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HomeMy WebLinkAbout2002-2394.Grant.04-07-29 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2394 UNION# 2002-0121-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Grant) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE Nimal DIssanayake Vice-Chair FOR THE UNION Nim Jones PalIare Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Lucy McSweeney Counsel Management Board Secretanat HEARING January 29 March 5 Apnl2 May 7 June 25 2004 2 DeCISIon A gnevance dated November 25 2002 filed by Mr Donald Grant came before the Board for medIatIOn-arbItratIOn. FolloWIng unsuccessful medIatIOn attempts the arbItratIOn commenced. The focus of the Instant decIsIOn IS para. 3 of the Memorandum of UnderstandIng dated December 1998 entered Into between the employer and the umon dealIng wIth the treatment of employees of the Property Assessment DIvIsIOn who are absent from work because of Illness, dIsabIlIty or leave The relevant portIOns of the MOU read It IS understood that when the Ontano Property Assessment CorporatIOn (OP AC) assumes responsIbIlIty for the delIvery of property assessment functIOns on December 31 1998 there may be certaIn OPSEU represented employees of the property Assessment DIvIsIOn absent from work because of Illness, dIsabIlIty or leave It IS agreed that 1 These employees wIll not commence employment wIth OP AC untIl the termInatIOn of theIr leave or untIl they are medIcally fit to return to work. 2 UntIl that tIme they wIll remaIn employees of the Crown. 3 When they are able to return to work or at the termInatIOn of theIr leave they wIll commence employment wIth OPAC under the terms of employment In effect at that tIme at OP AC for employees of theIr class 3 4 The Mimstry of FInance wIll not be reqUIred to evaluate posItIOns occupIed by these IndIVIduals 5 Any Increase comIng Into effect dunng thIS extended penod of employment by the Crown wIll be applIed to any pay receIved from the Crown. (It IS noted that L TIP IS not affected by salary adJustments) 6 There IS no reqUIrement for the Mimstry of FInance or the Employer to attempt to negotIate adJustments wIth OP AC and It IS understood that OP AC's commItment to pay 100% of salanes refers to salanes In effect on December 30 1998 In a decIsIOn dated January 19 2004 the Board ruled that para. 3 of the MOU was not patently ambIguous as would JustIfy admIssIOn of extnnsIC eVIdence as an aid to InterpretatIOn. However the Board also ruled that such extnnsIC eVIdence would be receIved In relatIOn to the employer's alternate posItIOns that (a) the paragraph was latently ambIguous and (b) that the umon was estopped from relYIng on the plaIn readIng of the provISIOn. The gISt of the dIspute IS thIS The plaIn meamng of para. 3 as determIned by the Board does not stIpulate any tIme restnctIOn for employees on Long Term Insurance Plan ("L TIP employees") at the tIme of dIvestment to return to employment wIth the new employer the Ontano Property Assessment CorporatIOn (OPAC) The employer submIts that despIte the absence of an explIcIt tIme restnctIOn, the deal struck between the partIes was that only those employees who are able to return to work wIthIn one year wIll be entItled to a J ob wIth OP AC ExtensIve documentary and VIva voce eVIdence and submIssIOns were receIved over 5 heanng days wIth regard to the employer's latent ambIgUIty and estoppel arguments, as well as 4 on a further alternate submIssIOn that the Board should rectIfy the MOU WhIle all of that has been carefully consIdered by the Board, I have attempted to provIde a succmct decIsIOn as envIsaged m artIcle 22 16.2 of the collectIve agreement, whIle provIdmg some reasons for ItS decISIOn. The eVIdence IS that dunng the reasonable efforts process (RE process) a senes of meetmgs were held between the employer and umon teams The eVIdence wIth regard to these meetmgs, the last of whIch was held on December 8 1998 IS not m dIspute many sIgmficant way Dunng these meetmgs, the employer bnefed the umon about ItS negotIatIOns WIth OP AC on the terms and condItIOns OP AC was wIllIng to extend to the employees affected by the dIvestment. The umon had the opportumty to and dId, make demands and raised concerns on a number of Issues With regard to employees on LTIP at the tIme of the dIvestment, the umon demanded that those employees should be entItled to Jobs WIth OP AC provIded that they are able to return to work wIthm 2 years of the date of the dIvestment. ThIS demand was mime WIth what had been achIeved m the Queen Street Mental InstItute dIvestment. The employer attempted to get the 2 year penod, but OPAC would only agree to a one year penod. ThIS was conveyed to the umon and confirmed m a OP AC Human Resources PolIcy document, a copy of whIch was provIded to the umon on November 13 1998 The eVIdence IS clear that whIle the umon raised concerns about a number of other terms offered by OP AC no concern was expressed about the one year penod WIth regard to L TIP employees Indeed the eVIdence IS that no concern was raised at any tIme subsequently dunng the RE process about that Issue On December 8 1998 OPAC's final Human Resources document was delIvered to the umon. It stated, mter alIa, that offers of employment to 5 employees on L TIP "wIll be condItIOnal on the medIcally-approved return to full-tIme employment wIthIn a maXImum of twelve months from the date of transfer" The umon stIll dId not make any obJ ectIOn. The final reasonable efforts meetIng was held on December 8 1998 At the conclusIOn of that meetIng Mr Frank Rooney the umon's team leader and Mr Ed Farragher the employer's team leader shook hands Mr Rooney gave the assurance to Mr Farragher that no gnevances wIll be filed wIth regard to the employer's reasonable efforts At the end of that meetIng on December 8 1998 both partIes were very pleased wIth the outcome of the RE process, and relIeved that lItIgatIOn had been aVOIded. There can be no doubt on the basIs of the eVIdence that as of December 8 1998 the umon was aware that although It had sought a two year penod for L TIP employees, It had been able to achIeve only a one year penod. There can also be no doubt that by the handshake and the assurance that no gnevance wIll be forthcomIng under AppendIx 9 the umon expressed ItS acceptance of the one year penod. The eVIdence IndIcates that what was left was the draftIng of a MOU to Incorporate the terms agreed to In the RE process Both partIes had a tremendous amount of respect for each other and trusted that the MOE would reflect what was agreed upon. SInce the RE process had been completed, Mr Rooney ceased to be Involved any further and handed over responsibIlIty to Mr Roy Stone on behalf of the umon. He advIsed Mr Stone that the agreed to terms had to be sIgned off 6 The eVIdence IS that both Mr Farragher and Mr Rooney expected and fully trusted that the terms agreed to In the RE process would be Incorporated In a MOU The MOU was sIgned off on December 21 1998 NeIther Mr Farragher nor Mr Rooney drafted It. In fact, there IS no eVIdence as to who actually dId the draftIng. Mr Farragher assumed that It was drafted by "someone at MBS" He testIfied that on December 9 1998 a draft MOU was faxed to hIm by the NegotIatIOn Secretanat of the Management Board Secretanat. He made an addItIOn to It and returned It to MBS Next he receIved by fax a further draft of the MOU It Included para. 3 whIch was also part of the prevIOUS draft. He testIfied that SInce December 8 1998 he had had no dIscussIOn whatsoever wIth the umon about L TIP employees He revIewed both drafts, but It was a qUIck reVIew because at the tIme he was extremely busy manmng the "hot-lInes" to field questIOns from employees affected by the dIvestment. In both reVIews he paid no attentIOn to the tIme lImIts for L TIP employees He dId not seek any legal advIce before sIgmng the second draft on December 21 1998 belIevIng that It represented the agreements reached In the RE process Mr Farragher retIred In October 2003 He testIfied that It was very recently that he found out for the first tIme that the umon was dISpUtIng the one year tIme lImIt In the present arbItratIOn. The eVIdence IS that the employer belIeved that the MOU Included the one year tIme lImIt and took steps to Implement It by sIgmng an agreement wIth OP AC on that basIs OPAC sent letters to each employee on L TIP as of the date of dIvestment (December 31 1998) offenng employment wIth OP AC condItIOnal upon the employee's abIlIty to return to work wIth medIcal approval on or before December 31 1999 Those employees who were unable to return by that date receIved a letter from the employer statIng that SInce they were unable to meet the one year tIme lImIt they would not get employment wIth OP AC but would remaIn as employees of the Mimstry of Finance Each employee was gIven the optIOns avaIlable Four samples of these 7 letters to employees were filed In eVIdence The earlIest was dated June 7 2000 Each was copIed to the umon. Therefore, It IS reasonable to conclude that at least by June 2000 the umon receIved notIce that the employer was actIng on the basIs of a one year tIme lImIt. The eVIdence IS uncontradIcted that the umon dId not react by protestIng that the employer's actIOn, and that of OP AC was contrary to ItS understandIng that the MOU contaIned no tIme lImIt. Indeed, the uncontradIcted eVIdence IS that the first tIme the umon took the posItIOn that the MOU accorded to L TIP employees an unlImIted tIme penod to obtaIn employment wIth OP AC was at the commencement of thIS arbItratIOn In the fall of 2003 more than four years after the sIgmng of the MOU Latent AmbIgUIty I first turn to the Issue of a latent ambIgUIty The umon takes the posItIOn that the foregoIng eVIdence does not dIsclose a latent ambIgUIty In para. 3 of the MOU Counsel agreed that on November 13 1998 the employer Informed the umon that It was able to achIeve only a one year WIndow for L TIP employees, and that after that date neIther party raised that Issue at all She also dId not dIspute that when the RE process was concluded on December 8 1998 the umon had gIven the assurance that It was satIsfied wIth the terms the employer had achIeved for the affected employees and that no gnevance wIll be filed under AppendIX 9 However counsel submIts that the foregoIng eVIdence IS Irrelevant. What was Important was not the dIscussIOns wIth regard to reasonable efforts whIch concluded on December 8 1998 She submIts that on December 21 1998 the partIes executed a MOU 8 Between December 8 and December 21 the terms agreed to had been changed In several respects, IncludIng the elImInatIOn of any tIme lImIt for Job offers by OPAC for employees on LTIP Therefore she reasoned that "someone must have negotIated these changes" She noted that there IS a lack of eVIdence as to the negotIatIOns that occurred between December 8 and December 21 whIch led to the changes The employer bears the onus of establIshIng a latent ambIgUIty By faIlIng to adduce any eVIdence about the negotIatIOns that led to the sIgmng of the MOU on December 21 1998 accordIng to umon counsel, the employer has faIled to establIsh a latent ambIgUIty The umon further takes the posItIOn that even If the Board finds that a latent ambIgUIty eXIsts on the basIs of the eVIdence, and concludes that the partIes dId not Intend to allow an unlImIted tIme penod, that eVIdence does not assIst In resolvIng the ambIgUIty The eVIdence does not establIsh what the partIes Intended, If It was not an unlImIted tIme penod. AgaIn, counsel pOInts to the lack of eVIdence about what occurred between December 8 and December 21 1998 Thus, she argues that there IS no eVIdence that the partIes had a mutual understandIng subsequent to December 8 1998 HavIng reVIewed the eVIdence before me I conclude that the employer has establIshed a latent ambIgUIty In para. 3 of the MOU On the basIs of the eVIdence, I conclude that at the tIme the MOU was sIgned off, both partIes had a mutual understandIng whIch IS dIfferent from what a plaIn readIng of the words used appears to dIsclose The eVIdence IS crystal clear that at the end of the RE process on December 8 1998 Mr Rooney and hIS umon team agreed to the one year lImIt. Mr Rooney candIdly admItted that. 9 He also conceded that he expected that the agreements reached dunng the RE process wIll be Included In the MOU He agreed that the umon had not at any tIme proposed a penod longer than 2 years for employees on L TIP The eVIdence IS that he had accepted that the affected employees would only have a one year WIndow and expected that to be reflected In the MOU The umon's argument IS predIcated upon an assumptIOn that, although both partIes agreed to a one year tIme lImIt, and expected that to be reflected In the MOU all that changed as a result of some negotIatIOns whIch occurred between December 8 and December 21 about whIch no eVIdence was adduced. The employer called three wItnesses who were Involved In the human resources aspects of the dIvestment In questIOn. One wItness was Mr Farragher then DIrector of Human Resources of the Mimstry who was the employer's leader and spokesperson In the reasonable efforts process wIth the umon, as well as the leader of the team negotIatIng WIth the new employer OP AC All three testIfied that they were not aware of any dIscussIOns wIth the umon subsequent to December 8 1998 about the terms of Job offers for employees on LTIP LIke Mr Rooney they also expected the MOU to reflect the one year WIndow Mr Rooney also testIfied that he was not aware of any dIscussIOns about L TIP employees after December 8 1998 Mr Stone, who took over from Mr Rooney after December 8 1998 dId not testIfy In the face of the eVIdence It IS not reasonable to assume, as the umon does, that some unknown negotIatIOns occurred between some umdentIfied persons on behalf of the umon and the employer whIch undId the deal struck on December 8th between the two reasonable efforts teams The umon contended that the employer faIled to adduce eVIdence about the dIscussIOns that led to the changIng of the tIme lImIt In the MOU from one year to an unlImIted penod. That 10 In my VIew IS an unreasonable charactenzatIOn The employer dId lead eVIdence, I e that It was unaware of any dIscussIOns about L TIP employees subsequent to December 8 1998 It IS sIgmficant that the most the umon hoped to achIeve was a two year WIndow The eVIdence IS clear that It dId not at any tIme seek a penod longer than 2 years I can take "JudIcIal notIce" that employers generally and thIS employer partIcularly are not known to grant terms and condItIOns that are sIgmficantly greater than what a umon has demanded. If that happened In thIS Instance, It would have been a umque and sIgmficant event. In those cIrcumstances, the umon would surely have noted the umque achIevement. Someone In the umon must have been responSIble for aChIeVIng a deal whIch was sIgmficantly more beneficIal to the umon than ItS startIng posItIOn. Conversely the employer was fully aware by December 21st that OP AC was strongly opposed to a penod longer than one year It IS sImply IrratIOnal In those CIrcumstances that the employer would agree to extend to the umon an unlImIted tIme penod, when the most umon had demanded was a two year penod. The eVIdence IS that for over four years the umon, lIke the employer acted on the basIs of a one year WIndow ThIS IS supported by the eVIdence that the umon dId not protest when the employer and OP AC Issued documentatIOn to employees (some of whIch were copIed to the umon) seekIng to enforce the one year tIme lImIt. The posItIOn that L TIP employees had an unlImIted tIme penod was first raised over four years after the MOU was executed, at the commencement of thIS arbItratIOn. I also conclude that the eVIdence resolves the latent ambIgUIty In that I find that the deal struck at the end of the RE process was not changed, and not Intended to be changed, by eIther 11 party Thus whIle the language In the MOU faIled to explIcItly Incorporate a one year tIme lImIt, the consensus reached on December 8 1998 remaIned unchanged at the tIme of the MOU was executed. Somehow the draftIng of the MOU dId not reflect the mutual understandIng of the partIes, and Mr Farragher faIled to notIce It when he sIgned the MOU In conclUSIOn, I find that a latent ambIgUIty has been establIshed In para. 3 and the eVIdence resolves the ambIgUIty The mutual IntentIOn of the partIes In sIgmng off the MOU was that there would be a one year tIme lImIt for LTIP employees to receIve Job offers from OPAC and Para. 3 ought to be read as such. GIven the foregoIng conclUSIOn, It IS unnecessary for me to deal wIth the employer's alternate posItIOns I remaIn seIzed of the gnevance to deal wIth all outstandIng Issues ansIng from Mr Grant's gnevance In lIght of thIS decIsIOn. Dated thIS 29th day of July 2004 at Toronto Ontano ~~~ .. .. I ya '; ........ . ".::"'.:;:;:"1 : . ....<<..~~ Vice-. . ...... . .: : .