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HomeMy WebLinkAbout1978-0200.MacIntosh.81-09-16zoo/73 IN THE MATTER ?F AN AkBITRaTION Under The CROWN EMPLOYSES~COLLECTIVE SARGAINTNG i.CT THE GRIEVANCE SETTLEMSNT SOARD Between: -- 3efore: -- PO= the Crievor: - Foe the Znoloyer: 2earin.q: arude EI. MacI~.,tosh Griever - And - The Crown in Right of Ontario (Mini3ccy ol Cocrcction~l Services) Employer R. L. Xennedy Vice Chairman F. D. COllOrn Sternbet A. M. HcCuaig xenber a. xabl, Grikvance Officer. Ontario Tublic Service Employees Cnion ;. tienedict, Xanagei- Human Resourcas Management xinistry of Correctional Srt:iiices -2- In his srievance, dated August 16th, 1978, the gricvor claims that he.was unfairly demoted from Trobation Tarole Officer III (Specialist) to Probation Parole Officer I.1 and the settlement.required,is the removal of the red circling provision and the.grievor's reinstatement to Probation parole Officer III (Sp?cialist) or his re-classification to probation Parole Officer III (Senior Probation Officer). The griever's formal date of hire with the Ministry,is August lSth, 1967, but his period of service extends; in fact, ;rom a much earlier date.' He'w%s'.originaily hired as a Probation officer II in the year 1955;'but for a period'in the yea& '1966 and 1967 he left the Niniitry to serve as Ekecutive Direct& of an Institution in Eamilton engaged in the care and treatment of alcoholics. Be returned to the Xlnistry August lSth, .1967, to the same position as he'h&oc&pied prior to leaving and his entire career with the . Ministry.has been X'the Hamilton Office. It was the griever's evidence, and it was agreed by representatives of the Mini,stry, that the gtievor is acknowledged to be a very good Prpbation officer. It-is clear that during.his first .ten yearsof service in the Hamilton Office hc developed a particular degree of'expertise and experience in dealing with al-' :: coho& related prqb,Tems and that within the corrmunity he was acknow- ledged bs a specialist and expert in that area. It would further appear that during that particular time, as compared to other ?ro!~ation Officers in the Ministry's service, the griever was fre- quently involved.,in the iilore serious or moee~sensitive..cases that were being administered from the office and it is further clear on the evidence that the,practices and prgcedures within the Xinistry's offices were evolving and expanding throughout the period of the srievo: 's ezploynent. It would be the Board's conclusions from the i -3- e~iience that we heard that throughout the ?eriod'of the 'jrievor's anployment there> has been .a qrrjat improvement .and ,xl~/ancement in t!le knowledge, nethods and techniques of the Probation'Service and a ger.eral upgrading in the training and qualifications of the Officers employed by the Xinistq. ., i .: : .\ ., : ., In Dece.nber.of 1964.the griever rece,ived.a promo++ion from the ..~ position of Jrobation Barole Officer I?,:$0 Probation Parole Officer III (Speci?lis+c!. JhaLpromqtion was not by way of a postins ar.d job ccmpetitio~,.but rather was .a new classification created for approximately 20 ?arole Officer,IT'sin various~parts of the xovixe. ',; :: X very ?articulaF job specification was drawn, which was filed on ,. zie Eearing as.+!!.ibit 5. .r It compqises some three ?ages defining the various activities and responsibilities of the position, the :c?.cwleeqe Ed qcalifications rewired in the position and it is clear on the evidence that the particular job specification.in sub- : 9tanca constituteh a description of the type of work being done by >. :, f3.e griever in the Hamilton Office ~at,the time. AS stated ?re- viously, t.keri &ri 20' Parole Of_Ficers ~iacdd if the position 0: ?robation ?aroIe"bffi6er'III .(Specialist) at that tine and the -,articul&z'$osition specification for e'ach of them varied depending oc the particila=.abilities and specialized activities 0,: the par- ticuiar offich who was ~promotsd to the position. The srievor, in his evidence, reviewed in some detaii the ty;e of work axd his.us&i .&tivities as performed in 1964 as compared :o hat he Y& Going on a'day to day basis in the sunvner of 1973. ".. i: .i! .,.. l- -4- . . .u~~.‘.out reviewing that evidence in detail~it is sufficient to state that the nature of his duties and ,rekponsibilities had not significantly changed during the period, apart from certain dif- feratices in the governing legislation and the types of cases super- ,/is& lb:! the Mioiztr.1 and tho pnrt.icul2.r procedures that had 'been e.lol‘;ed ;iitnin !ziie various offices to deal with increased irork Isa?.; ar.d ro,apPortion ;esponsibilitias among available Personnel. Iz is clea~r-th.at over the aericd since 1967 there have been sig- _ .7lzlca."t chan,ges and advances in the procedures used within the Xnisrry's pffices and,, while ir. 1967 there would have been siq- . ..~...y; .-,, -~ ‘. r.;f;cant_di,it.erences.De~~ee~ the day to'day activities of thk griever and those of ?arol& OfficerXI's the situation was such . . t:?Bz by +&lil' in.&? 1970s ,those significant differences had' '_ ..-, !, ceased to exist and the day to day activities of the griever and +.cse of ofher P&ole Cf:Fcer 11'sin the.Of:ice would have been ji7,ilar:. -"L' : .'~' ':. As~skated previously, however, this resulted not by reason bf '&ypa'?ti&lk change iti the'nature if the griever's Cuties;'&t'kath&k from the fact that the Parole Officer.II's sreri now as&i&n% anc1 perfdrmin& similar duties to those of the griever. en behalf of the Eroployer evidence was provided that the creation of the Probation Officer III (Specialist) was at the .', '. tke an attempt'to recognize employees with particular abilizias to ?rovide'a career path for employeas.who would not become in- ,:., 1: y:, volxd in administrative functions or otherwise achieve advance- Te.nt . it xas the opinion of the 3ployer representatives tl?at it _. ..::. :' * ,,_:,. .: - 1 ’ .il, . .,, * l- -j- was not a Well‘conceived plan and that it 'da3, essentially, a mistake. With respect to the other ?robation Officer III Specialists created at the time the griever was, in the summer of 19i9, the only one of them who was still classified as such ad a11 of the others had.either been promoted, or had retired frcn sirvice with the Xinistry. Xone 02 them was ever demoted, i%owevez. It was indicated that specific job audits were done -, of be yrievor's work in 1975 and in 1977 , which had indicated ;:.- '. ., -hat +a of those dates the griever's employment duties were in- distinguishable frcm those of a Probation Officer II. A job . ...'.!. acdit in 1978 confirmed the results of the earlier investigations ; a2 ihe ie~ional <; .:, ; .; Personnel tdministrator ~for the Ministry testi- fied that at the tine he was receiving some complaints from other ?aroie OffioerII's about the existence of the job at a different ~al21y i=slel foi the same 'duties. Certain other reorganization steps were beingtaken at the time within the Probation and larole . . Depart.nent and-the 'dedision.was reached to &assign the griever to.the job ~that he vas then do:ing and had been doing for a number : oi years. The particular letter advising the griever of the de- cision reads'& follows; "?lease' be advised that the position of Probation Officer Special.ist,;Probation Officer 3., Ninistry of Correctional Servicesi‘became defunct sometime ago. 'The provision of specia,li~ed...~asework and.investigation is now part of :the iutirs 6f.h regular Drobation Officer 2. I" fact, all of the former,,responsibilities, of the Probationofficer, SpecGlists are currently everyday routines for Irobation Off,&q 2j s., -. Therefore, your position as Probation Officer Specialist L . (2robation Officer 3!,,Hamilton Area, has been reassessed and is,baing reclassrrled to a Probation and Parole officer 2, Hamilton Area, effective August 21, 1978. Of 'course, you vi11 be given salary protection in accordance with present "red-circling" procedures. current saxjmum salary rate In other words, your for a Probation Officer 3 xill be retained until such time as the maximum rate for a Probation Officer 2 surpasses it." The evidence establishes that there continues to be, under the Collective Agreement, a position of ProbationOfficer ISI which, in common pariance, is apparently referred to as the -posi- tion of‘Senior ?roba& Officer"> ..'.~. 2 :. . The classy definition for that . pcsition .>as'.fi.led on the .hiearing a~nd it .fou&d appear th?t em- .~. ,.: plcyees.:Jithi~,,jthat,,class~ def'nition are~substantially-in an ad- 1 : -i:lijtrjti;r~;;~nd super*/isory capacity or operate . . on specific ,:asa ass,&gn&;s~of.~a Complex or'multi-disciplinary nature in- _ ~.. . ~ecer.dently_reoo.rt~,~g'di~ectly 'tb the Director of ?robation :. .L '1 ,: : '_ :J- -,..- Servi~~sr...ft~~:~s,clear on the.evidence that the duties and~respon- j ._ : .~, ;~. sibilltlei' of-the.n;ature, perforned by the griever would not place ;. L, '!:; '; hi2 .~wrthx :that ti%'ss' 'definition. :: L Whether or .ndt 'he'would be _~ ab,Xe~.to. pe'rfor;n those duties 'wourd; ~however, be another question. ,. " -' ::. I,< was the ev~dence"on behalf of the employ'er that this classi- _. ., , .., ~,. ,ri ficat&y* -$a<;- ,., ? ,.. '. ,:. " also;“deing phased out by the Xinistry. "It !:is' clear on the 'evidence t!~at thc.~oh,ange in classification :. :~ .:..: : .," in the ~swner-.df :197.8‘ tias, in no way, a reflection of job perform- snce :as :it was~acknotiledged clearly on the ,part of the !4inistry .;-"' I;. : ~,. :' t?.at’.the grievor:~pe’*~ --orned his work'very well. ~The position of the Yiniscry is, essentially, that the change in classification ‘.:. .. "' ';,: ., zerel:~ reflected a long-standing state of affairs xhere~n, becausa :. . cf.c~anges.;~i.:~i~the.~inist~~ and the methods of operating the :. . . :.j pi ,. .: .; ,. -7- orcbation servi‘ces the grievorls duties were identical and indis- ,:inguishable from those of a tirobation Officer II and that the earlier distinction in the natwe of the griever's duties had ceased to exist. With resgect to Collective Agreement and statutory grovisions relevant to the issues before us we were referred by the Emplolier .~ ,..j to Section 17(l)'of The Crown Employees Coilective bargaining Act, _ ,. : .:-:: . . . . . . . 1572, S.O. 1972, C.67 asamended,,which provides as ,follows: ., _ :. '. :~'." C'.... ,.... : ~: :.!'li:.Y: Every“COlTec~t'ive: Agreement shall' be' deemed to pro- vide that it is the exclusive function of the em- ,"~' -I?lo&er~ to 'manage~)':whi&h fun&ion, without~ limiting the generality of the.foregoing, includes the right to deter- :; .mine: (a):,'employment';~, ap@intment, complement, organization, assignment, discipline, dismissal, susoension, work methods and.procedures, kinds and,'locations of-eguiament and classi- fication of positionsj" . . /. ~:, 'n'i~th re'spect to the'Colie&Lve"Agreement itself between the parties ,. -., ;ie:were'resfb&e%% the'prbvis'$ons of Article 5 Classification ?socelur& arCI; Xii pi&iculhr, the ' following: ""5J.l: "Where the'duties' of. an employ& are changed as a resul.t, of reorganiz.ation or reassignment of duties and the position'cs reclassified, to a classwith a'lower .: 1 maximum salary, an employ,ee who occupies the position when'ihe reclassification is made is entitled to salary ?rogression,,based.on merit to the maximumsalary of the higher~'clas'sif~ication including any revision of the maxi- mum salary.of the,.higher,,clagsification that takes effect during the"salhry'cycle in which the redlassification takes olac?, ,. :, ,. ,: , :. _.; 5.5.2 .,.&I employee to whom;the.above.section applies is "entitled t&b&appointed to the first vacant oosi- tion in hisformer trative district.or class~that occurs in-the same adminis- unit,,,~institution or other work 'area in the.same ministry in whichhe was employed atthe time :'e'.reclas~ification xas made. XL. ..'<.<I ."/ -, _:" ,~: - :,.,~y ,,,;y ,y,,, ;,y _, I ,2 .:“.: ; :. _. -3- !i..l Jjhere a position is reassessed and is reclassified to a class with a lower maximum salary, any emplcyoe vho occupies tha position at tha ~time of the roclassiiicacicn shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification, in- cluding an./ reviai.cn of the m.-ci.mum s.xL?ry of t-:10 hiTher classification that takes affect during the salary cycla in which the reclassification takes place. 5.5.1 :ihere, because of the abolition oft a position, ar. employee is assigned: a,), from one position .in a ministry to another posilrion in the same ministry, cr. :..T::': .: '; b,),;:from a,;pgsition';,in-one ministryito a position in 'another ministry, and tbe position to.which he is .,,. 'j- ,-.,,,. ,-1. assignsd:is.in-a 'class with:a lower maximum salary than.the maximum salary for the class of the posi- 1.~. ':::,.tion: from-which~he..was:assigned, he shail,concinue to be entitled to salary progression based on nerit ':' -.? ;::zto_the maxinun salary of the-higher classification including any' revision of the saximum salary of the ,, :. .? : -<< : .. ..;.'., niqher::classification~~that.takes effect during the salary cycle in which the assignment takes place. ~,. :~ _ :.. :. .A ,.; :. ;: : I' ,.?I. addition,..the.Reprssentative of the Union made reference to .AgricAe.24 ,+ealing.with!job secur+,vyP but:we would agree with.the ~. i .i ,. ,_ ,~.i ‘.‘.._ .'..., (. .- coctentioq.,of .t,&e Representative of theiH,inistry that that Article _.,I ., is-x%c. to apply oply in s,i,tuations of lay-off and, that it is, z r.ner,e~o,~p, not~,m+terial to the.problem presently before US. :. .- - : Tbe.:first.argument submitted.to ‘JS on:behalf of t?.e Gnicn was . . .thar .rk.rrc~ ~~das~~~no,.reseon to demoto the griever and that it was not ~cpen~ to:the Fmp,loyer::,to change:. a classifi%tion having used it for suc,h a- lcng period.of tine.., reference was ~made tc wo earlier de- cisiCn~s.of:.this ~+oard,, re. Schmidt .5/X and,re Hooper 47/77. we do got consier~$hat those cases have relevance tc the issus that is ,, ” >,. ~, ,_ :.: :; _ i ‘7 : .r ‘,I _.’ .~. L..‘. ,. _ ~.. I _. - . . :- _j:- ,I . . ,.., ;:: .~. 4....~ ,‘.. - I -- .‘xfcre us. In re Schmidt the Board dealt with a situation of an eaployee who vas raised in classiiisation approximately a year af:e;- he assumed the duties of that classification. In those cir- c'umstsnces the Board agreed that the employer wasestopped from 3rijui;lg that the employee had been performing the duties of a lower classification throughout the prior year Period since it xas conceded that there had been no effective change in the duties co- incidental wit:? the raising of the classification. The Schmidt c2.j~ it.ands,.essentialQ forthe proposition that the classification j;l.culd._rela.te::.to the actual duties that are being ~erfomed and the 27.l~loye~ was: obli:ged,to pay the. appropriate salary level for t:he Period :those duties.had been:perfor;ned...;Re Booper was a situation of;an +mployee:,performing~ a mogt:~unusual~bundle of duties and it was not F~~aS:w~thin.,which classification he..should be placed. The :SolCi~g of, .the..Board .was :. . . . . i.:. that. in :th?seci,rcumgtances he was w.titleZ ,,. to re-.,plTaced2 inl"~e,.h,ighe,r, classificati,on., Again, on the facts be- fore .us,,Ynere is.,no .ques.tion; that the duties Bering performed by the grievor at.the.time of the demotion fell within, the classification 0fPrcbation ,Pxole ,effi.cer,.II: In our view the factualsituation bef,ore us is closer to that~ ; : ",. ccr.sitered byl:this.aoard?in re Wheeler 156/78, which case the Union . . . ..-. -.. .:,y..I; y1 ~.. .y:, souqh: to distinguish::.,Inthat case there.had-been an.improper !:i>' ::.I .,:.y:, ;lajsificatFon,fOr;Severai yearswhich the employer SOUGht t0 COTZ2Ct. ~. _.-,. .I ‘.: ~52 Poard heldkhat the employercould.not be2astopped..frcm recl.assL- ..:il,;: ;;; i:;. :~; .~, fying the job:if:;- inl~fact,.,there .was, an errpr in the, ,classificaticn. - 10 - The aoard goes on to state at 3age 13 of the Decision:.' "The situation might be regarded differently if the qrievor had been an incumbent in the job at the, time of reclassification, but that issue ne~ed not be determined in this particular case." Th2 Union seeks to distinguish that case on the ground that it.was An .zrrcr in the original classification and there 1.4 no question that with respect to the griever who is before us the original classification .wis correct. The classification procedures, however, were subsequently changed. :.Tn the wcrds Quoted, from the Wheeler Case we zre now dealing with then situation essentially of~.an incum- ,:; ,:.;< $:T ,;:<:;, .:.:~;. Sent who was in the job at the time of reclassification, which was :_ ;~ .: .:::.'~. 'II '. tIhe issue that.the Wheeler Board indicated did not'have to be de'ter- :~ :_ . ,; :.: :, P :; : ;: ; ': . . ,. mined at that time. There is, however, .i'_ ,,,I .;. r:~rr:::y;:.;' ;,,; ~~., ..; <'~ - obiter in the Wheeler de- CiSiOr., also commencing on page 13, directly,.on ?oFnt. It is .~ .: ,, _.. .:~ - ,y, <,';, :. : : ',I,, 'I . . s:ated: ~I' .:,:I': .~ "Therefire, the real issue for determination before this Board is whether the ;Xinistry erred iti its original classification of this position. This : ., ,‘,. .aoard:need noti enter into an extended'discuss'ion of the scope 0: the employer's,right ,to reclassify .- jobs;lnbr-tiithzan inte-qre'tktion of ?.rticle 5.3 of the working condition agreement. The section : ‘dealiT.Lit!i,the'protectibn of awincumbent~ernployee's salary on retilsssification of his job. It has no .:. +pplibai&i+ t$t$e"'erievor. 'I' ,. ‘2 :’ : kticle SAPreferred to in the Wheeler decision is the same article .., ,.:,. : :, : ss~~r&icuslyqucted in this Award. With respect to tie ri;it 05 :?.? &icyer to'change the'class&fication we see. no distinction between a situation.w~~re'th~~'original clakification was ikorrect and s ,,. - 11 - :o change the CleSsificationS by reason.of the ?rovisionS of "he Crowo.3n?loyees Collective Bargaining Act and, since the griever is an incumbent in the job at the time of its reclassification, he coxes within the specific language of Article 5.4 of the Coliective ‘xgreeaent. On the evidence, the qrievor that is before us waS in 3 position that was reassessed and reclassified to ;1 class wit.*. a Lowe: naximu? shlary arid, lnde&d,'that specific language is usec ix thc:lottcr:ftoti rh~'~~,:lployer'-d~!ViSing.hirri oe"'tic action. ,.. : : The Union further relied on the case rs.Toronto General L “< :I ,- sospitil.(l976) L.A.C. '(id) 272 (Weatherill) which held that aS , :_ :i,.: : ,.,_ .i ., : .,,.. :. lsnq'hS"t:?e iaxle Work is being'performed, management has no right .I ~- ::,..'.':~~L~::'.~~ . '.i : ;:\_ arb'itrarily'to recla&ify the employees perfozxiaq it. In t.1z.t _ case, hOWeVe:;,%i+?e (+rc, !yo "f&yaL ;job, descriptions, thouqh 'the ., ,.. ~' job titles 'werd'incorporal-;qd.,in:o tk Colle&ive Agreement. The .::;:,; i;..:: ,_ ' :' " ,. .' '??cision -would 'indidate that ':tho ~evide~!lc?: x; td jot, functions and - . :;; ;> .,. i.-i ,., j... .ixies Was'~i~conclus'iv~ in co&ring the kmployees involved to .:. ~: '. . . ,r '.' other empioyees of the~hiqher~classification and the Arbitrator .. '~'. : .' ?.+<e the s+cific finding on the evidence that it had not been Shown that the qrievors prop,~,r~y c+me wiJhin Some other classification -s-Ider t>e Collective Agreement. On the evidence that.is before us :. ~..' Z?.B ~rrevcr's duties u-e, on the evidence of both parties, indis- .,;, ; '. _ . ,.. ,, : ti.?quiSabie -from those,of other Probation Parole Oificer II's. In the alte,rnat.ive,3 ..<.<~ ..: ..I~ :TT;.. .>.. .,.~,: the Union argued.that even if the Eaployer *raS enkitLed,to demc$t., +e griavor,. the g rievor.was entitled to the ,%. ~.,. '.,~ : . . . -_, ,,._.' . - 12 - ?rocestio.n of Article 3.3.2. Ni& that,contenticn we cannoc aqzgn. 3+t section relates to Section 5. 3.1 which is prenised'on the fat: Cat the duties of an employee must be changed as a result of re- crqanizstion dr reassCqnment. On the factual circumstances &fore "3 there had been no change in the duties of the qrievor but, rat.ier, &L. -.B chznqe bzs been in the classification and worlc practices within :Se >linistry. It is ouz view that (he situation which is '&fore us cones -3rely within the provisions of Article 5.4 and that is the Axicle;@ich should be applied in determining the qrievor's riq;?ts. .Y y.: .I : :: '..' .-In-re&chinq the foregoinq.6onclusion as to the contractua -~s:-.i~-'.-je't,;~d8~i the I;ar-ies; the'.Sb$.rd Ga?'distu;bed by certain =s~ects df-~~e:evidence'.,~hics haij& already been reviewed in this $jJar", . Sgeeiiically, in late 196'4'the qrievor was cne of 20 em- i&ye&s w~o'receiced:'a.somewhat unique type of promotion from ?'rcb'a;i&Pa;oie Officer II to Probation Parole Officer III r !S$eci;iistj',; ".Each'of the 20'w& qiven a very particular job s~~'c~f~~~~y.& .- - '." "'~ ,'-which specifi.catibn'& s&t&e merely reflected - ;:.,;,.~..;,, the actual~'jbb dutik$'of-the'particuiar &dividual at the time. .~. T>e stated'rnt&it bn' the-p+rt'of the~Enployer in making such pro- %rions wan ,(b prbvide a career path Ear employ&es who vould not _ ., ba~ome"'i~"bTiied.'in.adminlstrativk f&ctidns or otherwise achieve .-.,: .,.. :: ,. ..:.,,-, 'ZV&n?6n6nt;~'The E'&l6yer'sdbn' after condlu'ded that the'plan had ., .,. tiCv5 beei tie.11 ‘o&itived' anh in. adtdition, E?roughout. the 'balance j'f: ‘t."..+.~ ,i,? -" .i r,-" '- 10 s:an%e~ar?y 1970'S ~significant &n&e* ilcre aode i;l ." : '_,'-: : _. .~ ': .. 'Y I .,. _ ,,.:: * _: ,- ,.~, ,'~ - 12 - the systems of parole and in the standards and duti.=s of ?zo- bation Officers, accompanied by a general upqr,adiAq of all lrobation Officers. This apparently resulted in a situation vherebv early in the 1970's the griever's duties were indistin- quishable from those of Probation Parole Officers II. Of the 20 employees promoted at the same time as the qrievnr had bean pro- aoced, all of the others were either given further promotions or tra.nsfers.or retired classified as a Probation i?arole officer III. It was 'further agreed b$ the 3egidnal:PersonneL Administrator _. i.2 the -'c&&d df Xis tress-trjmihation'that in th$$a&nq' out ., '7;:. ", of cS&s.$&ficatibxis'it was"notia~lto have':it happen by dttrition. ~~~"grievo.:~~~er;en.t: s;ecifi'd ,. ~._ j‘&b evalua&oG in each of 1975 : :> i. .-:, a&d 1977 which dis:losed the s&e factual cirtiumstances as the one in 1978;'btit up& which"-<the employ& chose to take'no action. ._ .. it ajpiared,*to,us that in these circumstances we should qive cofisideration to,the issue of whether or ,not it would be a?prop- riate'for the Boa:d 'to'qive effect to the principle of equitable estc~pei,'tb~peGent'the.EnE,loyer from taking the action which it &in'lgi$j. -.: . ..W&'requested '&tit the pariies~ make s&missions to us-bn.that"&.$!& of‘the inatter and, in particular, drew the ,.?a&ies att&ition to.'the recent decision in're CY/C7 Telecowx%icdtidns (aeatty, tireported, February 12th, 1981). X xritten:~~ubidkSibn was re&eived,f?om the'Employer u&er date Zcly 14th, 1981; arid from th& Union under,date July 24th, 1981. ,.. ~.. ., ,...I : : : :.. " : .';' ; . ,. : I, . / , . It is the position of the E;npLoyer that the CX/C? case 1.3 not J proper application of the principlt2 of promissory estoppel, but that in substance it creates a new principle, to the effect that where ~a.. employer has provided benefits over a long period of time it would be unfair forthe employer not :o continue to provide such benefits prior to raising the satter in the course of negotiations. ,. ::.. We :y,.not find it necessary to deal specifically with ,.~ ..\:;:: 1; ; .j. :.,:, .( .,-he correctness or otherwise of Professor Beatty's CX/C? de- (_ _ . ~,, ?,,T;.,- ... : ; .y : ciston since, on the factual situation before us, the doctrine ..'Z. : ,... !,. ., .ic,s ~q.$ .need.,to. be ,e,%ten.ded to the, lengths which the CX/C? t: decis;,on does, indeed, appear to extend it. As stated by Couns~,~; fy.~ th+ Employer,, t.ke c1as.sic.d formulatio? of the doctri,ne.,qf, promissory es;t~oppel is set out by Lord justice O.ee.?ning $Combe v.Combe .[19;51], 1 All E. R. 767 at 770: "?he~,principle, .I as I .understand it, is that where " .one'patty has, by Sis words,or conduct, made to : '. the other a.?romise.or assurance.which was in- tended'.to affect the legal~ralati.bnshipS between .them.and.to be acted on accordingly, then, once the other party has'taken him at his word and acted on-it, 'the one who,gave. the promise or asgurance chnnot afterwards.be allowed to revert : to the.previous legal relations as if no such promiseor assurancehad'been made by bin, but I : : i :heTl.n+st~ accept.fh~ir~leqal.relationg subject to ' the qualification whrch~he,;;'himself;.has~ so intrc- duced, e.ve.n.though it,is not supported in noint ..'I' of lati'by-any' consideration;but only by his yard.“, .: . .In epvpl,yinq:the, foregoing princip,le~ to,the factual situation ; before us,; re think it may reasonably be concluded that there ._..~ I..“‘:.” I ‘:.I ., . . : /‘?:.:, x, * > . _.. ,. .: :. L: , :. - 15 - 'A. ~'.dere actions on the part of the Employer ,hat could lead only to the reasonable conclusion th.at they were intended to afZ-ct the relationship betveen the.grievor and the employer. In 1964 3 specific type of promotion was instituted that was re- lated, not to en upgrading in qualifications or a change in responsibilities, but rather, to create a career'path for cer- tain specific iz+viduals who, in the view of the Snployer, were, ~~ortby, ,o$,i,promo,t$on, ,but yJy -wFuld not ~otherwise within tke sy.steq .agaiev.e ~&t-T. _..~ ,~,. ;...c: .~ .~~$,s ,tyo,q ..oi~ qaot&on was subsequently ,1:.,-, ~, ,/i ,., aber.done$ by,,the Employer, but notwithstanding that, of the 20 ,.. (. emioyees cc~~e~;iedi'i:lg'i:.~e;e ..oqG;"i 'oeyiod years either pro- .:..~ ncted furttier::or re;iied:,with&ut c&Age .iti'classification. The ; ,: .: _~ ;rievor'i'spetiifi6 job wa~:evaluat8~ by the'Employer in each : of 1375an$;jl977, by which'tise he was the only one of the o3riginal.ZO...st~ll.~or!cing'~~~~~~t,c~ass~f~~~ticn and ~no action ,. -. :, _ ., was t~aken on~,fhe:oar,t of. fhe Emplpyer,; .ti&"think that t&he .~. ,i..:: ~.', ., _ Ssployer'm;s;~‘be"takcn is $'a'&n<j int&dod'those re'aults which ~0~16 log'ibally -flow frog its actions, a+ it would further be OK view thaf voyeur an e:ct,g$ea Foriod of time the, griever .~.. ..,. ::s. .: coul$.Md dig reasonably ,cpnclude that he would continue in the : ?osit.i.on;, as h.ad his f.%!l.~r$s, ~: _ <-‘.; cl i _ jc.. i until further promgtion 07 rctirf- .> ,. :, ,,.-I-:: -, :: nent... .D&iyg,,.Fh+t pexZi~d, there ,;;ou:d ha% been, in the noraal ..: .,: . ,'. a:ourr52?,,, numcrw3 oppoI:tuniti~::; . .,,_ ... ..:.'L‘< C.!,. '~':1 :: ,!,.'~- for pc0111~~tLon or trw3ftir wicshi:1 t'ce Government Service' or outside of it. The griever iS a lon$ sez'rica ~mpl,oy~fz and,his considera,tion of Such o$portunitisS ~,,. .~ '~' -r; ,,. ..~ ‘,. : 7 :..I z,. ; .,; -y,. .: ~. * . . ..( : - 16 - xould most certainly be influenced by Whether or not his in- cwbent position was a ?robation Parole Officer II or a ?robation Parole Officer III. Further, throughout that period he was of an age where he would have been giving consideration to his plans for retkement and these plans would most certsinly be influenced by hFs level of anticipated pension. That wocld also be affected by 'his classification, particularly during the -Cir.al years of his employment. :ie conclude, therefore, that there is adequate evidence of detrknental reliance on the part of'the g:ievor and that based on the traditional authorities the circumstances are such that it is appropriate to apply the doctrine of promissory estoppel against the Czpioyer in this matter. It is, therefore I our conclusion that the grievance rust Se allowed and thdkthe Employer was not er.titled to exe? cise its specific confractual rights to re-classify the griever ii7 the circumstances.- The griever is, therefore, entitled to be restored to his forme,r classification with full seniority and compensation for wages and benefits,lost in the interim. ~W.? will reaain seized to determine the issue of compensation or :., any o-her nazter relating to the implementation 0E this Award s;lou:i the oarties not be. ab:e to agree upon Sam?. DATED this 16th ,..‘,::1’. -:. ~.. ,-,; ..:,_, I_ _, .? ,y., ., ‘: : day of September, 1981. I Ross L. Kenneoy, ~*. t-i. NcCuaig : ~