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HomeMy WebLinkAboutMcIntosh Group 09-07-21 JUL-23-2009 16:35 From:RWBH 21 Jul 2009 18:01 4163409250 R. HOWE ~ L. HUTCHISON To: 9055252377 905-834-3951 P.3/17 p.4 IN THB MATTER OF AN ARaITRATION BETWEEN: ONTARIO PUBLIC SEJ~VICE EMPLOYEES UNION (the "Union,l) - MJ!) - GUELPH GENERAL HOSPITAL (the " Employer 'I ) AND IN THE MhTTER OF THE GRIEVANCE OF CINDY M~CKINNON DATED OCTOBER e. 2003 eRE WA~E RATE) - OPSEU FI~S NO. 03-~31-1l9 BOARD OF ARB I1'RATION R.obe:r;,t D. Howe i Cha ir Pamela Munt-Nadill, Union Nominee Donald Batee, Employer Nominee Al?P~ARANCBS For the Union F'O:J::' the Employer Richard A. Blair, Counsel Stephen Wallis Cinc::l:Y MaCKinnon Robert E. Salisbury, Counsel Rod ,.'car,rol. J Annette Harrington A hea:ring in the abov~ mat.terwaQ h~ld itJ. Guelph, Ontario, on February G, February 20, April .30, and U'Ur.~ 19, 2009. JUL-23-2009 16:36 From:RWBH 21 ~ul 2008 18:01 4163409250 R. HOWE ~ L. HUTCHISOM To:9055252377 905-684-3851 P.4/17 p.s AW A~ As indicated in our awa~d dated JUly 31, 2006, nine individual grievances filAo du~ing October of 2003 h~ve been refexX'ed to thia Board of Arbitration (the "Board'l) I each ~c:mtaining the following II st:atement of g1:'ievano.e": I grieve that I have been improperly placed On the Wage G~id according to the Pyle Claaa Standard~. The essence of each of those grievances is that the Employer (also referred to in this awar.d aB the I'Hospitalll) is violating the collective agreement by paying the g~ievorD at the rate of a General Dut.y Tecl:nologist (also referred to as "Registered '1'echnolcgi at II). rather than the Senic:!:' Technologist rate. On the first d~y of hearing (June 27t 2005), the parties agreed t.o p~oceed initi~lly with the grievanoe of Ruth Brooks, and to have the other eight g~1evanees held in abeyance pending the issuance ot an award r~garding that grievance. Although there waano agreement that Mg. Brooks' gx-ievance would be t.reated as representacive of any of the other eight grievances. it was hoped tha.t the awa.rd would be of some asaistance in resolving those grievancea. Following the issuance of that award, all of t.he remaining grievances were resolved with the exception of tht;) grievance Of Cindy MacKinnon (the "grievor"), whose grievance was scheduled for hearing at th~ request of the Union, Union counsel contends that the grievor is entitled to be paid at the Senior Technologist rate on the basis of 1 JUL-23-2009 16:36 From:RWBH 21 Jul 2009 18:01 4163409250 R. HOWE & L. HUTCHISON To: 9055252377 905-634-3951 P.5/17 F.S estoppel and also on che basis oe the work which sh~ performs. Employer counsel :Jubmitted thQt the estoppel a:J:'gument is beyond ~h~ scope of the gri@vance. Howev~r, we are oatisfied that both of t.l1e alt..eL"native bases upon which Unio!: counsel relies fall within the scope of the grievance. It is well established in the arbitral ju~i8prudence that grievances are not to be given a narrow, overly t.echnioal 1nteL~r~tation. Estoppel is merely an alternative legal theory upon which the Union relies in support. of its content.ioI1 that the griever should be receiving the Senior TechnologiSt. rate ;cather t:hao the Registered Technologist rate; AS noted above, chat is the essence of t.he grievance. Moreover, the argument has clearly not taken Employer couneel by surprise. In hie opening statement regarding Me. MacKinnon'~ grievance, uniOn ~ounsel indicated that in June of 2003, after raising aome workload issues associated with her Charge Technologist position, the grievor moved into solely echoca:t;diog;r;aphy "on the underetand1r~ that she would be in receipt of the Senior Technologist rate". Extensive evidence cQnce~Ding the discussions which gave rise to that understanding was adduced by both the Union and the Employer during the course of the hearing, and both Union couns&l and Employe~ counsel made full submissions on the merits of the estoppel issue during the course of final argumenc. Por the reasons set forth below, we have concluded tOi;J,t the grievor is entitled to be paid Q,t the Senior Technologist rate on the basis of estoppel. In view of that 2 JUL-23-2009 16:36 From:RWBH 21 Jul 2009 18:01 4163409250 R. HOWE L L. HUTCHISON To: 9055252377 SOS-EiJ4-3951 P.6/17 1'>.7 concluaion, it is neither neceeeary to detail the evidence concerning the work which ahe has been performing since June of 20Q3, nor to determine whether or not the performtu~ce of that work provides an alternative baais tor her entitlem~lt to that rate. In making the findings ~nd reach1l~ the conclueiona set forth is this award, we have duly eonsidered all of the relevant oral and documentary evidence, the sUbmissions of counsel, and the usual factors germane to ass~ssing evident,i.a,ry credibility and reliability, including th& firmness a.nd clarity of th(! Witnesses' reelpcc:tive m(':':mories, their ability to resist the inf:uence of ee1f.-interest when giving their version of evente, the internal and e~ternal consistency of their evidence, and their demeanour ~hile testifying- We have alao ~6sessed what 1s mO$t probable in the circumstances of the case, and con9idered 1:.he inferences which may reasonably be drawn from the totality of the evidenoe. The grievor commenced employment with the Bospital in 1980 as a, General Duty Technologist, a.nd became a Clil":Iical In~tructor in 1990_ She remained in the latter position until 2001, when she became a Charge Technologist in the Ultrasound Department, which at that time ~ncompasBed eChocardiography. In May of 2003, ohe approach~d Linda Fox, who at that time was the Manager of the Hospital'S D.:iegnostic: Imaging Department, to advise her that she was finding the duties and responsibilities of t.hi:lt. Position to bE:: unduly onerous. 3 JUL-23-2009 16:37 From:RWBH 21 J~l 200S IS:01 4163409250 R. HOWE L L. HUTCHISON To: 9055252377 905-634-3951 P.7/17 10.8 In addition to doing echocardiogr.ams all day long {w~ich Me. MacKinnon oonaidered to be a full-time job in and of itself), the grievor was required to be llon..calll! on some nights and weekends, and wal'3 aleo re:aponsible for performing the scheduling and other administrative dLtties required of a Charge Technologist. She was feeling very I:tred and knew tha,t she was lIburned out". She emotiOl'l.ally told Ms. FOx. that: therc was just too much work for one: person, and that it was starting to take a toli on her. MS. Fox was aware that the grievor had been experie~cing personal problems, and waa concerned that she might be on the verge of resigning from her employment with the Hoapital.She did not want to )ns~ ~he grievor as an employee, as che grievor was a valued long-service employee whose eOhocardiography skills and experienoe would be very d~fficult to replace. Moreover, Ms. Fox \'Iaa sympathetic to t.he griellor's situation. Consequently, she indicated that she would try to find a solution that would address the problems the grievor w~s having. During subsequent d1ac~ssions, Ms. Fox indicated that if the grievor resigned from her charge TAc::hnp1.ogist position, she could be placed in a position in which ahe would only have to perform echooardiograms and would no longer have: to be "on-call" nor perfo:r.m the administrative duties of a Charge: Technologist. Although~. Foxhaa no recol:ection of di.scussing rates or pay with the.9rievor. we a.ccept the grievo~'s evidence that during the cou~so of those discussions MS. FOX indic<ltcd that ahe could. offer her a position tha.t was '" JUL-23-2009 16:37 From:RWBH 21 Jul 2008 18:02 4163409250 R. HOWE ~ L. HUTCHISON To: 9055252377 S05-S34-3S51 P.B/17 p.S one step down from a charge Tec:b.nologist poaj..tion with a minor x:educt:ion in pay; although the p:t'eciEle amount of the pay differential was not specified, Me. Fox mentioned a numbe~ of relativeJy small amounts ranging f~om ten to ninety Cl;i!l1ts per hour. On ~he basis of t~e information provided by Ms. Fox during those dieou~BionB, and with the encouragement of Ms. Fox, the griever provided her with the following letter of: resignation from the Charge Technologist position: May 20r 2001 Linda Fox Manager of DiagnoSCio Imaging Guelph General Hospital Dear Linda, I am writing thia letter to inform you that I have decided to step down f~om tb~ Char9~ ~echnologist pOBi.t.ic:m in Ultrasound. This :ras been a very difficult decision .fCl,r:' me; however, I feel it is the righL one a.t:: this time. The demands of the Charge TeChnologists [sic) position, full-time gchocardiog:r:aphy as welJ. as being available for call-ins in general ultraeound combin~d with the demands of family life have p:roven to be toe much for me a.t: this time. I would like to take this oppo~tUnity to thank ~oth you and Andre for all your support during the Lime that I held this position. Sincerely, "Cindy MacKinnonn When the Cha~ge Technologist position from which she had ~eeigned wa~ posted, Mark Lavello, who was a Register~d Technologiet, applied for the position and was awar.d~d it. The position which Mr. Lavello vacat,ed was posted on June 11, 5 JUL-23-2009 16:37 From:RWBH 4163409250 21 Jul 2009 lS:02 R. HOWE & L. HUTCHISON To: 9055252377 S05-G:!I4-3851 P.9/17 p.10 2003, through a posting which described the position as fellows: pOlidtion: Regist~r$d Ultrasound Technologiet - Full-time DElpartment: Diagnostic Imaging cur~ent shifts: primarily Days, Monday to Friday Must be available f~r On-Call QualificationB: -Current A.R.D.M.S. Cert1.ftcation -Cu!.':r;:-ent Membership ill the C. S 1:J. M. 8. -Small parte, General, Abdominal, Obe~etrical experience essential -Excellent. int.erpersonal and cornntunicati.ons skills The grievor did not see that posting, nor would it have been of any assistance to h~r if ahe had seen it hecause, as acknowledged by Ms. Fox (in cross-examination), that was not the position which she offered to the grievor. The position which the gr.i.E:!vor, on the recommendation of Ms. F03t, telephoned the Hospital's HumaIl Resources Department to accept was not a Registered T~chnologist position perforroi~9 general ultrasounde and reC!lliring "0n-CalP availability, bl..:.t rather a. specialized poeition, one step down from cha~ge Technologtst, performing only echocardiog:rams, wit:h no liOn-Call" :responsibility. The position ~hi.::h t:.h<:: grievor occupied following h-::,C resignation from the Charge Technologist position was exactly as the grievor had expected it to be on the basis of her discussions with Ms. ~ox except with respeot to r.emuneration. As a Charge ftechnologist, the grievor had been earning $30.66 per hour, in accordance with the applicable wage grid in the G JUL-23-2009 16:38 From:RW8H 21 Jul 200S 18.03 4163409250 R. HOWE ~ L. HUTCHISUN To: 9055252377 90S-834-3951 P.1W17 p.ll col1~ctive agreement. Under th~t wage grid, the hourly rate (at that time) opecifil2!d for Ser..ior Technologists was $29.01, with the rattl=l for.' Registered 'l'eclmologists J::>eing $2'7.3'7. When the ~rievor received her first paycheque in her new position, She was highly dismayed to disoovtlilr that she was being ptlid at the Regil!ltered 'I'ec.:hnolog:l.~t I s T.at~, which was $3.29 less per hour than she had previously been earning. Although Ms. F~ was unable to recall it, we accept the grievor's evidence that when ghe approached Ms. Fox to exp~ess her concern about the new job's hourly rate being substantially les~ than what she h~d expected, Ms. Fox indioat~d that auman Resources had made a. mistake and that ahe would C'ontact Annette Harr.ington (the Hospital'a Manager of Hu~an Reso\J~cea) to get to the bottom or it. However. after speaking with Ms. H~rringt~n, Ms. Fo~ told the grievor that she would have to discuss the matt~r directly with Human Resources. . When the grievor did so, Ms. H~r~ington told her that she Should have been in touch with Human ReaOl.lrCeS herself, that they wer~ not reopoosible if Me. Fox had made a mistake, and that the wage rate stood_ Ms. Harrington also advised the grievor that it was not POSsible fo:!:' her. to ret.urn to her to:t:'Tl1er pC:$iLlon of Charge. Technologist. In describing her reaction t,o the aittJ~.tion, the 9rievo~ testified: I was extremely upset. This;is not what Linda Fox and I had ~9'reed on. Ha.d Lind.a a6..id to me' I'the only thing 1: can offer you is a Gene.ral Duty Teohnologistll, J: would not have taken that pc~;ition. I wO"..lld have stayed where I was. 7 JUL-23-2009 16:38 From:RWBH 4163409250 21 Jul 2008 19:0a R. HOWE ~ L. HUTCHISON To: 9055252377 805-834"'::l851 P.l1/17 p.12 The grievor1s evidence in that regard is confi~ad by the fact that despite her serious uoncerns about the toll which the workload of the Charge Technologist position had been taking on he:;r:: he<:tlth and well-being, she nevertheles8 attempted to return to that position by filing a grievan~e ~fter disoovering that her level of remunarution In her new position was not going to be what she had been led to believe. When that grievance did not n~at with SUCGeSS because the position had alrl!'lady been filled, ahe f1.led the grievance to which this award pertains. Th~ classic statement of the doctrine of estoppel is found in Combe v. Combe, [1951J All E,R. 767 (C.A.), in which Denning L.J. described it as follows (at page 770) : The principle, as I under13tand it, is that where one party has, by his words or conduct, mad~ to the othor a promise or assuranc~ which was intended to affect the legal rclat ions between t.hem and to be acted on accordingly, then, once the other party has taken him at hie wc:rd and acted on it. the one wno gave tlle p~omise or aasuranoe oannot afterwards be allowed to revert to the previous legal relations as if no sl,l,ch promise or assurance had bee::1 made by hi.m, but he must accept their legal relations subject to the qualificat.ion which he hirnself.sdintroduced, ~ven though it is not aupported in pofnt of law by any conaideration, but only by his word, It is now well-established cbat arbitrators have juriadiction to ~pply that doctrine in appropriate circumstanoes. Moreover, as submitted by Union cO'Jnsel and acknowledged by E:mployel::" counsel, in the context of a colleotive agreement it is not a principle whic;,'h operates only as between a union and an employ~r; an individual grievor includeo in a bargaining unit cov~red by a collective 8 JUL-23-2009 16:39 From:RWBH 21 Jul 2009 18:03 4163409250 R. HOWE ~ L. HUTCHISON To: 9055252377 90S-G34-3SS1 P.12/17 p.13 agreement may be able to eetablieh and rely upon estoppel in appropriate circumstanoes. Sesl for example, RG Kingston Regional An1bllJ ance Servioe and O. P.S.E. U., Lac;: 462 (Kane) (2001), 9a L.A.C. (4th) 70 (Ver1tY)j Re Grey Bruae Rsgional Health Centre and O.P.S.B.U.. Loc 235 (1993) u.A.C. (4th) 136 (McLaren), applicat,10n for judicial re'V'i~w di.smisl3ed by the Divisional Court on Mi'lrch ~.4, 1996 (Court File: I\lo, 42$/95) i oRe ,Pa.cific ,Press Ltd. and Newspaper Guild, Loc. IlS (1987), 31 L.A.C. (3d; 411 (Munroe); and Ontario Public Service Employees Union v. Ontario tM.7.n:i8t.ry of Community and Social Servioes (1995), 27 O.R. (3d) 135 (Dlv. Ct.). As noted by Employer counsel, ar.bitracora must be cautious in applying ehe d.octrine of e~toppel in the context of individual employees, leat t.he Union1fll status as exclusive bargaining agent be placed in jeopardy. However, no such concern arises in the circumstancea of the instant case, as the grievor's claim has been embraced by the Union, waiving any potential collision with its status as exclusive bargaining agent (and also j.mplicitly waiving any potential inconsistency with the rights ofoth$r bargaining u,nit employees) . Counsel for the Employeraubridtted t.hat estoppel does not apply in the c:!irc'Umstances of. thil3 case because it has not been established th~t Ms. ~ox made a clear and unambiguous representation to the grievor regarding what her new claeaeification or rate of pay would be. However # as indioated above} although Ms. FOA did not apeoify precisely what the pay 9 JUL-23-2009 16:39 From:RWBH 21 Jul 200$ 18.04 , -. ------- 4163409250 R. HOWE ~ L. HUTCHISON To: 9055252377 SO!::l-G34-3S51 P.13/17 p.14 di..tterential would be, she did indicate that it. wc:mld be a mino~ reduction in pay ~nd ntentiQned a number of relotively small amounts. ranging from ten to ninety cents per hour. Moreover, she told the grievor. that she could offer her u position that wae one ete~ down from a Charge Technologist position. Under. the applicable oollective agreement, the position that is one step down from Char.ge Technologist is Senior Technolog:i,at which, ~t that time, had an hourly rate of $29.0l. Although the $1.65 differontial. between that rate a:nd the grievoX:-le Charge 'l'echnologiet rate of $30.66 is Bomewhat larger than any of the amount a which Ms. Fox mentioned during the course of the discussions which led to the grievor'a resignation f:r;om the higher rated. pOFlit.:i..C>I"J., it is substantially leas than the $3.29 differential Which the grievor actually experienced as a.. result of being paid at the Registered Technologist rate. Having ~egar.d to the whole of the testimony of the grievor and Me. Fox, and to all of the Bu:cX'o1.lndins ciroumstances, we are satisfied on the balance of prohabilit1es that Ms. FOX I in her oapa~ity as Manager of the Diagnostic Imaging Department, made a representation to the griever on behalf of the Eoopital that, if the grievor resigned from her Charge Technologiat pocition, she would be placed in a position that was one step down, with a minor reduction in pay, perfo~ming oIuyechocardiograms with no tfon-callll responsibility nor anyresponsihili.t.y for performing the administrative duties of a Charge Technologist. ~he 10 JUL-23-2009 16:39 From:RWBH 21 Jul 2009 18:04 4163409250 R. HOWE ~ L. HUTCHISON To: 9055252377 905-6:34-:3951 P.14/17 p.15 grievor relied upon that representation to her detriment by resigning f~om her Charge Technologist posi~ion and acceptin~ a position which she, not mlreasonably, oalieved to be the position that Me. Fox had offered her. When she discovered to her dismay th~t. hel: rE:Ytlumeration 'lJias substantially leEle than what Ms. Fox had led her to believe it would be because her new position wa~ classified two steps rather than just one step down from her former positlorl, she actempteu to return to he= former position but w~s unabl~ to 00 so b~cau~e it had already been filled. ~hus, the facts of this case fall ~quarely within the doctrine of ~stoppol a~ described above. Pe~mi tt:i,ng t.he Hoapi ta.l to succeed in resiling from that representation would be manifeetly unfair and inequitable in the circumst.ances o( this case, in which there a.re no labour relations policy considerations which render it inappropr.i.aLe to apply the doctrine of estoppel to remedy the injuEltice that has occurred. For the foregoing reasons, the grievance if) hereby allowed on. t;he baSis cf estoppel. and the Employer HI nereby directed to pay the grievor at the senior Technologist rater with retroactivity and interest, asrequ~sted by Union counsel on behalf of the griever. We remain sAised for the purpose of resolving any disputes which may arise concerning the implementation of this award. 11 JUL-23-2009 16:40 From:RWBH 21 Jul 200S 18:04 4163409250 R. HOWE & L. HUTCHISON To: 9055252377 905~634-:3951 DATED at Burlington; Ontario, th~$ 21st day of ~uly_ 2009. ~),d:PL Robert D. Howe Chair I concur_ "Pamela Ml~nt-Mad.illU --do UniO::l Nowd.nee l:a P.15/17 11" 113 4153409250 R. HOWE L L. HUTCHISON -"-~ To: 9055252377 805-634-'3951 P.15/17 p.17 JUL-23-2009 15:40 From:RWBH 21 Jul eoos 18;U4 OISS.sNI Unfortuna1ely, I must di$8gree with my colleagues in their decision to detemiine this case on the basis of the Union's estoppel argument. WhDe I respect 1he Arbitrator's jurisdiction to do $0. I disagree In the circumstances, to broaden the $COpe of the grlev8~. On the first day of hearing JLD1e 27,2005, Union President Stephen Wallie testified that he crafted the nine grievances: the i8.&ue in each was job oJassHication. In so determining this case, the majority are relying on ihe evidence giving rise to an earlier grievanCE! (July, 2003) which was not pursUed by the Union. To do SO is to permit the Union to resurrect its earlier grievance. In these circumstances, It Is my respectful opinion that this case ought 10 have been determined on the basis of the job classification issue. This notwithstanding, I am unable to conclude that the essential elements of estoppel have been established. The specifiC job classificatic;m rates of pay are negotiated between the parties and set ou1 in the Collective Agreement. Ms. MacKinnon was aware she was applying to a General Duty Technologist position. Ms. Fox was adamant that she not only did not discuss rates of pay with Ms. MacKinnon but she had no authority to set rat~ of pay save starting rates for students. Realis1ically, it is difficult to understand how anything of the sort as described by Ms. MacKinnon might occur and not be detected by payroll administrators or in a random audit as it was In, tnts case. For these reasons and on balance, I Pf8f~d the evidence of Ms. Fox. 4153409250 R. HOWE ~ L. HUrCHISON To: 9055252377 905-634-3951 P.17/17 p.1U JUL-23-2009 15:40 From:RWBH ~1 Jul cOOS 18;05 _-1.. __. On the other hand. Ms. MacKinnon \Nag unabte to Identify a clear and unequiVocal representation. In faet, she didn't help herself, in my opinion by continuing to embellish the details of her conv$f88tions With Ms. Fox through CfO$$-e)(amlnation. It Is trite to say her evidence satisfied self interest. It puzzles me how Ms. MacKinnon would expect to be paid a higher rate than the corresponding rate of the position she posted to. My I_t OClmment Is for all HO$pital front line supervisors and management personnel. Labour arbitration is costly and time consuming. Collective Agreement administration Is best reserved for members of the Human Resources department lest situations such as this may be repeated. This is not to be critical of Ms. Fox who In my opinion Intended on accommodating Ms. MacKinnon's request in accordance with the job vacancy and PQ:sting proVisions of the Collective Agreement All of which i9 respectfully submitted. ~e~U Don Batea Employer Nominee 2