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HomeMy WebLinkAbout1992-3488.Lane.94-02-28 "1 I - ) ( (~ ONTARIO EMPLOYES DE LA COURONNE ~:- CROWN EMPLOYEES DE L 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARfO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326~ 1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326~1396 3488/92 IN TH~ MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo_re THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Lane) Grievor - and - ~ The Crown in Right of Ontario (Workers' Compensation Board) Employer '" BEFORE M. Gorsky Vice-Chairperson , J.C. Laniel Member 0 Montros.e Member / FOR THE P Douglas GRIEVOR National Representative CUPE Local 1750 FOR THE M Failes EMPLOYER Counsel Filion, Wakely & Thorup ( Barristers & Solicitors HEARING: November 10, 1993 December 6, 1993 January 4, 1994 -- . - ( ( ~ 'i1 1 I N T E RIM DEe I S ION The Grievor, Andrea Lane, filed a grievance (Exhibit 1) on July 22, 1992, with repect to the alleged "~ailure to glve priority considerat10n to affected employees. " The statement of the gr1evance is The employer posted the position of "Program Support Clerk" salary scale 005 in ottawa without considering affected employees contrary to Art1cles 5 and 6 of the Collective Agreement. Under "settlement Required, " the Grievor requested Full redress includ1ng ass1gnment granting me the position of Program Support Clerk Any other benefits Wh1Ch would be usual for such a change in position. In order to understand the real nature of the grievance, which the parties agreed to, it will be necessary to set-out certain fabts that preceded and followed its filing. Ms. Lane, who had been employed by the Employer for approximately 15 year~ at the time of the filing of the grievance, had been notified, 10 1992, that she was an employee whose job would become redundant as a result of technological and/or organizational change, as dealt with in art 6 of the collective agreement At that time, she was an Exceptions Handling Clerk 2 employed 1n Records Management Branch of Employer's Toronto office Ms. Lane relied upon rights granted under art. 6.07 of the -- ---. - _u ( ( -0' '1' 2 collective agreement "Transfer Arrangements," to obtain another position Transfer Arranqements An employee affected by technological and/or organizational change who declines retraining when the1r job 1S significantly changed, who is unable to acqu1re the required sk11ls through retraining or whose job 1S made redundant, shall be given priority consideration for vacant posit1ons under Article 5.01(a). This applies to any vacancy in the province The costs of relocation shall be paid by the employer if there is no alternative position at the current or equivalent salary grade in the same D1vis10n, Branch or Regional or Area office or Information Service Off1ce as the case may be . Article 5 01(a), referred to in art 6.07, is as follows When a vacancy of a permanent nature occurs or a vacancy of a temporary nature occurs and 1S expected to exceed thirty calendar days (for reasons other than vacations) or a new position is created within the bargaining unit, the posit10n will be filled as follows (a) In accordance with Article 6 Technological and Organizational Change, first consideration will be given to placing employees occupying the same or. higher salary classification within the bargaining unit who are affected by organizational or other changes which have resulted, or are likely to result, in a reduction of the workforce The placement of affected employees shall be on the basis of seniority, provided the employee has the qualifications and ability to perform the required duties in a competent manner or can attain them within an eight (8) month training period. The position sought by Ms Lane, relying on her rights under art 6.07, as spelled out in art. 5 01(a), was that of a Program Support Clerk in the Ottawa West Integrated Services Unit of the Employer The vacancy for the pos1tion sought arose as result of \ (, ( \ ~ or:, 3 the 1ncumbent in the Program Support Clerk position, Linda Dickson, having applied to be appointed and being appointed to a new position of Payment Specialist Initially, Ms Lane had been informed that she would not be able to exercise her rights to priority consideration for vacant positions under art. 5.01(a) for a number of reasons which are no longer material, and George E. Picken, Executive Director, Adjudication and Rehabilitation of the Employer, Department II, notified her, by letter dated November 25, 1992 (Exhibit 3), that the sole reason for the withdrawal of the posting with respect to the vacancy, above referred to, was the fact that Mr Picken . . . learned that the former incumbent [Ms. Dickson] who returned to the position did in fact do so during the official trial period I did approach your Un1bn representative about this and discussed it with him I have therefore concluded that the Ottawa West I.S.U. was within its rights to cancel the posting Therefore, there is no longer a vacancy at that level for which you may be currently considered. This advice was also contained 1n an earlier letter to Ms. Lane, dated September 28, 1992, from Pat Lammana, Director, ottawa west I.S.U., where it is stated As you know, as part of the Board's ongoing efforts to find you suitable employment, your application and priority placement status was being. considered for the position of Program Support Clerk in the ottawa office. It is unfortunate, but we have recently been informed that the former incumbent of this position [Ms Dickson] has been unsuccessful 1n completing the 60 day trial period in the new pos1tion. As a result, the incumbent has been returned to their [sic] former position of Program Support Clerk, and the posting will be cancelled. c - - --. ~--- ----- \ ( 5" 'y. 4 j The parties agreed that the issue to be decided by the Board relates to whether Ms. Dickson had completed the in art . 5 06 of trial period provided for in the collectIve agreement Trial Period The successful applicant will be placed in a new position and will be considered to be "on trIal" for a period of sixty (60 ) working days If, durIng that time, in the opInion of the Employer, the employee is unsatisfactory, or if the employee so requests, he shall be returned to hIS former salary classification and placed In a position for wh~ch he is qualified without loss of seniority. A subsidiary issue, should we find that Ms. Dickson had not completed her trial period, is whether the Employer was obliged to return her to her previous position as a Program Support Clerk in ottawa. There were two groups of employees assigned to the Payment Specialist position, which was a new ones created by the Employer, to be filled in various offices. of the Employer throughout Ontario One group, which the parties referred to as "trainees, " or "new" employees, included Ms. Dickson. The other group, which the parties referred to as the "incumbent employees," had formerly been ( employed, at various locations throughout the province by the Employer as "Core or Verification Clerks, " the terms "Core" or "Verification" being used interchangeably Only the trainees were given training by the Employer, which commenced, for most of them, on or about May 1, 1992, which " ( ( (j\ I 5 training was intended to' be completed around June 22, 1992 Although May 4, 1992 was referred to be some management witnesses, the most frequent reference to the commencement of the training - ( period was May 1, 1992 It was agreed that trainees were ex~ected I to commence working as fully trained Payment Specialists on June 22, 1992 \ \ The incumbent employees, who dld not receive any training in the Payment Specialist position, were expected to commence functioning in that position on June 22, 1992 Art. 6.06 of the collective agreement deals with "retraining" Retrainin9 ! (a) Where, as a result of technological and/or organizational change, an employee's present position is significantly changed, requiring new or modified skills, such employee sJ;1all be provided with the opportunity for retraining The Employer will provide a period not to exceed eight ( 8 ) months for this retraining durlng which time the employee must acquire the skills required_ in: the changed position. This training shall be at the expense of the Employer, and where practical, take 0 place during normal working hours. l (b) (Where, as a result of technological and/or organizational change, an employee's position becomes redundant and they are placed ln a vacant I position under the terms of Article 5.. 0 1 ( a) , if necessary, they shall be provlded with retraining. this retraining period will not exceed eight (8) month~' during which time the employee must acquire the skills required to perform the duties of the position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours (c) At any time during the first sixty (60) days of the \ . ( ( ( i', tj'~ ( 6 elght (8) month perlod set out in (a) and (b) above an employee who requests may discontinue thelr position and be considered agaln for placement under Article 5 Ol( a) It is understood that each employee shall only be entitled to two ( 2 ) priorlty placements as a result of a technological and/or organizational change affecting the employee's position. / It was intended that both the trainee and incumbent employees were to become Permanent Payment Specialists at the completion of ) their trial periods, but the parties differed as to when the 60 working day trial period commenced. It was acknowledged that ln the case of Ms Dickson, her trial period would have expired before she indicated her desire to return to her previous position ln ottawa. There was some conflict in the evidence as to whether Ms Dickson's return to her previous position was as a result of her l decision, the decision of the Employer, or whether it was a mutual ( decision. For the purpose of deciding the issue before us, it does not matter how the decision was arrived at. Although given notice of the hearing and of her right to I attend and participate ln it, Ms. Dickson did not do so but arranged to have filed with the Board a letter dated December 6, 1993 (Exhibit 8), which is as follow~ To Whom it May Concern I I am writing this letter to confirm the fact that when I received my letter, from July 1992, concerning the trial period for the position of Payment Specialist that I was accepted in, neither management nor any Union representative approached me questioning the dates of the trlal period - 22 June 1992 to 16 Sept 1992 At the time, I was having a few problems in the practical ---- ( ( \Y 7 part of the job I I was relying on my trial period t.o help me with this If I had thought there was any question concerning the vall.dl.ty of the trial period dates, I would have made the decision, prior to the end of July, to return to my old position, Program Support Clerk. Yours truly Linda Dickson arogramSupport Clerk ottawa Regional Off1ce Mr. Failes, counsel for the Employer, raised a prell.minary " objection that raised the 1ssue as to whether the Union was estopped from enforcing its right under the collective agreement because of the existence of an estoppel, assuming this Board would interpret the trial period under the collective agr~ement as commencing when training started on or about May 1, 1992. The preliminary issue to be decided in this interiro decision is whether the Union l.S estopped from maintaining that the trial period affecting Ms. Dickson commenced at the beginning of the training period, on or about May 1, 1992 or, to put it another way, from I denying that it commenced on June 22, 1992 when the training period ( \ had been completed and Ms. Dickson was placed on the job to which she had been appointed. In order to understand how the alleged estoppei arose, it is necessary to consider certain evidence relied upon by the Employer. The parties acknowledged that grievance 92-43, being a policy grievance filed by the Union, related to the "former core or verification clerks," being the imcumbent employees, and that the -- I ( .j) 8 step 2 meeting with respect to this grievance was held on July 2, 1992. Grievance number 92-43 was not filed with us but we were advised that lt related to a concern of the UnJ.on that the incumbent employees had not been dealt with in a manner that was "consistent between Toronto and the regJ.onal offices." / Present at the second stage meeting with respect to grievance number 92-43 were, for the Union, John Madden, ChJ.ef Steward of Local 1750 of the Union, and Beth Harris, who was a steward of the Local in Wlndsor, and who was the Secretary-Treasurer of the Local, and, for the Employer, Bruce Homer, the Manager Employee Relations ln Toronto and Ed Baldwin a Staff Relations Specialist There is a significant difference between the evidence of the representatives of the parties who testified, as to what was ; said at the July 2, 1992 meeting concerning the time when the trial period with respect to trainees was to commence i Evidence of Beth Harris Ms. Harris testified as follows 1. She was a member of the incumbent group of employees and was affected by grievance 92-43. 2. She advised that she affected I around was was an employee .---- ~- . -----~ - -- - .- ( ( '"~ 9 February of 1992. 3. When positions for the Payment Specialist position were posted across the province, she submitted an application to Human Resources in Windsor and was a successful candidate. ) 4. A controversy arose concernlng the way ln which incumbents were placed in the Payment Specialist positlon at the various offices of the Employer throughout the province 5. She was communicated with by a number of incumbent employees, and was asked to see what could be done about the method employed for their placement in the Payment Specialist position. 6. Some incumbent employees were said to have been required to take a test; some were not; and there was a concern raised about the interview process, which was said to be different in various locations of the Employer throughout the province. 7. The above concern led to the filing of grievance 92-43. Sixteen incumbent employees were said to have been treated in a manner that was different from other incumbent employees. 8 There was said to be a departure in the case of the incumbent I employees from certain established policies of the Employer relating to appointment to the position. { ( [J- ". ,..' 10 9 She started performing as a Payment Speclallst in Windsor ~ without training; her first day on the job being June 22, 1992. - 10 After the matters relating to grievance 92-43 had been resolved, she raised an additional ,concern with respect to the I incumbent employees con,cerning the trial perlod that would apply to the members of that group. - \ J 11. This issue arose as a result of a number of the incumbent group, having communicated with her requesting advlce as to when I they had to indicate their choice to decline to remain in the new position Their concern related to their belief that the trial period for incumbent employees- started to run from Jun~ 22, 1992, when they commenced working as Payment Specialists, and not from approximately May 1, 1992 when the trainees employees started their training period as Payment Specialists.) " \ 12. She was concerned that the Employer regarded the trial period with respect to the lncumbent employees as commencing on May 1, 1992 - when they, in fact, did not commence tq perform the work of Payment Specialists until June 22, 1992. 13 The following memorandum (Exhibit 7) was put to Ms. Harris To All Payment Speciallsts, Systems Q.A. & I Payment Services Branch From Valerie Martino, Manager, Payment Services r --- ( ( .~, (~'" 11 Date July 3 , 1992 Subject TRIAL PERIOD It is the policy of the Workers' Compensation Board that all employees who transfer laterally, upwards or downwards as a result of a postlng will be on trial for a period. of sixty working days \ The trial period lS the time period during which a transferred employee occuples a new position on a trial basis The sixty working day trlal period for transferred employees is provided for purposes of mutual assessment. It was originally thought and communicated to you that your trial period would begin and span sixty working days from May 1, 1992. Employee Relations has further clarified the application of the trial period in relation to the Collective Agreement and Human Resources Policy. Your trial period of sixty days actually begins the day after you completed your training, June 22, 1992 This results in a scheduled conclusion of the trial period as September 16, 1992. For your information, I I I . . . . . . . . . . . . . . . . . . . . I Valerie Martino cc. Branch File ~. Witiuk T. Manwliler 14. At the meeting of July 2, 1992, the spokesperson of the Employer, Mr Homer, agreed that there had been inconsistencles in the treatment of incumbents appointed to the Payment Speclalist position. Ms. Harris stated that it was agreed that the complaints had arisen after the fact and little could be done to remedy what had taken place but that steps would be taken to insure that the situation would not be repeated --- ( ( .!- '.~ 12 15. She had referred, as the last ltem discussed at the July 2, 1992 meeting, to the fact that incumbent employees, unlike trainees, received no training and only commenced working as Payment Speclalists on June 22, 1992, yet they were belng required to make a decision based on thelr trial perlod commencing on May 1, 1992 This was said to be unfair and contrary to the provisions of the collect'ive agreement. The alleged unfairness related to their having to make a decision whether they wished to remain as Payment Specialists without a suitable opportunity to assess whether they I wished to remain in the position. 16. She recalled that Mr. Madden lndicated that the incumbent employees should have thelr trial period commence on June 22, 1992 17 There was a discuSslon with respect to trainees, limited to a reference to the fact that they had received training as Payment Specialists, whereas the incumbent employees had not. ( 18 There was no discussion with respect to the trial period that was to apply in the case of trainees, the meeting being restricted to the concerns of incumbent employees affected by grievance 92-43 19 Her understanding, at the conclusion of the meeting, was that Mr. Homer, as spokesperson for the Employer, had agreed with her and Mr. Madden that the trial period for incumbent employees would not commence until June 22, 1992, and that this would be confirmed . ( ( \: .!- OJ 13 by him 20. She received Exhibit 7, which was addressed to all Payment Specialists, around July 3, 1992 21 She also received a copy of Exhibit 4, being a letter dated July 6, 1992, from Mr. Homer to Mr. Madden, which is as follows Re: Grievance 92-43 On July 2, 1992 Mr E. Baldwin and I met with Beth Harris and yourself to discuss the above noted policy grievance relating to the former Core or Verification Clerks It was agreed that all of the affected employees have been placed, however, the process that was used was not consistent between Toronto and the regional offices. Changes that are being considered in the recruitment process and the co-ordinating responslbilities of Human Resources should resolve this problem in the future In the course of our discussion the subject of the trial period for the former Core or Verification Clerks w<.is raised and I confirmed that the sixty days period would date from the time the employee was actually placed into their new position for purposes of Article 6.06(c) . I understand this date was June 22, 1992 ln the Windsor office. It is my belief that this addresses the issues in this gr1evance and it is thereby resolved. Yours truly, B. Homer Manager Employee Relations c A Hagan G. Picken H. McDonald 22. After reading Exhibit 7, she concluded that the information in - - -~ - --- - - " ( ( :! -1 14 it was incorrect, and that it conflicted with the agreement between the parties entered into during the mee~ing of July 2, 1992. She stated that the memo was incorrect ln that it referred to all Payment Specialists, whereas it should have been limited to I incumbent ~mpoloyees 1 ( 23 She informed the new employees in Windsor that the memorandum was incorrect; that she wished to clarlfy the situatlon and brought her concerhs to her supervisor's attention. In cross-examination" she was less positive about having done so and stated that that she "thought" she had done so I 24. On receiving Exhibit 7, she immediately called Mr. Madden and read it~ contents to him. Mr. Madden indicated to her that he would wait for the formal response from Mr. Homer to allow for the correction of what they both believed to be a "misconception " 25 She and Mr. Madden regarded Exhibit 4 as containing a correct statement of the understanding of the parties with respect to the commencement of the trial period time would only start to run in the case of the incumbent employees from the time when they commenced working in the new position on .June 22, 1992; and that no change in the start of the trial period for trainees had ever been agreed to. 26 In her view, the stage 2 meeting of July 2), 1992 only dealt (' ( l .~ 15 with the case of incumbent employees, and she regarded Ms / Martlno's memo of July 3, 1992 (Exhibit 7) to be a misconception of I what had happened at that meeting, ln that it appeared to also extend the understanding to new emJ?loyees. i Evidence of John Madden ( Mr. Madden testified, ~s follows \.. 1. He became Chief steward of Local 1750 ln January of 1990, and occupied that position at all material times 2 In his capacity as Chief steward, he was involved ln the processing of grievance 92-43, as well as the grievance before the Board. Grievance 92-43 arose as a result of the union's perception that there were a number qf irregularities involved in the treatment of the incumbent employees who were designated as affected employees and wished to become Payment Specialists ) 3 One of the problems he encountered in investigating the complaints was that the Union would only obtain notice of which / \ employees were affected employees after the fact This information r was said to have been with the Organization and Technical Change Committee .J ( ( < ~, 16 4 In his Vlew, some of the lncumbents had been required to satisfy requirements contrary to the collective agreement, and this I led to the filing of grievance 92-43 I 5. The step 2 meeting held on July 2, 1992, ln Mr. Homer's offlce in Toronto at 2 Bloor street East, was the flrst meeting held in connection with grievance 92-43. 6. The discussion with respect to the trial period took place after the conclusion of the discussion with respect to the issues involved in grievance 92-43, which issues had been resqlved. I The issue relating to the trial period was raised because it affected the same group of employees the incumbehts. f 7. He was satisfied, on the basis of Mr. Homer's representations, that the situation that the Union had complained about in grlevance 92-43 would not occur again because clear policy guidelines had been developed by the Employer. , 8. After the parties had agreed on the settlement of grievance 92-43, the Union's concern about the time when the trial period commenced to run in the case of the incumbent employees was raised 9 At that point, at the invitation of Mr. Madden, Ms. Harris indicated that the incumbents had not ceased to carry out their previous duties and responsibilities as Core or Verification Clerks . - .-- -- --- -- ---~--_._- ( ( ~ ;j.\ 17 on May 1, 1992" and did not commence carrying out their new duties \ and responsibilities as Payment Specialists until June 22, 1992 They had been informed by the Employer that they would continue to function as Core or Verification Clerks after May 1 , 1992 " with their new department being a department ln name only until June 22, 1992. 10 After Ms Harris made the above remarks, Mr. Madden said he addressed Mr. Homer and stated that a similar issue had arisen in the past which had been settled on the basis of employees, in the position of the incumbent employees, not being considered to have commenced their trial period until they had officially commenced to carry out the duties and responsibilities of their new position. 11. Mr. Homer indicated that he was favourably disposed to the I position of the Union with respect to the commencement of the trial period for the incumbent employees, and said that he would shortly "get back to" Mr Madden to formally confirm the Employer's position. 12 He did not recall either himself or Ms Harris making any reference to trainees, except to note that the incumbents had no traing period, and stated that the discussion, throughout, focused on the incumbents 13 He remembered Ms Harris stating, that in order for the rj ( ( .",,,- 18 incumbents to have a reasonable period in whlch to decide whether they wished to continue in the Payment Specialist position, their trial period should not commence until June 22, 1992, the date when they would commence to do the work of that position. 14 Exhlbit 7 was read to hlm over the phone by Ms Harris, and she informed him that she had spoken about it to her supervisor He informed her that he regarded the Union's posltion with respect to the trial period for incumbent employees to have been made clear to Mr Homer at the meeting of July 2, 1992, and that confirmation of the Union's position being satifactory to the Employer was expected from him in the next few days. - For thlS reason, no action was then taken to respond to the misstatement in Exhibit 7. He did not intend to file a grievance unless Mr Homer's response was unsatisfactory. 15 On the basis of the information contained in Exhibit 4, which was dat~d after Exhibit 7, he regarded the Union's view and that of the Employer concernlng when the trlal period began to be the same and to relate only to the incumbent employees whose situation was discussed at the July 2, 1992 meeting. In t'he circumstances, he regarded Exhibit 4 as being the final and accurate statement of the Employer's position and as correcting what he regarded to be the error in Exhibit 7. 16 Given the Union's view of the running of the trial period, he - -. _. ~ ( ( ~~ '. 19 regarded Exhiblt 4 as being an affirmation of the Union's vie~ that the provlsions of the collective agreement were not affected in the case of tralnees 17. His first knowledge that Ms. Dickson had returned to ottawa was when Ms Lane contacted him 18 He attended the third step meeting wlth respect to Ms. Lane's grievance on October 9, 1992, which is referred to in Exhibit 3. 19. At the meeting of October 9, 1992, he raised the Union's position that Ms. Dickson had been glven a trlal period contrary to the provisions of the collective agreement 21 No one took notes at the July 2, 1992 meetlng on behalf of the Union, and he never received any copies of notes for verification from the Employer. EVldence of Ed Baldwin Mr. Baldwin testified as follows 1. He is responsible for contract negotiation and administration, as well as for the handling of grievances at the upper level of the grlevance procedure ( ( ~ '., 20 2 . He took notes at the July 2, 1992 ,m~eting for the ,Employer, but did not otherwise participate in the meeting t 3 Ms Harris raised the lssue of the trial period at the meeting and indicated that she regarded the trial period to commence from \ the day an employee commenced working on a job, in this case, June 22, 1992 He stated that she said that her view of the ) commencement of the trlal perlod applied to tralnees and incumbents \ ( 4. After the meeting of July 2, 1992, he told Ms. Martino, the Manager, Payment Services, on that day or on 'July 3, 1992, that the \ Union had requested that the trial period for all employees, both trainees and incumbents, commence on July 2, 1992, and that the Employer had agreed that this should be the case, even though it represented a departure from the language of the collective r agreement. He added that, in his view, the normal trial period wouldjhave ended around the end of July 1992 lf the language of the collective agreement had been followed. 5 After the meetlng on July 2, 1992, there was no notification from the I Union that it had any other Vlew concerning the commencement-of the trial period, and this was the case until the meet~ng of October 9, 1992, being the third step of the grievance procedure for Ms. Lane's grlevance, WhlCh led to Mr Picken's letter of November 25, 1992 (Exhibit 3 ) / ( ( \-, . ." 21 6 . In cross-examination, he stated that, in the past, the period " , of training had been considered as part of an employees trial period. 7. He acknowledged that the first part of the meeting of July 2, 1992 with respect to grievance 92-43 was restricted to a dlScusslon of the issues ln that grievance, which related exclusively to incumbent employees, and it was only after the discussion concerning the immediate concerns of the pol icy grlevance had ended that Ms.. Harris raised the issue of the trial perlod 8. In re-examination, he stated that Mr. Homer had indicated that a statement would be issued to Human Resources Specialists to give them guidance as to how to deal with the case of affected employees, whose cases he regarded to be covered by art. 6. Evidence of Valerie Martino ~ Ms. Martino testified, as follows 1. The new position of Payment Specialist that was created In- 1992 was filled by employees at 18 work locations throughout the province, and they were under the direction of supervisors at all of these locations. 2 She was involved ln setting up the Payment Specialist . ~ - - - - -- -..-- - \ ( ( '. .i 22 position; created the necessary position speciflcation, selection matrix, and was involved in the hiring process She referred to Ms. Toni Manwiler who was appointed as a new manager along with herself. Ms. Martino was responsible for all staffing and hUf!lan 'resources issues in the summer of 1992, and Ms. Manwiler was responsible for the technical aspects of the position. 3. Ms. Martino and Ms. Manwiler each had nine supervisors reportlng to them, and each supervisor was responsible for approximately 25 Payment Specialists. 4. Of the approximately 51 Payment Specialists employed in the summer of 1992, 14 were incumbents. 5. In addition to the 14 affected employees under art 6, Ms Martino also hired (in the summer of 1992) some other affected employees who had priority placement rights. 6. Of the trainees, all but four received training which took place from about May 4, 1992 to June 19, 1992. As the trainees \ were in different locations they did not all receive the same kind of training. 7. She referred to some of the trainees as having received classroom training for the Payment Specialist position for seven weeks She ~id not regard such employ~es to be "on the job" during ~, J ( ,( .' 23 the period of the seven ~eeks of classroom training 8 If a new employee did not have any classroom training, the trial perlod was regarded as commencing on May 1. 9 Some of the incumbents started per'forming the Payment Specialist job prior to June 22, 1992 She referred to two pilot units, each with two incumbent employees that fell within that category. 10. She regarded the seven weeks classroom training afforded new employees as being abnormal ln that most of the WCB employee training programs had a maximum duration of four weeks. She added that not all the time was spent in classroom trainlng, as there was combined classroom and practice experience involved in the training process. 11. Sometime in June of 1992 she reached the conclusion that some of the persons hired as Payment Specialists (approxlmately nine) would have to be returned to their former positlons. 12. Of the nine persons referred to, some had indicated a desire to return to their previous positions and some of them were being considered for return by the Board because of perceived inadequacies -- ,- ,- -- ( { , , l!>- 24 13 Prior to issuing Exhibit 7, she spok~ with Mr Baldwin on either July 2 or 3, 1992. Her communicating with Mr. Baldwin followed receipt by her of an expresslon of concern from a supervisor of Payment Specialists in Windsor. Mr Baldwin told her that the trial period did not include the perlod prior to June 22, 1992. 14. Each of the 51 payment specialists received Exhibit 7, lncluding Wilma Haywood, who was located in Thunder Bay, and was, at that time, a member of the Union executive I 15. Ms Martino had certain concerns, in July of 1992, about Ms. Dickson's suitability for the position of Payment Specialist. As at July 28, 1992, Ms. Dickson, whose trial period would have then ended according t9 Ms. Martino's understanding prior to July 2 or 3, 1992, had not sought to return to her previous job in ottawa, but did so, on or about September 14, 1992, the decision being a , I mutual one between her and management. I I I 16 She attributed the action of management and Ms Dickson to be based on the understanding that her trial perlod would commence on June 22, 1992 and not on May 1, 1992 She regarded her understanding to be correct because no one from the Unlon challenged her view, as expressed ln Exhibit 7, as to when the I I I parties regarded the trial period to commence I c., ~- co ), -. 25 17 No other Payment Specialists returned to their prevlous I ! positions between July 3~ 1992 and the return of Ms. Dickson to her former position 18. Between July 28, 1992 and September 16, 1992, there were a I total of four employees, l.ncluding Ms. Dickson, who were advised that they would be returned to thelr prev10us position or who I advised management that they wished to be so returned. ~ .J 19 Exhibit 7 had not been officially copied to the Unio~. Evidence of Deborah Latwlnski Ms. Latwinski testified as follows ( , 1 She supervised Payment Specialists in the Windsor office of the WCB I, 2. She was familiar with Exhibit '7, and no one from the Union ever questioned her about the validity of the statements contained in it during August or September of 1992. 3 Ms. Harris never discussed the issue raised 1n Exhibit 7 with her at any time - 4 Three Payment Specialists who worked for her c;liscussed with ) \ '" ( ~ :, 26 her the possibility of receiving an extension of the trial period she referred to Cathy Carlson, who indicated that she was aware that the trial period might be extended and sought clarification as to the meaning of the relevant provision of the collective agreement to her case 5 . She acknowledged that training had previously been considered \ part of an employee's trial period. 6 As at May 1, 1992 there were some trainees engaged in training for the actual performance of the work on June 22 Two pilot groups that had been functioning since September of 1991 7. Other than the 14 incumbents referred t'o, there were eight priority placements from outside of the bargaining unit. \ 8. In June of 1992 management had reached a decision with respect to approximately nine employees, includingMs Dickson, who were expected to revert to their previous positions because of perceived unsuitability for the Payment specialist position. 9 She originally assumed that the trial period for all employees chosen for the Payment Specialist position, would commence on May 1, 1992, but this was changed as a result of Exhlbit 7. 10 She had never seen Exhibit 4 prlor to the hearing. -, - - - (' ( \. E 27 Argument of The Employer Mr Failes, counsel for the Employer, argued 1 The issue of whether the partles agreed, at the July 2, 1992 meeting, that the trial period was extended with respect to all employees, represented a "red herring." 2. The fact that the representatlves of the partles might have ) had a different understanding as to what had been concluded with respect to the extension of the trial period at the July 2, 1992 meetlng was irrelevant to the lssue before the Board on the prelimanary issue. It was not necessary to establish what was agreed to at that meetin~ in order for the Employer to establish an estoppel 3. The Union had acquiesced in the Employer's interpretation set out in Exhlblt 7 as to what was permiss1ble under the collective agreement with respect to the commencement of the trial period for all employees, both trainees and incumbents, as it did 'nothing to disabuse the Employer of its natural conclusion that the parties were ad idem on this point. 4 The contents of the July 3, 1992 memorandum of Ms. Martino (Exhibit 7 ) were clear and were understood by the union ln ( ( :, '. 28 accordance with its clear terms. The Unlon did nothing to indicate to Ms Martino or to anyone in Labour Relations that it disagreed with the statements in the memo relatlng to the commencement of the trlal period This was said to amount to a representation to the Employer i( and in fact to all of the new and incumbent employees, including Ms Dickson) that the Union was agreeing that the trial period provided for under the collective agreement would commence on June 22, 1992 5. The Union, in seeking to enforce the strict terms of the collective agreement, did so to the detriment of those who relled - upon its above-noted represent.ation, who were identified as the Employer, and in this case Ms. Dickson. 6. In response to the Union's position that the Employer could not rely on the provisions of Exhibit 7, because lt was not addressed to the Union, it was submitted that the circumstances of this case indicated that the Union was well aware of the contents of that document and of the intention of the Employer to treat the trial period for all employees, both trainees and incumbents, as commencing on June 22, 1992, and not on May 1, 1992. This was so because the Employer had, in Exhibit 7, communicated its intention to the 51 payment specialists, which group included two persons holding positions in the Union, (Ms Harris ln Windsor and Ms. Haywood in Thunder Bay) In addition, Mr Madden, a senior Union I official in charge of the grievance, was aware of the contents of - _.._~-- - - --~---_._- - - -- -- - --_. - --_._---_._.~ ~- --.- -~---- .~ -- - ( l 'l; 29 Exhibit 7, through his conversation wlth Ms Harris. 7 Mr. Madden and Ms. Harris both understood the contents of Exhibit 7 as being a clear statement that the Employer intended to have the trial period commence on June 22, 1992 in the case of all " of the Payment Specialists includ1ng Ms Dickson. Argument Of The Un~on Mr. Douglas argued for the Union ( 1. Ms. Martino had. initially informed both the incumbents and the trainees who were appointed to the Payment Specialist position that the trial perlod provided for ln the collective 'agreement would be the same for both groups and would commence at the beginning of May 1992. 2 The sectlons ~elled upon as furnishing the trial period were found in art 5, as they related to new employees, and art 6 as they applied to incumbent employees 3. If the trial period commenced toward the beginning of May, 1992, it would end toward the end of July 1992 4 The provisions of the collective agreement and the practice of '1 ( ( ( ~" ~ \ 30 , the parties was to regard a training period as part of the trial period 5 . Insofar as the trainees were concerned, the Union regarded the I commencement of their trial period to be from when they commenced ) training around May 1, 1992, in accordance with the provisions of - " the collective agreement. ..\ 6. Reference was made to the evidence of all of those who testified, including Ms. Harris and Mr Madden, that the incumbents had, initially, been informed that the trial period, in their case, would commence May 1, 1992, even though tQis would not afford them a fair opportunity to assess whether they wished to remain in the Payment Specialist position because they would not have been invoived in any aspect of that position until June 22, 1992. \ 7. The Union did not regard the information given to the incumbent employees at the beginning of May that the trial period ~ would start from t.hat tlme as being correct. '\ \ 8. Reference was made to the meeting of July 2, 1992, which was for the purpose of addressing the issues contained in grl:evance 92-43, being a policy grievance restricted to ~he complaints made \ on behalf of incumbent employees ) 9 It was submitted that after the issues arising out of ( ( ~ ". I" 31 grievance 92-43 had been resolved, the matter raised by Ms. Harris and Mr Madden concerning the commencement of the trial period, specifically addressed an additional concern of incumbent employees, bei~g those involved in that grievance. Reference was made to the evidence to that effect from Ms. Harris and Mr. Madden and to the statement contained ln Exhibit 4, where, in the third paragraph, Mr Homer acknowledges that " the subject of the . . trlal period for the former core or verification clerks was raised and confirmed that the 60 day period date from the time the employee was actually placed into their new position for purposes of art. 6.06(c). " . . . 10. Reference was made to the fact that Ms Harris had been employed with the Employer since 1987; had held a number of Union positions; and was aware of the fact that a trial period had been considered part of a training period. Ms. Harris was an incumbent employee and received no tralning 11 It was stressed that Ms. Harrls spoke exclusively on behalf of incumbent employees at the July 2, 1992 meeting, and there was no basis for misconstruing the nature of her references to the triall period as being exclusively referable to the case of such employees. 12. Reference was made to Ms Harris' evidence, which stressed the unfairness to incumbent employees if they were trJated as if they , ( ( ~ a> 32 wer~ in a trial period, as at May 1, 1992, for a job they did not strart to perform until June 22, 1992 ) 13. Reference was made to the fact that the evidence disclosed that Mr Homer was the spokesperson for the Employer and that Mr Baldwin merely took notes 14 It was emphasized that Mr. Homer had confirmed that the lncumbent employees would have their trial perlod commence only on June 22, 1992, and that there was no reason to disbelleve him, I especially when the matter was further confirmed in his letter (Exhibit 4). j 15 We were asked to note that Mr Homer, who was the spokesperson for the Employer at the July 2, 1992 meeting, did not testify, and no reason was given for not calling him. We were asked to draw an adverse inference, in the circumstances, that he was not called as a witness because he would not have been able to contradict the eVldence of Mr Madden and Ms. Harris as to what he agreed to, and ln what context. 16 We were also asked to note that the hand-written minutes taken by Mi Baldwin were never shown to the Union 17 We were also asked to note Ms Harris' evidence, as well as that of Mr Madden, that they regarded the contents of Exhibit 7 to ( ( <; ~ 33 be incorrect, and that Mr Madden had decided that it was unnecessary to do anything pending recelpt of the formal response from Mr Homer as to what had been agreed to at the July 2, 1992 meeting When Exhibit 4 was received, it was regarde~ as resolving the matter, and as a corr~ction of the error contained ln Ms Martino's memorandum (Exhibit 7) . ., 18 It was submitted that the lnformation contained in Exhibit 7 was obtained by Ms. Martino from Mr Baldwin, and that it represented an incorrect understanding of what had taken place at the July 2, 1992 meetlng. It was also submitted that Ms Martino had incorrectly represented the position of the Employer, through Mr. Homer, its spokesperson at the July 2, 1992 meeting, as verified in Exhibit 4 Discussion 1. The Employer relies on Exhibit 7 as establishing the basis for an estoppel, because the. Union had acquiesced in its statements to the detriment of both the Employer and Ms. Dickson. 2 We are unaware of any doctrine based on estoppel by mistake. The representation required to create an estoppel must be clear. In this case the juxtaposition of events discloses no intention on the part of the Union to acquiesce in the statements contained ln ,- - , - _.0__._._0- ~ ( ( , 34 Exhlbit 7, and the actlons of its representatives was, in the clrcumstances, reasonable 3 We are satisfied that the only employe~s whose situation was considered at the meeting of July 2, 1992, were the incumbent employees. Mr Homer's response to the Union addressed the Union's concern which was not with the trajnees It was not unreasonable, upon receiving Exhibit 7, for the representatives of the Union to wait a few days for the recelpt of the formal response from Mr. Homer I Upon receiving it, there seemed to be no need to correct, what could be reasonably regarded as an erroneous statement made by Ms. Martino We are affected by the failure of Mr. Homer to testify, and of the fact that no reason was given for his failure to do so 4 We do not believe that Mr. Baldwin had any intention to mislead us, and we believe that he honestly recorded what he believed to have been agreed to. It is evident, that he communlcated h1s belief to Ms. Ma'rtino, and this was rendered in the form of Exhibit 7 Our decision might have been different if we had heard from Mr. Homer, and he had testified contrary to the evidence of Mr. Madden and Ms. Harris as to which employees were the subject of the the agreement verified in Exhlbit 4 5. We cannot regard the behaviour of Mr Madden, after having the contents of Exhibit 7 read to him, or that of Ms Harris, after , i r '-- . :- ) \ 35 reading Exhibit 7, as amountlng to acquiescence ln the proposed ~ conduct of Ms. Martino or as as a representation that would support I I ~ a finding of an estoppel 6. ~or do we find any evidence of undue delay on the part of the Union so as to alter our view of the matter Reference was made to Exhibit 10, being a memorandum to Ms. Lane ~ from Rick Frappier, ( dated July 28, 1992, Manager Support SerVlces ottawa West I S.U which is as follows I TO Andrea Lane, Exception Ha'ndl ing Clerk I I, Records Management Branch, 15th Floor, Toronto FROM Rick Frappier, Manager Support Services, Ottawa West I S U DATE July 28, 1992 SUBJECT Grievance 92-78 On July 24, 1992 our office received Grievance 92-78, ln which, you state that "the employer posted the position of Program Support Clerk salary scale 005 in Ottawa without considering affected employees contrary to Artlcles 5 and 6 of the Collectlve Agreement " \ This same issue is being addressed in Grievance 92-7~, as a Policy Grievance. As such, Grievance 92-78 will be ( kept in abeyance until a response is issued to the 92-79 Policy Grievance Once lssued, you will be copied on the response For your information Rick Frappier I : Manager Support SerVlces I Ottawa West I S U i I I CUPE 1750 I cc Employee Relatlons Office . I ( I I ) I ( I .. ~ 36 J Madden - Chief Steward, L1750 F Mucci - President L1750 P Allan - Unit 14 Senior Steward., Ll'75'O S MacEachern - Senior steward, LJ!750 B. Look - Vice President ArE~a & Regional Offices, L1750 Y. Carr - Coordinator, Org & Tech. Committee, L1750 7. In particular, reference was made to the fact that the Employer stated that grievance 92-78 would "be kept in abeyance unti~ a response is issued to 92-79 policy grievance." 8 Reference was made to the fact that no evidence was tendered that indicated any other mention of a trial period for trainees or an extension of the trial period 9 It was submltted that it was not untll the Grievor was handed Exhibit 5, being the letter of September 28, 1992, that she or the Union h~d knowledge of the reason for the removal of the posting of Program Support Clerk , 10. Rather than there being a clear unambiguous representation by the Union that the strict terms of the collectlve agreement need not be followed in the case of trainees, we have a somewhat confusing situation in which the Employer endeavours to rely on the alleged acquiescenqe by the Union ln the statements set out in Exhibit 7 11 At most, each party was confused as to what the other had agreed to At best, each honestly believed the matter had been ( ( \ ,i.\ ". ... 37 resolved ifr accordance with their understandlng 12 In fact, it appears that Mr Baldwin conveyed, al be i t '- lnnocently, lnformation to Ms Martino which we find had not been agreed to at the July 2, 1992 meetlng that the trial period for trainees and incumbents would commence on June 22, 1992 We find that Mr Homer, for the Employer, agreed with the Union that the trial period for incumbent employees would commence on June 22, 1992 There was no evidence of any concern on the part of the Union to af~ect the trial period of tralnees. \ 13 Although we are satisfied that Ms. Harrls was innocently mistaken in her belief that she had conveyed her concerns about Exhibit 7 to her supervisor, ln the circumstances there was no need for her to do so. The apparent conflrmation by Mr Homer ln Exhibit 4 of the union's understandlng of what had been tentatively agreed to at the July 2, 1992 meetlng with respect to the trial I period applicable to incumbents made the absence of any response to Exhibi t 7 understand'able. 14 This is a case where the Employer, in Exhlbit 7, acted on the basis of a mistaken assumption that Mr Homer had agreed to have the trial period for trainees and lncumbents commence on June 22, 1992 and not on May 1, 1992 The Union, lt is argued, acquiesced in this mistaken as~umption because it did nothing to challenge lt after receiving Exhibit 7, whlch amounted to a representation that , ( ( ;~ ~ ~.l ~ 38 created an estoppel J \ 15 We have found nothing ,in the Union's behavlour that was unfair or unreasonable Having recelved a communlcation (Exhlbit 4) from the Employer's representative that confirmed its understanding of how and to whom the trial perlod was to apply, the Union's fallure to follow-up on Exhibit 7 is understandable, and the.J:"e was no evidence to show that it delayed ralslng its concern when it became aware of what the Employer was doing ln the case of trainees. The conditions for an estoppel do not exist in this case. Decision In all of the circumstances, the preliminary objection based on the existence of an estoppel is denied. I We have requested that the Registrar schedule a date for the continuation of the hearing. Dated at Toronto this 28th day of February,1994. J el ~ ~ ~l- -- -- J 0 Montrose - Member I