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HomeMy WebLinkAboutSymons 20-08-28IN THE MATTER OF AN ARBITRATION BETWEEN: MANITOULIN AND SUDBURY DISTRICT SERVICES BOARD (the "Employer") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 679 (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF D. SYMONS OPSEU # 2019-0679-0001 Louisa M. Davie - Sole Arbitrator For the Union: Dan Hales For the Employer: Kathleen Stokes a Award On June 18, 2019 D. Symons ("the grievor") filed a grievance which asserts that the Manitoulin Sudbury District Services Board ("the Employer") violated the collective agreement between the Employer and the Ontario Public Service Employees' Union, Local 679 ("the Union") on June 2, 2019 when the Employer made a shift assignment which the grievor maintains contravened the collective agreement. The grievance states: I grieve the MSDSB, specifically but not exclusively for breach of 6.02 (1) included in Appendix `B' Letter of Understanding on June 2,2019 in Gore Bay, Ontario The relief requested is as follows: Cease shift assignment contravening Appendix `B' LOU 6.02 of CA. Money owed as outlined in 16.03 (a) and any other settlement deemed appropriate by my Union. This matter was heard via a videoconference hearing on August 20, 2020. At the commencement of the hearing that day the parties agreed that I was properly seized and did not raise any issues with respect to my jurisdiction to hear and determine the matters in dispute. Prior to the hearing date the parties filed a book of documents. On the day of the hearing the parties each made opening statements. From their opening statements it was apparent that the facts were not in dispute. Considering the undisputed facts, and to expedite matters, the parties agreed to use the mediation/arbitration process set out in section 50 of the Labour Relations Act. They further agreed that I could decide this matter and issue my award based on the undisputed facts, the documents filed, the language of the collective agreement, and their opening statements. 3 Facts The Employer is a municipal service management organization created by the provincial government to oversee the local planning, coordination, and delivery of a range of services and programs, including paramedic services, divested to the municipal order of government. The grievor is a regular part-time paramedic. On June 2, 2019 there was a "special event" in Gore Bay, Ontario namely, a Kite Festival. The Employer was requested to provide paramedics to cover the Kite Festival from 13.00 to 15.00. Gore Bay is located in Service Area 2. The grievor is assigned to Service Area 2. The Employer assigned two (2) paramedics from Little Current to provide paramedic coverage for the Kite Festival in Gore Bay. Little Current is in Service Area 1. The Employer assigned the paramedics to the Kite Festival more than five (5) days before June 2, 2019. The Employer determined to assign the two paramedics from Little Current based on the availability of personnel and vehicles across the Service Areas. Specifically, because of summer servicing, there was no available ambulance in Service Area 2/Gore Bay which could be used at the time of the Kite Festival, while there was an ambulance which could be used in Service Area 1. The grievor maintains that the collective agreement required that the Kite Festival work should have been assigned to the paramedics in Service Area 2. In addition to a 4 declaration that the collective agreement was violated he claims monetary payment for the lost opportunity to work. The collective agreement contains the following articles and Letter of Understanding which are relevant to the dispute between the parties. 16.01 The normal shift shall be either eight (8) hours, ten (10) hours or twelve (12) hours inclusive of a one-half (1/2) hour paid meal break, including the associated on-call hours. The Employer agrees that there will be no change in the established weekly or daily hours of work without prior consultation with the Union. Appendix B in the collective agreement is a Letter of Understanding regarding shift assignments. Article 1 of Appendix B limits the definition of "Available Shift" and "Assigned Shift" to either eight (8) hours, ten (10) hours or twelve (12) hours and states: 1.02 Available Shift An eight (8), ten (10), or twelve (12) hour shift with all associated on- call hours, to which no one has been assigned. 1.04 Assigned Shift An eight (8), ten (10), or twelve (12) hour shift with all associated on- call hours, to which a person has been assigned to work. Article 1.08 of Appendix B in the collective agreement defines "Service Areas" as follows: 1.08 Service Areas There are four (4) Service Areas to which individuals are assigned, as follows: Service Area 1: Little Current, Espanola, Massey Service Area 2: Mindemoya, Gore Bay, Wikwemikong Service Area 3: Noelville, Hagar, Killarney Service Area 4: Gogama, Foleyet, Chapleau Article 6.01 and 6.02 of Appendix B in the collective agreement outlines the scheduling or assignment of available shifts for part-time paramedics: 6.01 Part-time staff will be scheduled into available shifts. The objective is to schedule Part-time employees as far in advance as possible. 6.02 Long Term Scheduling (Call in for Shifts Over 5 days): The following shall apply when considering filling shifts during the Long term Scheduling period (shifts that are commencing greater than 5 days in the future, with the current day being considered as day 1). Shifts will be assigned on the following basis, subject to employee availability at the time of assignment: 1. Part-time and eligible casual employees within the shift's Service Area in order of seniority 2. Part-time and eligible casual employees belonging to the Service Wide Group in order of least recently been assigned a shift, to most recently been assigned a shift 3. Part-time and eligible casual employees outside the shift's Service Area and who are not on the Service Wide Group, in order of seniority Neither the collective agreement nor the Letter of Understanding contain any specific provisions regarding scheduling or the assignment of part time or casual paramedics to "special events" such as the Kite Festival. Neither are there any specific provisions to deal with scheduling part time or casual paramedics to "assigned shifts" or "available shifts" of less than 8, 10 or 12 hours . There are certain other facts which have influenced my decision with respect to this grievance. Chief amongst those facts is that the collective agreement under which this grievance was filed expired December 31, 2019. The parties are in collective bargaining negotiations for the renewal of that collective agreement. Those negotiations have been interrupted by the Covid -19 pandemic. The parties hope to resume their negotiations in October 2020. Notwithstanding the scheduling or assignments that are made within Service Areas, it was not disputed that at times ambulance crews from one Service Area may be assigned to calls in another Service Area. In 2019, 221 emergency calls in Service Area R 1 were assigned to ambulance crews in Service Area 2. In the same year, 209 emergency calls in Service Area 2 were assigned to ambulance crews in Service Area 1. The decisions by the Employer (and the Central Ambulance Communications Centre) regarding the allocation of call assignments is based on the availability of personnel, ambulances, and resources. It is the Employer's position that ambulance crews or paramedics in a Service Area do not "own" work merely because the work occurs in their geographic Service Area. Since 2004, when the ambulance service was divested to the Employer, the Employer has not applied the scheduling provisions of the collective agreement when it assigns paramedics to work "special events". The work at special events may not be an 8, 10- or 12 -hour shift and can vary from 4 to 12 hours. Paramedics have a right to refuse special event shifts or assignments. Between 2016 and 2020, approximately 60 paramedics were assigned to in or about 98 special events both inside and outside of their assigned Service Areas. Many of these shifts did not adhere to the language in the collective agreement. Most special events shifts were offered more than 5 days in advance. There is no evidence that the Union has ever objected to the way the Employer schedules or assigns paramedics to special events. I accept the Employer's submission that it has had an open and long-standing past practice of scheduling or assigning paramedics to special events based on the availability of personnel, ambulances and resources, and without regard either to the scheduling articles of the collective agreement or the Service Area in which the special event occurs. That is to say that the assignment of paramedics to special events has occurred outside of the scheduling parameters set out in the collective agreement. Although the Union has, over the years, filed grievances about particular issues related to scheduling or the assignment of employees, it has never filed a grievance claiming that the Employer's scheduling or assignment of ambulance crews to special events contravenes the collective agreement. Decision I have determined that this grievance must be dismissed as the consistent and established past practice of the Employer founds an estoppel pertaining to the scheduling or assignment of paramedics to "special events". The Employer's open practice of scheduling or assigning paramedics to special events without regard to the provisions of the collective agreement has been long-standing. Its past practice of treating "special events" as being outside the scheduling requirements of the collective agreement has gone on for a long time, without objection from the Union. The Union's acquiescence or failure to object to the Employer's practice was a representation by conduct upon the which the Employer could reasonably rely. It is useful to set out what is essential for estoppel to apply. A concise summary of the doctrine of estoppel in the labour relations context, and the four requirements necessary to found an estoppel, can be found in the decision of Arbitrator Surdykowski in Toromont Industries Ltd. and I.A. M.A. W., Thunder Bay Lodge 1120, (2009) 192 L.A.C. (4th) 1 at paragraph 122 as follows: It is well established that arbitrators have jurisdiction to apply the equitable doctrine of estoppel to decline in [sic] enforce a collective agreement provision. Estoppel operates to prevent the unfairness that can result when one party represents to the other party that it will either not enforce a right or obligation under the contract between them, or that it will apply the contract in a particular way, and subsequently either seeks to enforce the particular right or obligation, or to apply the contract differently, after the other party has acted in reliance on the representation and the situation cannot be restored. A party that asserts estoppel bears the onus of proving four things - and it must prove all four: 1. that the other party to the collective agreement made a clear and unequivocal representation concerning the interpretation or application of the agreement; 2. that the representation was intended to and does in fact affect the legal relations between the parties to the agreement; 3 that it relied upon the representation by doing something, or foregoing the opportunity to do something, and that it would have acted otherwise but for the representation; M 4. that its reliance is detrimental because the situation cannot be restored to what it was when the representation was made. See also see Re Canadian National Railway Co. et al. and Beatty et al. (1981) 1981 CanLll 1888 (ON SC), 34 O.R. (2d) 385 (Div. Crt.). With respect to the first two requirements, I have already referred to the fact that the Employer's long-standing past practice, and the Union's acquiescence with that practice, was a representation (by conduct) that the Union would not strictly enforce the application of any scheduling or assignment articles of the collective agreement to "special events." In the circumstances it was reasonable for the Employer to conclude that it could rely on the Union's representation. The third requirement is also met. The Employer relied on the representation in that it continued its practice and continued to schedule and assign paramedics to special events without regard to the provisions of the collective agreement. Finally, the detrimental reliance is apparent. Over the many years during which the Employer continued its practice the Employer lost the opportunity to address this issue in collective bargaining, which it would undoubtedly have done, if the Union had objected to the practice and insisted that all "special events" be scheduled and assigned in strict accordance with the collective agreement provisions relating to scheduling and the assignment of work. Although the grievance is dismissed because the Employer's past practice has established that the Union is estopped from asserting its collective agreement rights with respect to the scheduling or assignment of paramedics to "special events", it is important to note that the filing of the grievance, and the notice provided by the Union that it would seek to enforce various collective agreement scheduling articles to "special We events", will bring an end to the estoppel. An estoppel typically ends when the party who has relied on the estoppel has an opportunity to change the situation upon which it relied to its detriment, or when that party is returned to the same legal rights it had before the estoppel was created. In a labour relations context and the collective bargaining environment that is usually when the parties have an opportunity to negotiate. In this case the collective agreement under which this grievance arose has expired. The parties are currently bargaining the renewal of that collective agreement. The parties agree that this matter needs to be addressed at the bargaining table. In the result I conclude as follows: 1. The grievance is dismissed. 2. The estoppel ends on the commencement date of the renewed collective agreement. 3 In the current round of bargaining the parties will negotiate the terms and conditions to be applied to the scheduling and assignment of paramedics to special events. Dated this 28th day of August, 2020 Zoalea z%ve, Louisa M. Davie