartley received as a waiver of the colleges' "management right" (specifically preserved by the collective agreement) to restructure the organization in a way that might adversely affect her career plans - in this case by eliminating a redundant category. Nor would any reasonable employee regard it as a promise that a plumber's job would be reserved for the grievor, regardless of how many years it took her to pass her plumber's exams, and regardless of whatever else was happening with plumbers at the college. Put differently: no reasonable employee, contemplating an apprenticeship, could reasonably expect that she would end up with a permanent plumber's job, 11 years later, even though there were no such jobs at the college at that time, and all of her more qualified and more senior coworkers had been permanently laid off. Or that when she herself was laid off along with the other plumbers, a position was nevertheless notionally being "reserved for her", in the event that she might complete the apprenticeship and pass the exams some years later. Indeed, one of the curious consequences of the grievor's position (if 2O accepted) is that the grievor ends up with the opportunity to work as a plumber (or at least have a plumber's job created for her), while her more senior and qualified coworkers do not - because she took many years to become as qualified as they were, because their seniority/recall rights are limited by the terms of the collective agreement (while the grievor's rights are said to be extrinsic to the agreement), and because, the grievor says, there was a personal undertaking made to her, to which no one else, not even the union, was a party. In effect, the grievor is saying that the college can lay off both her and her more senior colleagues and can eliminate the plumber's positions altogether, but the college must still notionally save one job (or create a job) for her, in the event that she ever becomes qualified to do the work of a plumber (recall that the union's position is that the "promise" had no time limits). In our opinion, that proposition is simply not a reasonable construction of what happened in 1990. In our view, the representation made to the grievor in 1990, was not an absolute guarantee that therewould be a plumber's job for her under any circumstances, and however long it might take her to qualify for such position. It was like any other proposed promotion path: subject to "reasonableness", the evolution of the organization, and to the lawful exercise of management rights in response to the exigencies of the market place- including the right (preserved 2] by Article 3.1 of the agreement, and unchallenged by the union in 1996) to "....determine complement, organization, methods, and at the number, location and classification of personnel required from time to time...". In the instant case, the exercise of that management right, involved the lawful elimination of certain trades positions, including the grievor's own; and it involved the elimination of the possibility of such promotion to such positions as well. In our view, the grievor was no more "guaranteed" a plumber's position because she had opted for training to become one, than were her more senior coworkers, who already were fully qualified plumbers. In neither case was there a job guarantee. The representation relied upon by the grievor simply does not go that far. Looked at from another perspective: implicit in the discussion in 1990 was as shared, but unexamined, assumption that there would be a skilled trades job five years hence (the only time frame identified by the employer). No one contemplated what the situation would be like in 2001, and no one contemplated that there might be a time when no plumbers were needed at all. But had they done so, we have no doubt that the college would have said - as it does now - that it was not undertaking to create a job for the grievor however long she might take to get her C of Q, and even if there were no plumbers employed in the bargaining unit at that time. It also seems to us that what has happened here (a passage of time of more than double that identified in 1990, together with the total elimination of all of the plumbers jobs) is so far beyond the range of options and eventualities actually dealt with in the discussion with the grievor in 1990, that it would be unreasonable to try to give legal effect to those discussions in these strikingly different circumstances. A fundamental piece of the framework of shared assumptions has dropped out. In this regard, It is also interesting to recall what happened in the shadow of the layoff notice that the grievor (along with the fully qualified plumbers) received in March 1996, when the college decided that all plumbing- related positions would be eliminated. At that point, it was perfectly plain to everyone - including the grievor - that there was going to be a permanent elimination of all of the plumbing jobs, including her own apprentice position. That is why she filed a grievance in 1996 demanding another clerical position. This grievance, and a number of others, were eventually resolved in accordance with a settlement that provided, among other things: 5. The Employer agrees to continue to employ and pay the grievor at her rate of pay as of the date of this settlement until the completion of her apprenticeship program or until August 15th, 1997, whichever comes first. 6. On or before Aug. 15, 1997, the grievor, in her sole discretion shall have the option of either: (i) terminating her employment with the Employer and accepting a severance package of six months regular wages plus any accrued vacation owing to her; or (ii) remaining employed with the Employer with a reassignment to the position of Clerk General C in the finance department. The parties acknowledge that this is a pay band 6 position; however it is agreed that the Grievor will be paid and red-circled at her rate of pay as of the date of this settlement. This position is a 35 hour per week position. This settlement was negotiated in the shadow of the complete and permanent elimination off all of plumbing positions; and the grievor concedes that if she had been fully qualified at the time, (i.e. if she had already passed her exams and had her C of Q) she would have either left to the college's employ (as her plumber co-workers apparently did), or bumped back into some kind of clerical job, like the one she now holds. Her plumbing C of Q would have been irrelevant for the positions available to her, and she would have had to seek out some other work that she could successfully perform. She could not have continued as a plumber, just as she could not have continued as a plumber's apprentice. But, of course, in 1996 and 1997 the grievor was not qualified to be a plumber, (i.e. either at the time, or by the end of the extension of the apprenticeship period envisaged by the settlement), so the settlement contemplates only two options: termination with severance pay, or continued employment in a clerical position (which is what the grievor opted to do). There is no option to remain or become a journeyman plumber. 24 In our view, any reasonable expectation that the grievor might have had about working for the college as a plumber, was effectively extinguished by the events of 1996 and the subsequent settlement of her grievances - which clearly put the grievor on notice that her future with the college would require a change of career path (even if she had completed her apprenticeship by August 1997 - which she didn't). These events simply reinforce the inference that whatever affect the 1990 representation may have had prior to 1996, it was effectively spent and abrogated by August 15, 1997; and further that the grievor was clearly put on notice of thatconsequence. And quite frankly, we have some difficulty accepting that the grievor should be in a better position in 2001, than she would have been in, if she had actually completed her apprenticeship in the five years that the employer mentioned in 1990. Now, it is true that the grievor never raised her current claim in 1996, with the result that such claim was neither discussed nor expressly rejected. In resolving the grievor's complaint in 1996, there is no evidence that the union and the employer turned their minds to what might have be said to her six years before, nor is there any indication that the grievor alerted anyone to the inchoate claim that she now makes. The settlement is silent in that regard. But in our view, the permanent elimination of all plumbers jobs, combined with the two (and only two) options agreed to in the settlement of the grievances, amount to the clear repudiation of whatever flows from the 1990 "promise", and at the very least, cast an onus upon the grievor to identify and crystallize her claim for future consideration. But she did not. In summary then, the entire thrust of the 1996 settlement is that the college is no longer taking on plumbers, that the grievor's apprenticeship is ending, and that she will be continuing, if at all, in a clerical position. There is no option of continuing to perform the duties of a plumber or becoming a plumber at some point in the future. Plumber positions were gone- permanently - for the grievor and for everyone else. And in our view, this reinforces the college's position that we should not resurrect some third option not identified and not agreed to: creating a plumber's position for the grievor some years later. In our opinion, it would be inappropriate to revisit and expand those options now. Nor, in our view, has the grievor suffered any "detrimental reliance" of the kind which is necessary to ground an estoppel or warrant its application. On the contrary, when she opted to engage in a program of training to enhance her qualifications, she received a salary increase to pay band 7, which he has maintained for years, even after she was no longer an apprentice o/umber. The grievor's choice to accept the apprenticeship training not only meant an immediate increase in salary, but it has also resulted in her later being paid, for years, at a higher rate than her co-workers doing the same clerical work. She derived a continuing benefit from her choice, long after the possibility of a plumber's job was eliminated. And, in addition, the college has subsidized and supported the acquisition of a valuable credential, that she can use anywhere in the province (see the most recent settlement, concluded on April 3, 2001). VVhen the situation is considered in its totality, far from being detrimentally affected, the grievor is actually better off. As counsel for the college put it, "although the grievor did not end up in a plumber's job, she is still ahead of the game": having started as a clerk at pay band 5, she was raised to pay band 7, then, when her apprenticeship became untenable, she was paid more than other employees doing similar work, and more that the amount stipulated in the collective agreement for that kind of work. And, with the employer's help, she now has a provincial certificate of qualification that enables her to work as a plumber for any employer that requires such skills. The grievor is unquestionably better off for her experience, than if she had remained a clerk 5 (which is what she was in 1990). Viewed cumulatively, the grievor has obtained some concrete and lasting advantages flowing from her decision to opt in to the apprenticeship 27 program, even if it did not ultimately lead to a full time job as a plumber; and that is especially so, when it is recalled that if she had in fact finished her apprenticeship in five years, as discussed with the employer, (i.e. if she had become a qualified plumber by 1996), she still would have been laid off in 1996 (along with the others) and would have had the same options under the collective agreement that they had - which would not have included a full time plumber's job (as the 1996 settlement did not). To be clear: we do not "fault" the grievor for taking as long as she did to get her C or Q. There were all kinds of reasons why it took that long (although, as counsel for the college points out: the grievor waited 4 years between her first attempt to pass the exam in 1997 and her next attempt in 2001 ). But by the same token, we do not think that the passage of time is irrelevant, given the way in which organizations change - especially public sector organizations, since 1995. Finally, of course, if the college ever does need a plumber, the griever has an advantage over most (if not all) other bargaining unit employees, and all outsiders. That is an benefit too- assuming that the griever wants to work as a plumber for the college, rather than working as a plumber elsewhere, as she is now qualified to do. 28 The griever says that having once commenced the apprenticeship program, (and anticipating a permanent jeb as a plumber), she "lost the opportunity" to bid into ether jebs for which she might have been suited. However, the griever's submission in this regard is totally speculative. S he was unable to identify any position that she "missed" or did not apply for, because she was involved in apprenticeship training up to 1996- let alone a position that she would likely have obtained in competition with other applicants (the agreement contains a typical job posting/job competition procedure), or one that was better than the trade position that she then occupied. Moreover, as we have already mentioned: it is not without significance that when the apprenticeship did come to an end in 1996/97, the griever ended up back in a clerical position, roughly analogous to the one that she left in 1990 (albeit at a higher salary because she continued to be paid at the level she had received as a plumbing apprentice). In our view, there is no reliable evidence of any "foregone job opportunities", and, on balance, we are not persuaded that there was any real "detrimental reliance" on the employer representation referred to above. On the contrary, there was and continues to be an ongoing benefit- which while not the job that the griever might have been hoping for in 1990, is nevertheless something that undercuts an essential element of estoppel. V For the foregoing reasons, it is our view that the elements of estoppel have not been made out, and that at least by 1996, 5 years before the present grievance, any estoppel was brought to an end by external events, and by notice to the grievor that there were no plumbing jobs for her at the.college - then or in the future. In any event, in our view, there is nothing inequitable or unfair about the situation which the grievor currently finds herself, such as would prompt us to require the college to create a (redundant) plumber's position for her. Indeed, the artificiality and inappropriateness of that proposal is underlined by the fact of that, in all likelihood, she would immediately be laid off from it, and would likely end up in a clerical position again. Be that as it may, we are not persuaded that that the employer is obliged to create a plumber's job for the grievor, that the doctdne of estoppel applies to produce that result, or that, on these facts, we should exercise our discretion in that direction, even if the elements of estoppel were technically present. The grievance is therefore dismissed. Dated at Toronto this 2nd day of October 2003. R.O. MacDowell 30 ADDENDUM OF BOARD MEMBER SHERRIL MURRAY: While I do not necessarily agree with all of the comments that the Chair has made in the course of his decision, I do agree that the elements of estoppel have not been made out, and that this is not an appropriate case in which any equitable remedy would be appropriate. I therefore agree that the grievance should be dismissed. ADDENDUM OF BOARD MEMBER JACQUELINE CAMPBELL: I did not agree with the panel's preliminary decision that it had jurisdiction to consider the grievor's claim, based upon the doctrine of estoppel. It seemed to me that, in the circumstances of this case, any arguable basis for estoppel was eliminated, and that the Board therefore had no jurisdiction to consider the matter. However, like my colleagues, and for the reasons expressed by the Chair, I agree that the elements of estoppel have not been made out, and that in any event, the grievance should be dismissed. In my view, there is no legal foundation for the grievor's claim and no basis for giving any of the remedies that she seeks.