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HomeMy WebLinkAbout2010-2473.Jeronimo et al.12-06-26 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2473 UNION#2010-0290-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jeronimo et al) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Brian P. Sheehan Vice-Chair FOR THE UNION Devon Paul Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Robert Fredericks Ministry of Government Services Labour Practice Group Counsel HEARING May 24, 2012. - 2 - Decision [1] The issue in dispute concerns a group grievance filed by Youth Service Workers employed in the Female Division of the Roy McMurtry Youth Centre asserting that the Employer had improperly sought to recover a claimed overpayment of wages. [2] At the commencement of the hearing, Mr. Fredericks, on behalf of the Employer, made a motion that the Board should dismiss the grievance on the basis that particulars relied upon by the Union did not disclose a prima facia case. The Facts [3] The relevant written particulars filed by the Union which, for the purposes of the prima facia motion, the Employer accepted as true, were as follows: • On June 15, 2009, the Female Division of RMYC commenced a new yearly schedule, which was completed on June 15, 2010. • On November 19, 2009, Bruce England, president of Local 290, attended a meeting to discuss the then-ongoing staffing complement review. At that meeting, and in passing, Mr. Don Poynter mentioned to Mr. England that the schedule was producing a sixteen (16) hour deficiency every twenty-six weeks. Mr. England acknowledged the statement, but neither agreed nor disagreed that it was correct. • In late May, 2010, Mr. England was contacted by Mr. Bill Mowat, Project Manager, who informed Mr. England that HPRO would balance with the then-current schedule. • Between the November 19, 2009 meeting and the contact from Mr. Mowat in late May 2010, there had been no communications between the officials of Local 290 and any member of management regarding the deficiency in the schedule. • On June 2, 2010, Stephanie Hedger, then the Senior Manager of the Female Division, sent an e-mail with the subject line “Female Division Schedule Change” to all employees in the Female Division stating that the schedule to be completed on June 15, 2010 had resulted in an overpayment of thirty- two (32) hours over the entire course of the schedule. • Ms. Hedger stated that these hours had been paid but not worked, and that this must be rectified by June 14, 2010. • Specifically, in the June 2 e-mail, Ms. Hedger stated “Through facility reviews it has been identified that the Female Division schedule does not balance to the required 1040 hours. The current schedule produces 1024 hours though the Employer has paid for 1040 (32 hours deficiency) - 3 - (current schedule attached). The implementation of HPRO has highlighted the timeline with which the Female Division will be through the completed cycle of the current schedule – everyone at a zero balance – this date is JUNE 14. Implementing a new schedule by this date will allow for a CLEAN slate/start moving forward.” [Capitalization in original] • Ms. Hedger notified the employees that the management of the Female Division had decided to take action to rectify the schedule imbalance by adding four (4) hours to four eight (8) hour shifts. • Ms. Hedger went on to state “In the fall (approximately) we will be negotiating a new Female Division schedule reflective of our new staffing model. Understanding this, we still need to move forward with resolution to our current schedule. The facility is incurring expenses for hours not worked and all schedules must balance for HPRO to work properly.” • This changed schedule came into effect on June 15, 2010. • The changed schedule resulted in employees working three twelve (12) hour shifts, four hours more than the eight (8) hours per day provided for in Art. COR8.3.1. • In an e-mail dated August 5, 2010, Ms. Hedger offered employees three options to make up the overpayment: use vacation time, pay the claimed overpayment back through a payroll deduction or work hours off. • In the August 5 e-mail, Ms. Hedger instructed that the “balancing of hours” was to be completed by December 31, 2010. • It was not until August 5, 2010 that employees were notified by Ms. Hedger that the Employer intended to recover the deficiency of hours. • On August 16, 2010, the Female Division began a new schedule which required a reconciliation between the hours paid and the hours worked to that date. • On August 20, 2010, the employees in the Female Division received an updated “reconciliation of hours”. • On August 24, 2010, Ms. Hedger, at that point the Deputy Youth Centre Administrator – Operations, sent out an e-mail reiterating that the overpayment must be either repaid or worked off. The Grievors, believing that there would be a “clean slate” as of June 15, 2010, carried on their individual household budgetary arrangements, not realizing that money should be saved to repay the deficiency of hours. - 4 - • As a result of the Grievors continuing their individual household budgetary arrangements, many Grievors did not have sufficient funds on-hand to repay the deficiency of hours when requested by the employer, and were required to make use of other means, such as working additional hours or permitting deductions from their paycheques. [4] For those employees who chose the option of working off the outstanding hours the December 31, 2010 deadline to achieve a zero balance owing was subsequently extended by the Employer. Ultimately, the vast majority of employees chose the option of working the outstanding hours they owed. Discussion and Decision [5] The Employer initially asserted that there would be two branches to its prima facia motion; (1) that the particulars relied upon by the Union failed to disclose a breach of the collective agreement and therefore the Board had no jurisdiction to hear the matter and (2) that the particulars also failed to establish that either the doctrine of estoppel or the doctrine of waiver, as asserted by the Union, was applicable to the facts of this case. At the hearing it, however, became clear that the Union was not asserting that there had been a breach of the collective agreement. Accordingly, the relevant issue was whether the Union’s particulars failed to establish a prima facia case for the application of either the doctrine of estoppel or the doctrine of waiver. [6] As outlined in Re Couture et al GSB 2008-3329 (Dissanayake) the appropriate analytical framework to be adopted by the Board with respect to a prima facia motion, is whether the facts asserted in support of the grievance, if accepted as true, are “capable of establishing the elements necessary to substantiate the violation as alleged”. In the context of this case the relevant question is thus; whether the particulars relied upon by the Union, if accepted as true, were capable of establishing the required elements for the application of the doctrine of estoppel or the doctrine of waiver. [7] Mr. Paul, on behalf of the Union, asserted that the decision in Re Pinazza 2002-0840 et al (Herlich) represented a change by this Board as to the appropriate basis to evaluate a prima facia motion. That case involved a claim of sexual harassment by a number of bargaining unit employees against a managerial employee. That managerial employee was granted third party status at the hearing and it was on his behalf that the prima facia motion was brought, asserting that his actions did not constitute sexual harassment. That argument was advanced notwithstanding the fact the employer conceded that certain of his actions constituted sexual harassment. Vice-Chair Herlich in assessing the particulars relied upon by the union determined he was not convinced “that it was impossible to arrive at the conclusion” that at least some of the managerial employee’s conduct amounted to sexual harassment and on that basis he dismissed the prima facia motion. For the Union this reference to “impossible to arrive at the conclusion” suggested that a less rigorous standard should be utilized in evaluating whether a party has established a prima facia case. [8] In my view, the Union’s argument on this point places far too much significance on a simple turn of phrase. In dismissing the prima facia motion, Vice-Chair Herlich did not, in any - 5 - way, delve into an analysis as to the appropriate test to be adopted by the Board with respect to a prima facia motion. In this regard, I view his usage of the phrase “impossible to arrive at the conclusion” as nothing more than his way of rephrasing the traditional analytical framework and did not suggest that a less rigorous standard should be employed when evaluating whether a party has established a prima facia case. [9] The Union’s primary argument is that the Employer should be estopped from seeking to recover the outstanding hours owed by employees. The required elements associated with the application of the doctrine of estoppel, were set out by this Board, in Re Brown 0513-86 (Barrett) as follows: i. The party with the contractual right makes a representation to the other party that it will not be insisting on strict compliance with that right. The representation need not be expressed but can be implied from the conduct of the party making it. The conduct gives rise to an estoppel only where it leads the promissee reasonably to believe that an undertaking was being given. ii. The representation relied upon must be clear and unequivocal. Conduct which is ambiguous or subject to a number of conflicting interpretations cannot form the basis of an estoppel. iii. The promise must be one that is voluntarily given; not extracted by force or coercion. iv. The promise must be one which was intended, or was reasonably construed as being intended, to affect the legal relations between the parties. A person may well grant an indulgence without ever intending to forego his strict legal rights. The promisor is not estopped from relying on terms which in the past have not been enforced through error or inadvertence. v. The person relying on estoppel must show that he altered his position on the strength of the promise or representation that was made. An alteration of position may take the form of a positive act or that of an omission. It is sufficient if the promissee has been induced to conduct himself differently than he otherwise would have done. Such conduct must be shown however to have been in reliance on the promise. In the labour relations context reliance may take the form of forebearing to raise an issue at the bargaining table which but for the promise would otherwise have been raised. vi. It must be shown that the alteration of position by the promissee was to his detriment or prejudice. [10] The Union’s estoppel argument is factually straightforward. It is asserted that Ms. Hedger’s June 2 e-mail constituted a representation to the staff that the Employer would not be seeking recovery for the overpayment of wages. Specifically, the absence of any reference to the Employer seeking recovery for the identified overpayment combined with the statement that the - 6 - implementation of the new schedule effective June 14 “will allow for a Clean slate/start date moving forward” constituted a clear representation that any overpayment associated with the prior schedule would not be pursued by the Employer. [11] It is acknowledged that that the grievors may well have perceived that the Employer, through Ms. Hedger’s e-mail, had made a commitment that it would not be seeking recovery for the overpayment of wages. In fact, it could be suggested that such a belief was arguably a reasonable view of the Employer’s position at that particular point in time. At the same time, it could be suggested that another plausible reading of Ms. Hedger’s e-mail was that its primary focus was on addressing the implementation of the new agreed-to schedule. In that context, the reference to “Clean slate/start” was related to confirming that, as of June 14, all relevant employees would have completed the cycle of the current schedule; accordingly that date, would be a fresh jumping off point for the parties to move forward under the new revised schedule. [12] As suggested in Re Brown supra, statements, or conduct, which are open to possible conflicting interpretations are inimical to a finding of an estoppel; for a party to be estopped, there needs to be evidence of a clear and unequivocal representation to forego one’s legal rights. The Union’s particulars come up short in establishing that Ms. Hedger’s e-mail constituted such a clear and unequivocal representation by the Employer that it was not going to rely on its legal rights to pursue recovery of the overpayment of wages. [13] Even if it could be suggested that Ms. Hedger’s June 2 e-mail constituted a clear and unequivocal representation by the Employer that it was not seeking to recover the overpayment, the Union’s particulars fall well short of establishing the fundamental required element of detrimental reliance. [14] Detrimental reliance, for the purposes of an estoppel argument, suggests that a party is in a worse off position, either by failing to act, or by acting, as a result of reliance on the representation that the other party would not be enforcing its legal rights. As stated in Re Carter 2291/86 (Knopf): Detrimental reliance connotes lost opportunity and lost potential. ….Taken at its best, the evidence establishes the grievors were slightly inconvenienced. …. There is no evidence that the Union acted to its detriment or indeed relied upon the course of conduct. Thus, there is no evidence that the Union, as a party to the collective agreement, was induced to act to its detriment. Since detrimental reliance is a fundamental element in the doctrine of estoppel, the absence of the underlying facts to support the detrimental reliance is fatal to a claim based upon estoppel. [15] Mr. Paul submitted that the reasoning of the Supreme Court of Canada in Ryan v. Moore [2005] 2 S.C.R. 53 constituted a change in the judicial treatment of the concept of detrimental reliance. Specifically, it was asserted that decision stands for the proposition that the party that relied upon a representation, no longer necessarily had to establish that they actually experienced any detriment, as in being in a worse off position. It was enough for the party to establish that it would be unfair or unconscionable to not allow for the enforcement of the representation made by the other party. - 7 - [16] The facts of Ryan v Moore supra, involved a motor vehicle accident where a claim of negligence was commenced against the defendant and his insurer some twenty-three months from the date of the accident. Unbeknownst to the plaintiff, the defendant passed away some thirteen months after the accident. The action was timely under the two-year period limitation period set out by Newfoundland and Labrador’s Limitations Act but was outside the six-month limitation period under that province’s Survival of Actions Act. The basis for the estoppel by representation argument was the suggestion that the insurer was obligated to notify the plaintiff of the death of the defendant during discussions the parties had prior to the formal commencement of the action. [17] The Supreme Court’s comments in Ryan v. Moore supra, regarding detrimental reliance were obiter; as the Court determined that the insurer’s silence regarding the death of the defendant did not constitute a representation for the purposes of an estoppel by representation as the insurer was not under a legal duty to inform the plaintiff of the passing of the defendant. It is also noted that the discussion of detriment that the Union relied upon arose in the context of whether there existed, on the facts, an “estoppel by convention”. Moreover, a reading of the decision as a whole, suggests that the Court’s view of detrimental reliance, was in fact completely consistent with how that concept has been traditionally defined in arbitral jurisprudence. In particular, the Court offered the following observation: Detrimental reliance encompasses two distinct, but interrelated, concepts: reliance and detriment. The former requires a finding that the party seeking to establish the estoppel changed his or her course of conduct by acting or abstaining from acting in reliance upon the assumption, thereby altering his or her legal position. If the first step is met, the second requires a finding that, should the other party be allowed to abandon the assumption, detriment will be suffered by the estoppel raiser because of the change from his or her assumed position. [18] In the case at hand, the Union suggested that detrimental reliance arose as a result of the passage of time between Ms. Hedger’s June 2 e-mail and her August 5 e-mail, when the Employer went on the record advising employees of various available options to repay the outstanding wages owed. It was suggested that during this passage of time, the grievors continued on with their normal household budget arrangements not realizing that money needed to be put aside to repay the overpayment of wages. [19] It is not disputed the amount of money owed constituted a significant amount of money for the grievors. That being said, based on the particulars filed, there is no basis to suggest that any of the grievors were in a worse off position as a result of the purported representation by Ms. Hedger that as of June 2, 2010 the Employer would not be seeking to recover the overpayment of wages. None of the grievors materially altered their position as a result of the Employer’s purported representation. This is not a case where the grievors were claiming they undertook significant financial commitments as a result of being of the belief that the Employer would not be seeking to recover the overpayment of wages. The Union’s argument may well have had more traction if in fact the Employer in its August 5 e-mail took the position that the grievors had to immediately, or within a relatively short time frame, repay the outstanding monies owed and that certain of the employees as a result of such an immediate demand for repayment had to take certain measures, that placed them in a worse off position, to obtain the necessary money to - 8 - repay the debt. The grievors, however, were given three options, including working off the hours owed over an extended period of time. The overwhelming majority of the grievors took advantage of that option. [20] In the alternative, the Union submitted that the doctrine of waiver was applicable to the actions of the Employer. The framework of this argument was that the Employer, by way of Ms. Hedger’s June 2 e-mail, and the implementation of the new revised schedule, waived its claim to the overpayment. Specifically, by taking the “fresh step” of introducing the new schedule without alerting the grievors and the Union that the Employer would be seeking recovery for the overpayment of wages, the Employer, in fact, waived its right to claim the overpayment. [21] As with its estoppel argument, the Union’s reliance on the doctrine of waiver runs into a number of insurmountable obstacles. It is clear that the recovery of the overpayment of wages from the employees involved, constituted a substantive right of the Employer. There is a significant question in the arbitral jurisprudence, as to whether the doctrine of waiver is applicable with respect to a substantive, as opposed to a procedural, right of a party. At a minimum, the jurisprudence suggests that an arbitrator should be extremely careful in resorting to the doctrine of waiver to nullify a party’s substantive rights. Re Canada Post Corporation and C.U.P.W (1991) 22 L.A.C. (94th) 430 (Jolliffe) [22] Even if the Union could get over the “substantive right” hurdle, the doctrine of waiver suggests that the waiving of the right must be informed and direct. Re Board of Governors of the Riverdale Hospital and C.U.P.E.(2000) 93 L.A.C. 4th 195 (Surdykowski) There is no basis to suggest that the Employer, by implementing the new revised schedule, was knowingly and/or directly waiving its right to claim for the overpayment of wages. [23] In conclusion, the particulars relied upon by the Union failed to establish a prima facia case for either the application of the doctrine of estoppel or the doctrine of waiver. Accepting the facts asserted by the Union as true, the grievance would not succeed. In the circumstances, the Employer’s motion is upheld, and the grievance is hereby dismissed. Dated at Toronto this 26th day of June 2012. ___________________________ Brian P. Sheehan, Vice-Chair