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HomeMy WebLinkAbout1982-0526.Changoor.83-02-01: : .. ,- .:’ : .,. ,’ 526/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: ., For the Employer: Hearing:. :: OPSEU (Balchan Changoor) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications). Employer R. L. Verity, Q'.C. Vice Chairman S. J. Dunkley Mimber G. A. Peckham Member L. Stevens Grievance Officer : Ontario Public Service Employees Union J. D. Henderson Head, Personnel Services Central Region .Ministry of Transportation and Communications January 5, 1983 ;’ ,I# ;. - 2 - B DECISION The Grievor, Balchan Changoor;, grieves that he was not afforded two opportunities to work overtime,. previously authoriied by Management as a result of his attendance at a Union seminar from August 16th to August ZOth,.l982. He requests the right to work two overtime shifts land to be paid accordingly. The Grievor has been employed by the Ministry in the Emergency Patrol Unit of Toronto District 6 for the past 8 years. He also serves as a Ministry's Emergency Patrol in the primarily to assist motorists in d debris- from Highways 400, 401 and i 4: 27. Apparently a considerab 1 is available to traffic patrolmen Union Steward. The Toronto,area functions stress and to remove e amount of overtime work. in the Emergency Patrol, particularly in summer months. To insure an equitable distribution of that overtime to all employees;the Ministry has establi shed a practice of assigni~ng overtime on a rota- tional basi 5. An employee can refuse overtime work which results in his ~name being placed at the bottom of the'overtime list. In the event that the overtime requirement conflicts with an employee's regular shift, the employee is .then placed "on .hold" and is given the opportunity to work overtime at a later date. Emp,loyees who are sick, or on Workmen's Compensation I -- -3- benefits, or on vacation are deemed unavailable to work overtime, and,accordingly any such employee's name would revert to the bottom of the overtime list. In late July 1982, the Grievor held a discussion with his Supervisor Harold Johnston and as a result was granted the right to go on vacation for the purposes of attending a 5 day Union se.minar in mid August. According' to the Grievor's evidence, Mr. Joh,nston initially agreed that the Grievor would be placed "on hold" for overtime purposes during his attendance at the seminar. In any event, the Grievor completed his final shift on Thursday., August 12th, prior to the seminar and believed at that time that he would no t lose his overtime opportunities. On Friday, August 13th, the Grievor received a telephone call from his Supervisor confirming an earlier conversation that the Grievor would work overtime on Saturday,, August 14th. Mr. Johnston also advised the Grievor that he would not be'placed on hold during the following week. In"~' that same telephone conversation, the Grievor informed his Supervisor in no uncertain terms that he would forthwith cancel his attendance at the Union seminar and would return to work the following Monday. -4- Following the telephone conversation with Mr. Johnston, the Gri evor telephoned the Maintenance Engineer, David Aspinwall, and explained his problem. According to the Grievor's evi dence, Mr. Aspinwall sympathized with the Gri~evor's request and agreed to discuss the matter with the Grievor's Supervisor. Mr. Johnston telephoned the Grievor a second time on Friday, August 13th, indicated thathe had been speaking with Mr. Aspinwall and that the Grievor.had been placed back on the vacation schedule. According to the Grievor's evidence Mr. Johnston clearly stated th~at the Grievor would be placed on hold for overtime entitlement. In any event, the Grievor did ,attend the Union seminar and did work one shift of overtime on Saturday, August 14th. On his return to regular duties on August 23rd, the Grievor found to his ch,agrin that he had been removed from the overtime list the previous week. During the~period that the Grievor was on Union business from August 16th to August 20th he missed two overtime opportunities In his evidence, Mr. Johnston gave a somewhat differing account of the events. His evidence was to the effect that he did not agree initially-that the Grievor's .n'ame would be placed on hold on the overtime list while the - 5 - Grievor was in attendance at the seminar. Mr. Johnston did. admit to discussing the issue with the Grievor at some length and to receiving a signed petition from other employees supporting the principle involved in the Grievor's request. Specifically, Mr. Johnston did not reca .l the placement on hold during his second conversat i There is no doub 1 discussing on with the Grievor on Friday,. August 13th. I t that Mr. Johnston discussed the matter w ,i that reason tha.t Mr. Johnston p 1 th Mr. Aspinwalland it was for aced a second telephone cal 1 to the Grievor on August 13th. I~t was Mr. Johnston's evidence that the Grievor had been dealt with fairly under the circumstances as he had been given the opportunity to work one shift of over- time on Saturday,'August 14th. As stated previously, the normal procedure was that no employee was permitted to work overtime following the last shift prior to vacation. At the outset of the Hearing, Mr. Henderson, on behalf of the Ministry, adopted the position that this Grievance was not arbitrable and that the Board was without jurisdiction to determine the matter. He .argued that the issue was a matter of scheduling of overtime and that the Collective Agreement contained no Art it was in the ‘ly, icle restricting Management's rights to schedule. Brief Mr. Henderson's position that the instant Grievance was nature of a complaint and that the Arbitration process could not tie used to create rights that did not exist under the - 6 - Collective Agreement or conferred under The Crown Employees Collective Bargaining Act. Specifically, Mr. Henderson cited Article 27.12 of the Parties' Collective Agreement which reads as follows: "27.12 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any pro- vision of the Collective Agreement." On behalf of the Grievor, Ms. Stevens agreed that However, it was Management's exclusive right to assign overtime. she argued that in the instan~t Grievance, Management had ized the scheduling of overtime and accordingly Article author- 13 of the Collective "13.1 13.2 13.3.1 13.3.2 Agreementmust apply. Article 13 reads: The overtime rate for the purposes of this Agreement shall be one and one-half (1-Q) times the employee's basic hourly rate. In this Article,,'overtime' means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or per- formed on a sche.duled day(s) off. Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7-%)ho:urs 0.r eight (8) hours as applicable, shall be paid at the overtime rate. Overtime shall be months of the pay overtime was actua paid within two (2) period within which the lly worked. - 7 - . 13.4 13.5 1 3.. 6 Employees in Schedules 3 and 4 who perform authorized work in excess of seven~ and one-quarter (7-k) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (l-$) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or Mary receive pay at the ove.rtime rate in lieu of compensating leave. Compensating leave accumulated in a calendar year which is not used before March 31 of the following year, shall be paid at the rate it was earned., Effecti~ve March 1, 1978, the March 31 date may be extended by agreement at the. local or ministry level." I The -Board reserved its decision on. the preliminary' objection and proceeded.to hear evidence on the merits of the. Grievance. .,,.~ In 'a determination of the merits of the Employer's preliminary objection, there~ can be no doubt that Management haps the exclusive right to schedule overtime. On the evidence, it is clear that from August 16th to .August 20th, 1982, the Grievor's overtime opportunities were agreed to by Harold Johnston. It is also clear that the promise was not kept. there - 8 - Under the provisions of the Collective Agreement, is no specific Article dealing with the assignment or distribution of overtime work. In the instant Grievance, there . is no allegation that-the Collective Agreement has been violated, ~with the possible exception of Article 13. The Union's allega- tion is that an oral understanding was made between the Grievor and his Supervisor that was subsequently not honoured. We are of the opinion that the breach of.an oral agreement is beyond the Board's jurisdiction and hence ~the the matter is inarbitrable - See Re FPE Canada Ltd. and International Union of Electrical Workers, Local 564 (1972) 1 L.A.C. (2d) 306 (Weatherill); .and Re Maison Mere Des Soeurs de la Charite D'Ottawa and Syndicat des Services Hospitaliers : du District D'Ottawa (1973) 3 L.A.C. (2d) 392 (Beatty): In addition, we are unable to find that Article 13 ,~.. .;;.. icable in the instant Grievance. Thee provisions of that is appl Article A,rticle entitled "Overtime" deal with overtime asp defined by 13(2) which is both "authorized" and "performed". While it is true that in the instant Grievance the Board has made the determination on the evidence tha,t overtime was autho~rized in principle by a Management representative, it was in fact not scheduled and clearly no overtime work was performed by the Grievor. Article 13 deals with pay and ~compensating leave for overtime actually worked. . ” -9- In our view, this is not a 1 appl doctrine of promissory estoppe ies. Estoppel is defined situation in which the ..i, in Jowitts Dictionary on English Law, 1959 Edition (relied on in Re United Electrical, Radio and Machine Workers, Local 537 and Canadian General Electric Co. Ltd. (1971) 22 L.A.C. 149 (Johnston) ,where the matter is discussed andthe c'ases are reviewed)as follows at pages 149-150: "The generals rule is that where a man by. his words or conduct willfully or by negligence causes another to believe in the existence of a certain state of things,and induces him to act on that belief, so as to alter his own previous position, the former is precluded from denying -the existence of that state of facts." The doctrine of promissory estoppel has been considered in numerous Awards of the Grievance Settlement ,Board - See Fournier 86/76,; Niak (now Taharally) 108/77; Nichols 199/78 and 14/79;, Macintosh 200/78; Vukoje..l3/75; and Ferguson 35/76. '..-' '~ In the instant matter, then Employer made an ora~l agreement that it would place the Grievor "on hold" for overtime entitlement. The Employer!s position is to~the effect that in spite of any oral agreement (which wasnot admitted) that the Employer was not required pursuant to the Collective Agreement to. schedule.. the Grievor to work overtime. Here, the real basis of the Union's.claim is a promise or oral undertaking which is - 10 - not one embodied in or supported by the Collective Agreement. As Mr. Weatherill stated in his Award in Re FPE Canada Ltd. and International Union of Electrical Workers, Local 564, cited above' at page 309: "If the union's position were correct, any promise acted on by another, could be the basis of a successful claim....The employees' -entitlement to reporting pay falls to be determined by the application of the terms of the collective agreement to the circumstances of the case and there is no doubt that in the instant case there was no entitlement.to reporting pay. Accordingly, the grievance must.be dismissed.' In addition, most Arbitrators adopt the position that there are certain limitations to the application of the doctrine of promissory estoppel. For example, it is ge'nerally recognized that promissory estoppel can only operate as a 'shield" and not as a ."sword". In that sense, 'the doctrine of promissory estoppel cannot be .used to initiate a Grievance, but rather to -~prevent an allegation of contractual breach from being successful. See The City of Toronto (1967),18 L.A.C. 273 (Arthurs); Edwards of Canada, Unity of General Signal of Canada Ltd. (1974), 6 L.A.C. (2d) 137 (Adams); Canadian Industries~ Ltd. (1974), 7 L.A.C..(2d) 110 (Brown); and Carling.Breweries Ltd. (Waterloo 'Division) (1971), 23 L.A.C. 181 (Hinnegan). :: - 11 - Accordingly, we cannot conclude that the doctrine of promissory estoppel is applicable. The Grievor's entitlement to the scheduling of overtime work must be determined by the terminology of the Collective Agreement a'nd in the'absence of any such reference in the Coll6ctive Agreement, there is no such entitlement. This is ~a matter in which the Board has no jurisdiction, and accordingly, this Grievance must be dismissed. DATED at Brantford, Ontario, this 1st day of February, A.D., 1983. R. L. Verity, Q.C., Vice Chaiman 2: 1423 "I concur" (see addendum). S. J. Dunkley, Member / G. A. Peckham. Member ADDENDUM While I must concur with the finding of the vice- Chairman in this grievance,there are two important factors that should be pointed out. The overtime period given the grievor on the week prior to his vacation was e%rned in that week. It was clearly indicated during the hearing that the grievor would not have taken the holiday period if he thought it would deprive him of his .overtime. opportunities while away. He should have been allowed the two overtime opportunities he missed during that week. It was in no way connecte~d to the overtime he worked on the Saturday of the preceeding week. Thus when he was told to go ahead with his plan to use his week's holiday to tske a union course he had every reason to believe any overtime periods in that week would accrue to him on his return to work. Participants in a labour contract. should .exercise good faith during the agreement as well as at the time of bargaining. A.reasonable attitude by the employer in this matter would have resulted in the overtime period having been granted and5.the arduous and expensive grievance pro- cedure avoided, It was an instance where understanding could have been shown without the establishing of a precedent. The grievor is to be congratulated for his per- sistence in this matter.