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HomeMy WebLinkAbout1994-0152.GALLAGHER96_10_24 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 ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-13~ GSB # 152/94 OPSEU # 94A562 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gallagher) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE 0 Gray Vice-Chairperson M O'Toole Member S Urbain Member FOR THE D Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J Benedict EMPLOYER James F Benedict Dispute Resolution Services Inc HEARING January 19, 1996 February 6, 1996 Decision The grIevor, SebastIan Gallagher, was first appoInted to the unclassIfied service for a fixed term as a correctIOnal officer In May 1990 He was re- appomted from tIme to time thereafter HIS last appoIntment was for the perIOd July 1 to December 31, 1993 Throughout hIS employment as an unclaSSIfied cor- rectlOnal officer he worked at the Metro Toronto East DetentIon Centre ("MTEDC") On or about October 14, 1993, the grlevor and another unclaSSIfied correc- tIOnal officer at MTEDC, Mark Daley, were mjured m an automobIle aCCIdent. As a result of theIr inJUrIes, they were both unavaIlable for work throughout the pe- riod from October 14 to December 31, 1993, when theIr last appoIntments ex- pIred. Thereafter, the grlevor and Mr Daley both receIved letters dated Janu- ary 24, 1994 from DIane Doherty, then Supermtendent of MTEDC, adVISIng them that they would not be re-appomted The bodIes of the letters were Identi- cal, and read as follows. Our records mmcate that you have not been available to attend work smce October 15, 1993, as a result of your mvolvement m a car aCCIdent. Durmg a meetmg WIth Mr K. COWIe Deputy Superintendent shortly after your accident, you expressed concerns regardIng your status as an unclassI fied employee who would not be available for duty for an mdefmIte period of trme. You were advised by Mr COWIe that for the short term thIS would not present a problem. GIven that your current contract expired on December 31, 1993 and you con tmue to be unavailable for duty, I must mform you that you will not be of fered a new contract. Please arrange to return all mmIstry issued Items (i.e. clothmg, Identmca tIon card, parkmg card, standIng orders etc.) to Mr L. Jeffers, Secunty Manager, as soon as possible. I would like to take thIS opportumty to WIsh you well m any future endeav ours. The gflevor and Mr Daley both filed grIevances allegmg that theIr em- ployment had been wrongfully termmated contrary to ArtIcle A of the partIes' collective agreement. SectIOn A.l 1 of that artIcle prOVIdes that. There shall be no mscnmmatIOn practised by reason of race ancestry place of ongm, colour, ethmc ongm, cItizenship creed, sex, sexual onentatIOn 2 age marital status, family status, or hanmcap, as defmed m sectIOn 10(1) of the Ontario Human RIghts Code (OHRC) The grIevor and Mr Daley both alleged that the decIsIOn not to re-appomt them constItuted dISCrImInatIOn on the basIs of handIcap In addItIon, Mr Daley al- leged that the decIsIOn was prompted by hIS havIng spoken out at about that tIme at a press conference of the CommiSSIOn on SystemIC RaCIsm In the OntarIO CrImmal JustIce System, where he had saId that he had been subJect to ongomg, unchecked raCIal dISCrImmatIOn In hIs employment as a correctIOnal officer ImtIally, the partIes agreed that Mr Daley's grIevance be heard together WIth Mr Gallagher's Both grIevances came before us for hearmg on January 9, 1995 The employer's representatIve mltIally sought to raIse a prehmmary obJec tIOn to our JurisdIctIOn, but ultimately agreed to deal WIth the matter of JUrIsdic- tIon in clOSIng argument. The hearIng that day was adJourned after umon coun- sel had made hIS opemng statement, to gIve the employer's representatIve the opporturuty to mvestIgate partIculars umon counsel had gIven of mCldents of ra- CIally motIvated treatment allegedly experIenced by Mr Daley durIng the course of hIS employment. Thereafter, the partIes agreed to have thIs board hear the two grIevances separately The Evidence The grievor testified that durmg December 1993 and January 1994, prior to hIs receivmg the Supermtendent's letter of January 24, 1994, he was not aware that hIs last contract would expIre or had expIred December 31, 1993 He saId that the sIgrung of contracts had been a routme matter They were brought to hIm from tIme to time and he SIgned them. He never gave them much thought. The document referred to by both partIes as a "contract" IS a standard form document entItled "Appomtment to UnclaSSIfied SerVIce." It sets out the appomtee's name and address and other personal data, the effectIve date and expIry date of the appomtment and the nature of the employment. There IS a space for the employee's SIgnature beSIde the words "I accept the above terms and conditIOns" Below that IS a block whIch mcludes spaces for SIgnatures of a "Dlrector/Supermtendent/Area Manager" and an "AuthOrIzed Personnel Admm- Istrator" 4- (ExhibIt 3, page 3) The gnevor testified that some time m February 1994 he was seen by an orthopaedIc surgeon, who saId he could return to work m about 6 weeks thereafter Later m February 1994, however, the gnevor was mvolved m a another automobIle accIdent. As a result, he saId, he dId not recover sufficIently to return to work untIl June 1994 In cross-exammatIOn he stated that pursuant to automobIle Insurance he contmued to receIve compensatIOn for lost mcome as a result of the accIdent untIl October 1994 In October 1993, wlthm a week after the grIevor was dIscharged from hospItal, a fellow employee drove hIm to the workplace to meet wIth Mr CowIe, the Deputy Supermtendent of MTEDC, and Mr MIkel, an AsSIstant Supermten dent. They were aware of hIS accIdent. The grIevor asked If his Job was m Jeop- ardy In hIs examination m chIef, the grIevor stated that Mr CowIe assured hIm that hIS Job was not m Jeopardy In cross-exammatIOn he saId that "not in Jeop- ardy" were hIs words, not Mr CowIe's. It was put to hIm that Mr CowIe had saId the fact he would be away would not Impact hIS Job m the short term. The grIevor answered that that was "along the hnes we were talkmg about." He was then asked whether he had asked Mr CowIe what he meant by "the short term" or had made mqulnes or sought clarIficatIOn. He answered "No, I felt my Job was secure" In re-exammatIOn he was asked whether he could recall Mr CowIe usmg the words "m the short term" m the course of the October meetmg He saId he could not. Mr Cowie testIfied that at the October meeting the grIevor described hIS mJurles and saId he would be recelvmg therapy The gnevor dId not know how long the therapy would take, so he would be absent mdefimtely Mr CowIe saId that when the gnevor expressed concern about the Impact of thIS on hIs employ- ment, he replied that m the short term It would have no Impact, but he would be reqUIred to prOVIde current medIcal mformatIOn durmg the course of his absence Mr CowIe testIfied that at the time It dId not sound to hIm as though the ab- sence would be long term, bearmg m mmd that the grlevor had walked mto the meetmg on hIS own. In cross-exammatIOn he added that he had thought the ab- sence would be for 5 to 6 weeks. He agreed that he had not saId there would be a problem If the absence lasted for more than 5 or 6 weeks He knew that the grIevor had been absent for an extended perIod from whIch he returned m 1992 He saId he became aware of that shortly before the grIevor's return m 1992, but 5 was not sure whether he knew m the fall of 1993, or ever, exactly how long that earher absence had been. The grlevor testIfied that at the October meetmg Mr CowIe told hIm he should contact management regularly to keep It up to date on hIS status, and provIde doctor's notes on request. Shortly thereafter he obtamed and provIded a doctor's note dated October 21, 1993, whIch sImply mdlcated that hIS return date was uncertam. The grievor stated that after the meetmg m late October 1993 he tele- phoned Mr CowIe's office every two weeks to update hIm on hIs mJurles and how he was progressing He testIfied that m the perIod between the October meetmg and the arflval of the Supermtendent's letter of January 24, 1994, he only spoke to Mr COWIe hImself tWIce. He beheved that the second of those conversatIOns was m early January 1994 He saId that on occasIOns other than those two he spoke to Mr COWIe's secretary He stated that there was no reference m any of these telephone calls to when he would be returrung, nor was there any dISCUS- SIOn of hIS Job status Mr COWIe testIfied that he only spoke to the grievor tWIce after the Octo- ber meetmg Once was m a telephone conversatIOn m November 1993, m whIch the grIevor saId that he was stIll undergomg therapy and that hIS doctor dId not know when he would return. Mr COWIe testIfied that m that conversatIOn he asked the gnevor to prOVIde another doctor's note WIth a clearer pIcture of what was takmg place. Mr COWIe saId that the only other occaSIOn on WhICh the gnevor spoke to him by telephone was after the grIevor had receIved the Super mtendent's letter of January 24, 1994 The grievor testified m chIef that no-one at M1'EDC requested a doctor's note after the October meetmg DespIte thIS, he obtamed a note from the ACCI- dent InJury Management Chmc dated December 13, 1993 The note SImply mdI cated that he was then attendmg a rehablhtatIOn program and was under doc tor's care. He saId he maIled thIS note to Mr COWIe some time m January 1994, under cover of a handwntten letter whIch saId I have mailed you the letter you requested from the phYSICIan attendIng to my mJunes from the aCCIdent on October 14 1993. Driving IS still dllficult for me and I md not want to further delay your request. 6 The grIevor testIfied that the request referred to m hIs covermg letter was SIm ply the origmal request Mr CowIe made at the October 1993 meetmg In cross exammatIOn he testIfied that It IS possible he spoke to Mr CowIe m November 1993 When It was put to hIm that m a conversatIOn in November Mr CowIe told hIm that he reqUIred more medIcal mformatIOn, the grIevor saId he dId not recall that, but added "I don't doubt that he would have" Mr CowIe testIfied that at the time m questIOn MTEDC had about 45 un- classIfied correctIOnal officers. Some tIme m the late fall of 1993 there were meetmgs at whIch some unclassIfied correctional officers complamed to hIm and Mr DeFranco, another member of management, that there were not enough hours of work for them all. He saId he and Mr DeFranco dIscussed this with the Supermtendent m early January 1994, and came to agreement that they dId not need all the unclassIfied officers for whom they had contracts They spoke spe- CIfically about Mr Gallagher and Mr Daley They noted that the two men had not been avaIlable smce October 1993 and that there was no current medIcal m- formatIOn on when they would return. In cross-exammatIOn, Mr CowIe said he could not recall the exact date of the meetmg he and Mr DeFranco had wIth the Supermtendent m January 1994 He stated that It was about 1 Yz weeks before the date of her letter of January 24, 1994, two weeks at most. He dId not know when new contracts for other unclaSSI- fied officers had been eIther prepared or SIgned, he saId he was not mvolved m the process of preparing and sIgnmg the contracts He dId not know whether or not unclassIfied officers had worked WIthout contracts for a time m January 1994 He agreed that apart from a termmatIOn for cause whIch was successfully grIeved, there had been no reductIOns m unclaSSIfied staff m December 1993 or January 1994 other than the non renewal of appomtments of the grIevor and Mr Daley DIane Doherty had been Supermtendent at MTEDC for nearly 3Yz years when she SIgned the letter to the gnevor of January 24, 1994 She testIfied that the deCISIOn to not renew the gnevor's appomtment was hers Ms Doherty stated that after she came to MTEDC as Supermtendent she estabhshed a commIttee chaIred by Mr COWIe, whIch was to study the InstItu- tIOn's needs for contract correctIOnal officers every 6 months and report to her 7 ThIs was supposed to be done before eXlstmg contracts expIred, and a process was establIshed whereby the Issue was to be brought forward 6 weeks before the contracts expIred. Ms. Doherty saId that her goals as to tImehness were not en- tIrely met durmg her tenure (she became Supermtendent at another mstItutIOn later m 1994), but there was Improvement over the prevIOUS practIce WIth reference to her decIsIOn not to renew the gnevor's appomtment, Ms Doherty testified that when Mr CowIe came to her wIth the results of the commIttee's assessment "at the end of December," he told her that the grIevor had been unavaIlable smce October and there was no mdlcatIOn when he would be avaIlable. Lookmg at the date of January 24, 1994 on her letter to the grIevor, she saId she had left a grace penod m whIch the grIevor could let her know when he would be avaIlable When nothmg was forthcommg, she saId, she deCIded not to renew and sent the letter Durmg cross-exammatIOn, Ms Doherty appeared to accept UnIon counsel's suggestIOn that It was "m December", before the contracts "became due," that she receIved the report of Mr CowIe on contract employees whIch had mcluded men- tIon of the gnevor's unavaIlablhty After referrmg to the grace perIod, UnIon counsel asked whether the decIsIOn she had made was that If the gnevor came forward and said he was ready to come back, they would take hIm back. She re- phed that they mIght not have needed hIm, that they would have needed medICal mformatIOn and that If he was not fully fit they would have had to conSIder theIr needs If he had been fully fit, she saId, they would have conSIdered brmgmg hIm back If they needed hIm at that time In re-exammatIOn, Ms Doherty saId the decIsIOn not to renew the gnevor's appomtment was made around the time the letter of January 24, 1994 was wntten. It had to have been around that time, she saId, or she would have wrItten the letter earher Asked about the sItuatIOn at the end of December, she rephed that If someone IS away It IS always the practice to have the person as- sessed and they would have to prOVIde a certIficate before returrung Asked what decIsIOn had been made at the end of December, she rephed that they had not heard from the grIevor, the only mformatIOn she had was the InItIal call that he was m an aCCIdent, and that she assumed that he was not mterested. 8 Argument Uruon counsel mVlted us to find, on Ms. Doherty's testimony, that the de- CISIOn not to renew the grIevor's appomtment was made m December 1993 whIle the grIevor was stIll an employee Accordmgly, he argued, the complamt that the deCISIOn was a breach of ArtIcle A was one over WhICh thIS board has JUrISdIctIOn because the alleged dISCrImmatIOn occurred whIle the gnevor was stIll an em ployee Pa~rn, 1685/92, May 3, 1993 (Kaplan) Umon counsel argued m the alternative that If the dISCrImmatory deCISIOn not to renew was made m January 1994, then there were two bases on whIch thIS board would have JunsdlctIOn to prOVIde a remedy The first of those alternate arguments rested on the proposItion that an unclassIfied employee has two rIghts the rIght to work for a penod equal to the length of hIs/her appomtment, and a rIght to be conSIdered for renewal when that perIod of work IS completed. It followed, counsel said, that when he became mJured the grIevor was entItled to return to work for 10 addItIonal weeks after he recovered and to then be conSIdered for a further contract. These were rIghts whIch crystalhzed whIle he was still an employee, rIghts whIch we could enforce notwlthstandmg the expIry of hIS appomtment. The second alternative argument was that the employer was estopped from assertmg that thIS board lacked JUrISdIctIOn, because the employer led the grIevor to belIeve that hIS mJurles were not a threat to hIS job secunty There were two employer representatIOns on which counsel saId thIS es- toppel was based One was a representatIOn by conduct ansing from the way contracts had been handled m the past. some had not been SIgned by the gnevor, others had not been SIgned until after theIr effectIve dates, and re-appomtments had been made during the gnevor's previous lengthy absence due to mJury Un- IOn counsel submItted that these actIOns represented to the gnevor that he need not be concerned about or take steps to ensure the renewal of hIs contracts The other representatIOn rehed upon was Mr COWIe's representatIOn at the October meetmg Umon counsel mVlted us to find that the words "m the short term" were not used or, If they were, that they should be mterpreted m hght of the gnevor's havmg prevIOusly retamed employee status durmg an absence of nearly eIght months 9 Uruon counsel argued that the grIevor had rehed to hIS detrIment on these representatIOns. If he had known he had to act by December 31, If he had been told hIS appomtment would not be renewed If he was stIll not healthy, counsel saId, then he could have provoked a management decIsIOn pnor to December 31, whIle he was still an employee entItled to the protectIOn of ArtIcle A, thus en- surmg that a dlscnmmatory decIsIOn could be challenged by way of a grIevance rather than a complamt to the Human RIghts CommIsSIOn. WIth respect to the alleged breach of ArtIcle A, counsel argued that the decIsIon not to renew was based on the grIevor's unavaIlability HIS unavaIlabIl- Ity was due to the effect of hIs mJurles, whIch m the umon's submIsSIon constI- tuted a handIcap as defined by the OntarIo Human R~ghts Code and, therefore, a handIcap wlthm the meamng of ArtIcle A of the collective agreement. To base an appomtment decIsIOn on unavallablhty m those CIrcumstances was therefore a breach of ArtIcle A, he saId Reference was made to Re The Crown m R~ght of On- tano (Mimstry of Health) and Ontarw PublLc Servwe Employees' Unwn (Martm) (1993), 31 L.A.C (4th) 129 (Dlssanayake), Re The Crown In R~ght of Ontarw (Mimstry of Government Sermces) and Ontano Pubhc Servwe Employees Unwn (Kimmel/Leaf) (1991),21 L.A.C (4th) 129 (Kaplan) Counsel submItted that the approprIate remedy for thIS breach was a dIrectIOn that the employer compen- sate the grIevor for lost earrungs from and after July 1994, re-appomt the grIevor for a SIX month term and thereafter conSIder hIm for further re-appomtment on the same baSIS as other unclaSSIfied officers Miller and MacPhml, 531/82, Janu ary 3, 1990 (Verity) and Inkumsah, 968/91, October 14, 1992 (Stewart) were cIted wIth respect to remedy The employer's representative argued that the grievor had not been sub- Jected to unlawful dlscnminatIOn. The fact that hIs appomtment expIred on ItS expIry date was not dISCrImmatory The gnevor was not deprIved of work he was capable of performmg or of benefits to whIch he was entItled There was no sug- gestIOn that the gnevor's return to work could have been accommodated before or at the tIme the challenged decIsion was made In any event, any alleged dls- cnmmatory treatment occurred after the grIevor ceased to be an employee on December 31, 1993 Thus, ArtIcle A could not apply and thIs board was WIthout JUrISdIctIOn to review or remedy the allegedly dISCrIminatory treatment. 10 WIth respect to uruon counsel's first alternative argument on the basIs for our JUrISdIctIOn, the employer's representative dIsputed the claIm that an un classIfied employee has a rIght to work whIch can be exercIsed outsIde of the cal- endar perIod for whIch he was appomted the grIevor had no rIght to renewal, as hIs contract stated on ItS face With respect to UnIon counsel's estoppel argument, the employer's repre- sentatIve noted that before there can be an estoppel there must be a rIght, repre- sentations, rehance and detrIment. He submItted that there was no rIght upon which the employer had represented It would not rely, that there were no repre- sentatIOns m wrIting and that there could be no estoppel wIth mdlvldual em ployees As for detrIment, he noted that the grIevor had been adVIsed to keep the employer mformed and had not done so In reply, UnIon counsel submItted that an arbItratIOn board does have ju- rIsdictIOn, when it consIders It approprIate as a matter of industrIal relatIOns pohcy, to apply the doctrme of estoppel to CIrcumstances m whIch the employer makes a representatIOn to an mdlvldual employee who rehes on It to her detrI ment. Ontano Pubhc Sermce Employees Umon and Her Majesty The Queen In R~ght of Ontano (Mimstry of Commumty and Soc~al Sermces), December 14, 1995, unreported (Ont. DIV Ct.) He also observed that there IS no legal reqUIre- ment that the representatIOn on WhICh an estoppel IS based be made m wrItmg In response to a questIOn from the board about the apphcatIOn of the prm clples m sectIOn 17 of the Human R~ghts Code, partIcularly subsectIOn 17(1), un IOn counsel argued that as the employer had not expressly rehed upon them the board should not apply them. In any event, he saId, sectIOn 17 reqUIres that an employer accommodate unavailablhty due to handicap unless domg so causes undue hardshIp He noted, as was the case, that the employer made no claIm that retammg the grIevor as an mactIve employee would have caused It any hardshIp The benefit to the grievor of remammg an mactIve employee, he saId, was that he then had a job to return to when he was able, and was ehgible to ap- ply for any claSSIfied pOSItIOns which came avaIlable m the meantIme 11 Decision In October 1993 Mr CowIe told the grIevor that hIS unavaIlabIhty due to hIS mJurIes would not Impact hIS employment. One of the factual Issues m dIS- pute IS whether that statement was qualIfied by "m the short term" or words to that effect. Mr CowIe was qUIte firm that hIS statement was quahfied m that way Although the gnevor dId not remember hIS saymg that, It IS not apparent that he had a clear recollectIOn generally of the words used by Mr CowIe. It seems unhkely that someone m Mr CowIe's posItIon would gIve an unquahfied assurance of future employment m those CIrcumstance. We find that what the grIevor was told m October 1993 was as mdlcated m the Supermtendent's letter of January 24, 1994 Another factual Issue IS whether m their telephone conversation at the end of November 1993 Mr CowIe asked the grIevor to obtam and provIde a fresh medICal report. Although the grlevor saId he was not asked to get a doctor's note after the October meetmg, the fact IS that the gnevor dId get another doctor's note m December 1993 The covermg letter wIth whIch he says he later maIled that doctor's note to Mr CowIe refers to It as "the letter you requested." The grIevor's claIm that thIS was a reference to a request made at the October meet- mg IS dIfficult to beheve, because he had already responded to that mltIal re- quest wIth a doctor's note of October 21, 1993 We find that Mr CowIe dId ask the gnevor for a medIcal report m November 1993 We further find that he had not receIved such a report by the time of the meetmg at whIch he told the Su- permtendent that there was no current medIcal mformatIOn on when the gnevor could return to work. Fmally, there IS the Important questIOn of the tImmg of the decIsIOn or de- CISIOns WIth respect to the grIevor's re-appomtment. It appears there were two decIsIOns The first decIsIOn was made when the Supermtendent met wIth Mr Cowie and Mr DeFranco to dISCUSS re-appomtment of unclasSIfied officers generally At that pomt, the Supermtendent deCIded she would not renew the grIevor's appomtment at that tIme, but would defer her decIsIon about the grIevor's re-appomtment for a whIle to see whether there was further contact wIth hIm m the meantIme Just before the letter of January 24, 1994 was sent, the superintendent deCIded she would advIse the grIevor that hIS contract would 12 not be renewed ThIs second decIsIOn was clearly made m January 1994, after the grIevor's appomtment had expIred On Mr CowIe's eVIdence, the first decIsIOn was also made m January 1994 He was qUIte sure about that. Ms Doherty's testImony and recollectIOn were less clear On balance, It seems more probable that the meetmg at whIch the first decIsIOn was made occurred m the first week of January 1994, as Mr CowIe stated The gnevor's employment was in the unclassIfied serVIce. The Pubhc Sermce Act provides that a mmlster or hIS or her desIgnate may appomt a person to the unclassified servIce for a speCIfied perIOd It also proVIdes that such a per- son ceases to be a pubhc servant at the end of that speCIfied perIOd By ItS terms, the relevant collectIve agreement apphes only to pubhc servants The employer's treatment of someone after he or she has ceased to be an employee covered by the collectIve agreement IS not governed by that collectIve agreement, unless the treatment m Issue IS in respect of an entitlement which arose whIle the mdlVId- ual was still an employee For example, some amounts earned by an mdIVIdual durmg employment may not be due and payable untIl a time when the mdlvld- ualls no longer an employee The faIlure to pay those amounts could stIll be the subJect of a grIevance on that mdIVIdual's behalf even though It occurs after he or she ceased to be an employee, because the employer's obhgatIOn to pay arose out of and durmg employment governed by the collective agreement. One of the unIon's arguments IS that m October 1993, when the gnevor became unable to work as a result of hIS mJurles, he had two vested rIghts whIch then SUrVIved the expIry of hIS appomtment. the rIght to work for a perIod equal to the balance of the SIX month perIod for whIch he had been appomted, and the nght to then be consIdered for further appomtment. The suggestIOn, mother words, IS that the employer had two obhgatIOns to the grIevor as a result of ap- pomtmg him to unclaSSIfied employment for the perIod July 1 to December 31, 1993 first, to prOVIde a perIod or perIOds of employment totallmg SIX months durmg whIch he was phYSIcally capable of performmg avaIlable work, and then to conSIder hIm for re-appomtment. On thIS theory, the employer would be obhged to re-appomt at the end of the term of theIr appomtments every unclaSSIfied officer who had been unavaIl - 13 able for any part of that term due to a handIcap We do not accept that theory The grIevor's appomtment was for a calendar penod NeIther the appomtment nor the contract whIch reflected It guaranteed the gnevor any partIcular amount of work, nor dId the collectIve agreement. The gnevor's unavallablhty for work due to handicap durmg the term of hIS appomtment dId not create any obhgatIOn on the employer's part to employ hIm beyond the calendar term for whIch he had been appomted. NeIther the collective agreement nor theIr appomtments nor theIr stan- dard form contracts gIve those appomted to the unclassIfied servIce for a speCI fied calendar perIOd the nght to re-appomtment at or after the end of that pe- rIod WhIle m practIce such persons could expect to be consIdered for re- appomtment WIthout makmg a formal apphcatIOn, partIcularly when theIr con- tmumg response to call-ms demonstrates theIr mterest m contmued employ- ment, It would be mapt to describe thIs as a rIght. UnclassIfied employees cer- tamly have a rIght to be treated WIthout unlawful dISCrImmatIOn m respect of re- appomtments, Just as apphcants for a first appomtment do. That nght anses under the Human R~ghts Code for all those seekmg appomtment to the pubhc servIce, whether or not they are currently so employed ArtIcle A of the collectIve agreement also prOVIdes the employees It covers WIth a nght to non- dISCrImmatory treatment durmg the course of theIr employment. That mcludes treatment relatmg to re-appomtment for a further term ~f that treatment occurs whIle the mdlvldualls an employee. Pa~rn, 1685/92, May 3, 1993 (Kaplan), Mer- son, 0016/93 (Gray) The grIevor's last appomtment to the unclassIfied servIce expIred on De- cember 31, 1993 He ceased to be an employee covered by the collective agree- ment at the end of that day The UnIon argues that the employer IS estopped from ralsmg thIs as a limItatIOn on our junsdlctIOn under the collectIve agree- ment to redress any dlscnmmatory treatment which may have occurred thereaf- ter We do not accept that argument. Lord Justice Dennmg described estoppel this way m this often-quoted passage from Combe v Combe, [1951] 1 All E R. 767 at p 770 The prmcIple, as I understand It, IS that where one party has, by hIS words or conduct, made to the other a promIse or assurance whICh was mtended to affect the legal relatIOns between them and to be acted on accordIngly then, once the other party has taken hrm at hIS word and acted on It, the one who 14 gave the promIse or assurance cannot afterwards be allowed to revert to the preVIOUS legal relatIOns as IT no such promise or assurance had been made by hrm, but he must accept theIr legal relatIOns subJect to the quaWlcatIOn whICh he hImself has so mtroduced, even though It IS not supported m pomt of law by any conSIderatIOn, but only by hIs word. We agree wIth the umon that a promIse or assurance made orally or by conduct may support an estoppel. There IS no reqUIrement that the representatIOn on whIch an estoppel IS based be made m wrItmg The employer words and conduct rehed upon by the umon here dId not m- troduce mto the employer's legal relatIOns WIth the grIevor any quahficatIOn m- consIstent WIth ItS subsequent conduct. It IS not apparent that eIther the grIevor's sIgnature or a wrItten "contract" was needed to make hIs appomtments to the unclassIfied serVIce effective. As the mmlster's deSIgnate, the Supermten- dent dId what had to be done to effect the appomtment, and the grlevor entered mto the employment so authOrIzed. The fact that hIS sIgnature on documents relatmg to hIS appomtments was not obtamed or only obtamed after the effectIve date of the appointment m questIOn dId not amount to a representatIOn that the employer would exerCIse ItS right to appomt m a partIcular way thereafter Nor dId the fact that hIS employee status was contmued durmg a perIod of mablhty to work from whIch he was later returned to work constItute a representatIOn that the employer would exerCIse ItS rIght to appomt m a sImIlar way on a sub sequent occaSIOn. Mr COWIe's assurance m October 1993 about the Impact of the grIevor's unavaIlablhty on hIS employment was quahfied by the phrase "in the short term," or words to that effect. ThIS was not a representatIOn that the employer would mevItably re-appomt the grIevor when hIS current appomtment expIred It was also quahfied by the observatIOn that he would have to keep the employer up to date on hIS status, and prOVIde doctor's notes on request. GIven that con- text, the assurance was certamly not one on whIch the grIevor could faIrly claIm to have rehed after he faIled to promptly respond to a request for another doc tor's note In short, the estoppel argument falls for want of a suffiCIent representa- tIon on whIch to base It. It IS unnecessary to determme whether the alleged det rImental rehance was of a sort WhICh could support an estoppel, nor whether there are any CIrcumstances m whIch an estoppel based on representatIOns to an 15 mdlvldual employee should or could gIve the board JUrISdIctIOn to redress the employer's alleged dlscnmmatory treatment of someone after he or she has ceased to be an employee Our JunsdlctIOn here IS hmlted to applymg ArtIcle A to the employer's treatment of the grIevor up to December 31, 1993, when by the terms of hIS ap- pomtment and by operatIOn of law he ceased to be an employee covered by the collectIve agreement. We have found that the dIfferentIal treatment complamed of here occurred after that date. Accordmgly, that treatment of the gnevor can not be a breach of ArtIcle A, and the grIevance must be dIsmIssed In the cIrcumstances, we do not have to determme whether the employer's decIsIOn not to renew the gnevor's employment would have violated ArtIcle A If It had been made m December 1993 We do wIsh to note, however, that that ques- tion could not have been properly answered sImply by notmg that the unavall ablhty to whIch the employer responded was a result of the grlevor's dlsablhty ThIs IS not a case hke Martm, supra, where the employer denIed the gnevor a Job because of past absences due to a handIcap whIch had no effect on the gflevor's ablhty to prOVIde regular attendance m that Job Here, the effect of the handIcap whIch the employer took mto account (along wIth the lack of mter est It mferred from the grlevor's faIlure to keep It mformed) was the gnevor's then present mcapaclty to perform the Job m questIOn. DlstmctIOns based on relevant dIfferences m mdIVIduals' actual ments and capablhtIes are not the sort of dlstmctIOns wIth whIch prohibItions of dIS- CrImmatIOn are ordmarIly concerned Andrews v Law Soc~ety of Bra~sh Colum- b~a, [1989] 1 S C R. 143, at pp 174-5 They are also generally not the sort of dIS- tmctIOns prohibited by the Ontano Human R~ghts Code m matters of handIcap SectIOn 17 of the Code prOVIdes that 17 (1) A right of a person under thIS Act is not mfrmged for the reason only that the person IS incapable of performmg or fulfillmg the essential dutIes or requirements attendIng the exerCIse of the nght because of hanmcap (2) The CommIssIOn a board of mqUIry or a court shall not find a person mcapable unless It IS satisfied that the needs of the person cannot be ac commodated wIthout undue hardshIp on the person responsible for accom modating those needs, consIdermg the cost, outSIde sources of fundIng, If any, and health and safety requirements IT any 16 - In Chamberhn v 599273 Ontano Ltd. (1989), 11 C.H RR D/110 (Ont. Bd of Inq) a board of mquiry observed at paragraph 36 that the Code does not Ignore the fact that certam hanmcaps can negatively rmpact on an inmvIdual's ability to perform certam types of work. If a person IS unable to adequately perform a particular Job because of a hanmcap the Code does not entItle that person to employment m the Job What the Code does do IS ensure that persons wIth a handicap are not dIscrrmmated agamst WIth respect to Jobs they are capable of performmg. When the Supermtendent decIded she would not reappomt the gnevor to employment as an unclassIfied correctIOnal officer, the gnevor was mcapable of performmg the essentIal duties of that employment, and there was no prognOSIS then as to when, If ever, he would recover suffiCIently to perform eIther regular or modIfied dutIes. The employer argued that whatever It may have chosen to do m the past, the Code dId not obhge It to appomt to a pOSItIOn someone then mcapa ble of performmg the work of that pOSItIOn. The unIOn's response was that be- cause the employer could have conferred employee status on the gnevor WIthout suffermg undue hardshIp, It was obhged to "accommodate" the grIevor by re- newmg hIS employee status and SImply toleratmg hIS total mcapaclty untIl such tIme as he recovered suffiCIently to return to modIfied duties. This raIses the dIfficult questIOn whether SImply toleratmg total mcapac- Ity IS an accommodatIOn of the sort reqUIred by subsectIOn 17(2) of the Code That questIOn was addressed thIS way m Re Bonner v Ontano Mimstry of Health, Insurance Systems Branch (1992) 16 C H.RR D/485 (Hubbard) at para graph 80 SectIOn 16(1a) [now s. 17(2)] of the Code and the case law dealmg WIth the former s. 16 (1)(b) inmcate that a person cannot be Judged incapable of per formmg unless it is found "that the needs of the person cannot be accommo. dated WIthout undue hardshIp" Clearly the "needs" m questIOn are needs which If met would actually enable a person to perform the work so that It can be saId that, but for the failure to prOVIde those needs the employee would have been able to perform the work. The "needs" must be such that upon their accommodatIOn capaCIty would occur The "need" for deferral of actIVIty to some future trme m the hope that Circumstances will change for the better IS not a "need" the accommodatIOn of whIch would enable the per son to perform work that he or she is demonstrably unable to perform cur rently It IS not, m my opmIOn, a "need" wIthm the meanmg of that term as contemplated by the Code. When the SuperIntendent deCIded not to appomt the grIevor to a further term of employment as an unclaSSIfied correctIOnal officer, there was no need whIch, If 17 - accommodated, would have enabled the grIevor to then perform eIther regular or modIfied work m that posItIOn. If the analysIs m Bonner is rIght and bears applI- catIon here, It would follow that the employer was not oblIged by the Code (or, If the deCISIOn had been made m December 1993, by ArtIcle A) to accommodate hIm m the manner suggested by the UnIon, no matter how httle It might have cost It to do so The Issue addressed m Bonner was not raIsed by the employer's represen- tatIve m argument. We have not had the benefit of submIsSIOns by eIther party on the correctness or lImItatIOns of the analYSIS m that deCISIOn. It may be that the observatIOns m the passage quoted from Bonner are too categorIcal, that there are some CIrcumstances m whIch a perIOd of temporary mcapaclty IS a need whICh an employer IS obhged to accommodate If some prospect that the total m capaCIty wIll be for a hmlted term affects the analYSIS, the fact that the employ- ment IS for a hmlted term may also weIgh m the balance These are not Issues that we have to decIde. We have made reference to them to Illustrate why we say that answermg the questIOn whether the employer dlscrImmated on the baSIS of handIcap m CIrcumstances such as these IS not as sImple as determmmg whether there IS some connection between the deCISIOn and the handIcap We have also done so m the hope that, as a result, the next panel to be faced WIth thIS problem WIll be gIven the benefit of full submIssIOns on these pomts. In summary, we have found that the allegedly dISCrImmatory treatment complamed of occurred after the grIevor appomtment expIred on December 31, 1993, when he ceased to be an employee covered by the partIes' collectIve agree- ment. Weare not persuaded that ArtIcle A of that collective agreement can be apphed to the employer's treatment of the grlevor after December 31, 1993 Ac- cordmgly, Mr Gallagher's grIevance IS dIsmIssed. Dated at Toronto thIS 24th day of October, 1996 M O'Toole, Member OPSEU (Gallagher) and the Crown in Right of Ontario (MCS) 0151/94 Dissent With all due respect, I must dissent from the majonty m thIS matter Mr CowIe, Deputy Supenntendent, testIfied about complamts from the unclassIfied staff about not receIvmg sufficIent hours of work. Mr CowIe and Mr De Franco, the Semor Assistant Superintendent, had a meetmg m December 1993 with the unclassified staff When questIOned by umon counsel, Mr CowIe acknowledged that he had informed Ms Doherty, the Superintendent, sometime later in December that the institution had too many unclassIfied staff for their needs Mr Cowie further testified that the gnevor and Mr Daley were singled out because they had been unavaIlable smce October They had not provided up- dated medical mformatIon and had not recently contacted him Ms Doherty testiHed that a Human Resources CommIttee revIewed all contracts expiring on December 31, 1993 Mr Cowie was a member of this committee, and brought forward this recommendatIOn to Ms Doherty Ms Doherty could not recall whether thIS was in December or early January Ms Doherty testified that the recommendatIOn was that the grievor was not available and, therefore, should not be re-appomted Ms Doherty acknowledged that she knew why the gnevor wasn't available due to hIS mJuries When umon counsel asked Ms Doherty if that IS why she decided not to renew the gnevor's contract in December, Ms Doherty replIed yes ThIS reason for not renewmg the grievor's contract IS clearly stated in the letter of January 24, 1994 The effective decision not to renew the grievor's appointment was made in December whIle the grievor was still an employee I must conclude that the decision not to renew was based on the grievor's unavaIlability The grievor's unavaIlability was due to the effect of hIS mJuries which constitutes a handicap as defined by the Ontario Human RIghts Code and, therefore, a handicap WIthin the meamng of ArtIcle A of the Collective Agreement Therefore, as the employer breached ArtIcle A before the gnevor's appomtment expired on December 31, 1993, I would have up-held the gnevance Dated at Toronto thIS 18th day of September 1996 I ~ I S U rbam, Member