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HomeMy WebLinkAbout1992-2279.Northover.93-11-19 l- e. ~-'- ". ONTARIO , EMPLOYES DE LA COURONNE ii' CROWN EMPLOYEES DE L'ONTARIO ;~~ .. GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGlEMENT . ..~ . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 2279/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Northover) Grievor - and - The Crown in Right of Ontario 1 (Ministry of Community & Social Services) Employer BEFORE: N Dissanayake Vice-Chairperson M. Khalid Member M. O'Toole Member FOR THE D Wright UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors [ FOR THE S. Mason EMPLOYER Counsel Legal Services Branch Ministry of community & Social Services HEARING May 3, 1993 ( -, t"' ,- ,-- 1~;/.; . 2 DECISION The grievor, Ms Judy Northover applied successfully for a job posting in Februart 1992 for a position of Maintenance System Support Clerk at the Ministry of community and social Services District Office in Sault Ste Marie, Ontario. That \ position was classified at the OAG 6 level The job posting, , however, stipulated the salary range to be $ 15 82 to $"' 17 36 per hour, which was the salary range applicable to the OAG 7 classification In a grievance dated September 17, 1992, the grievor claims that the employer is estopped from relying on the wage schedule in the collective agreement to pay her at the OAG 6 level The facts material to this grievance are not in dispute and were presentee! in the form of an agreed statement of facts. This was supplemented by viva voce evidence from the grievor which was not challenged in any significant way. Prior to April 13, 1992, the grievor was employed by the Ministry of Correctional Services as a secretary in its Probation and Parole Office in Sault Ste. Marie, ontario Her position was classified at the OAG 6 level. On February 4, 1992, the respondent employer, the Ministry of community & ( Social Services, posted a vacancy for 3 positions titled - .- I~"- \c_ ( " ,. 3 "Maintenance System support Clerk" at its District Office in Sault ste Marie, ontario The posting in question correctly described the vacant positions as OAG 6 positions, but set out the wage rate to be "$ 15.82 to $ 17 36 per hour", which in fact was the rate applicable to OAG 7 positions. The grievor, upon reading the positing understood the position to be "a OAG 6 position paid as a OAG 7". The grievor called the District Office where the job vacancy existed and made inquiries She was advised by an unidentified person that the position was posted as a OAG 7 position The grievor applied for a position pursuant to the posting, believing that she was applying for a OAG 7 position Following her application, the grievor was called for an interview. While waitiI)g to go in for her interview, the employer provided the grievor with a copy of a position specification for the position she had applied for She reviewed it It described the class allocation for the position as "Office Administration 7". The grievor testified l that the position specification confirmed her belief that the I position she had applied for was classified at the OAG 7 level. ---- --.-.- ~ ( r {, '. ! 4 Following the competition process, the grievor was awarded one of the vacancies and assumed the position effective April 13, 1992 The grievor testified that shortly after she started in her new position, she inquired from her immediate supervisor Mr. P Baldassarro why she was being paid at the OAG 6 level She was advised that her position was a OAG 7, but that the Payroll Dept. had not yet adjusted the pay rate. On May 5, 1992, a performance appraisal was completed for the grievor by her supervisor. In that, her position was again described as a OAG 7 Some 3 or4weeks following her assumption of the new position, the grievor requested from the employer a copy of her position specification She was provided a copy of the same position sp~cification which had been provided to her prior to her job interview, which described the position as a OAG 7 \ The grievor however, continued to receive wages at the OAG 6 level She sought an explanation from Mr Baldassarro during the summer On September 10, 1992 she met with the Administrative Officer, Ms Kathie Bradfield She undertook \ to look into the situation On September 16, 1992 a meeting was called between the Programme Manager, Ms Luella Degazio and the successful candidates in the job competition, including the grievor At this meeting, the employees were ~.. - - -- .- - (, \ 5 informed that there had been an error on the position specification and that their positions were in fact classified at the OAG 6 level, and that they wouldbe paid at that rate The grievor testified that on October 10, 1991 she had grieved that her old posit'ion with the Ministry of Correctional services was improperly classified at the OAG 6 lev~l She believed that ~s a result of her grievance her position would be reclassified upward It was her position that in the circumstances she would not have pursued the job posting at the Ministry of Community & social Services, had ) she been aware that those positions were classified at the OAG 6 level It is common ground that effective August 25,1992 the employer reclassified the grievor's old position at the Ministry of Correctional Services from OAG 6 to OAG 8, and the grievor's grievance was settled. Following the disclosure by the employer on September 16, 1992, that the grievor's new position was an OAG 6, the instant grievance was filed the next day Subsequently, the grievor applied to get_back to her previous position at the Ministry of Correctional Services which by then had been reclassified at the OAG 8 level. However, she was not successful The parties are in agreement that on the basis of the collective agreement, the grievor's position carried the wage / rates applicable to a OAG 6 position Thus the uniqn does not - J (, (." .. 6 claim that the employer was contravening the collective agreement by paying her at that rate However, )the union claims that the employer is estopped from relying on the wage schedule in the collective agreement It is argued that in the jOb posting a representation was made by the employer that / the position carried a wage rate of a OAG 7 position This representation was repeated when just prior to her job interview, the grievor was given a position specification which indicated that the position she had applied for was a f OAG 7 Counsel points out that relying on the representations, the grievor changed her employment relationship by accepting the position Thus she was induced to alter her legal rights She knew that her old position would likely be reclassified upward as a result of her I grievance However, she gave up that position to accept what I was represented to her as a OAG 7 position Her uncontradicted evidence is that but for the employer's representation that the position was a OAG 7, she would not have left her old position which predictably was reclassified upward shortly thereafter CounseL submits that there was a clear representation from the employer to the grievor and that there wa~ detrimental reliance on the part. of the grievor. '- The employer does not dispute that estoppel can apply to the circumstances of this case, provided that all of the consti tuent elements of an estoppel are present However, the - ---- (-- /--..- " \. ~, 0- 7 empioyer takes the position that the fact situation fails__ to satisfy one critical element of estoppel That is the requirement that the representation must be made to a party to the contract and that such party must have relied on the representation to its detriment It is argued that the parties to the collective agreement are the employer and the trade union The representation was not made to the union, nor did the union rely on the employer's representation to its detriment What the evidence indicates is that the employer made a representation to an individual employee and that she relied on the representation to her personal detriment It is submitted that no estoppel can arise in the circumstances Reliance is placed on Re Metropolitan TorontoCi vie Emplovees' Union Local 43 CUPE and Municipality of Metro-Politan Toronto, (1985) 50 0 R. (2d) 618 (Div ct ) and Re Coubrough/Sinisalo, 3018/90 (Gorsky) In Re Metropolitan Toronto the estoppel was claimed to arise from representations made by Metro Toronto to the grievors at a time when they were contemplating ieaving the employ of the City of Toronto, to join the Metro Toronto workforce, to the effect that they will be receiving at Metro, retirement benefits which were equal to those they had as employees of the city The grievors relied on the representation, but suffered detriment when it was discovered / that the retirement benefits under the Metro collective ..-' ('-- ,. . ~ ~ 8 agreement were in fact inferior to those at the city. The grievors claimed that Metro was estopped from relying on the strict rights under the Metro collective agreement and that Metro is liable to provide to the grievors retirement benefit equal to those in the City of Toronto collective agreement The court ~eld that estoppel was not applicable because the grievors failed to establish none of its essential elements, ie, that representations made by one party to an agreement were acted on by the other party" At p 628 the court reasoned as follows Here the representations are not shown to have induced the union to act to its detriment. There is no suggestion that, because of representations made to these employees, the negotiators for the union were led to assume that benefits would be paid to those employees on a one for one basis, notwithstanding this agreement, and there is no evidence of a course of conduct on Metro's part that led the union to _believe that So far as I am aware, the doctrine of promissory estoppel has been applied only on the basis of the conduct of one party to a contract to another party. Employees represented by a union are bound by but are not themselves parties to a collective agreement If representations to employees leads a union to forgo _ an opportunity to attempt to negotiate the substance of the negotiations into the agreement the doctrine could apply But that is not this case There is no evidence of that In Re Coubrough/Sinisalo, the grievors had been advised at the time of their hire that their hours of work would be 36 25 per week During their respective job interviews, each grievor informed the employer that they would not accept the v j (- (,--. 9 appointment if the weekly hours were 40 ';rhe employer conceded that it had innocently misrepresented that the hours were 36 25 when in fact under the collective agreement, the grievors were required to work 40 hours a week The union claimed that the employer should be estopped from resi ling from its representation made at the time of hire Inter alia, the employer took the position that the alleged representation made to the grievors could not support an estoppel as thegrievors were not parties to the collective agreement and no representation could be said to have been made to the union The union in that case relied on Re Baylis, 1762/89 I (Samuels) in support of its position that an agreement between an employee and an employer at the time of hire can be enforceable There the Board had held that a promise of a certain salary level made to the grievor at the time of hire can be enforceable, eventhough placement of a new hire in the salary grid is a matter of employer discretion The Board in Re Coubrouqh/Sinisalo distinguished the facts before it from the facts in Re Baylis At p 17 the Board held The Baylis case does not support the position of the Grievors. The Board found that it "was [implicit] in the collective agreement that management [would] administer the collective ) (- ~~ - t i 10 agreement in good faith II It was on this basis that the board ass4med jurisdiction to hear evidence and argument with respect to allegations of bad faith We were not faced with such a claim The Board cited the passage from the Divisional court judgement in Re Metropolitan Toronto which is quoted above, and concluded that "In the case before us there has been no r r ~ showing that the alleged representation made by the employer to the grievors was relied upon by theuniontp its detriment so as to support the doctrine of estoppel", and again that liThe union's argument based on estoppel cannot succeed as the alleged representation was not made to a party to the collective agreement nor, can it be shown tha~ the union was in any way adversely affected by the representation" ; The union relies on Re Hopkins, 373/86 (springate), Re Hall, 579, 580/90 (Watters) and Re Brummell, 1584/91 (Kirkwood) and Re Pacific Press Ltd., (1987) 31 LAC (3d) 411 (Munroe). In Re Hopkins, the effect of the collective agreement was that an employee who is assigned to a lower classification due ~ to health reason had a right to return to his former classification only if he was able to do so within six months. However, the Board found that upon the grievor's reassignment the employer had represented to the grievor that he was entitled to return to his old classification whenever he was ( - -- ( ( "':'~- ":, 11 f~t to do so without any time limit The Board held that the employer was estopped from applying the 6 month time limit on the grievor In Re Hall, the Board approved of its prior case law holding that the determination of an area of search for a job . . - . ) postlng was a management rlght under sectlon 18 (1) of the Crown Employees Collective B'argaininq Act which could not be challenged by a grievance The evidence indicated that a member of management had advised that employees in his unit were enti tIed to apply for the particular job posting in question. The grievor, who in fact did not corne within the area of search for that posting, was found to have relied on that representation to his detriment. Therefore, the issue was whether the employer was estopped from relying on, what would otherwise be its management right to restrict the area of search One of the arguments made by the employer in support of its position that estoppel does not apply was that, "any detrimental ,reliance needs to be established in respect to a party to the collective agreement in contrast to an individual" At p 21 the Board held The Board accepts the reasoning in Baars to the effect that the Employer may be estopped from exercising what would otherwise be a strict management right Further, we think that the representation, on which the estoppel is founded, - - ---- l 1-'-: ,- ~ . - 12 may be made to an individual covered by the collective agreement The Board went on to state that "the most significant question surrounding the applicability of estoppel" was whether the grievor could reasonably rely on the statements of the unit head The Board concluded on the basis of the evidence that a statement made one year earlier at a time when there was much, uncertainty about the job in question, cannot \ reasonably be relied upon by the grievor, so as to restrict management's right to determine the appropriate area of search Accordingly the grievance was dismissed In Re Brummell, 1584/91 the Board extensively reviewed the case law relating to the doctrine of estoppel On the facts before it, the Board concluded that estoppel did not apply At pp 18-19 the Board observed We find that the representation that was made in this case was an oral promise made to a person who was not an employee at the time, which for the purposes of this preliminary matter is to be taken to have induced that person to leave his job and take a job with the public service This change was to the employee's detriment However, the claim that the Union makes is not based upon any violation of the collective agreement, but is rather an attempt to enforce a representation that falls outside the collective agreement and falls within the exclusive rights of the Employer ( ( I I \ 13 The grievor may have a cause of actic unfortunately, we do not have jurisdict resolve the issue between these parties We go beyond the jurisdiction the legislati provided We accept that where the cr i tel estoppel is established, and the actions, p, or ,representations flowed from the interprl or application of the collective agr~ estoppel limits management's rights to the; or representations made In this case, thE agreed that there was no breach of the col agreemeI}t Although the Union argued that relying on the application of the col, agreement there was no provision that is thl of that argument On the assumptions that' asked to make, we have enormous sympathy w grievor, however, with true regret, we uph Employer's preliminary objection and dismi grievance In its review of the arbitral jurispruden made the following observations at pp 13-14 It is now well established that pr estoppel or estoppel by conduct have a p labour matters and can be considered interpretation and application of co agreements. Since CNjCP, the affect application of the doctrine of estoppel has limit management's rights Estoppel i however, where representations made by the flowed, from the application of the co agreement as evidenced by the conduct, pro] actions of a party. Although CNjC established that the doctrine of estop] applicable to representations made by the to the contract, in some cases, the doct! since been extended to representations mad~ employer to individuals, which representat then relied upon by the union to its de{ [OPSEU (Baars)] In some situations. it 1 extended further to applY not only betw parties to the collective agreement. but individuals. rOPSEU (Hookins) , {Re Pacific: (El C-'r,_C -- , ' C, -,ct.:d 14 The union particularly relies on tpe emphasised portion in the f.oregoing quotation In 'the B C case Re pacifi~ Press Ltd., which was also ) referred to in Re Brummell, the issue was whether the grievor was a permanent employee under' the terms of the collective agreement The board accepted the principle that estoppel is applied in labour relations matters As estoppel was considered a relevant principle, the board accepted evidence on alleged representations and made findings on the representations made The board found that the employer represented to to the grievor, who was a temporary employee, I that he would become a permanent employee Based upon the board's determination on the employer's representations, the board found that the employer was estopped from denying the grievor/his status as a permanent employee. At p. 419, the arbitrator Munroe observed that "The nub of what is required of m~, then, is an objective appraisal of the pature of what was said by Smith to the grievor in mid- January 1984. " At p. 421, he made the followirtg conclusion To sum up, my finding of what was conveyed by Smith to thegrievor in mid-January, 1984, was t,hat the company was prepared to commit itself to a conversion of the grievor's status from temporary to permanent Although it was made clear to the grievor that the formal manifestation of that commitment would have to await the resignation of Ms Brown (which was expected and which smith indicated he would take steps to secure forthwith), the "message" to the grievor was that that was not ~~ ( ( "'...~ 15 an impediment in substance, that for all practical purposes, he could treat the matter as having been resolved Counsel for the union submits that the GSB decisions it relies on stand for the proposition that the Board has accepted that estoppel can arise out of a representation made to an individual employee In his view these constitute a lIline of casesll which support that proposition He points out that the Hall and Brummell decisions are more recent than the Coubrouqh/Sinisalo decision He suggested that the latter decision is an isolated decision and was wrong in law and that in accord with the Blake principle we should follow the other line of cases Union counsel point.ed out that this collective agreement draws a distinction between union grievances and individual I grievances Some rights under the collective agreement are for th~ benefit of the employees in the bargaining unit. He points out that in the workplace employer representatives and employees routinely deal with each other on issues affecting these rights He submits that if the employer's position is correct, what it means is that the employer can recklessly go around making representations to employees and if employees rely on their employer's representations to their detriment they will have no recourse Counsel submits that while the " \ \ C ("'. '''- 16 employer's argument may have merit when a union right is involved, e g a requirement that the employer must provide the union with notice before taking certain action, it makes no sense when applied to employee rights such as wages Having carefully reviewed the decisions relied on by the union, we are not at all satisfied that they stand as authority for the proposition advanced by the union In Re Hopkins, there is no indication that the fact that the representation was made to an individual employee or that reliance was by an employee, was ever argued by either party The Board makes no specific finding in that regard either It appears that both parties went on the assumption that estoppel can arise out of a representation made to an employee The only dispute was as to whether the representation made was such that the grievor could reasonably have been led to believe that the time limit in the collective agreement will not apply to him ./ As noted, in Re Hall, the employer argued that "detrimental reliance needs to be established in respect to a party to the collective agreement in contrast to an indi vidual. " The Board's findings relating to this position consist solely of the statement "Further we think that the representation, on which the estoppel is founded, may be made to an individual covered by the collective agreement" It is ~ ~, ( "\ ( "- ~ 17 apparent that in the Board" s mind "the most significant I question" it had to decide was the nature of the representation made and not the question of to whom it was made or who relied on it All that the Board states is that it "thinks" that the representation may be made to an individual It makes no finding as to who has to rely on it That was the critical precondition found by the Divisional Court in Re Metro-Toronto to be lacking The court accepted that representations made to employees may give rise to an estoppel, but only provided that it leads to detrimental reliance on the part of the union Thus the court states that" "If representations to employees leads a union to forego an opportunity to attempt to negotiate the substance of the negotiations into the agreement the doctrine could apply". In summary, we do not see the statement by the Board in Re Hall as a definitive statement of the law Its focus was on the nature of the representation, and merely makes an observation that it "thinks" that a representation made to an individual may give rise to an estoppel In any event, there is no finding by the Board that an estoppel can arise where the only detrimental reliance is on the part of an individual employee. Similarly, we do not find Re Brummell to be an authority supporting the proposition that detrimental reliance on the ) part of an individual employee is sufficient The Board in I that case made no findings of its own on this particular ( ~ (- ("< ( ~t: , \ 18 issue Rather, it reviewed the existing jurisprudence In the process, the only relevant statement is " in some . cases, the doctrine has since be~n extended to representations made by the employer to individuals, which representation was then relied upon by the union to its detriment, [OPSEU (Baars)] In some situations, it has been extended further to apply not only between the parties to the collective agreement, but between individuals, [OPSEU (Hopkins) and (Re Pacific Press)]." As already noted in Re Hopkins, while estoppel was applied with regard to a representation made to an individual employee, there was no issue put before the Board as to who can properly be the recipient of the representation or as to whether detrimental reliance by an individual would suffice, and the Board made no-specific findings on those The only issue joined was the nature of the representation made and the \. .\ Board, having found in favour of the union's position on that issue, proceeded to apply estoppel The same is true of Re Pacific Press The focus of that dispute was whether the nature of the representation was such as would give rise to an estoppel There is no discussion or findings by the Board. on the issues of the recipient of the representation or the issue of who must have detrimentally relied on the representation ) ( ( \"'-'1 \.,_... I 19 In summary, we find that in some cases this Board has applied estoppel in circumstances where the representation was made to an individual employ~e However, in none of those cases did the Board make a finding that detrimental reliance on the part of an individual alone is sufficient to give rise to an estoppel That issue was not addressed by the Board specifically The most direct statement is that found in Re Hall where the Board observed "Further, we think that the representation, on which the estoppel is founded, may be made , t to an individual covered by the collective agreement"';. (Emphasis added) While the Board talks about who maybe the recipient of the representation, it does not address the question of detrimental reliance. In contrast, the decisions relied on by the employer are quite explicit in their findings. The Divisional Court in Re Metro-Toronto accepts that a representation may be made to an employee. To this extent the statement of the Board in Re Hall is consistent The difference, however, is that the court goes .on to hold that for estoppel to arise in circumstances where the representation is made to an employee, that representation must be relied on by the union to its detriment The court thus clearly addressed both the issues of the recipient of the representation, and the issue of detrimental reliance ("- ( - 20 In Re Coubrough/Sinisalo, the Board reviewed the court decision in Re Metro Toronto and followed it It directly addressed the argument made by the employer in this case, when it held that "The union's argument based on estoppel cannot succeed as the alleged representation was not made to a party to the collective agreement nor can it be shown the union was , in any way adversely affected by the representation" (See, p 26) 90unsel for the union points out that the Hall and Brummell decisions were released subsequent to the 'Re Metro- Toronto and Re Coubrough/Sinisalo decision However, in Re Hall there is no reference to either of those decisions The Board in Re Hall does not make any finding with regard to the nature of the detrimental reliance that must be established. In Re Brummell, the Board makes no findings at all on the issues in question because the grievance was dismissed on unrelated grounds It merely reviews the prior decisions of t.he Board, including Re Coubrough{Sinisalo I Therefore, the Board .f inds itself in the following position. On the one hand, there are the prior decisions of the Board which have either applied estoppel or indicated that / estoppel may apply, in circumstances where the representation was made to an individual employee However, in none of these cases does the Board specifically address the issue of whether (~, ~ ( "1;. ,roo \ . ;; 21 detrimental reliance by the party to the collective agreement, i e. the union, must be established It appears that that issue was not put in issue before the Board in any of the cases On the other hand, there is the decision in Re Coubrough/Sinisalo which directly addressed that issue, and relying on the oivisionalCourt decision in Re Metro-Toronto, expressly held that estoppel cannot apply where a re:presentation is made to an individual and there is no 1 detrimental reliance by the union / We have great sympathy for the union's arguments based on fairness and reasortable~ess, that employees must have the assurance that they can rely on representations made by their superiors, and that they must be in a position to enforce the promises on which they rely on to their detr~ment While from a point of view of equity these arguments are attractive, -this Board does not have that leeway to dispense equity by ignoring the law If we are to uphold the union's position, we must find that the decisions in Re Metro-Toronto and Re Coubrouqh/Sinisalo are wrong in law We cannot agree with union counsel that that is so Indeed, from a review of all of the case law provided to us., we conclude that the present c--- l' " it 22 state of the law is that, a representation made to an individual employee covered by the collective agreement may give rise to an estoppel, but only if it is established that that representation led the union to rely on it to its detriment On the evidence before us, there is no indication or suggestion that there was any detrimental reliance on the part of the union Accordingly, there can be no estoppel This result is sustained even if we accept the union's position that the issuance of the jOb posting and the position specification in a public way constituted a representation to the union still there is no evidence to suggest that the union relied on those documents to its detriment. While the union has failed to bring this grievance within the legal requirements of the doctrine of estoppel, we do recognize, with a tremendous amount of sympathy for the grievor, that the employer's erroneous representations caused her to make serious decisions relating to her employment which ultimately worked to her detriment Whether or not she may have legal recourse outside the collective agreement, we urge the employer and the union to cooperate with each other to redress the obvious loss suffered by the grievor as a result of the employer's representation r --- (~,. J' -- - 23 As a result of the foregoing this grievance is hereby dismissed Dated this 19th day of November, 1993 at Hamilton, Ontario ~C~i7~ ~- / N Dissanayak ( Vice-Chairperson ~ ~nr.('~~4 M Khalid Member /l! ~ {):7~ M O'Toole Member l ./ u_ ONTARIO EMPLOYES DE LA COURONNE 'f CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326- 388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACS/M/LE/TELECOPIE (4161 326-1396 February 18, 1994 MEMORANDUM RE. 2279/92 OPSEU (Northover) and The Crown in Right of ontario (Ministry of Community & social Services) The above-noted decision was released by the Board on November 19, 1993 Please be advised that a Notice of Application for Judicial Review dated January 27, 1994 has been filed by Mr D Wright of Ryder, Whitaker, Wright, Barristers & Solicitors Yours truly, JJ~ Joan Shirlow Registrar J JS/dbg Encl 1