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HomeMy WebLinkAboutGroup 98-05-31AWARD IN THE MATTER OF AN ARBITRATION BETWEEN: CENTENARY HEALTH CENTRE ONTARIO PUBLIC SER VICE EMPLOYEES UNION AND IN THE MATTER OF A GROUP GRIEVANCE Kevin Whitaker, Chair C. E. (Clay) Appleton, Hospital Nominee J. D. McManus, Union Nominee Appearances for the Hospital Wallace Kenny, Counsel Appearances for the Union, Nick Coleman, Counsel A Bearing was held into this matter its Toronto on September 25, 1997 and March 9, 1998. I This is a group grievance. The employer is a public hospital. The grievance concerns the scheduling of full-time Registered Technologists in the Nuclear Medicine Department. The employer wishes to schedule these employees for shifts which include week -ends. The collective agreement permits such scheduling. The union argues however that the employer is estopped from scheduling in this manner because of representations made to individual employees. In response to the estoppel argument, the employer takes the following positions: (i) that there were no representations made and relied upon to the detriment of employees; (ii) if there were such representations, an individual estoppel cannot arise which would alter the parties' rights and obligations under the collective agreement; (iii) if such an estoppel exists which would bind the employer, it has expired; (iv) if such an estoppel has not expired, the grievance is untimely in any event. The union alleges that representations which give rise to an estoppel were made to a number of employees. The parties have agreed at this point, to litigate this issue with respect to one particular employee - Mr. Brian Pavlich, Following our disposition here, the union reserves its right to proceed with the grievance as it relates to other employees within the group. For the reasons which follow, we find that there were no representations made to Mr. Pavlich which could form the basis of an estoppel. Accordingly, this portion of the grievance is dismissed without disposing of the employer's alternative arguments (ii) to (iv) above. rr The Nuclear Mediciiu; Departialeot Callie iwo existef)c:e arorind 1967. Froin at. least 1987 until early 1995, Registered Technologists were scheduled to work week -days only from 7:30 or 8:00 AM until 3:30 or 4:00 PM, Except for the occasional unusual circumstances, there were no week -end shifts. If there were week -end shifts, they were staffed on a volunteer basis only. In late 1994, the Department decided to implement week -end shifts. Part-time staff were hired to perform this work along with full-time staff who might volunteer. In the fall of 1995, management decided to increase the amount of week -end work. The plan was to perform this work with full-time staff being required to rotate through on the week -end. It was this last decision which attracted the grievance. Mr. Brian Pavlich was hired as a Registered Technologist in the Nuclear Medicine Department effective September 25, 1992. Since May of 1993 he has been the union steward in the Department. Mr. Pavlich explained how it was that he came to be hired. Upon his graduation and certification as a Registered Technologist, he sent resumes to hospitals in the Toronto area with nuclear medicine labs. He was invited for an interview with the employer. Mr Pavlich was interviewed by Ms. Sharon Faingold, the current manager of the Nuclear Medicine Department, and Anne MacIsaac of the Human Resources Department. He was told that the position being filled was a Monday to Friday job and that the hours of work would be either 730 AM to 3:30 PM, or 8:00 AM to 4:00 PM. It was explained that if he was asked to work week -ends, he could decline at his option. Mr. Pavlich was told that the department did not operate on week -ends. Mr. Pavlich testified that it was quite important to him that his Job not require weekend work. At the time of his interview in 1992, he was married and his sponse also worked only on week -days. Since he was hired, he has become a parent and it is important to him that he be free to spend week -ends with his family. At the time of his hiring interview with the employer, Mr. Pavlich was also actively pursuing job offers with two other hospitals. The employer was the first to offer him a job. He accepted it before the other two hospitals offered him a position. When the two other positions were subsequently offered, he rejected them because he had already accepted the position with the employer. When he accepted the position with the employer, Mr. Pavlich understood that he would be a member of the union's bargaining unit. He also understood that this meant that his terms and conditions of employment would be governed by the collective agreement between the parties. He was not provided with a copy of the collective agreement until after he was hired. During the hiring interview, Mr. Pavlich did not ask whether the schedule as it existed at that time would always remain in place, nor was he told that it would. When Mr. Pavlich was asked by union counsel whether he would have accepted the job had he known that there would be week -end work, his answer was that he "would have to very carefully weigh the decision to decide if I should accept the job...". It is agreed that the employer decided to schedule full-time Registered Technologists for week -end work after Mr. Pavlich was hired. The employer has actually refrained from doing so except for on a voluntary basis, pending the disposition of this grievance. III The union argues that the employer is estopped from scheduling Mr. Pavlich for week- end work. It suggests that the employer expressly represented to him that there would be no week -end work, and that he relied on these representations to his detriment. In Combe v. Combe [1951] 1 All E.R. 767 at p 770, Lord Denning formulated what is now considered to be the classic description of the notion of estoppel: The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. As we have observed, the union asserts that an estoppel may arise against an employer on the basis of representations made to employees directly and not to the union. In this regard, the union relies upon the following authorities; Re Pacific Press Ltd. and Vancouver -New Westminster Newspaper Guild, Local 11.5 (1987) 31 LAC (3d) 411, Re Hotel Dieu de Montreal and Federation Des Infirmieres et Infirmiers du Quebec (1991) 18 LAC (4th) 156, Re Grey Bruce Regional Health Centre and Ontario Public Service Employees Union, Local 235 (1993) 35 LAC (4th) 136, Re Barrick Gold Corp. and United Steelworkers ofAmerica, Local 4584 (1995) 47 LAC (4th) 403, Re Ontario Public Service Employees Union and the Queen in Right of Ontario (Ministry of Community and Social Services) (1995) 27 O.R. (3d) 135 (Div. Ct.) and Grey Bruce Regional Health Centre v. Ontario Public Service Employees Union O.J. No. 871, DRS 96-06884, Court File No. 428195, March 14, 1996 (Div. Ct.). The employer strongly opposes the suggestion that representations made to individual employees can give rise to an estoppel. As we have determinecl that no such estoppel exists in tI1.S ca -C (""ell union 1S (-i)t3'4,4.i. (iii 1,1iis po-111t, iiii, iSsuU ltcc,id [w( l)c, dk,(J.cdCu. 4 The union bears the onus of demonstrating as a question of fact that there has been detrimental reliance on representations made by the employer. On our view of the evidence, there were not representations made by the employer which would alter the legal relations which existed between the parties at the time, nor was there detrimental reliance even if such representations had been made. Dealing with the issue of the representations first, Mr. Pavlich was told that there was no week -end work and that the employer had no plans - at that point - to introduce such work. He was not led to believe for example that this situation would remain forever, nor that his scheduling would not be governed by the provisions of the collective agreement. He expressly understood that his employment would be governed by the terms of the collective agreement which existed between the parties. He was not shown a full copy of the collective agreement at the time, nor did he appear to ask to see such a copy. Despite his understanding on this point, there was not any discussion at the hiring interview about how the collective agreement provisions determined the issue of week -end work specifically or even scheduling more generally. The passage from Combe v. Combe reproduced supra makes it clear that the representations which give rise to an estoppel must be done in a manner which lead the parties to understand that their "Iegal relations" would be "affected". This means that the party to whom the representation is made should reasonably conclude that the representing party is prepared to waive rights which it might otherwise assert. It can't really be said that Mr. Pavlich on these facts must have understood that he was being told that the terms of the collective agreement would not apply and that he was being offered some deal that was in variance with those provisions. This distinguishes the case from the facts in Grey Bruce and Pacific Press, supra. In those cases the grievors were clearly seeking and obtained agreement tiiat certain terms would apply to them rather than the ones set out in the governing collective agreements. In considering this question, one must also place these circumstances in the context of the realities of a large urban public hospital. Such an institution is by its nature a continuous operation, open and running 24 hours a day, seven days a week. The scheduling provisions of the collective agreement reflect this reality. Accepting all of Mr. Pavlich's evidence concerning what he was told at his interview, is it reasonable to conclude that the representations made to him would lead him to conclude that this employer in this environment would never alter its scheduling to include week -end work for full-time employees? We think not. Turning to the second branch of the test, even if representations were made as the union suggests, did Mr. Pavlich rely on them to his detriment? At the point that he accepted the offer of employment, he had no other outstanding offers. When two offers subsequently came, he declined them because he had accepted the offer with the employer, There is no doubt that the issue of scheduling was and remains important to Mr. Pavlich. We accept that compulsory week -end work will compromise his family commitments, but that alone is not sufficient to establish an estoppel. When asked by his own counsel whether he would have declined to accept the employer's job offer if he had been told at the time of the interview that he would have to work on week -ends, his answer was that he "would have to seriously consider it". Mr. Pavlich did not say unequivocally that he would have turned the job offer down had he been told that he would have to work week -ends. Again, this distinguishes the case here from the facts in Grey Bruce, supra, where the grievors made it clear at the time of the representations that they would only give up their existing jobs if they were given the very specific assurances being sought. IV For these reasons, we find that the union has failed to demonstrate that there have been representations made which were relied upon to Mr. Pavlich's detriment as claimed. Accordingly, this portion of the grievance is dismissed. We remain seized of the balance of this matter. Dated At Toronto this 31 st day of May 1998 evin Whitaker, Chair " J. D. McManus" J. D. McManus I dissent " C. E. (Clay) Appleton" C. E. (Clay) Appleton I concur 7