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HomeMy WebLinkAboutKane 01-05-15 IN THE MATTER OF AN ARSITRA TION AND IN THE MATTER OF THE GRIEVANCE OFSALLY KANE SET WEE N: KINGSTON REGIONAL AMBULANCE SERVICE the uEMPLOYERJI - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 462 the "UNIONlI SOLE ARBITRATOR: Richard L. Verity, a.c. FOR THE EMPLOYER: Scott D. Macinnes Manager, Employee RelatIons, Hotel Dieu Hospital Director, Human Resources, Hotel Dieu Hospital Acting Director, Kingston Regional Ambulance Service Leslie Foreman Ian Watson FOR THE UNION: Kristin A. Eliot Sally Kane Steve Graham Solicitor Grievor President, Local 462 HEARINGS: December 1, 2000 January 9, 2001 March 5, 2001 April 20, 2001 Kingston, Ontario ~2- AWARD In a grievance} dated July 5, 2000} Sally Kane alleges that she was wrongfully dismissed from her employment as a regular part-time paramedic 1 with Kingston Regional Ambulance Service at Hotel Dieu Hospital. The grievance claims that the employer violated the "no discrimination'} provision which incorporates the Ontario Human Rights Code into the collective agreement. The grievor seeks reinstatement with full remedial redress. The grievance proceeded by way of consensual arbitration. At the outset, the employer raised a preliminary objection that I was without jurisdiction to hear the merits of the grievance because the grievor was a probationary employee and the collective agreement specifies that a probationer has no access to the grievance or arbitration provisions of the agreement. The employer contends that the grievor was terminated during her probationary period for inability to perform the job in a satisfactory manner. The union argues that the grievor was a seniority-rated employee at the time of discharge and that the matter must proceed to a hearing on the merits. Counsel for the union maintains that at the time of the termination of her employment, the grievor had completed the 480 hour probationary period stipulated in writing in her induction record, dated December 8, 1999, and that the employer is therefore estopped from relying upon ~3- the 600 hour probationary period agreed upon by the parties during negotiations in June of 1999. In the alternative, the union argues that if the grievor is found to be a probationary employee, the allegation of discrimination against the employer - in this case discrimination on the basIs of sex - together with alleged arbitrary and bad faith conduct by the employer warrants a hearing on the merits. The relevant collective agreement is for the period January 1, 1995 to December 31 f 1998. The renewal of that agreement is currently the subject of an interest arbitration. Reference was made to the following provisions: ARTICLE 2 - RELATIONSHIP 2.01 No Discrimination Each of the parties hereto agree that there will be no discrimination, interference, restraint, or coercion exercised or practiced upon any employees because of membership or non-membership in the Union, or because of activity or lack of activity in the Union. Both parties agree to abide by the provisions of the Ontario Human Rights Code. ARTICLE 5 - UNION REPRESENTATION 5.07 A representative of the Local shall be granted fifteen (15) minutes during the orientation period to the Kingston Regional Ambulance Service and the Quinte Thousand Islands Central Ambulance Communications Centre, to meet with new employees. ~4~ ARTICLE 6 - GRIEVANCE PROCEDURE 6.01 A grievance under this agreement shall be defined as a difference or dispute concerning the interpretation, application, administration, or alleged violation of this agreement, provided it is received by the Employer as a grievance in writing within ten (10) days of the alleged circumstances which gave rise thereto, unless for reasons beyond the control of the grievor he or she did not become aware of the alleged circumstances. The onus is on the grievor to substantiate his reasons for not becoming aware of the alleged circumstances. 6.02 It is the mutual desire of the parties that complaints and grievances will be adjusted as quickly as possible. An employee who considers he has a complaint or grievance shall follow the Grievance procedure as follows: He shall first discuss the matter with his immediate supervisor. Failing settlement at this stage, the employee may proceed to "Step 1". 6.03 Step 1 The employee may, within the time limit established in 6.01, present his grievance in writing to his supervisor who shall reply within seven (7) days. 6.04 Step 2 Failing settlement being reached at Step 1, the employee may, within seven (7) days following receipt of the decision at Step 1, transmit the grievance in writing to the Manager or designate. A meeting will be arranged within seven (7) days after receipt by the Manager or designate, to discuss the grievance. The decision at this Step shall be rendered in writing within seven (7) days following the meeting. At any stage of the Grievance Procedure the time limits may be extended in writing by mutual agreement of the parties. When a group of employees have a grievance it shall first be taken up under Step 2 and presented in writing. 6.05 it Is understood that the Employer may bring forward at any meeting held with the Union Committee any complaint with respect to the conduct of any employee of the bargaining unit and that if such complaint Is not settled to the mutual satisfaction of the conferring parties, It may be treated as a grievance and referred directly to arbitration in the same way as a grievance of an employee. 6.06 Any employee of the bargaining unit may be accompanied by up to two members of the Union Committee during any step of the Grievance Procedure. 6.07 A claim by an employee covered by this agreement, who has completed the probationary period, that he or she has been unjustly discharged shall be treated as a grievance if a written statement of such grievance is lodged by the employee with the supervisor or his designate within ten (10) working days after the employee ceases to work for the Employer. Such grievance will be taken up in accordance with the provisions of Step 2 of the Grievance Procedure. -5- ARTICLE 8 - ARBITRA TION 8.01 Failing settlement under the Grievance Procedure of any difference between the parties arising from the interpretation, application, administration or alleged violation of this agreement, including any question as to whether a matter is arbitrable, eilher party may, within thirty (30) days following the reply in the final step of the Grievance Procedure submit such grievance to arbitration as set out in the relevant sections of the Labour Relations Act, Ontario, as amended. ARTICLE 9 - PROBATIONARY PERIOD 9.01 A full-time employee shall be a probationer until having worked a total of four hundred and eighty (480) hours or having completed three (3) months of employment, whichever comes first. A part-time employee shall be probationer until having worked a total of six hundred (600) hours or having completed nine (9) months of employment, whichever comes first. A probationer shall enjoy all of the rights and privileges prescribed in this agreement except that he shall not have access to the grievance or arbitration provisions of the agreement in the event that he is discharged or disciplined, The parties agree that until June 1999, article 9 of the collective agreement, entitled "Probationary Period", read as follows: ARTICLE 9 - PROBATIONARY PERIOD 9.01 A full-time employee shall be a probationer until having worked a total of four hundred and eighty (480) hours or having completed three (3) months of employment, whichever comes first. A part-time employee shall be a probationer until having worked a total of four hundred and eighty (480) hours or having completed nine (9) months of employment, whichever comes first. A probationer shall enjoy all of the rights and privileges prescribed in this agreement except that he shall not have access to the grievance or arbitration provisions of the agreement in the event that he is discharged or disciplined. On June 29, 1999 the parties agreed to increase the probationary period for part- time employees from 480 to 600 hours. In the instant grievance, the union maintains that the doctrine of estoppel is applicable; namely, a written representation by the employer as to the length of the probationary period, which was communicated to the griever and which -6- the grievor relied upon to her detriment. Accordingly, a factual review of events is important. Kingston Regional Ambulance Service is the sole provider of ambulance selVices for the Kingston area and it is one of three ambulance selVices operating in Frontenac County. The grievor com me nced work at Hotel Dieu on December 8, 1999 following a two year course at Loyalist College and the successful completion of an Emergency Medical Care Assistance (EMCA) course. She passed the required Ustatic lift test" of 170 pounds and on December 8 she attended an orientation session given by Kingston Regional Ambulance Service Assistant Manager Bernie Johnson and she completed the employee induction record with the assistance of Hospital Human Resources representative Janet Martin. The employee induction record (Exhibit 4), which the grievor signed, sets out ''The Conditions And Be nefits Of Employment With The Hospital." The grievor was given a copy of the employer's policies and procedures which apparently contained no reference to the probationary period. The grievor was not given a copy of the collective agreement and no union representative was present during the orientation session. The induction record specified, among other items, the grievor's status as a regular part-time employee, the rate of pay, the shift hours and a probationary period of 480 hours. The grievor testified that, after she reviewed and signed the induction record, she noted the length of the probationary period, and that during the course of her employment no one told her that the probationary hours were other than 480 hours. She stated that she was first advised by Union Representative -7- Steve Graham, after she was terminated on June 26,2000, that the collective agreement provided for a probationary period of 600 hours. She acknowledgedJ however, that during the orientation session on December 8J 1999 Assistant Manager Bernie Johnson stated that an employee could be terminated during the probationary period at the discretion of the employer. According to then Local Union President Mark Schjerning, the union was not given notice of the orientation session on December 8, 1999 which was a violation of article 5.07 of the collective agreement. The evidence established that the employer was satisfied with the grievorJs paramedic skills with one notable exception - she had difficulty with the two person tlstair- chair'J lift. Ian Watson, then operations manager at Kingston Regional Ambulance SelViceJ spoke to the grievor at some point in March 2000 after obselVing her performing lifting duties and made suggestions for improvement including access to local gymnasiums, On May 5, 2000 Mr. Watson advised her that the employer had concerns about her lifting ability and that he (Watson) had received a number of written complaints from staff regarding her lifting ability. The grievor acknowledged that it was made clear to her that she had to improve her lifting qualifications. On May 23J 2000 Mr. Watson completed a performance evaluation of the grievor on a prescribed form (Exhibit 6). Mr. Watson testified that he spoke to the grievor about having completed 364.50 hours of the required 600 hour probationary period, that he paraphrased some of his written comments and that she (the grlevor) read over both pages of the evaluation prior to signing it. The grievor testified that during the performance ~8~ evaluation there was no mention of a 600 hour probationary period, that she was given no indication that her job was in jeopardy, that the employer did have concerns about her lifting ability but, in her view, the employer focused its efforts on helping her to improve her lifting techniques. During the performance evaluation, it was agreed that her lifting ability would be tested. According to the grievor, during the evaluation process Mr. Watson stated words to the effect that she was well past the half-way mark of her probationary period. On May 30, 2000 the grievor's lifting ability was formally tested by Ian Watson and Hotel Dieu Director of Occupational Health and Safety Katherine Wolsey. According to the grievor, she believed that she passed the test as was evident from Ms. Wolsey's statement UI guess we know now you can do it" and Mr. Watson's remark "The scoop is you did It but there are a few safety concerns - issues that we are concerned about and we would like you to redo the test in a month's time." The grievor's testimony was to the effect that she believed that she had successfully completed the 480 hour probationary period at some point near the end of May. For this reason she readily compl ied with the employer's request that she undergo a second lift test on June 26, 2000 to improve her lifting technique. According to the grievor, had she known that she was still a probationary employee, she would have requested union representation at the time of the second lift test on June 26. The grievor was very upset when she received a telephone call from Kingston Ambulance General Manager Mario Villemaire -9- later that evening. Mr. Villemaire told her that she failed the second test and that her employment was terminated during the probationary period. The arguments may be briefly summarized. The union contends that the employer is estopped from relying upon article 9.01 of the collective agreement because of a written representation by the employer, contained in the induction record, that the probationary period was 480 hours, which the employer failed to correct - a representation which the grievor relied upon to her detriment. In the alternative, the union argues that I have jurisdiction to hear the matter based on the allegation that the grievor was dismissed for reasons which the union contend are arbitrary, discriminatory and in bad faith. Reference was made to the following authorities: Re Pacific Press Ltd. and Vancouver-New Westminster Newspaper Guild. Local 115(1987), 31 L.AC. (3d) 411 (Munroe); Re Ontario Public Service Emplovees Union and the Queen in Right of Ontario (Ministry of Communitv and Social Services) (1995), 27 O.R. (3d) 135 (ant. Div. Ct.); Re Barrick Gold COrD. and United Steelworkers of America. Local 4584 (1995),47 L.AC. (4th) 403 (R.M. Brown); Re Hotel Dieu de Montreal and Federation des Infirmieres et Infirmiers du Quebec (1991),18 L.AC. (4th) 156 (Frumkin); Re Grev Bruce Regional Health Centre and Ontario Public Service Emolovees Union. Local 235 (1993), 35 L.AC. (4th) 136 (McLaren); Re Consolidated-Bathurst Packaging Ltd. (St. Thomas Division) and International Woodworkers of America, Loca12-337 (1981), 1 L.AC. (3d) 10 (Adams); Re Ontario Hvdro and Ontario Hvdro Employees' Unionj Local 1000 et al. (1983),41 O.R. (2d) 669 (ant. C.A.); Re Brampton Hvdro ElectriQJ;2ommission and National Automobile, AerospacJ1 and -10w Agricultural Implement Workers Union of Canada (CA W-Canada). Local 1285 et al.( 1993), 15 O.R. (3d) 773 (ant. Div. Ct.); Re Placer Dome Inc. (Detour Lake Mine) and United Steelworkers of America, Local9171 (1993), 39 L.AC, (4th) 54 (Simmons); Re Dominion Castings Ltd. and United Steelworkers of America. LocaI9392(1998), 73 L.AC. (4th) 347 (R. L. Levinson); and District of Parry Sound Welfare Administration Board and Ontario Public Service Emplovees Union, Local 324, Grievance of Joanne O'Brien. (unreported, February 1, 1999 (Knopf)). The employer argues that there was no representation made by the employer and no detrimental reliance on the part of the grievor and, accordingly, estoppel does not apply. Alternatively, if there was a representation, that representation ended with the griever's performance evaluation on May 23, 2000 when the grievor was made aware of the 600 hour probationary period. Further, the employer argues that the doctrine of estoppel does not apply where there is a representation made by the employer to an individual employee who is covered by a collective agreement. The employer cited t~e following authorities: Re Victoria Union Hospital and Canadian Union of Public Emplovees. Local 84 (1994),39 L.A.C. (4th) 339 (Popescul); Re Norfolk Association for Mentally Retarded and Ontario Public Service Emoloyees Union, Local221 (1990),10 L.A.C. (4th) 252 (Verity); Re Menno Hosoital and British Columbia Nurses' Union (1999), 82 L.AC, (4th) 159 (Larson); Re Lennox and Addington Community Health Services and Service Emoloyees International Union, Local 663 (1995),51 L.AC, (4th) 28 (Surdykowski); District of Parry Sound Social .9flDti~flsA.cffTJinistra tiofl.f)Qg[fLlf...QaJiJ riQ1?ublic SJZ.rvjceJ; molg}@JlsJl[1ion. '- oca I 324 -11- (unreported, February 21, 2000, (Ont. Oiv. Ct.); Re Corporation of Town of Fort Frances and Canadian Union of Public Emplovees. Local 65 (1996), 56 L.AC. (4th) 424 (Solomatenko); Central Park Lodge Ltd. and Service Emplovees International Union. Local 268 (Uniform Grievance) (unreported, September 5, 2000, (Ellis)); Re Durham District School Board and Ontario Secondary School Teachers' Federation. District 13 (2000),87 L.AC. (4th) 249 (Davie); Re Trimax Transportation Services -- Bulk Svstems and Transportation Communications Union (1998), 74 L.AC. (4th) 444 (Burkett); Re Metrooolitan Toronto Reference Library Board and Canadian Union of Public Emolovees. Local 1582 (1995) 46 L.AC. (4th) 155 (Burkett); and Re Cambridge Brass and United Steelworkers of America. Local 4045 (1999),82 L.AC. (4th) 284 (Beck). I turn now to the first issue for determination; namely, the employment status of the grievor at the time of the termination of her employment in June of 2000. Was she a probationary employee or a seniority-rated employee? Article 9.01 of the collective agreement specifies the length of the probationary period required for a part-time employee as the earlier of either 600 hours worked or nine months of employment. The parties agree that when the grievor was dismissed in June 2000 she had worked a total of 569 hours, which is 31 hours short of the required 600 hours specified in article 9.01. Under the terms of the collective agreement it may be said that the grievor is a probationary employee. ~12- The union, however, argues that the employee is estopped from relying upon the strict terms of the collective agreement because the employer's written representation of a 480 hour probationary period differed from the terms of in the collective agreement. The union contends that this is a case of representation by words and that the grievor relied upon those written words to her detriment. Estoppel is a rule of law which is perhaps best described by Denning L.J. in Combe v. Combe [1951] 1 All E.R. 767 (C.A.) at p. 770: The principle, as t 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 effect 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 so introduced, even though it is not supported in point of law by any consideration, but only by his word... The doctrine of estoppel has been adopted, in appropriate cases, in the labour relations field. In Re Globe and Mail Limited and Toronto Newspaper Guild. Local 87 (1974), 6 LA.C. (2d) 70 (H. D. Brown) the arbitrator followed the characterization of estoppel of Professor Johnston by stating at p. 79 in the Globe and Mail case: The doctrine of estoppel has been very carefully and in detail set out in Re United Electrical, Radio and Machine Workers. Local 537 and Canadian General Electric Co. Ltd. (1971),22 L.A.C. 149 (Johnston) at pp. 150-1 the chairman slated: It is apparenllhat lhere are two aspects of lhe doctrine as II)US staled. There must be a course of conduct in which -13- both parties act or both consent and in which the party who later seeks to set up the estoppel is lead to suppose that the strict rights will not be enforced. It follows that the party against whom the estoppel is set up will not be allowed to force his strict rights if it would be inequitable to do so. The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up the estoppel has relied to its detriment. I note, however, Arbitrator WeatheriWs words of caution where in his text A Practical Guide to Labour Arbitration Procedure (Canada Law Book, 2nd Ed. Aurora, Ontario) he states at pp. 94-5: Where an arbitrator is asked to find that a party is estopped by its words or conduct - by some representation intended to affect the legal relations of the parties, and on which the other party has relied to its detriment - from relying on the provisions of the collective agreement, or indeed (as some awards might suggest), from changing some practice or reneging on some form of promise separate from the collective agreement, the arbitrator should surely proceed with great care. In such a case the arbitrator is really being asked to enforce some agreement other than the collective agreement, and to become in some general way the judge of the parties' conduct, rather than the interpreter of their negotiated agreement. There certainly are cases where a party is properly to be estopped from relying on the terms of a collective agreement, and it seems clear that arbitrators have jurisdiction to find that estoppel arises, in proper cases.... The more difficult issue, which is the subject of conflicting jurisprudence, is whether the doctrine of estoppel applies to a representation made by an employer to an individual employee who is covered by the collective agreement and who detrimentally relies on that representation. That was the issue before the Ontario Divisional Court in 1995, in Re Ontario Public Service Emplovees Union and The Queen in Right of Ontario (Ministry of Community and Social Serv;ceE), supra. I n that case, a panel of the Grievance Settle ment Board dismissed a grievance because, in the panel's view, tile doctrine of estoppel was -14- not applicable to a representation made by an employer to an individual employee represented by a union, in circumstances where an estoppel would otherwise have applied. The Ontario Divisional Court quashed the GSB decision and remitted the matter back to the panel for a proper determination. Speaking for the court, Mr. Justice Adams, as he then was, offered the following rationale at pp. 139-140: Thus, while it was permissible for the Board in the instant matter to have arrived at the decision it did as a matter of industrial relations policy, it was not bound by the Metro Toronto decision in this respect. In other words, the matter was wholly within the Board's jurisdiction. Claims of estoppel, as was determined by the Metro Toronto decision, arise out of the administration of the collective agreement and are to be resolved on the basis of the factual and industrial relations policy considerations which pertain to such claims. For this reason, we have concluded the Board declined its jurisdiction by failing to entertain the Grievor's arguments as submissions the Board had the discretion to accept, if it thought appropriate to do so in all of the circumstances. Alternatively, even if the Metro Toronto decision could reasonably be construed to have determined that a board of arbitration lacks jurisdiction to apply the doctrine of estoppel to proven claims of employee detrimental reliance, that case preceded the Supreme Court of Canada's decision in Union des Employees de Service, Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at p. 1088,35 Admin. L.R. 153, where the court described the appropriate approach to jurisdictional questions In these terms: However, by limiting the concept of the preliminary or collateral question and by introducing the doctrine of the patently unreasonable Interpretation, this Court has signalled the development of a new approach to determining jurisdictional questions. The formalistic analysis of the preliminary or collateral question theory is giving way to a pragmatic and functional analysis, hitherto associated with the concept of the patently unreasonable error. At first sight it may appear that the functional analysis applied to cases of patently unreasonable error is not suitable for cases In which an error is alleged in respect of a legislative provision limiting a tribunal's jurisdiction. The difference between these two types of error is clear: only a patently unreasonable error results in an excess of jurisdiction when the question at issue Is within the tribunal's jurisdiction, whereas in the case of a legislative provision limiting the tribunal's jurisdiction, a simple error will result in a loss of jurisdiction. It is nevertheless true that the first step in the analysis necessary in the concept of a "patently unreasonable" error involves determining the jurisdiction of the administrative tribunal. At this stage, the Court examines not only the wording of the enactment conferring jurisdictlon on the administrative tribunal, but the purpose of the statute creating the tribunal, Ihe reason tor its existence, the area at expertise of its members and the nature of the problem before the tribunaL At this -15- initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the .tribunat, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction. A pragmatic or functional approach to the jurisdiction of a board of arbitration constituted under a collective agreement negotiated under modern labour legislation, in our view, now brings this type of grievance well within a board's responsibility to determine disputes pertaining to "the application and administration" of the collective agreement. The judgment of the Ontario Divisional Court in OPSEU v. Ontario (Ministry of Community and Social Services makes it clear that, at least in Ontario, an indIvidual employee can ground an estoppel in appropriate circumstances. On the evidence before me I am satisfied that this is a proper case for the application of the doctrine of estoppel. The probationary period of 480 hours set out in the grievor's induction record constitutes a representation that was intended to be relied upon. The employer's intention is clear on the face of the induction record and, in my view, the grievor is entitled to rely on that type of representation. Mr. Watson had no part to play in the preparation of the induction record which recorded the 480 hour probationary period. Had the union been given the 15 minute time allotment with the grievor as a new employee during the orientation session, as specified in article 5.07, it is conceivable that the 480 hour probationary period may have been questioned. Further, the employer would have been in a stronger position had the grievor had been provided with a copy of the collective agreement According to the grievor's evidence, which I accept, she was never provided with a copy of the collective agreement during the course of her employment. -16~ I am satisfied that both the grievor and Mr. Watson were honest witnesses although there was some conflict in material parts of their testimony. I find that the more probable account of what transpired during the grievor's performance evaluation on May 23 is the grievor's own testimony. I accept the grievor's evidence that there was no reference to a 600 hour probationary period during her performance evaluation and that she did not read page one of the written evaluation. The grievor's written performance appraisal on May 23,2000 was Mr. Watson's first evaluation of an employee's performance and it is readily apparent that he was reluctant to voice criticism and was not as forthcoming as he might have been. At the hearing, Mr. Watson had difficulty recalling dates and on several occasions he appeared to be uncertain as to the sequence of events and testified as to what likely occurred. I do not for a moment question Mr. Watson's honesty but as between the grievor and Mr. Watson, in areas of conflict, I prefer the grievor's recollection of events as the more probable account of what transpired. Simply stated, the grievor's testimony was objective, clear and candid and carried with it the ring of truth. On the issue of estoppel I fInd that there was a written representation given to the grievor by the employer as to the length of the probationary period (480 hours) as opposed to 600 hours as provided in the collective agreement which the employer failed to correct, as it should have done, prior to terminating the grievor's employment in late June of 2000. Further I find that the grievor relied upon the representations of a 480 hour probationary period to her detriment. The detriment the grievor suffered was in not understanding that she was a probationary employee and willingly agreeing to a second -17- lift test on June 26. As the grievor testified, she would have requested union representation during the second test had she known that she was still a probationary employee. I am satisfied that the grievor was led to believe that she had passed the first lift test on May 30, given the encouraging words from both Katherine Wolsey and Ian Watson. Mr. Watson's written notation of the grievor's May 30 lift test (Exhibit 9) establishes the fact that Hospital Occupational Health and Safety Director Katherine Wolsey took the position that since the grievor had completed the required tasks in the lift test, there was no choice but to give her a passIng grade. Mr. Watson testified that, in his opinion, the grievor failed the test on May 30 and he recommended her immediate termination to Mr. Villemaire. It is not without significance that Mr. Watson did not provide a copy of the written performance evaluation to the grievor after the May 23 evaluation. In addition, Mr. Watson did not tell the grievor after the May 30 lifting ability test that she had failed the test or that he was recommending the termination of her employment. In my opinion, the grievor had reason to believe that she had passed the probationary period near the end of May of 2000 and that the proposed retesting in June was for the sole purpose of correcting perceived deficiencies which the employer believed posed a safety risk to the grievor. I find that the grievor was misled by the employer, however innocently, into believing that the probationary period was 480 hours worked and that she was entitled to rely on that form of written representation contained in the induction record, which she signed. In these particular circumstances, on the first day of her employment, fairness requires that -18- equitable estoppel is applicable to prevent the employer from enforcing its strict contractual rights under article 9.01, In the result} the preliminary objection is dismissed on the grounds that the employer is estopped from relying upon the strict terms of article 9.01 of the collective agreement. Accordingly, I find that the grievor was at the time of her dismissal a seniority-rated employee. In the event that this matter is to proceed to a hearing on the merits, the dismissal will be heard on the standard of just cause. For these reasons it is unnecessary to consider the union's alternate argument. DATED at Brantford, Ontario, this 15th day of May, 2001, ~..- ~ ~4 .. ..~.. ..11 ..... ..... ... ~.... ...... .... i ..117.... to..'.I.II... ,...~..~. ..---R 0 L, VERITY SOLE ARBITRATOR