HomeMy WebLinkAbout2006-0519.Sutherland.08-12-12 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB#2006-0519
UNION#2006-0230-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Sutherland)
Union
- and -
The Crown in Right of Ontario
(Ministry of Labour)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE UNION
Nelson Roland
Barrister and Solicitor
FOR THE EMPLOYERBenjamin Parry
Counsel
Ministry of Government Services
HEARINGSeptember 5, October 31 and
November 20, 2008.
2
Decision
[1]The Board is seized with three group grievances filed by a number of
Occupational Health and Safety Inspectors working out of the employer?s offices
in Kitchener-Waterloo, Mississauga and London. They all relate to the
employer?s refusal to extend a compressed work week (?CWW?).
[2] The parties agreed to initially litigate the grievance of Mr. Richard Sutherland
from the Kitchener-Waterloo office, hoping to obtain some guidance from the
resulting decision with respect to the rest of the grievances. Mr. Sutherland is
party to the Kuehner et al, group grievance referred to in the union?s particulars set
outinfra.
[3] The employer made two motions to the effect that the Board lacked jurisdiction to
entertain Mr. Sutherland?s grievance. The parties agreed that for the purposes of
determining these motions only, I could treat the facts pertaining to Mr.
Sutherland?s grievance, as particularized by the union, and as presented through
opening statements of counsel, to be established. However, the employer reserved
the right to challenge those facts, should the Board take jurisdiction over the
merits of the grievance.
[4] Article 10.1 of the collective agreement provides as follows:
COMPRESSED WORK WEEK ARRANGEMENTS
10.1 It is understood that other arrangements regarding hours of work and
overtime may be entered into between the parties on a local or ministry
level with respect to variable work days or variable work weeks. The
model agreement with respect to compressed work week arrangements is
set out below:
[5] The article then goes on to set out a ?Model agreement with respect to compressed
work week arrangements.? The union conceded that the collective agreement does
not oblige the employer to enter into a CWW agreement with any employee, and
3
that it is a matter for the employer in the exercise of its management rights.
However, the union claims that the employer had exercised its management rights
unreasonably and in a discriminatory fashion with respect to Mr. Sutherland. The
union points out that the employer has entered into CWW agreements with many
Health and Safety Inspectors, who had been hired prior to the hiring of the grievor.
Those inspectors work out of different offices within Ontario, including the
Kitchener-Waterloo office, and continue to have CWW arrangements. The
employer exercised its management rights in favour of these employees, but
refuses to do so for this grievor. The union alleges that there is no business or
operational justification for that differential treatment.
[6] Mr. Sutherland has made the additional claim of promissory estoppel. That claim
is based on an alleged promise made during the job interview process, and later
confirmed on Mr. Sutherland?s first day of employment, to the effect that upon the
completion of the one year training period he would have a CWW. Mr.
Sutherland completed his training period, but was denied the promised CWW,
leading to the instant grievance.
[7] The employer?s primary position is that this grievance is in effect a claim that
because the employer exercised its discretion and management rights to grant to
certain employees a CWW arrangement, it should do the same for the grievor.
This was referred to as a ?me too? grievance. The employer submits that in the
absence of any right to a CWW agreement under the collective agreement, and in
the absence of a claim of bad faith or that the employer?s particular exercise of
management rights impacted negatively or abridged a collective agreement and/or
statutory right, the Board has no jurisdiction to deal with a ?me too? grievance.
[8] The employer submits further that the union?s estoppel argument must fail because
it is based upon a pre-employment promise, made at a time when no legal
relationship existed between the grievor and the employer, and because the alleged
4
promise was not related to any right under the collective agreement. In addition,
the employer contends that a promise made to an individual employee cannot give
rise to an estoppel.
The motion based the employer?s exercise of management rights
[9] For purposes of determining this particular motion, I accept as proven, the
following material facts set out in the union?s particulars:
1. The enclosed are the particulars for the above-noted grievances. As
indicated above, we have combined the particulars for both files in that
they share some, but not all, characteristics. For example, there is a
general claim by all grievors of discrimination in that the Ministry has
wrongfully, unreasonably, and discriminatorily withheld the
availability of a Compressed Work Week (hereinafter referred to as
?CWW?) from the grievors in both files. In this regard, it must be
assumed that the Ministry is fully aware that in its own Ministry that
employees holding the same classification and carrying out the same
duties as those of the grievors are afforded CWWs while the grievors
(in both files) are not afforded CWWs. The practice of entering into
CWWs is particularly prevalent in the northern and eastern
Districts/Regions of the province and also occurs in the
Districts/Regions in which the grievors work.
Kuehner et
2. In the case of the Waterloo office (where all the grievors in
prior to
al
, are employed) the employees who were employed the
hiring of the grievors are afforded CWWs, whereas the grievors in that
same office have been systematically refused CWWs. This is despite
the assurances by management (outlined below) that once their
training was completed the grievors could avail themselves of the
CWW option.
. . .
18. None of the grievors in either file were afforded a CWW (despite their
requests for one) and, hence, grievances were filed.
19. To date no grievor has been afforded a CWW despite their continuing
request for one.
[10] Counsel for the employer submits that article 10.1 does not impose an obligation
on the employer to enter into a CWW agreement with any employee. Nor does it
require the employer to exercise a discretion. Counsel referred me to the
following authorities.Re Glenny, 317/83 (Roberts); Re Ropars, 400/84 (Jolliffe);
andRe Algerson et al. 1942/87 (Watters).
5
[11] In Re Glenny (supra) the Board was dealing with article 7.6, which was
identically worded as the present article 10.1. At pp. 3-4, the Board wrote:
The Union essentially contended that under this provision management was
obligated to exercise a discretion to enter into compressed work week
arrangements with the Union, and that any dispute between the parties
regarding the manner of exercise of that discretion was arbitrable.
It seems to us that this contention might have been well founded if the
Union?s characterization of the nature of Article 7.6 were appropriate;
however, it seems to us that Article 7.6, when fairly construed, falls far
short of obligating management to exercise any discretion. Article 7.6
seems to provide no more than a consensual framework to enable
individual locals and Ministries mutually to agree to institute compressed
work week arrangements. Article 7.6 does not compel an unwilling party
to enter into negotiations regarding the establishment of compressed work
weeks. Both parties have to be willing to take advantage of the option that
Article 7.6 makes available.
. . .
The Article merely provides an option. It does not obligate either party to
negotiate, let alone reach final agreement. Where there is no mutuality, in
the sense of a desire on the part of both parties to agree with respect to
compressed work weeks, Article 7.06 of the collective agreement does not
come into play.
[12] In Re Ropars, (supra) the Board quoted the foregoing portions of the Re Glenny
decision with approval and concluded at p. 4 that ?... it seems obvious to us that
article 7.6 is purely permissive and creates no obligation in either party? and that
?? it does not give any individual employee the right to complain that some such
arrangement has not been unilaterally instituted by the Ministry?.
Re Algerson et al (supra), the Board in declining jurisdiction, reviewed the
[13] In
decisions in Re Glenny and Re Ropars and at pp. 3-4 wrote:
We have not been persuaded that these prior Boards of Arbitration were
wrong in their interpretations of the article in question. We are in
agreement with their ultimate conclusion that Article 7.7 does not provide
for a discretion to be exercised by the Employer. Rather, it simply provides
a mechanism for the parties to mutually arrive at ?other arrangements? vis
a vis a variable work week. In view of our assessment in this regard, the
6
award in Kuyntjes, 513/84 (Verity) is distinguishable in that it dealt with an
article of the collective agreement which clearly called for the Employer to
exercise a conferred discretion in the context of a request for a special
leave. In such an instance, the Employer was properly found to be subject
to certain restrictions in the exercise of their discretionary decision making.
[14] Counsel for the employer also referred me to Re Emmett et al, 0147/01 (Johnston).
In that case, the Board agreed with the decisions set out above and reiterated that
?If the employer refuses to sit down and negotiate CWWs, then article 10 does not
come into play? (p.10).However, the Board seized jurisdiction in the particular
circumstances before it, because the union had alleged that the employer?s refusal
to negotiate CWWs had resulted in discrimination based on sex, and also breached
the health and safety and overtime provisions of the collective agreement. At pp.
11-12 the Board wrote:
In making the decision that it was not going to sit down and negotiate a
CWWS with the grievors, thereby determining that the schedules of work
for these employees would not change, management was exercising the
right to, amongst other things, manage the business as set out in article 2.
But article 2 also fetters the right to manage by stipulating that this right is
subject to the provisions of the applicable collective agreement. Therefore,
if management?s decision contravenes any other provision in the collective
agreement, it can be challenged by the union. In this case, the union has
alleged that the employer?s decision has violated several provisions in the
collective agreement dealing with discrimination, health and safety and
overtime.
[15] In those circumstances, the Board determined as follows at p. 14:
Therefore in making the decision not to sit down with the grievors and
attempt to negotiate a CWWS, management?s motives should be reviewed
in light of the standard set out above. That decision must not be motivated
by bad faith or discriminatory considerations and must be based on
legitimate or genuine government purposes.
Re McIntosh,
[16] The principle that results from the above-noted authorities (See also
3027/92 (Dissanayake) and Re Boulet, 1189/99 (Brown)) is that, for the Board to
seize jurisdiction, there must be an allegation that the employer?s exercise of
7
management rights resulted in a contravention or abridgement of a substantive
right under the collective agreement.
[17] The union distinguished the authorities relied upon by the employer on the basis
that in those cases there was no differential treatment of employees. Counsel
submitted that in Mr. Sutherland?s case the situation was different, because the
employer had exercised its management rights in a certain manner with respect to
some co-workers of the grievor, but refused to treat the grievor in similar fashion.
Counsel for the union submitted that that distinction is ?a game changer?. It raised
an issue of differential treatment without a business justification. In the cases
relied upon by the employer, the union was attempting to force the employer to
exercise the option it had to enter into CWW agreements by ?coming out of its
neutrality?. In the present case in contrast, submits counsel, the employer had
already exercised its discretion in a certain way with respect to some employees
identically classified and working in the same office as the grievor. The grievor
was not seeking to force the employer to exercise its discretion under article 10.1.
He only wants the employer to exercise that discretion with respect to him, as it
did with respect to some of his co-workers.
[18] In my view, that distinction based on differential treatment does not assist the
union. While the union alleged ?differential treatment?, it explicitly stipulated that
no discrimination based on a prohibited ground is asserted. Therefore, I agree
with employer counsel that the union?s claim amounts to a ?me too? argument,
which this Board has repeatedly rejected, in the absence of a link to a substantial
right under the collective agreement, i.e. that it resulted in a violation or
abridgement of a right under the collective agreement.The Board has held that it
has no jurisdiction over a grievance which alleges that the employer had failed to
treat equals in similar fashion when exercising its management rights. It has held
that despite the Supreme Court of Canada judgement in Weber v. Ontario Hydro,
[1995] 2 S.C.R. 929, ?? this Board?s jurisdiction remains restricted to matters
8
arising either explicitly or implicitly from the collective agreement. In other
words, the matter must be governed by an express or implied term of the collective
agreement?.Re Dobroff et al, 2003-0905 etc. (Dissanayake) at p. 25, and see also
the authorities reviewed therein.
[19] The authorities reviewed above establish two propositions with respect to CWW
arrangements. First, that article 10.1 does not impose any obligation on the
employer to enter into a CWW arrangement with any employee. Second, article
10.1 ?? does not provide for a discretion to be exercised by the employer.
Rather, it simply provides a mechanism for the parties to mutually arrive at ?other
arrangements? vis a vis a variable week?. See, the quotation from Re Algerson et
al, set out at p.7 (supra). It follows, therefore, that the employer?s decision to
negotiate or not negotiate a CWW arrangement is a matter of a management right
to ?among other things, manage its business as set out in article 2.? (Re Emmett),
(supra), at p. 11). Therefore, this Board has no jurisdiction to review the
employer?s exercise of a management right, in the absence of a claim that such
exercise (in this case the non-exercise) of management rights affected a right of
the grievor under the collective agreement. Since the union has not made such a
claim. Nor has it alleged bad faith. In the circumstances the Board lacks
jurisdiction. Therefore, the employer?s first motion succeeds.
The motion in response to the union?s claim of promissory estoppel
[20] For purposes of determining this motion only, I accept the following facts set out
in the union?s particulars as proven:
6. During the interview phase of the hiring process, Richard Sutherland
met with Martin Donat, District Manager out of the Waterloo office
and the District Manager out of the Windsor office (Bonnie Suhr).
7. During the interview, Martin Donat stated to Mr. Sutherland that one
year after joining the Ministry of Labour, Mr. Sutherland would be
entitled to partake in what Mr. Donat referred to as a ?Compressed
Work Week?. Mr. Donat explained that working a little extra time
each day would allow Mr. Sutherland to have one day off every two
weeks.
9
8. Mr. Sutherland had job opportunities in the private sector which he
gave up in order to take the position in question. He accepted the
position in question due to the representation made by Mr. Donat
respecting the CWW, thereby abandoning the above-mentioned job
opportunities.
9. After accepting the position as Inspector, Mr. Sutherland started with
the Ministry of Labour on or about December 13, 2004. On that day,
he confirmed with Martin Donat that CWW would be available to him.
Mr. Donat confirmed that Mr. Sutherland had to complete one year of
work with the Ministry of Labour first. [Again, this was the training
period for Inspectors]
[21] The allegation is that the employer reneged on the promise made by Mr. Donat
during the interview process, which was later confirmed on Mr. Sutherland?s first
day of work. It is argued that Mr. Sutherland relied on the promise and suffered
detriment in that he accepted the offer of employment by the employer over other
job opportunities he had in the private sector. In these circumstances, the union
claims that the employer is estopped from denying the promised CWW agreement
to Mr. Sutherland.
[22] Before dealing with the motion itself, I make the following observations. During
his submissions, employer counsel stated that the employer denies that it made the
promise in the manner set out by the union. He stated that there may be an issue
as to whether Mr. Donat, as a member of the interview panel, had the ostensible
authority to promise a CWW to Mr. Sutherland. He stated that the particulars do
not set out what specific CWW arrangement was promised to Mr. Sutherland, and
that there is no evidence that the employer intended to be bound by the alleged
promise. Finally. Counsel asserted that based on the particulars, it is not possible
to conclude that the grievor in fact suffered any detriment by relying on the
alleged promise. I record the foregoing as notice by the employer that it may be
raising those issues in the event the Board seizes jurisdiction. However, I am not
in a position and will not attempt to determine those issues at this stage. I only
have particulars at the present time, which is very different from the evidence,
which I do not have. For purposes of this motion, I must assume that the union
10
will be able to prove the required elements of an estoppel. The issue to be
determined at this stage is whether or not, in the circumstances set out in the
particulars, the union is entitled to raise an estoppel, assuming that the alleged
facts are true.
[23] The employer submits that an estoppel cannot be founded upon a pre-employment
promise. Counsel submits that the union is in effect asking the Board to enforce
an individual contract entered into between the employer and an individual
employee, at a time when no employment relationship existed yet. Counsel
submits that in a unionized environment, the only contract that can exist is the
collective agreement, and that there is no room for individual contracts. To
illustrate his point counsel posed the question, ?If a prospective employee really
wants the job, can we say OK you can have the job, but you won?t get any benefits
or overtime pay.?
[24] Counsel points out that the Board?s jurisdiction under article 22.1 is limited to
determining ?complaints or differences between the parties arising from the
interpretation, application, administration or alleged contravention? of the
collective agreement. He further referred me to article 22.14.6 which states that
?The GSB shall have no jurisdiction to alter, change, amend or enlarge any
provision of the collective agreements?. He submits that the union, through its
estoppel claim, is asking this Board to do exactly what is prohibited by article
22.14.6.
Loyalist College of Applied Arts and Technology (Board of
[25] I was referred to
Governors) and OPSEU (2003) 63 O.R. (3d) 641 as the Ontario Court of Appeal?s
endorsement of the principle that a collective bargaining regime precludes
individual bargaining of the terms or conditions of employment.
11
[26] Employer counsel submits further that the Board?s jurisdiction is limited to
determining disputes that arise directly or inferentially from the collective
agreement. It has no jurisdiction over disputes arising under a contract entered
into outside the collective agreement at a time when the individual was not even
an employee covered by the collective agreement. Citing the judgement in Goudie
v. City of Ottawa, [2003] 1 S.C.R. 141 (S.C.C.) counsel submits that only a court
of law has jurisdiction to entertain an action based upon such a pre-employment
contract. As further support for the proposition that an arbitration board lacks
jurisdiction over a pre-employment contract, counsel relied on Johnston v. Dresser
nd
Industries Canada, [1990] 75 O.R. (2) 609 (Ont. Ct. of Appeal); Re Ontario
th
Power Generation, [2004] 137 L.A.C. (4) 44 (Goodfellow); and Re University of
Northern British Columbia, [1999] B.C.C.A.A.A. No. 125 (Kelleher).
[27] Counsel for the union submitted that the union was not relying on a contract
entered into between Mr. Sutherland and the employer. Nor was it seeking to
amend or add to the provisions of the collective agreement. It was simply relying
on the equitable doctrine of promissory estoppel. He submits that the
representation which the grievor relied upon, which forms the basis of the estoppel
argument, was not ?pre-employment?. The promise was initially made during the
interview process prior to the grievor having an employment relationship, but was
confirmed after he obtained employment status, on his first day of work. Counsel
submits that the goal of the doctrine of estoppel is to redress the inequity of one
party relying on the representation of another, to its detriment.The evidence,
submits counsel, will establish that all of the elements of estoppel are present in
Mr. Sutherland?s circumstances. He urged the Board to seize jurisdiction to hear
Mr. Sutherland?s grievance on that basis.
[28] It is now well established law that where a workplace is governed by a collective
agreement, there is no place for individual contracts between employees and the
employer. Ainscough v. McGavin Toastmaster Ltd., [1976] 1 S.C.R. 718
12
(S.C.C.). However, I agree with counsel for the union that the doctrine of estoppel
does not result in the creation of ?a contract? or in altering the terms of the
collective agreement. The effect of the application of estoppel is to prevent the
party that made the representation from relying on its strict rights under the
collective agreement against the party who had relied on that representation, to its
detriment. It is a principle of equity, which prevents unfairness, by holding the
promissor to its promise in circumstances where the promisee had relied on the
promise and had suffered detriment.
[29] The board of arbitration in Re Grey Bruce Regional Health Centre, [1993] 35
th
L.A.C. [4] 136 (McLaren) made the following observation at para. 9: ?If the
assurances given by the hospital are anything at all, they are in effect a
representation giving rise to an estoppel. That is not an individual contract of
employment. The grievors are employed under the terms of the collective
agreement, but may be able to assert an estoppel with respect to a particular
application of certain management rights in the collective agreement.? Those
observations equally apply to the case before me.
[30] This Board has held that to give rise to an estoppel, the representation must have
been made at a time, when a legal relationship existed between the parties. Thus
inRe Brummel, 1584/91 (Kirkwood), in refusing to apply estoppel, the Board
found that ?? at the time the representations were made there was no agreement
nor contractual relationship between the grievor and the employer? (p. 16) and that
?the representation that was made in this case was an oral promise made to a
person who was not an employee at the time, which for the purposes of this
preliminary matter is to be taken to have induced that person to leave his job and
take a job with the public service? (p. 18). This principle is consistent with the
judgement of the Supreme Court of Canada in Goudie v. City of Ottawa, (supra).
13
[31] On the basis of the particulars, however, I find that the present circumstances do
not offend the principle established in those authorities. The initial promise by the
employer no doubt was made prior to the formation of any employment
relationship between Mr. Sutherland and the employer. However, para. 9 of the
particulars clearly states that ?after accepting the position?, on the day Mr.
Sutherland started his employment, Mr. Donat confirmed to Mr. Sutherland that a
CWW would be available to him. In other words, the promise was initially made
pre-employment, and was repeated post-employment.
[32] The next consideration is whether the promise in question relates to the application
or interpretation of the collective agreement. That is a question of fact to be
determined in each case. If a promise or representation is unrelated to the
collective agreement explicitly or inferentially, then it cannot be the basis of an
estoppel. See,Re Coubrough/Sinisalo, 3018/90 (Gorsky) and Re Brummel
(supra). In this regard, the fact that the union conceded that its claim is not based
on any alleged violation of the collective agreement, in my view, is irrelevant. A
claim of estoppel is not a claim that the collective agreement has been violated.
Indeed, if there is a violation of the collective agreement, there would be no need
for the union to plead estoppel. It could simply grieve that the collective
agreement had been violated. The issue is not about a violation of the collective
agreement. It is whether the subject matter of the estoppel is related to or arises
out of the collective agreement.
[33] Under the collective agreement there is no obligation on the employer to agree to
any CWW arrangement. It is a matter of management right as part of its right to
manage the business under article 2. However, the effect of the representation
made to Mr. Sutherland in the present case is an undertaking by the employer to
exercise that management right it has under the collective agreement in a certain
way to the benefit of Mr. Sutherland. That is a representation directly, or at least
inferentially, related to the collective agreement. This is particularly so, because
14
the collective agreement explicitly speaks to CWWs, albeit only as an option
available on agreement.
[34] As part of the employer?s position that individual bargains have no place in a
regime of collective bargaining, counsel also pointed out that the union had no
involvement whatsoever in the alleged representation. The representation was not
made to the union, nor is there any claim that the union relied on the promise
made to Mr. Sutherland. Counsel relied on Re Coubrough/Sinisalo, (supra) to
argue that in those circumstances an estoppel cannot arise.
[35] In that case, the employer had made representations to be grievors at the time of
their hire, that their hours of work would be 36.25 per week. Subsequently, the
employer required the grievors to work 40 hours per week as set out in the
collective agreement. The union claimed that the employer was estopped from
imposing the hours set out in the collective agreement on the grievors.
[36] At pp. 5-6, arbitrator Gorsky sets out the employer?s position as follows:
1. That the alleged agreement made at the time of hiring between the
representatives of the Employer and the Grievors could not bind the
Employer. They were said to be invalid because they were
inconsistent with the specific terms relating to the weekly hours of
work for employees classified as Nurse 3 General, who were in
Schedule 4 and, pursuant to art. 7.2 of the collective agreement, on a
40 hour per week work schedule.
2. That the alleged representation made to the Grievors with respect to
the weekly hours of work could not support an estoppel as the Grievors
were not parties to the collective agreement and no representation
could be said to have been made to the Union.
[37] The Board, in dismissing the grievances, set out its conclusions at pp. 26-27 as
follows:
1. The alleged representation with respect to the weekly hours of work
made by representatives of the Employer to the Grievors at the time
when each of them was hired conflicts with the provisions with
15
respect to normal weekly hours provided for in the collective
agreement and cannot result in the variance of the terms of the
collective agreement.
2. The Union?s argument based on estoppel cannot succeed as the alleged
representation was not made to a party to the collective agreement nor,
can it be shown that the Union was in any way adversely affected by
the representation.
3. Even if the provision with respect to weekly hours contained in the
representation made to the Grievors could result in an obligation being
owed to them by the Employer outside of the terms of the collective
agreement, this Board has no jurisdiction to deal with such a claim.
4. The same result follows from the invocation of promissory estoppel
based on the alleged representation which do not involve the Union,
being the other party to the collective agreement.
[38] On the issue of the union?s non-involvement in the representation, the Board states
at p. 19 as follows: ?.. there has been no showing that the alleged representation
made by the employer to the grievors was relied upon by the union to its detriment
so as to support the doctrine of estoppel?.
[39] The Board in Re Coubrough/Sinisalo, does not explicitly state on what ground or
grounds it came to the conclusion that the grievances must be dismissed. It makes
the four conclusions set out above, and decides that ?for the above reasons? the
grievances must be dismissed. The decision could possibly be read in two ways.
It could be, the Board determined that in the total context of the four conclusions it
had reached, it would be inappropriate to exercise its discretionary authority to
apply an estoppel. On the other hand, conclusions 2 and 4 above seem to suggest
that because of the non-involvement of the union, the Board decided that it lacked
jurisdiction to apply the doctrine of estoppel.
[40] There is judicial direction to the effect that boards of arbitration, and in particular
the Grievance Settlement Board, ? ? is in the best position to work out and assess
the important policy implications of permitting access to the doctrine of estoppel
by individual employees governed by this particular statutory frame work.?
16
(O.P.S.E.U. v. Ontario (Ministry of Community and Social Services) [1995], 27
O.R. (3d) 135 (Div. Ct.) per Adams J.). The Court in that case stated that ?the
grievor?s treatment was obviously unfair?, and that the Board was not ?bound? to
dismiss her grievance as it did merely because her grievance depended upon a
representation made to an individual.
[41] In my view, the following principles may be drawn from the decision of the
Divisional Court: (1) There is no prohibition against allowing individual
employees access to the doctrine of estoppel despite the non-involvement of the
union. (2) Whether such access should be allowed must depend on a balancing of
labour relations policy considerations with the equitable considerations of
redressing individuals who have been unfairly treated. (3) An arbitrator is best
situated, and therefore has jurisdiction, to do that balancing, and to decide in the
particular circumstances before him or her, whether to recognize an estoppel.
[42] Arbitrator Richard Brown in Re Ontario (Ministry of Attorney General) and
th
Association of Law Officers of the Crown , (2006) 151 L.A.C. (4) 409, noted the
prohibition against individual contracts in a unionized workplace, and wrote at p.
415:
Notwithstanding the legal prohibition against individual contracts, the
courts have acknowledged the jurisdiction of arbitrators to apply the
doctrine of estoppel, in appropriate circumstances, to grant relief to an
employee based upon a representation made to that person by an employer.
InOntario Public Service Employees Union v. Ontario (Ministry of
Community and Social Services) (1995), 27 O.R. (3d) 135 (Div. Ct.), the
court quashed a decision of the Grievance Settlement Board dismissing a
grievance on the sole ground that estoppel could not apply to a
representation made by an employer to an employee covered by a
collective agreement.Speaking for the court, Adams J. wrote:
There is a significant body of arbitral jurisprudence on the topic of
detrimental reliance, albeit arbitrators have not always agreed on how
grievances similar to the one before the Board ought to be resolved. ?
The development of a sensitive approach to the competing issues
underlying these types of claims must fall within the jurisdiction of the
only dispute resolution mechanism available to resolve them.
17
It must be remembered that our courts lack original jurisdiction with
respect to the enforcement of collective agreements and in regard to
lawsuits brought by or against trade unions: see the Rights of Labour Act,
R.S.O. 1990, c.R.33. There is therefore little acquired experience in our
courts to assist them in resolving these kinds of cases. For this same
reason, recourse to the courts by unsuccessful grievors is problematic.
Indeed, it is doubtful that any other forum is available should boards of
arbitration reject these employee claims. On the other hand, labour
arbitrators are mutually chosen by the parties because of their particular
labour relations expertise and more permanent grievance tribunals, such
as the Grievance Settlement Board, build up an impressive similar
expertise. The Board, therefore, is in the best position to work out and
assess the important policy implications of permitting access to the
doctrine of estoppel by individual employees governed by this particular
statutory framework.While there may be strong labour relations policy
considerations which support the dismissal of the grievance, there was
no superintending jurisdictional constraint which ?bound? the Board to
decide as it did. The Grievor?s treatment was obviously unfair. The
Board must take responsibility for the determination of her grievance,
whatever that outcome may be (page?s emphasis added).
In the italicized passage the court mandated arbitrators to reconcile the need
to ensure fair treatment of individuals with the labour relations policy
favouring collective bargaining, when deciding whether to apply the doctrine
of estoppel in a particular case.
[43] Arbitrator Brown also quotes at pp. 416-417, the following obiter statement from
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Re George Brown College of Applied Arts Technology, (2003), 122 L.A.C. (4)
130 (MacDowell):
[I]ndividual dealings, unsupported by the [collective] agreement, yielding
legally binding conditions, pertaining to an individual employee and not
others, seems inconsistent with the collective bargaining scheme, in which
it is the union, and the union alone, that is ostensibly empowered to alter an
employee?s legal rights. Different rights, or individually bargained
conditions of employment, do not sit easily in this scheme ? as the Ontario
Court of Appeal has recently ruled in Loyalist College of Applied Arts and
Technology v. O.P.S.E.U. Docket C37988, decision issued March 6, 2003
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[225 D.L.R. (4) 123].
This is not to say that estoppel can never be used to transform a
?representation? to an individual employee into an ?enforceable legal
obligation?, or that individual rights can never be created outside the
parameters of the collective agreement. The recent law supports the
opposite view. And there is also something to be said for the proposition
18
that parties should be held to their promises-even if they do not fit, strictly,
into the written legal framework that binds them.
However, we think that a board of arbitration should be very careful about
using estoppel in this way, lest it undermine both the certainty of the
written document, and the union?s status as exclusive bargaining agent. At
the very least, the claimant should be able to make out the traditional
elements of estoppel (representation, detrimental reliance, etc.), and should
also be able to show that the exercise of such equitable discretion ?makes
labour relations sense? in the circumstances, and is necessary to rectify a
manifest unfairness. (pages 139-141)
[44] In OPSEU v. Ontario, the court was reviewing a decision of the Grievance
Settlement Board. The court requires this Board to reconcile and balance the need
to ensure fair treatment of individuals with the labour relations policy favouring
collective bargaining over individual deals in a unionized setting. It is at least
implicit in the court?s reasoning, that in appropriate circumstances the Board does
possess jurisdiction to permit individual employees access to the equitable
doctrine of promissory estoppel.
[45] In striking the balance envisaged by the Divisional Court, the Board must be
cautious to ensure that recognizing individual rights flowing from an estoppel does
not undermine the status of the collective agreement, or the status of the union as
Re George Brown College of Applied Arts &
exclusive bargaining agent. (See,
Technology,supra). Those, in my view, would be the primary labour relating
policy considerations which may raise concerns about recognizing an estoppel
based on a representation made to an individual. Therefore, as arbitrator Brown
observed in Re Ontario (supra) at p. 416, ?How these competing considerations
should be balanced may depend on whether the party seeking relief, based upon an
estoppel, is an employer or a union acting on behalf of an employee.?
[46] In Re Grey Bruce Regional Health Centre, (supra), the employer?s objection to
the jurisdiction of the board of arbitration was, inter alia, on the ground that the
estoppel claim was based on representations made to the individual grievors, and
19
therefore based on individual contracts of employment. While the Board did not
explicitly address the issue of whether a representation made to an individual
could support an estoppel, it is clear that it did not consider the fact that the
representation was made to the grievors to be a barrier to its jurisdiction. Despite
that fact, it concluded at para. 9 ?that it has the jurisdiction to determine this
matter inclusive of the estoppel issue, and there is no individual contract of
employment between the hospital and these grievors.?
[47] In my view, the law as it presently stands is that set out by Adams J. in Re OPSEU
v. Ontario, and followed by arbitrator Brown in Re Ontario (supra). That is,
whether or not a promissory estoppel in favour of an individual grievor should be
recognized in a unionized environment must depend on a balancing of the
individual?s right to fair treatment, and the general labour relations policy
favouring collective bargaining over individual deals.
[48] The judgement of the Divisional Court post-dates, the decision in Re
Coubrough/Sinisalo. If the Board?s decision is to be read as standing for the
proposition that the Board lacks jurisdiction to apply the doctrine of promissory
estoppel based on a representation made to an employee without any claim of
detrimental reliance on the part of the trade union, it is contrary to the
pronouncement by the Divisional Court, and could no longer be considered good
law. Promissory estoppel is part of the general law. Therefore, the judgement of
the court must be treated as authoritative on the subject matter.
[49] In the present case, if the grievor had been made a promise of a CWW agreement
as alleged, and if he had relied on that promise to his detriment, it would be
manifestly unfair to him, to allow the employer to renege from its promise. I must
therefore balance that need for fairness, with the labour relations policy
considerations favouring collective bargaining over individual arrangements.
20
[50] As I have already noted, there is no right to a CWW under the collective
agreement. Nor does it prohibit CWWs. However, by setting out CWWs as an
option available, the collective agreement envisages that CWWs may be extended
to employees by agreement. If the employer had made a representation that it
would use its management rights to grant a CWW to Mr. Sutherland, on which he
relied on to his detriment, recognizing that an estoppel is created does not run
counter to or change the interpretation or meaning of the collective agreement. It
merely allows the grievor to demand, based on a promise, a benefit which is in
fact anticipated in the collective agreement. That does not affect the status of the
collective agreement.
[51] In certain circumstances, recognizing an estoppel based on dealings between an
employer and an individual employee may indeed undermine the union?s status
and authority as exclusive bargaining agent. In those circumstances, the balance
may be tilted in favour of the policy supporting collective bargaining over concern
about the unfair treatment of the individual. The example employer counsel used,
where a deal is struck between an employer and an individual that the latter could
have a job provided he agreed to terms less favourable than the terms set out in the
collective agreement, would be one such situation. Another would be, where an
employer promises individual deals as a means of ?dividing and conquering? the
bargaining unit membership, as a means of undermining the authority of the union.
That is not the situation here. The facts indicate that many employees performing
the identical job as Mr. Sutherland in various offices in the province, including in
the Kitchener-Waterloo office itself, enjoy CWW?s. The promise made to Mr.
Sutherland was that he could have the same arrangement as that enjoyed by those
co-workers of his. Those employees must have received their CWW?s with the
approval of the employer, because there is no right to a CWW in the collective
agreement. Therefore, by extending that same benefit to another employee, who
had been made a promise that he would have a similar benefit, there can be no
detrimental effect on the union?s status and authority as exclusive bargaining
21
agent. It is apparent that the union itself does not consider that to be the case,
because it is in fact actively advocating on behalf of the grievor to estop the
employer from reneging from its representation. That must be one of the factors
to be considered in determining whether or not applying an estoppel has the effect
of undermining the union?s status as exclusive bargaining agent.
[52] For the foregoing reasons, I conclude that in the particular circumstances before
me, the balance is clearly in favour of the need to remedy the manifest inequity to
the grievor. There are no labour relations policy considerations which militate
against the application of the equitable doctrine of promissory estoppel.
Therefore, I find that the Board has jurisdiction to hear and determine the
grievance on the basis of the union?s claim of estoppel.
Summary
(1) The first motion of the employer is upheld. In the circumstances of this case
this Board has no jurisdiction to review the employer?s exercise of management
discretion for reasonableness.
(2) The second motion of the employer is denied. In Mr. Sutherland?s particular
circumstances, the Board does possess jurisdiction to hear and determine his
grievance based on a claim of estoppel.
I remain seized with the instant grievance.
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Dated at Toronto this 12 day of December 2008.
Nimal Dissanayake, Vice-Chair