Loading...
HomeMy WebLinkAbout1989-0385.Burrell.90-05-31~ ,~. ONTARIO EMPLOYES DE ~ COURONNE "':~':"""""""'~- CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE · c,OMMISSION DE SEITLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 1Z8 - SUITE 2100 TELEPHONE/T££~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2100 (416) 598.0688 385/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Burrell) Grievor - and - The crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BEFORE: N.V. Dissanayake Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE R. Anand GRIEVOR: Counsel Scott & Aylen Barristers & Solicitors FOR THE G, Lee EMPLOYER: Senior Staff Relations Officer Ministry of Correctional Services HEARING: February 27, 1990 DECISION The grievor, Mr. James Burrell, grieves the abolition of his position as a Corrections Officer 3 (CO 3) and re- classification as a Corrections Officer 2 (CO 2). This change was effected by letter dated. February 24, 1989, from the Regional Director which reads: As you are aware, the Ministry has been reviewing the management of its institutions for quite some time. This review has determined that some changes in this structure are necessary both to resolve the salary compression issue and to better deploy our existing resources. As part of this review, it has been determined that the position which you currently occupy will be abolished. You will therefore be assigned under Article 24.2.1 of the Collective Agreement to the position of General Duty Officer. This position is classified as Correctional Officer 2 which~ has a lower maximum salary than the classification of Correctional Officer 3. Therefore, in accordance with Article 5.4.1 of the collection Agreement, you will be afforded 'red- circled salary protection until the maximum salary rate of the Correctional officer 2 exceeds the 1989 maximum salary rate of Correctional Officer 3. You will also be afforded the opportunity to compete on available A & D Co-ordinator (Correctional OM- 14) positions. These will be posted shortly. If you have any specific questions regarding this review, or your own situation, please contact your Superintendent or Regional Personnel Administrator. By way of his opening address, Counsel for the Union presented a three pronged challenge of the Employer's action: (1) That the Employer was bound by the terms of settlement of a prior grievance of the grievor in which it 3 undertook not to abolish his CO 3 position other than through attrition and further that the Employer is estopped from abolishing the position other than through attrition. (2) That the grievor's demotion from CO 3 to CO 2 was improper since his duties continued to be those of a CO 3. (3) That as of February 24, 1989 the grievor has been improperly classified as a CO 2, in that his duties continued to be those of a CO 3. The parties agreed that the Board should initially deal only with the Union's argument set out in item (1) above and that it should remain seized with the issues raised in items (2) and (3). The hearing accordingly proceeded on that basis. The only witness called to testify was the grievor. He joined the Ministry's Thunder Bay Jail on May 17, 1979, and pursuant to a competition, was appointed as a CO 3 (Corporal) on November 25, 1983. Sometime'in 1985 the grievor and the other four corporals were regularly scheduled to act as shift supervisor, which is a function usually performed by a sargeant, classified as OM-14. After performing these acting duties for a short period, the grievor and two other CO 3s decided that they no longer .would act for the shift supervisor. The evidence is that as a CO 3, they had no 4 obligation to perform the acting duties in question. The grievor accordingly informed the management of his decision. Management's ultimate response was to abolish ~the CO 3 positions at the Thunder Bay Jail. The grievor filed a grievance. Following discussions between management, the trade union and the grievor, the Employer wrote the following letter dated September 30, 1985 to the grievor, with copy to the trade union: You will recall that at our meeting SeDtember 5, 1985, we agreed I would review the Sections of the Public Service Act and the Collective Agreement relative to my letter to you of July 2, 1985, which you had subsequently grieved. I have reviewed same and I have been advised'by our authorities the Sections applied were correct and applicable to the circumstances under discussion. Therefore, that letter of July 2, 1985 was correct and will not be changed. If I were to change it, the change, would be to clarify that the CO 3 position was being abolished and consequently you were being released from employment with the ministry (Section 22 (4) P.S.A.) and subsequently being offered an available alternate position. Therefore, clearly from my viewpoint this action was not "an involuntary demotion tantamount to an unjust disciplinary action". As I understand it, the CO 3 position had been abolished since its practicability had been seriously reduced by the introduction of different shift scheduling at the Correctional Centre. .Following this new shift scheduling, it became impractical for the CO 3 position to perform a significant part of the duties, i.e. act as Shift Supervisor. 5 However, I am advised that this matter can be resolved by the CO 3s being on the same shift hours as the Shift Supervisors and by the CO 3s being willing and prepared to accommodate the Acting Shift Supervisor requirements. In fact, I have discovered the CO 3s are now scheduled appropriately. Further information supplied to me indicates considerable flexibility with respect to CO 3 positions within the Ministry, indicating they are positions in the institutional organization which can be valuable depending on their deployment. Therefore, I am prepared to' issue the necessary instruction to re-instate the CO 3 positions and your tenure in that position. This re-instatement being dependent upon: 1. CO 3's shift hours scheduling as required by Superintendent 2. CO 3's responsive to the duties of the positioni specifically the Acting Shift Supervisor requirement. 3. Withdrawal of the grievance. Please advise me by October 11, 1985, if this is acceptable to you. If you wish to remain in your present position as a CO 2, please advise me. For your information, the present CO 3 positions may be abolished in the future through attrition. Thank you for your co-operation if this matter. After reviewing the letter with the Union local president and the Union representative, the grievor understood that if he accepted the terms offered by the Employer, his CO 3 position would be .reinstated and that he would receive "tenure" in that his position could only be abolished through attrition. With this understanding, the grievor drafted the' following letter dated October 10, 1985 with the union's 6 assistance, and sent it to the Employer. I have received your letter dated September 30, 1985, and reviewed it with Mr. Williams, O.P.S.E.U. Representative. I accept the re-instatement to the CO 3 position and my tenure in that position, under the conditions stated in the letter. This acceptance is on the condition of no prejudice or action towards me in the future. Pursuant to this settlement, the grievor was reinstated -as a CO 3. For his part, the grievor fulfilled the three conditions required of him, including the withdrawal of the~ grievance. Following the resolution of the grievance, the grievor continued to function as a corporal. As required of him by the terms of the settlement, he also performed duties. as acting shift supervisor, including a continuous period of almost two year~. The Employer's decision to abolish the grievor's CO 3 position in February 1989, was part of a decision by the Ministry to abolish CO 3 positions on a province-wide basis. The Union submits that the Employer is precluded from applying that decision to the grievor because it is bound by a specific undertaking as part of the settlement of the 1985~grievance. Counsel submits that the Employer cannot unilaterally renege~ from this undertaking. Reliance is placed on Re Molson's Brewery (Ontario) ltd., (1984) 15 L.A.C. (3d) 128 (Beck). 7 Alternatively, counsel submits that the doctrine of promissory estoppel applies in the circumstances. It is contended that the Employer made a representation that the grievor will retain his CO 3 position subject only to abolition through attrition and that the grievor relied .on that representation to his detriment by (a) withdrawing hi~ 1985 grievance and (b) performing the acting shift supervisor duties, which he had no legal obligation to perform and which he had refused to do prior to the settlement. It is the Union's position that the only way the Employer can release itself from the undertaking is by bargaining with the Union. Mr. Lee, on behalf of the Employer, submits that the Employer made no.undertaking not to abolish the grievor's CO 3 position other than through attrition. The reference to abolition by attrition, he submits, is not a term of the settlement, but "only a piece of information". Since there was no representation he contends that the requirements for estoppel are not present. According to him estoppel in any event can only apply with regard to rights within a collective agreement and not to create rights. He further submits that there was no detrimental reliance, and if there was, the detriment was to the grievor as an individual and not to the trade union as a party to the collective agreement. [Re Roberts et al, G.S.B. 2545/87 (Verity)]. It is critical to the Union's case that it satisfy the Board that the Employer in its letter of September 30, 198~, undertook as a term of the settlement of the 1985 grievance that the grievor's CO 3 position will not be abolished except. through attrition. In order to succeed, it must establish that the Employer guaranteed to the grievor his CO 3 position, subject only to abolition through attrition. In practice, this undertaking would have to amount in essence to a complete guarantee to the grievor for his working life because the grievor cannot lose his own job. by attrition. Attrition can only take effect when the grievor himself vacates his position. Did the Employer give suchan undertaking to the grievor in its letter of September 30, 19857 After very careful scrutiny and thought, we have concluded that it did not. If such an undertaking was given it puts the grievor in a unique position as an employee in the public ~ervice. He is~ guaranteed his CO 3 position for the rest of his working life and is immune from any decision his own supervisors, the Ministry or the Management Board of Cabinet may make that goes against such a guarantee. The consequences of 'such a guarantee are phenomenal. Of the many thousands of public servants, the grievor would be the only one with a guaranteed job for life. In our ¥iew, if the Employer intended to bestow upon the grievor such a preferred position, it would have used clearer language. The reference to abolition by attrition in the letter appears as an afterthought just before signing off the letter. It is inconceivable that the Employer intended by that sentence to undertake the far reaching,legal consequences as claimed by the union. The Employer settled the grievor's grievance against the abolition of his position, by undertaking to reinstate his CO 3 position and his "tenure in that position". The term "tenure" as commonly understood, has a connotation of some permanency. However, this offer of 'permanency in our view, .cannot be taken to be an absolute guarantee. At its highest, the Employer may be said to have undertaken that it will not make a local decision to abolish the CO 3 position as it had attempted to do earlier. The EmplOyer cannot be said Go have agreed that the grievor would be exempt from future decisions made by the Ministry as part of a province-wide re- organization. To infer an intention to grant the grievor such a unique and preferable employment status, much clearer language is required than that contained in the letter relied on by the Union. 10 For these reasons, we find that the terms of settlement of the 1985 grievance did not preclude the abolition of the CO 3 position pursuant to a province-wide decision. Since there was no undertaking to exempt the grievor from such a decision the Union's argument based on estoppel must also fail. In summary, this grievance fails as far as it is based on the grounds dealt with in this decision. We remain seized in the event the parties wish to pursue the grievance based on the other grounds noted above. Dated this 3~t day of May 1990 at Hamilton, Ontario N.V. Dissanayake Vice-Chairperson. "I dissent" (Dissent attached) E. Seymour Member M. O'Toole Member GSB FILE 385-89 OPSEU (BURRELL) AND THE CROWN' IN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES) Employee Nominee:. Edward E. Seymour DISSENT I have read the majority award and with respect, i must dissent. The grievor as out!ine~ in the majority decision was reinstated to his C03 position, as the result of a settlement to an earlier grievance. The settlement was outlined in a letter to the grievor dated September, 1985, (ex. 4') the relevant parts of which read: Therefore, I am prepared to issue the necessary instruction to re-instate the C03 position and your tenure in that position. This re-instatement being dependent on: (1) C03 's shift hours' scheduling by Superin tenden t; (2) C03's responsive to the duties of the positions specifically the acting shift supervisor requirement; (3) ~ithdrawal of the grievance. Please advise me by October 1I, 1985 if ~his iS acceptable to you. If you wish to remain in your present position as C02, please advise For your information, the present C03 position may be abolished in the future through attrition. The grievor responded_..~n a letter dated October I0, 1985 'ex~ . 5) in which he s~ated in par%: I accept the reinstatement to the C03 position and my tenure in that position, under the condition stated in the letter. In its decision, the majority claims %hat for the union to succeed: "it'must establish that the employer guaranteed to'the grievor his C03 position, subject only tc abolition throuqh attrition." The majority then' goes on to place, what is in my view, an unreasonable interpretation of management's commitment, by asserting that the undertaking to guarantee the grievor his C03 position amounted to; "a guarantee to the grievcr for his working life because the grievor cannot lose his own job by attrition." Attrition, according to the majority, "k.an only take effect when the griever himself vacates his position." The majority then asks itself the question; "Did the Employer give such an undertaking to the griever in its letter of September 30, 19857 In answering its own question, the majority decided the Employer did not. I disagree. In my opinion, the Employer,in its letter to the griever, promised him tenure in his position as alluded to by the griever in his letter accepting the conditions. Tenure does not necessarily mean a job for life, as the majority implies. The griever was not the only CO3 at the time the origins!. grievance was ~ted. in total, there were f~ve~ and all except the griever moved from their C03 positions and were replaced by COl's. It is not entirely inconceivable that the griever could be promoted or transferred in the future. This is in fact a likely prospect since the griever has applied for job vacancies since the settlement of his earlier grievance. ! also disagree with the majority in its assertion that the sentence, "For your information the present ,CO~ positions may be abolished in the future through attrition", was merely an afterthought. I agree with Union Counsel's contention that on settling the grievance the griever correctly assumed the only, manner in which the CO3 position could be taken away from him was through attrition. The only evidence in this hearing was from the griever and it can only be assumed that the evidence from management on this point would be unhelpful to its' position. Otherwise, it would have entered evidence to promote its position. This is not an unreasonable assumption for in RE: GSB File 200/78 OPSEU (Bruce N. Macintosh) and Crown in Right of Ontario Ministry of Correctional Services R.L. Kennedy et al, the decision reveals that: "...It was further .agreed ~y ~h? R~gional Personnel Administrator in the course of his cross-examination, that ~n phasing out the classifications it was normal to have it happen Based on this then, it is reasonabie to suggest that rather th~n being an afterthought, the reference to "phasing out by attrition" was merely addressing that which was "normal" Being "normal" it required no special emphasis and~ simply served as a reminder that once the griever vacated the position, for ~hatever reason: management was not required to fill the vacancy with a CO3. Finally, if tke terms "tenure" and 'attrition", as outlined in tke settlement letter were initially intended to have been granted such little weight as expressed by the majority, why would the 9rievor settle? It is unlikely that he would have. For these reasons I would kave found that the terms of settlement i a~o~ition o_ for the earlier 9rievance precluded the ~ ~ g the C03 position without first coming to some acccmmodation with the grievor and others who might have found themselves in ~imilar circumstances. Ail of which is respectfully submitted. ES:cmac opeiu 343