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HomeMy WebLinkAboutMcIntosh Group 09-07-2121 Jul 2003 18:01 R. HOWE & L; HUTCHISON 905-634-3951 p.4 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND - GUELPH GENERAL HOSPITAL (the 'Employer") AND IN THE MATTER OF OCTOBER 8, 2003 THE GRIEVANCE OF CINDY MACKINNON DATED (RE WAGE RATE) - OPSEU FILE NO. 03-231-119 BOARD OF ARBITRATION APPEARANCES For the Union For the Employer Robert D. Howe, Chair Pamela Munt-Madill, Union Nominee Donald Bates, Employer Nominee Richard A. Blair, Counsel Stephen Wallis Cindy MacKinnon Robert E. Salisbury, Counsel Rod Carroll Annette Harrington A hearing in the above matter Was held in Guelph, Ontario, on February 6, February 20, April 30, and Tur-e 19, 2009. - 21 Jul 2009 18:01 R. HOWE & L. HUTCHISON 905-634-3951 P.5 A W A R D As indicated in our award dated July 31, 2006, nine individual grievances filed during October of 2003 have been referred to this Board of Arbitration (the "Board"), each containing the following "statement of grievance": I grieve that I have been improperly placed on the Wage Grid according to the Pyle Class Standards. The essence of each of those grievances is that the Ettiployer (also referred to in this award as the "Hospital") is violating the collective agreement by paying the grievors at the rate of a General Duty Technologist (also referred to as "Registered Technologist,,), rather than the Senior Technologist rate. On the first day of hearing (June 27, 2005), the parties agreed to proceed initially with the grievance of Ruth Brooks, and to have the other eight grievances held in abeyance pending the issuance of an award regarding that grievance. Although there was no agreement that Me- Brooks' grievance would be treated as representative of any of the other eight grievances, it was hoped that the award would be of some assistance in resolving those grievances. Following the issuance of that award, all of the remaining grievances were resolved with the exception of the grievance of Cindy MacKinnon (the "grievor"), whose grievance was scheduled for hearing at the request of the Union. Union counsel contends that the grievor is entitled to be paid at the Senior Technologist rate on the basis of I 21 Jul 2009 18:01 R. HOWE & L. HUTCHISON 905-634-3951 P.G estoppel and also on the basis of the work which she performs. Employer counsel submitted that the estoppel argument is beyond the scope of the grievance. However, we are satisfied that both of the alternative bases upon which Unior counsel relies fall within the scope of the grievance. It is well established in the arbitral jurisprudence that grievances are not to be given a narrow, overly technical interpretation. Estoppel is merely an alternative legal theory upon which the Union relies in support of its contention that the grievor should be receiving the Senior Technologist rate rather than the Registered Technologist rate. As noted above, that is the essence of the grievance. Moreover, the argument has clearly not taken Employer counsel by surprise. In his opening statement regarding Ms. MacKinnon's grievance, Union counsel indicated that in June of 2003, after raising some workload issues associated with her Charge Technologist Position, the grievor moved into solely echocardiography "on the understanding that she would be in receipt of the Senior Technologist rate". Extensive evidence concerning 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 counsel and Employer counsel made full submissions on the merits of the estoppel issue during the course of final argument. For the reasons set forth below, we have concluded that the grievor is entitled to be paid at the Senior Technologist rate on the basis of estoppel. In view of that V, 21 Jul 2009 18:01 R. HOWE & L. HUTCHISON 905 -634-3951 p.7 conclusion, it is neither necessary to detail the evidence concerning the work which she has been performing since June of 2003, nor to determine whether or not the performance of that work provides an alternative basis for her entitlement to that rate. In making the findings and reaching the conclusions set forth is this award, we have duly considered all of the relevant oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses, respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. We have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence. The grievor commenced employment with the Hospital in 1988 as a General Duty Technologist, and became a Clinical Instructor in 1990. She remained in the latter position until 2001, when she became a Charge Technologist in the Ultrasound Department, which at that time encompassed echocardiography. In May of 2003, she approached Linda Fox, who at that time was the Manager of the Hospital's Diagnostic Imaging Department, to advise her that she was finding the duties and responsibilities of that position to be unduly onerous. K 21 Jul 2009 18:01 R. HOWE & L. HUTCHISON 905-634-3951 P.8 In addition to doing echocardiograms all day long (which Ms. MacKinnon considered to be a full-time job in and of itself), the grievor was required to be "on-call" on some nights and weekends, and was also responsible for performing the scheduling and other administrative duties required of a Charge Technologist. She was feeling very tired and knew that she was "burned out". She emotionally told Ms. Fox that there was Just too much work for one person, and that it was starting to take a toll on her. Ms- Fox was aware that the grievor had been experiencing personal problems, and was concerned that she might be on the verge of resigning from her employment with the Hospital. She did not want to lose the grievor as an employee, as the grievor was a valued long-service employee whose echocardiography skills and experience would be very difficult to replace. Moreover, Ms. Fox was sympathetic to the grievor's situation. Consequently, she indicated that she would try to find a solution that would address the problems the grievor was having. During subsequent discussions, Ms. Fox indicated that if the grievor resigned from her Charge Technologist position, she could be placed in a position in which she would only have to Perform echocardiograms and would no longer have to be "on-call" nor perform the administrative duties of a Charge Technologist. Although Me. Fox has no recollection of discussing rates of pay with the grievor, we accept the grievor's evidence that during the course of those discussions Ms. Fox indicated that she could offer her a position that was 4 21 Jul 2009 18:02 R. HOWE & L. HUTCHISON 905-634-3951 P.9 one step down from a Charge Technologist position with a minor reduction in pay; although the precise amount of the pay differential was not specified, Me. Fox mentioned a number of relatively small amounts ranging from ten to ninety cents per hour. On the basis of the information provided by Ms. Fox during those discussions, and with the encouragement of Ms. Fox, the grievor provided her with the following letter of resignation from the Charge Technologist position: May 20, 2003 Linda Fox Manager of Diagnostic Imaging Guelph General Hospital Dear Linda, I am writing this letter to inform you that I have decided to step down from the Charge Technologist position in Ultrasound. This has been a very difficult decision for me; however, I feel it is the right one at this time. The demands of the Marge Technologists [sic] position, full-time Echocardiography as well as being available for call-ins in general ultrasound combined with the demands of family life have proven to be too much for me at this time. I would like to take this opportunity to thank both you and Andre for all your support during the time that I held this position, Sincerely, "Cindy MacKinnon" When the Charge Technologist position from which she had resigned was posted, Mark Lovello, who was a Registered Technologist, applied for the position and was awarded it. The position which Mr. Lovello vacated was posted on June 11, 5 21 Jul 2009 18:02 R. HOWE & L. HUTCHISON 905-634-3951 P.10 2003, through a posting which described the position as follows: Position; Registered Ultrasound Technologist - Full-time Department; Diagnostic Imaging Current Shifts.. Primarily Days, Monday to Friday Must be available for On-Call Qualifications: -Current A.R.D.M.S. Certification -Current Membership in the C,S,Z).M.S. -Small Parts, General, Abdominal, Obs=etrical experience essential -Excellent interpersonal and communications skills The grievor did not see that posting, nor would it have been of any assistance to her if she had seen it because, as acknowledged by Ms. Pox (in cross-examination), that was not the position which she offered to the grievor. The position which the grievor, on the recommendation of Ms. Fox, telephoned the Hospital's Human Resources Department to accept was not a Registered Technologist Position performing general ultrasounds and requiring "on-Call" availability, but rather a specialized position, one step down from Charge Technologist, performing only echocardiograms, with no "On-Call" responsibility. The position which the grievor occupied following her resignation from the Charge Technologist position was exactly as the grievor had expected it to be on the basis of her discussions with Ms. Pox except with respect to remuneration. As a Charge Technologist, the grievor had been earning $30.66 per hour, in accordance with the applicable wage grid in the 21 Jul 2003 18:03 R. HOWE & L. HUTCHISON 905-634-3951 collective agreement. Under that wage grid, the hourly rate (at that time) specified for Senior Technologists was $29.01, with the rate for Registered Technologists being $27.37. When the grievor received her first paycheque in her new position, she was highly dismayed to discover that she was being paid at the Registered Technologists rate, which was $3.29 less per hour than she had Previously been earning. Although Ms. Fox was unable to recall it, we accept the grievor's evidence that when she approached Ms. Fox to express her concern about the new job's hourly rate being substantially less than what she had expected, Ms..Fox indicated that Human Resources had made a mistake and that she would contact Annette Harrington (the Hospital's Manager of Human Resources) to get to the bottom of it. However, after speaking with Ms. Harrington, Ms. Fox told the grievor that she would have to discuss the matter directly with Human Resources. When the grievor did so, Ms. Harrington told her that she should have been in touch with Human Resources herself, that they were not responsible if ma. pox had made a mistake, and that the wage rate stood. Ms. Harrington also advised the grievor that it was not possible for her to return to her former position of Charge Technologist. In describing her reaction to the situation, the grievor testified: I was extremely upset. This is not what Linda Fox and I had agreed on. Had Linda said to me "the only thing I can offer you is a General Duty Technologista, I would not have taken that Position. I would have stayed where I was. N I p.11 21 Jul 2009 18:03 R. HOWE & L. HUTCHISON 905-834-3951 P.12 The grievor's evidence in that regard is confirmed by the fact that despite her serious concerns about the toll which the workload of the Charge Technologist position had been taking on her health and well-being, she nevertheless attempted to return to that position by filing a grievance after discovering that her level of remuneration in her new position was not going to be what she had been led to believe. When that grievance did not meet with success because the position had already been filled, she filed the grievance to which this award pertains. The classic statement of the doctrine of estoppel is found in Combe v. combs, [1951] All E.R. 767 (C.A.), in which Denning L.J. described it as follows (at page 770): 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 so introduced, even though it is not supported in point of law by any consideration, but'anly by his word. It is now well-established that arbitrators have jurisdiction to apply that doctrine in appropriate circumstances. Moreover, as submitted by Union co*ansel and acknowledged by Employer counsel, in the context of a collective agreement it is not a principle which operates only as between a union and an employer; an individual grievor included in a bargaining unit covered by a collective 8 21 Jul 2009 18:03 R. HOWE & L. HUTCHISON 905 -634-3951 p.13 agreement may be able to establish and rely upon estoppel in appropriate circumstances. See, for example, Re Kingston Regional Ambulance Service and O.P.S.E.U., Loc 462 (Kane) (2001), .98 L.A.C. (4th) 70 (Verity); Re Grey Bruce Regional Health Centre and,O.P.S.E.u., Loc 235 (1993) L.A.C. (4th) 136 (McLaren), application for judicial review dismissed by the Divisional Court on March 14, 1996 (Court File No. 428/95); Re Pacific Press Ltd. and Newspaper Guild, Loc. 125 (1987), 31 L.A.C. (3d) 411 (Munroe); and Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services (1995), 27 O.R. (3d) 135 (Div. Ct.). As noted by Employer counsel, arbitrators must be cautious in applying the doctrine of estoppel in the context of individual employees, lest the Union's status as exclusive bargaining agent be placed in jeopardy. However, no such concern arises in the circumstances 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 implicitly waiving any potential inconsistency with the rights of other bargaining unit employees). Counsel for the Employer submitted that estoppel does not apply in the circumstances of this case because it has not been established that Ms. Fox made a clear and unambiguous representation to the grievor regarding what her new classification or rate of pay would be. However, as indicated above, although Ms. Fox did not specify precisely what the pay 21 Jul 2009 18:04 R. HOWE & L.-HUTCHISON 905-634-3851 p.14 differential would be, she did indicate that it would be a minor reduction in pay and mentioned a number of relatively small amounts, ranging from ten to ninety cents per hour. Moreover, she told the grievor that she could offer her a position that was one step down from a Charge Technologist position. Under the applicable collective agreement, the position that is one step down from Charge Technologist is Senior Technologist which, at that time, had an hourly rate of $29.01. Although the $2.65 differential between that rate and the grievor's Charge Technologist rate of $30.66 is somewhat larger than any of the amounts which Ms. Fox mentioned during the course of the discussions which led to the grievor's resignation from the higher rated position, it is substantially less than the $3.29 differential which the grievor actually experienced as a result of being paid at the Registered Technologist rate. Having regard to the whole of the testimony of the grievor and Me. Fox, and to all of the surrounding circumstances, we are satisfied an the balance of Probabilities that Me. Fox, in her capacity as Manager of the Diagnostic Imaging Department, made a representation to the grievor on behalf of the Hospital that, if the grievor resigned from her Charge Technologist position, she would be placed in a position that was one step down, with a minor reduction in pay, performing only echocardiograms: with no "on-call" responsibility nor any responsibility for performing the administrative duties of a Charge Technologist. The 10 21 Jul 2009 18:04 R. HOWE & L. HUTCHISON 905-634-3951 P-15 grievor relied upon that representation to her detriment by resigning from her Charge Technologist position and accepting a position which she, not unreasonably, believed to he the position that Ms. Fox had offered her. When she discovered to her dismay that her remuneration was substantially less than what Me. Fox had led her to believe it would be because her new position was classified two steps rather than just-one step down from her former position, she attempted to return to her former position but was unable to do so because it had already been filled. Thus, the facts of this case fall squarely within the doctrine of estoppel as described above. Permitting the Hospital to succeed in resoling from that representation would be manifestly unfair and inequitable in the circumstances of this case, in which there are no labour relations policy considerations which render it inappropriate to apply the doctrine of estoppel to remedy the injustice that has occurred. For the foregoing reasons, the grievance is hereby allowed on the basis of estoppel, and the Employer is hereby directed to pay the grievor at the Senior Technologist rate, with retroactivity and interest, as requested by Union counsel on behalf of the grievor. We remain seised for the purpose of resolving any disputes which may arise concerning the implementation of this award. 11 21 Jul 2008 18:04 R. HOWE & L. H-UTCHISON 905-634-3951 P.16 DATED at Burlington, Ontario, this 21st day of July, 2009. Robert D. Howe Chair I concur. "Pamela Munt-Madill" Union Nominee 12 21 Jul 2009 18:04 R. HOWE & L. HUTCHISOtY 905- 634 -3951 Unfortunately, I must disagree with my colleagues in their decision to determine this case on the basis of the Union's estoppel argument While I respect the Arbitrator's jurisdiction to do so, I disagree in the circumstances, to broaden the scope of the grievance. On the first day of hearing .tune 27, 2005, Union President Stephen Wallis testified that he crafted the nine grievances: the issue in each was job classification. In so determining this case, the majority are relying on the 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 respectf ii opinion that this case ought to 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 classification rates of pay are negotiated between the parties and set out in the Collective Agreement Ms. MacKinnon was aware she was applyhrg 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 rates of pay save starting rates for students. Realistically, it is difficult to understand how anything of the sort as described by Ms. MacKinnon might occur and not be detected by payrdl administrators or in a random audit as it w* as in this case. For these reasons and on balance, I preferred the evidence of Ms. Fox. p.17 21 Jul 2009 18 :05 R. HOWE & L. HUTCHISON 905- 634 -3951 P.18 On the other hand, Ms. MacKinnon was unable to identify a c1lear and unequivocal repre88rrtation. In fad, she didn't help herself, in my Anion by continuing to embellish the details of her conversations with Ms. Fox through cross- examination. 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 last comment is for all Hospital front line supervisors and management personnel. labour arbitration is cosily 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 posting provisions of the Collective Agreement. All of which is respectfully submitted. Don Bates Employer Nominee 9