HomeMy WebLinkAbout1995-0159.Bell.96-02-12
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 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396
GSB # 159/95
OPSEU # 95C499
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEHBNT BOARD
BETWEEN
OPSEU (Bell) Grievor
- and -
The Crown in Right of ontario
(Ministry of Health)
Employer
BEFORE R.J. Roberts Vice-Chairperson
FOR THE R. Blair
GRIEVOR Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE P. Toop
EMPLOYER Policy Advisor
Employee Relations Board
Management Board Secretariat
HEARING December 1, 1995
January 12, 1996
1
INTERIM AWARD
On March 30, 1995, the partles executed a detalled and lengthy document that set forth numerous
measures to asslst m the retention and placement of aboriginal employees and employees wlth
dIsabIhtles. The document was entltled, "Memorandum of Agreement Between the Crown in
RIght of Ontano (Represented by Management Board Secretariat) and the Ontario Public Service
Employees Umon (OPSEU) " It was sIgned by nme officials on behalf of the umon and five
offiCials on behalf of the Management Board Secretariat. In the grievances at hand, the umon
sought to rely upon certain provisIOns in this document. The employer thereupon entered a
prehmmary objection to jurlsdictIOn, claimmg that the document was not enforceable through the
arbitratIOn procedure. For reasons which follow, it is concluded that the document IS enforceable
at arbItration and, as a result, the preliminary objection of the employer must be dIsmIssed.
The document In questIOn reads as follows
MEMOllANDU:: OF' AGREE~E::T
BE'1'WEEN
TilE CROWl/ IN RIGHT OF ONTARIO
(R!:?RESEN'!'EO BY MA.':i,GD:ENT BOARD Sl::CR::T;'p'Ii"~')
;..NO
THE ONTARIO ?UBLIC SERVIC::; E:.'lPLOYEES tn/IOII
(OFSETJ)
Based on ~~e advice support and par~_cipa~ion of ~~e O?S hdvis~~!
f
Gro~? on ~?loycen: ~quLty tor Persons wLtn D~sap~l~t~es and tne
Ontario Net_ve EQployoent E~~ity C~rcle the parties to t~is
~e=ora~d~ have a~eed to the fo"Q~ing measures to assis~ _~ the
=:!t.eT"'~n a~d ':\la.ce~eJ,t c! c~asS..:':'f;'" and u!1c.lass_=ied e..bc~ _.....i;:al
el:~lcvees and . classi:ied anQ unclassified e:=iLovees WL-::'l
disabi~lt_es within ~e C~S . - -
- - -
upon rati:ic3tion of the paro:ies and written con:~=ation of
support of this M~orandu: :ro~ ~~e OPS Advisory ~roup on
EQplo~en~ Equity for Persons wi~~ Disabilities an~ the Ontario
Native E:nploY"lent Equity Circle, t!1e following l"aas~ras will be
iI::pleI::entad
1 Tl1e er:ployer co=its to i::!ple::enting the :::n.l1anced
Acco~ntabi1ity Fr~elolork as describe~ in t!1e attac~ed
addendu.::l
2 h~ere the employer dete=ines ~~ere is a continuir.g need for
the work being perfQrued. by the employee the affected
eJ:lployee's unclassified cont::ac';: shall not be te=inated prior
to ~~e existing expiry date. Where the employer detereines
that a continuing need for ~~e vork heing perfor:ed hy the
e:nployee extends beyond the contract exp.iry date, the contrilct
will OG extended up to ~~e date where the e~ployer detereines
~~e need !or the vork sto~s
3 Where t~e employer deterDines there is no continuinq need for
the work then the e~ployer shall take the approoriate action
un~e= the Enhanced Accountability Framework
4 A J'ob Re:erral Network (J'obnet) be e:;tablishod to offer
assistance in matChing the skills of job-threatened
unclass_fied aboriginal ecployees and eI::ployees with
di.;~bil: -cic$ for !"cfer!:~l to ;ui t.:l.blc Vuc~nCl~S i:.h~t. have
clc~r~::. ':..:11.:1 surplus lis~ as """el... -3$ t.hcsc rugi~~c:c:J \f~c.1ncies
Q- oc~.hr. ()r n~:'"c IJ:'\til ~ J",bnct dat.ab'1:;C ic OPP:O,lt ng :"'hi
l.r.~~ .:~...1 nil~,,;!tinu to,. rafc!:'t:sl owi.ll1.Jc c.;"rr-il.'d (Jt~. l~anuall}"
u:.;i:\g t.he ';vbn..:t wil be p~':\J...ticd to OP:';!::\: uy t.t~to:: \.:Inploye=
The BlJRC Jobn.!t rai~r~ncc g::-c'.1p and rc~rcscnt.:lti \'C's of t.he
:\:.Jo~iginal and e=ployce::;, ,,:i~~~ ci::abi~iti.!!~ nt:twor}:~ 11 m~e'C
irr~~diately to determine t~e rno~t etfac~ive means of
~st~ulishing thi~ link
!i Where a classified or unclassified aboriginal ",mployee or
e!:ployee with a disabi':'i*:."! hil::; spe.cific conc~::-n~ over the
application of the ?roc~ss o\:';lined in this agree!:..nt and
at~ached addendu: the e:ployee will bring these ccncernz to
the at~e~tion of the E:ploycent tqui~y Division The
~ploymen~ Equity Dlvision .il~ notify the eoployee ccn=~rned
that advisory ~oup~ and OPSZU are availab~e for
raprese:l':a-:ion ~he :t! ~ivision, .;.n conjunc~ion with
Naqo~ia:~o~s Se==ata~iat a~c Re=eplo:~e~~ $~aff ot Manag~==~=
3oa:-d Sa::-e~at';.a::. shal.;.. i==e~_a':ely r~vie~~ t.he :a~e
6 The ?ar~_es a;=~e ~~ C=~2~=a a precess r2garcing s =a~~~ ~o
work/nodified work pro~r~ !o!' O?S ~ployees rap=es~nt~d by
OPSE" The proc;='-I:l wculd inc.'.l:l.e e:::ployees retur:1ing ::ro:l
S~SP, LTI? and weB
It is ag=eed ~~her tha~ on the conclusion of ~h~ process
"that it :ay be appendeci and fore part of the eo::'lective
ag:ee::er:.t negct_ated by ~':e par-;ies' central neqotiatir:g teams
an~ proposed !or =a~ific~t_on
3
7 Classified accriqinal egployees and eQployees with
disabilities .ill con~l~ue to retain full use of any eXisting
employment security entitle~ent they have under the current
collective a~eec~nt
8 Aboriginal eQployees and e~ployees with disabilities will be
identified only on t.'1e basis of voluntary self-identification
At t.~e tiae of volu.,~ry self-identification, the Miniscry ,E
Manager will inform the e:ployee of~~ip a~~eeQent and their
entitlemen~ to accom:odati~ -
!< The effect~'...e date of t..'lis understandin9'~ including the
addendum hereto, is fdOm Cecenber 8, 1994 rhe terminal dat~
of this understandina is the date of agreement on the OPS
employment equity pla~
10 This agreement in no w~ limi~s the ~~ht of the p~rties to
seek ~ resolution ot co=p~ ~ ~e Ontario Human Right~
cCl:'J:',ission
II Oil ~atificatio~ of t~t~ PQr:ie~ t~lC ~~ploy - ~q~~~R to i~ ~~~
~;:. OYC'~::" 0 thf' ::;~.i:,:" ~1!.Ji .I:1:}:':-- tnt! ':.C" .M~ of t.~
dgr :1-.:n1.: ;lUC: .,j!..:J'~ncali'. - J_ ('!l!~l-:)y('^:~ in u !~. ~ltil J ~ri
-.:.n...:....c P:-1' i.~ion_ ~a" 'J;~;J~':.~. ~HU..~,-;" t ";l;c.:L 11. ;tJ ~,
::;upport: :1nd par:: l": ip,~ t em Cl rll', 'Jdv J ::;ory ., 'oup~ .d he 1m i on
.n t.:.lli!# C'onmun C':.Jt.irin
:! 7he ';CC-EE tile uP::; ',dvi::;or}" ..roup on t:::: tor r'1"$on::l ":' ch
Disabilities and ~he Ontario Nati'e EE Ci1"~lc agree to ~cct to
revie~ the process data and outcomes on or before June JO
1995
A<; agr~cc. by the parties in Toron';o on this :3 c of:" day of
~!arch, 19;>;;
FOR THE ONTARIO PUBLIC SERVICE FOR MAllkGEMENT
EMPLOYEES JNION: BOARD SECRETARZAT
~ /"It ~ ~
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;,0:: 1.:::01111
Elm:':ICED ,\Cc:Ot..~:~:,nIL.':': rRJIJ1!.::'';ORK
"h~ foll';),:-,~~g out-lines th,e p:'-~cc$'s to be u:.:c'= -...rhc:i the Er.h:HH.;~d
.=::~Ur.t:.b1':'lt.y i":'ar.:e....or!~ 15 t:,:.::::;,,:,~d
Fo:' ~nclassi=ied ecployees
: Mini:;t:::jO line managers at t.l';.;a earl_est posl::ible :ime for..arc
to t.~eir !::lploYDent Equi to, 0'"'' ~o a ':'ist of -:"Ie naJ:les anc
dat.es ....hen unclassified e=:lovees are intended t~ receive a
notice cf te~ination. "
: ':'~~e :=:=~lo:n:ant Eq'J.ity O~~_=e c;ter:i~es ..-;het:.:a= t~e ac-=._o::
.,..~_... :."~s~lt in job losses ::O~ .:;al.:.-:i::en~i~iee ~elassi=_e:.
azo=_;~~~_ ?er~ons orpe=so~s Wl~~ c~sab_~~~ies
.., ..,"he::a i ': is det:.er:lined ':~a~ s~ch a~ -"::'1c~aesi:_ed j cb less
....ould ccc::::, t.he emI-,,:o,oee" s .;.~ne ::.ar.age:-, Oi:-ec-::or ami
Assi.stant Deputy Minister unde:-:ue a. fur'"'_'1.er analysis 'to
dete~ine ....hether it is possible t::l offer a cont:'act. ertensicn
0:- a new C::lntract to that par-::icula:- employee.
4 wl1ere such an offer is not possible, the lL'"1e :Ianage::,
Di:-ecto:- and Assistant Deputy J.!iniste:-, wit.'l the assistance of
Mini$t~l Hu:an Resources consultan~/~~loy:ent ~;uitl Office
\:nde::-'t3.ke e. cc~':)rehensi 'e sea:'=~ 'Co fir..c. a:lo-:"~e~ suitabl~
position for tneperson witnin t.~e Minis~ry
5 If this sea:-ch is unsuccessful written app=oval to tertlinete
the employee must be sought from the El:1plo~.r:.ent Equity Manager
and the Deputy Minister who must be satisfied that a
cocprehensive sear~'l has peen underta~en and that there is a
compelling business case necessitating t.'le job loss
6 Upon receipt of Written aeknowledqment .from the E::lplo)"::Ient
Equity Manager and Deputy Minist~r that no suitable positio~
C:lr; l::e fgund for the perso:; ....ithin the Minis~:y, t.he line
manager provides written notice of termination to the
employee, with a copy t:l the Minist:::y':> EIr.ploy:c.ent Equity
Manager and OPSEU
7 On a quarterly basis the t::lployment Equity Office of each
ministry report to the ~E Dlvision of M3S on the n~~er of
persons ....ith disabilities abo:,iginal peoples and othz:,
de3ignated group members ....ho h~ve beer a~sisted DY the
Enhanced Accountabili t1 !.':,anc"'-;:-l: ~'h(: foE. J v ia~cn wi 11
pr.:'lvij.~ t~c Inr~t"':1ation -;.... "'p:,;".;
.~ .... ";:..>i1:.1'..:d "'I-:1pl'"'Yl"(I~
1 !-t \ n 1 ~t:-y 1 %1'~ r:."\n."l.ga!.:.~ .'"} po h. 1 I t' p, l 1 '!'~ {)1'\J..l!"':J
t'rl till i ElOpl<l)'lIll.!I\t I'.qu t I 1 l" h. n,' :'1:
5
~
l..lt:C~ wh....n cl..::;s L'd ~p it)' '!~:...; \.ire int"nued 1;0 reI.. 1 V"
nO~l~C of layoff
.. The !:."::1ployr.tent !:quity Off ice dcterT.lines ....hethe!: the action
....ill result in Job los:.as ~.:lr salf-iden1:i~iad cla,,::;i!ied
aboriginal persons or p~r::;on~ ~ith disabilities
:3 Where it ~s deter~incd th~t cuch a cla::;sified layof~ notic~
would be l..ssued the er.lplo'ice s line tlanager Directo- and
hssistant Deputy Minister ur.:ertake a further ana_ysis to
ensure there is a compe'.ling business case neces:.itating the
layoff notice
4 Upon receipt of W'r _ ttan acl::-.:l'.o/leog1:lent fro!: the E:r.ployr.:en<:
Equ~ty Managar and Deputy Minister that there is a co~pel11ng
busJ.ness case f::lr the layoff t t.'le line I:anager provides
....ritten notice 0: lavo!: to ~~e e~~loyee, vit.'l a cocv to the
~inistrJ's E:ploy:en~ ~qui~y ~e~aqer --
5 'Z'ne job security provis:!:'~ns 0: ':..':e collect_ve asreelllent app:0
6 o~ ~ quarterly basis, the ==plcyt:ent Equity office of each
I:J.nl..stry report to the EE DiVision of MBS on t.'le n~er of
persons with disabilities, a::o=iginal peoples and ot.'1er
designated group me::1bers who have been assisted by t~e
Enhanced Accountability Frace~ork The EE Division will
provide the info~ation to OPSEU
. As can be seen, the measures set forth in the document were mtended to assist In lmplementmg
the now-defunct employment eqUIty program established by the previous government. In large
part, the ImplementatIOn of these measures depended upon action to be taken by departments and
offices that no longer exist. Nevertheless, under paragraph 9 of the document, it was retroactive
to December 8, 1994 From this date until the effective date of the dismantlmg of the
employment eqmty program, apparently, the document was in effect.
It was during thIS penod that the events leadmg to the present grievances took place, The grievor
was an unclassIfied employee who had self-Identified as an abongmal. Smce March, 1992, the
gnevor had been employed on an unbroken succeSSIOn of contracts WIth the Mmlstry of Health
(the employer) By letter dated January 18, 1995, the employer not1fied the gnevor that her
6
contract would not be extended and her last day of serVIce would be May 12, 1995 In response,
the gnevor filed her first gnevance. Thereafter, her contract was extended to June 30, 1995
Shortly before June 30, the gnevor was Injured and left the workplace Then, on August 17,
1995, the employer sent her a further letter adVIsing, inter alia, that In Its VIew, It had complted
with the requirements of the enhanced accountablhty framework establ1shed III the document at
issue. ThIS led to the filmg of the gnevor's second gnevance. Because both gnevances
essentially raised the same issue, i.e , whether the employer had compl1ed with the enhanced
accountabillty framework, the parties agreed to consolidate them for purposes of arbltratlOn.
In thelf submissions upon the prel1minary obJectiOn, both partIes addressed two alternatIve issues
regardmg the enforceabilIty at arbitration of the document in question. the first was whether the
document was enforceable as a collectlve agreement m its own nght; the second was whether the
document estopped the employer from exercising Its existmg management rights inconsIstently
WIth the document. In my view, it is only necessary to address the second issue to dIspose of the
prelimmary obJectiOn.
There seems to be httle doubt that the document at issue belongs to that category of documents
known m labor relations as letters of understandmg or side.letters. These may be executed by the
parties to a collective agreement for a number of reasons, e g , to deal With issues that arose after
negOtiatiOn of the collectIve agreement; to make commitments that are not mtended to be
automat1cally renewed in a subsequent collective agreement; to provide for commitments
runnmg over a different penod oft1me from that of the collect1ve agreement, or, even to exclude
7
the potential for arbItral mterventlon m setthng their disputes, ll1tendmg mstead to rei} upon each
other's good faith and honor to enforce the1r commitments.
It was submItted on behalf of the employer that the partIes mtended to exclude the potentIal for
arb1tralmterventlOn m settllng their disputes over the document m questlOn (heremafter referred
to as the memorandum of agreement). In support of thIS submlss1on, it was pomted out that the
memorandum of agreement did not have any arbitratlOn clause. Instead, It provided m paragraph
5 Its own enforcement mechanism. This consIsted of review of "specific concerns over the
appllcatlOn ofthe process outlined m thIS agreement and attached addendum" by the
Employment Eqmty DivisIOn m conjunctlOn wIth the Negotiations Secretariat and redeployment
staff of Management Board Secretanat. Moreover, it was submItted, under paragraph 10 of the
memorandum of agreement the part1es retained their nght "to seek a resolutIon of complaints by
the Ontario Human R.1ghts CommIssion."
I find, however, that I am unable to accept this submisslOn. The memorandum of agreement
seems to me to exhibit all of the charactenstlcs of a document that the parties mtended to be
legally enforceable It was supported by ample consideratlOn, m the form of mutual prom1ses b)
both parties. It was a lengthy and detailed document set forth m a h1ghly formahzed manner It
was executed by mne offic1als of the Union and five officials of the Management Board
Secretanat. In such a document, the mere absence of an arb1tratlOn clause 1S mcapable of
sustammg an mference that the parties intended solely to rely upon each other's good faith and
honor to enforce theIr comm1tments. The reV1ew process estabhshed m paragraph 5 of the
8
memorandum of agreement cannot be regarded as a substitute enforcement mechamsm It
provides for a vague review m conjunction with management and not an lmpartml adJudicatIOn.
As to paragraph 10 of the memorandum of agreement, a right to seek redress before the Human
Rights Commission IS regarded in labor relations as a broad additional right and not a substItute
for arbitral review of specific commitments made m a letter of understandmg.
A letter of understandmg that was mtended to be legally enforceable but does not contam an
arbItratIOn clause IS enforced at arbitration through the mechanIsm of estoppel. The employer, It
IS said, IS estopped from exercisIng ltS management rights inconsistently with the terms of the
letter of understandmg. See, e.g., Re Baars and Ministry of Culture and Communication (1991),
G S B No 457/90, at 10-12 (Stewart)
It mIght also be observed at thIS pOInt that where a letter of understandmg that was Intended to be
legally enforceable has been establIshed, the estoppel IS made out. It IS superfluous to mqUlre
mto whether the agreement constitutes a representation upon whIch the umon was intended to
rely ThIS InqUIry IS a test that the doctrine of promissory estoppel applIes to umlateral promIses
-- m words or conduct -- that are unsupported by conSIderatIOn. The purpose of the test IS to
determine whether the employer nevertheless Intended ltS promIses to be legally enforceable or
bmdmg. Where the eVIdence establishes an agreement between the employer and the umon that
was mtended to be legally enforceable, that questlOn has already been answered. The presence of
conslderatlOn m the agreement also may be said to elImmate the need to enqmre mto whether the
umon was Induced to rely upon the promise RelIance IS estabhshed once It lS shown that the
9
umon purchased the promIses of the employer wIth the consIderatIOn It provIded In the
agreement.
In the present case, It has already been concluded that the memorandum of agreement was
mtended to be legally enforceable. In light of this conclusIOn, the employer IS estopped from
exercIsmg Its management rights Inconsistently wIth the memorandum of agreement. The
question whether the employer dId so in the cIrcumstances of the present case IS arbItrable. The
prelIminary obJectIon to jUnSdIctIon must be dismIssed.
c/...
Dated at Toronto, OntarIo thIS? day of February, 1996