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HomeMy WebLinkAboutHarley 02-01-09 Jan-15-Z002 04:46pm From-RWBD 4J634GS250 T-413 P.Q05/017 F~060' 6 f- ~ c70Jb - Odtp IN THE MA ITER OF AN ARBITRATION Bet wee n: GREY BRUCE f{EAL TH SERVICES w aIld - ONTARIO PUBLIC SERVICE EMPLOYEES UNION and in the matter of a grievance relating to Marlene Harley. J :Russell Goodfellow . Sole Arbitrator APPEARANCES FOR THE HOSPITAL: Robert Hiclanan, Counsel APPEARANCES FOR THE UNION: Alick J. Ryder, Q.C., Counsel Rita Rudo A heating was held in this matter in OWen Sound on Decflmber 7,2001. Jan-15-Z00Z 04:4Tpm From-RWBD 4J1340]Z50 T-413 P.006101T F~060 " ~WARD The Union grieves that the Hospital is in breach of the collective agreement by requiring Marlene Harley to work a regularly scheduled shift that includes Monday and Friday evenings. The Union asserts that the Hospital represented to Ms. Harley that no such work would be required and that Ms. Harley relied on that representation to her detriment. As a result, the Union submits, an estoppel has been created that prevents the Hospital from relying on its management lights to require Ms. Harley to work regularly scheduled evening or weekend hours. The Hospital's position is that no such representation was made and that the Union is attempting to obtain a benefit for Ms. Harley that applies to no other employee in the Hospital. Facts By letter dated October 30, 2000 Ms. Harley was advised that as a result of a consolidation of the payroll functions of the newly amalgamated Hospital sites to Owen Sound her current position as payroll and benefits clerk at Wiarton would be eliminated and that she would be laid off effective Apri130~ 2001. The letter also infonned Ms. Harley of her collective agreement rights, including the light to displace any more junior employee whose work she could perform. In response to the letter Ms. Harley met with a Human Resources representative and was advised of a lJotenrial displacement opportunity to fl cashier position in the business office at Owen Sound. Ms. H<'trley was also intonm:d that the position would involve the S81ne mHnb(~r of hours of work but at a lesser flue of pay. Jan~15~2002 04:47pm From-RY~D 4-1~S40S250 T-41S P.007/017 F-060 2 Approximately one week later Ms. Harley advised the Hospital iliat she wished to accept the position. Ms. Harley~s right to bump into the position was then subject to her possessing the necessary qualifications and passing an interview, While waiting for the interview Ms. Harley was presented with another opportunity, Dave Evans, the HospitaPs Finance Coordinator) infOlmed Ms, Harley that a 30 hour per week position could likely be assembled at the Wiarron site performing primarily business office work but also including some reception duties. The evidence suggests that Ms. Harley was given a rough. idea of the approximate number of hours in each function, consisting of22.5 hours of business office duties and 7,5 hours of reception duties. According to Ms. Harley, Mr. Evans said that the Hospjtal needed her at Wiarton because she was the only person who possessed the required knOWledge and background in the payroll system. Ms. Harley was aware that the receptionist position involved evening and weekend work and she did not wish to work such hoUrS. Accordingly, Ms. Harley testified, she asked Mr. Evans whether the newly construct.ed job "would entail evenings or weekends or would it be scheduled through the day like my normal position _ because ifit's not going to be tlrrough the day I will exercise my displacement rights>1. Ms. Harley testified that :Mr. Evan~ replied "no - it would be through the day because if I need to discuss something with you I need you working regUlar business hours.u On Ihat basis, Ms. Harley stated, she advised the Hospital that she would accept the proposed llltcrnati ve. .1: Jan-15~2002 04:47pm From-RWBD 4i8340~50 r-413 p.00a/017 F-080 3 Shortly thereafter Ms. Harley received a formal letter of offer for tho position, dated December 7) 2000, which states: Dear Mrs. Harley I am pleased to contlrm that, in accordance with the recent discussion you had with David Evans) Financial Coordinator~ your notice oflaYoffis rescinded. As the two of you discussed, your current position will be restructured with th~ net effect of creating the new position of Business Office Clerk. Your duties will no longer include the human resources related functions (the continuation ofwruch would have prevented your inclusion in the Union), and will be refocused to predominantly business and reception functions, all of which you already perform to some degree. This change will be effective April 1, 2001, as will your reduction in hours to thirty (30) per week. Your hourly rate would be red-circled until such time as the c1nssification rate catches up to it. We thank you for your contribution to Grey Bruce Health Services, and took forward to your continued service, ' If you bave any questions regarding this matter please contact our office. Please sign below to indicate your acceptance of this change. Sincerely~ Mrs. K. Bowers Human Resources Officer 1 understand and accept this position as offered. Date Signamre Two versions of this document were introduced in evidence. The first version was signed and dated December 13 by Ms. Harley. It was this version that Ms. Ha.rley n~tumed TO the Hospital. A second version, which is unsigned flnd nnrhted. 'vn5! 11 -,...~ ..-o;:-c, ". Jan-15-Z00Z 04:47pm From-RWSD 4163409250 1-413 P.009/017 F~060 4 retained by Ms. Harley. At the bottom of the second version the following handwritten , . note appears: 13/12/00 Assured by D. Evans straight 9-5/8-4 Mon, - [illegible] (The word which! have designated as illegible appears to have been ((Fridai' although Ms. Harley testified tl].at it may also have been "Thursdai'). Ms. Harley testified that she made the notation at the bottom of the blank fonn after speaking with her Union steward and advising the steward as to what Mr. Evans had said about the hours of work. In response, the steward asked Ms. Harley whether she had "got it in writingu. Ms. Harley advised the steward that she hadn't but that she ubelieve[d] Dave". It was following this conversation that Ms. Harley made rhe note at the bottom of her own copy and returned the signed, bUt un annotated, copy to the Hospital. Ms. Harley began her new job in April. Although she was Uncertain as to the precise date, Ms. Harley testified that it was likely in the very first week that Mr. Evans told her that she would be required to work every other Monday and Friday evening till 9:30. Ms. Harley testified that if she had known about this requirement she would not have accepted the position and would have bumped into the Owen Sound job instead. Jan-15~2002 04:47pm From-RWBD 4163409250 T-413 P.010/017F-OSO 5 In cross-examination, Ms. Harley acknowledged that she was uncertain as to whether employees in the business office in Owen Sound worked evenings or weekends. However. she had hoped to obtain that information from the interview. When asked whether she would still have taken the cashier position ifit involved such work, Ms. Harley replied that "it would depend Upon what evenings or V{eekends it was _ the whole scenarid'. Ms. Harley also acknowledged thnt Mr. Evans first advised her that she would be required to work Tuesday and Friday evenings and that Mr. Evans changed the Tuesday requirement to Monday after Ms. Rarley indicated that she was taking a course 011 Tuesday evenings. Ms. Harley testified that she was agreeable to the change to Mondays. but that she remained opposed to Fridays. Ms. Harley stated that she and her husband Hgo away a lot on the weekends and have a lot of company over". As a result. she has never worked ajob that includes such hOUfS. Ms. Harley agreed. however, that most Hospital work is shift work and that there was no guarantee in her previous job that she would not be required to work evenings or weekends. Ms. Harley further agreed that the Hospital red-circled her wage rate when it moved her into the new position. As a result, it Was common ground between the parties that the difference in salary between the 30 hour position in Wiarton and the 37.5 hour cashier po:>ition in Owen Sound was negligible. Ms. Harley testified thnt she was uncertain as to whether she hAt! nnTy one discussion wl1ll Mr. Bvans about the job before accepling it or nvo, She could not recall, I] fl I , i i j :1 I , I 'I Jan-16-2002 04:48pm From-RWBD 4 fS3409Z60 T-4IS P.Ol1/017 F-OSO 6 therefore, whether the hours of work were discussed before or after she received the December 7 offer. As noted, Ms, Harley was also unable to remember precisely when it was that she was fust advised that the hours of work would be differeIlt from what she had been told. Ms. Harley reiterated, however, fuut she was certain of her conversation with Mr. Evans and that he advised her that both the business office and reception duties would not involve regularly scheduled evening or weekend work. Finally, Ms. Harley confirmed in cross-examination that her conversation with the Union steward took place before she signed the letter of offer. When asked why she would not record such an important tenn as part of her acceptance - especially given the steward's response - Ms. Harley said that she "supposed" that it was (Just blind trust in people that they are telling the truth", In re-examinution, Ms. Harley confirmed that the job from which she had been laid off did not involve evening or weekend work and that she had never worked such hours in her five years with the Hospital. Mr. Evans' recollection of his conversation with Ms. Harley was different. Mr, Evans testified that after the lay-otfnotice was issued he spoke to other Hospital tepresentatives about the possibility that there might be sufficient work at Wianon to "avert a lay-off). He then spoke with Ms. Harley and sugge:Hed that between the residual payroll functions, some other business office functions a~d some reception duties, there was probably enough work to generate 30 hours per week. Mr. Evnns asked Ms. Harley whether she would be Interested in such a position. Mr. Evnns resrificd that Ms. IJarl.ey Jan-15-2002 04:48pm From~RWBO f1634Ul250 T-413 P.OI2/017 F-060 7 expressed a concern about the rate of pay and he indi~ted that he would speak: to Human. Resources and get back to her 011 the subject. Mr. Evans rhen did so, obtaining a red. circled wage rate as an accommodation to Ms. Harley. Thereafter~ rue Hospital issued the December 7 offer. Mr, Evarts testified that as part ofms duties he visits each site in the amalgamated Hospital, and that on a visit to the Wiarton site sometime after December 7 Ms. Harley called him aside. Mr. Evans testified thar Ms. Harley said that she had , , received the letter of offer from Human Resources and that she was concerned about its reference to both business office functions and reception duties and the possibility that the latter might include evening or weekend work. Mr. Evans stated that "my response was that the definition of the position was still a work in progress but that I could give her the assurance that most of the position was related to business office functions and, as a result, that the bulk ofilie duties would, be during regular business hoursu, Mr, Evans said that he added that the ('office couldn't function effectively otherwise", According to Mr. Evans~ that was the end of rue conversation. Mr. Evans testified, as unequivocally as did Ms. Harley to the opposite. that he never told Ms. Harley that her hours would not include regularly scheduled evenings 01' weekends. Mr. Evans added that he has never told any Hospital employees that they would only be required to work daytime hours because it would be I{too constrainingU for the Hospital's business. Indeed. Mr. Evans testified that since the date of the offer he has hired several other employees in the business office and has gi ven them no such guarantee either. ): II Jan-15-Z002 04:48pm FrQm-RWBD 4 m4092BO T-413 P.013/017 F-060 8 In cross.examination; Mr. Evans acknowledged that some Hospital jobs involve only regularly scheduled daytime hours, Monday to Friday, and that this includes the cashier job in Owen Sound. Mr. Evans also acknowledged that he had advised Ms. Harley, in their very first conversation. that the business portion of the job would be about 22.5 hours and that the reminder would be reception duties. Accordingly, Mr. Evans agreed that the concerns expressed by Ms. Harley after she received the December 7 letter of offer were with respect to the reception duties. That being the case, Mr. Evans was asked how the answer that he testified that he gave to Ms. Harley could be seen as responsive to her question or as providing her with the assurance that she was seeking. Under repeated questioning, Mr. Evans responded that it was up to Ms. Harley to detennine whether his answer addressed her question or satisfied her concerns but that that was the answer that he gave. Mr. Evans added that Ms, Harley never'made it clear that she would not take the job if it included regularly scheduled evening or weekend hours. necision Ms. Harley and Mr. Evans both impressed me as sincere and truthful witnesses who put forward their best recollections of what was, On both accounts, a very brief conversation. With the greatest of respect to Ms. Harley;however. I am unable to find that she was given the kind of assurance that she claims. The evidence is clear that Ms. Harley wished to avoid evening and \\'cck.CjHJ~vl)tk. 'Iht: evidence IS also ciCar that Ms. Ha1'ley made her cOJ)eerns known to Jan-15-Z00Z 04:48pm From-RWBD 4-1~4~Z50 T-413 P,014/017 F-OSO 9 !vir. Evans before acc'epting the offer. 'What is in dispute is the precise nature of Mr. Evans' response. On the one hand, as Mr. Evans testified, this is not the kind of assurance that he is inclined to give, Or that he has ever given, to persons for whose hours he is responsible. (1 am far from cenain, however, whether Mr. Evan's statement penained to only occasional, as opposed to regularly scheduled, evening Or weekend hours.) On the other hand, I am prepared to accept, as Mr. Ryder suggests, that given that the Wiarron job was Mr. Evans' idea there may have been ~n element of <'salesmanship" involved that may well have dictated a different approach. When this possibility i~ put together with Ms. Harley's srated aversion towards evening and weekend work and the fact that she approached Mr. Evans with her concern before accepting the offer. there is certainly the makings of an I!rguable case. In addressing the merits of this case, however, I would note that Ms. Barley'S conviction against evening or weekend work may not have been quite as uniform or absolute as much of her evidence would suggest. While stating - as a necesswy component of the estoppel argument - that she would not have taken the job in Wiarton if she had known about the evening Or weekend hours and that she would have bumped into the Owen Sound job instead, Ms. Harley admitted that she was unsure whether the cashier position entailed such hours and, even ifit had, she testified thar whether she would bave taken the job would have depended Upon ('what those hours wen; - the whole scenario", r 1 I II Jan-16-2002 04:49pm From-RWBD 4163409250 T-413 P.015/017 F~060 10 More important. however) is Ms. Harley's course of action after speaking with the Union steward. It: as Ms. Harley made plain) uno regularly scheduled daytime hours" was a "make It or break itB requirement of her acceptance of the offer, and given that the reception duties - which she believed to involve evening and weekend work _' appeared in the letter of offer. r have some difficulty in accepting that Ms. Harley would not have chosen to record Mr. Evan's alleged promise, or asked the Hospital to record it, as part of the signed offer. It was Ms. Harley's evidence that she was prepared to accept another job at another site working more hours for roughly the same pay if she had known that she would be required to work regularly scheduled evening and weekend hours. Indeed, the issue so concerned her that she was moved to discuss it with her Union steward before signifying her acceptance of the offer. As part ofrhat discussion, Ms. Hurley was asked the sensible, ifnot also somewhat obvious, question as to whether she had Hgot [the promise) in writing". On Ms. Harley's evidence she nevertheless chose to disregard the steward's implicit warning prefen1ng, instead, to create a note for her own pUrposes on a copy which she did nOl retwn to the Hospital. I regret to say that I found Ms. Harley's explanation that this was done out of blind (ifnot altogether complete) trust somewhat less than ?Onvincing. cnmpkre :.)crs of boo Ie;, WX I'CllllnS, i~l(j.". 1 11m COnfident iliat at !cast in ihat environu\elH, Janw15wZ002 04:49pm From-R"BD 41~J49!250 T-413 P. 016/017 FwOSO 11 Finally, it bears noting that Mr. Evans wns unshaken in his account ofms conversation with Ms. Harley. While r accept Mr. Ryder's assertion that there appears to have been something of a disconnect between the answer that Mr. Evans testified that he gave and Ms, Harley's question) and while one might equally ask why Ms. Harley would so readily abandon a matter of such stated personal importance, I am reminded by 1v1r. Hickman that people are sometimes inclined to hear precisely what it is that they would like to hear and that there is sometimes more taken from a statement than has actually been .given. When this featlue of human namre is coupled with the fact that these conversations do not take place in the focused and sterile ex~vironment of the heming room but in the real world where there is no right to follow up under oath, there is certainly a recipe for misunderstanding. 1n my view, the Union steward had it right. While the Hospital does nor appear to dispute that it would be bound by a clear assurance ifit had given one, the adage that ua verbal promise isn't worth the paper ii isn't written on" exists for a reason. II Jan-16~2002 04:49pm FrQm-RWBD 41t3401250 T-413 P.017/01T F~060 12 The reason is one of proof not enforceability. In the circumstances, and for the reasons given, 1 am unable to find rhat Ms. Harley was given the assurance that she claims. Accordingly, the grievance is dismissed. DATED at Oakville this 9th day of January, 2002. Russell Goodfellow - Sole Arbitrator