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HomeMy WebLinkAbout1986-0373.Hopkins.88-05-17File No. 373/B6 IN TBE BATTER OF AN ARBITRATION Under : TEE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLERENT B&D BETWEEN: OPSEU (J. EOPKINS~), Grievor, BEFORE: TRE CROWN IN RIGHT OF ONTARIO (RINISTRY OF CORRECTIONAL SERVICES), Employer. I. C. Springate - Vice-Chairman I. Thomson - Member P. Camp - Member FOR TEE GRIEVOR: R. Wells Counsel Gowliiig 6 Henderson Barristers and Solicitors FOR'THE EBPLOYER: C. C. White Counsel Ricks, Harley, Bamilton, Stewart, Storie Barristers and Solicitors HEARING: September 25, 1987 , Prior to the events giving.rise to these proceedings the grievor was employe~d as a correctional officer 2 at the Guelph Correction&l- Centre. Ai a result ,of a stress-related illness.,, he accepted a transfer to the lessor’ paid position of security~ officer. The parties disagree as to whether he was entitled to return to the _,, ~.~ _ ~, correctional officer 2 position once medically fit to do so. ‘_ The applicable provisions’of the collective agreement: Iprovide as follows: 4.1 4.3 5.6 When a~ vacancy occurs in the Classified Service for a bargaining unit position or a new classified position. is created. in:the bargaining unit., tit shall be advertised for at least ten.~-(10) working days prior to the established closing date when advertised ~wit.hin .,a ministry, .or it shall be adver.tised for at least fifteen (15) working days prior to the established closing date when advertised service-wide. All applications will .be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. .~ In filling a vacancyi~the Employer shall give primary~ consideration to qualifications and ability to perform the ,required duties. Where qualifications and ability are relatively equal, length of-continuous service shall be a’ consideration. ‘~ . ) .’ Where, for reasons of health, an employee.is assigned-to a position in a classification having a lower maximum salary, he shall not receive any salary progression or salary decrease for a period of six (6)‘months after. his. assignment, and‘if at the end of that’ I I - 2 - I _. period, he is unable to accept employment in his’ former classification, he shall be assigned to a classification consistent with his condition. 42.2.1 (a) The Long Term Income Protection benefit is sixty-six and ttio-thirds percent (66-Z/3%) of the employee’s gross salary at the date of disability, including any ~ retroactive salary adjustment to which the employee is entitled. 42.2.3 Long Term Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance ciedits on a day-to-day basis after the six (6) month period. I 42.2.4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform any~and every duty of his normal occupation during the qualification period; and during the first twenty-four (24) months of benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by ‘education, training or experience. 42.10 (a) When an employee who has been receiving or was eligible to receive L.T.I.P. benefits is able to return to full-time employment, the provisions of Article 24 (Job Security) , with the exception of sub-section 24.3.1, shall apply. The grievor became ill in November 1982. He was away from work ,from that time until May 1983; During this period he continued to receive. his full salary as a correctional officer 2 by drawing on his accumulated sick leave and vacation credits. During his absence from work, -.j- the grievor had,discussions with Mr. T. Ii. Watson, the ,deputy superintendent of the Guelph Correctional Centre, concerning what his options would be once he had used up his vacation and sick leave credits. The grievor testified that Mr. Watson advised him that he could resign,..go on long term income protection or move into a less stressful position. Initially no mention was made of the possibility of the grievor,becoming a.security officer.. Rather,’ Mr. Watson indicated that he.could return to active employment as a correctional officer and then, when.a.~vacancy arose, apply for a position in the laundry or as anadmissjon and discharges clerk. ~When the ‘grievor.~neared the point where his sick leave and vacation,credits would be exhausted,~ Mr. Watson .advised him that he could transfer into the security .officer position. It is clear that. during~this, and, subsequent .discussions ,relating to what thg’grjevorls status would be if he accepted the security officer position, no reference was ~made to Article 5.06 of the collecti,ve agreement. The the time he was not aware of, the . He stated ,that he, knew that if he grievor testified- that at ~provisions o.f,.Article 5.6 accepted the security off icer:-positi,on his salary as a correctional’officer Z-would be con!inund, but only,for six months. He was not asked how he knew of.the six-month limit. Mr.~ Watson, however, was asked by union counsel if his “deal” with the grievor was that if’the grievor returned to work as - * - a security officer he would be “red-circled” ,for six months. MC. Watson replied in the affirmative. From this evidence we are led to infer that Hr. Watson likely advised the grievor that if he chose to become a security officer. he would continue to receive his former salasy, but only for a si~x-month period. Mr. Watson also advised the grievor that if he accepted the security officer position and later brought in an acceptable medical certificate indicating Ithat he was fit to return to his former position, he~would again be classified as a correctional officer 2. Mr. ‘Watson testified that he believed he had mentioned that this would only remain the case for six months. we are satisfied, hpweve’r, that Hr. Watson never mentioned a six-month limit. We: base this conclusion on several factors. One is the gr’ievor’s evidence which indicates that at the relevant time he knew of no six-month limit. There is also the evidence of Mr, Ron Barber, referred to in more detail below, whi%h indicates that while Mr. Watson discussed the grievor’s’ possible return with him he made no reference to a six-month .time limit.’ Finally, there is a note which’Mr. Watson made “to file”, with a copy to the grievor, on Nay 30, 1983. This note summarized a meeting which Mr. Watgr?n had with the grievor on May 27, 1983. It was during this meeting tha’t the grievor was given a final chance to choose between ac’cepting the . - 5 - . security officer position or going on long term income protection. Mar. Watson’s note read as follows: / . _( NOTE TO FILE On May 27th at 1545 hours I met with Mr. Hopkins in my office. ’ Mr. S. Richards’on was also present. Then purpose of the meeting was why Mr. Hopkins had not supplied us with a letter stating he would accept the Security Officer 1 position.’ Mr . . Hopkins .stated he was ordered into work by the “girl in the office” and on advice from the union he was not giving us a letter. I asked’ Mr. Hopkins which option he was taking - he stated LTIP. He says he came back to work as he ‘needed the .’ money. - or.. Hopkins asked what would it take for him to return to work full status as a. C.O. I told him he would require a medical stating the problem’no longer exists and thenwe would deal with it at that time. Mr. Hopkins advised his doctor would give him a medical for whatever he tells her.’ or. Hopkins also-stated no one told him what the Security Officer,position was. Nr;~ Richardson was advised to give Hr. Hopkins a copy.of the Position Specification and salary Mr. Hopkins was ordered to submit a statement that he was accepting the Security Officer 1,position as out’lined in Mr. Thomas’s letter of April 25th. The letter w&s to be on’Nr. Watson’s desk by 9.00 a.m. Wednesday and if not I would’assume he was not exercising .that option and not returninq to work. He could .then exer~cise the opti’on of ,qoing onto LTIP. .: , - ” - In his note Mr. Watson made reference to hisdiscussion with the grievor about returning to the correctional officer position. He made no reference, however, to.a six-month time limit having been discussed. Mr. I Watson’s note refers to a letter relating to the security officer position which was sent by Hr. Thomas to the grievor on April 25, 1983. That letter was not placed in evidence. The grievor testified that he decided to accept the security officer position ,.as opposed to applying for benefits under the long term income protection plan, because he felt he would be better to be at work, rather than at home, till he was ready to resume his position as a correctional officer 2. The grievor further testified that had he known that acceptance of the security officer position ! would mean that he would subsequently have to compete for a correctional officer 2 position, he would hav:e applied for benefits under the income protection plan. According to the grievor, if he had opted to receive benefits under the plan, he could have returned to active employment within two years with a guarantee of a correctional officer 2 ‘position. The collective agreement provides for no such guarantee. What it does provide is that if an employee on long term income protection returns to full-time ?moloyment, h:e will be treated in the same way as an employee who had been declared surplus. The two-year cutoff period which the grievor was presumably referring to relates to how one assesses total - 7 - disability: For the’first two years, a person’who is unable .’ to perform his normal occupation-is entit1ed~‘t.d receipt of benefits. After two years, however, he must be unable’to perform any gainful occupati’on~ for which’ he ‘is reas’dnably fitted. Notwithstanding the grievor’s misunderstanding of , . this aspect of the iong term’income protection plan, it is clear that the plan would have provided certain benefits to the grievor; including the receipt of income without having to report for work. As indicated above, one of the witnesses at the hearing was Hr. Ron Barber,.the president of the Union’s Local 233. In 1983, Mr.‘Barber was the chief bunion steward at the Guelph Correctional Centre. Mr. Barber testified that the grievor came to him to discuss several concerns relating to the~security officer position, including his opportunities to revert back to the correctional officer 2 position. According to Mr. Barber, he spoke to Hr. Watson aboutthese matters, and Mr. Watson assured him.that the grievor could “come back” once he provided a note from.his doctor indicating that he was able to perform the dutie.s of a correctional officer 2. Mr. Barber testified that he was aware of the provisions of Article 5.6, but from Mr. Watson’s comments concludeb that the six-month time, li’mit woul’d not apply to the grievor. ‘Mr. ‘Barber advised the grievor he had nothing to worry about, and when he felt ready to return as a correctional.officer 2 he should go ,anh see his doctor. Mr. -0- Barber testified that he subsequently discussed the grievor’s situation with Hr. Watson on two additional occasions. On both occasions Mr. Watson, without mentioning a time limit, indicated that the grievor could return as a’correctional officer 2 once he brought in an acceptable note from his doctor. Mr. Watson testified that he had no.recollection of discussing the grievor’s situation with Mr. Barber, but acknowledged that it was possible he had done so since he had discussed a number of employees with Mr. Barber. In the . circumstances, we accept Mr. Barber’s evidence concerning his discussions with Mr. Watson. Mr. Watson left the Guelph Correctional Centre in October 1983 and, accordingly, was not at the institution when the events described;below occurred. The six-month period provided for under Article 5.6 ended on November 15, 1983. Early in Deiember 1983, Mr. Z. J. Anthony, the Ministry’s Regional Personnel Administrator for the Southwest region, became aware of this I fact. Guelph is actually outside the Ministry’s Southwest region, but for internal Ministry reasons Mr. Anthony had taken responsibility for personnel matters in Guelph. Mr. Anthony testified that on becoming aware of the fact that’the six-month period had already passed, he decided to provide the grievor with “a final,chance” TV provide a medical certificate which would enable him to return to the correctional officer 2 position. Accordingly, on December 6, 1983, Mr. Anthony forwarded the g’rievor a letter which read as follows: Further to Mr. Thomas’ letter to you of May 24, 1983 this will serve to note that your reassignment for health reasons to the position of Security Officer ‘l’a,nd subsequent red-circling salary protection for~a six-month period -‘was completed .on *November 15, 1983 and.it is now necessary to remove the salary protection provision. Therefore, effective November 15, 19.83 your salary will be $9.07 per hour, the maximum salary of, Security Officer 1 classification. Should ‘you wish to return to the position of Correctional Officer, it-will be necessary for you to provide us with further current medical information; Failing receipt of, further medical information, your classification will remain-as Security Officer l,and,at the above-me? tioned salary. Shoul,d you wish ‘to discuss the please contact my officer Psic Superintendent. foregoing, I, through your Mr, Anthony testified that his i’ntent had’been to give the grievor a- week or two in which to file a-medical certi.ficate. Unfortunately, however, h<s letter did not-indicate that this was his intent. -x The grievor testifi.ed that as far as he was concerned, Mr. Anthony’s letter confirmed’-his view that he could return to the correctional office? 2 pdsiti’on as soon as he was in a position to Stippli; i medical note indicating that he was able ~to do’ so.’ While that was not what Mr. Anthony intended, given’the prcor events and the wording of ’ the letter, we are satisfied that-the-letter failed~to put - I” - the grievor on reasonable notice that his right to automatically return to.the correctional officer 2 position was about to expire. In January 1986, the grievor submitted a medical note to the employer indicating that he was fit to return to the position of correctional officer 2. By letter dated January 21, 1986., Mr. T.A. BOltOn, the Deputy Superintendent of the Guelph Correctional Centre, advised the grievor that since he had been reclassified, he would havejto apply for a correctional officer’s position when a vacancjr was posted. The g’rievor applied for an existing correctional officer 2 vacancy, but was unsuccessful. On March 21, 1986, he filed a ‘grievance challenging his non-selection.for the vacancy. In his grievance he also contended that he had been advised by the employer that he would be returned to then correctional officer 2 position as soon as h.e provided a medical certificate indicating that he was fit to do so. At hearing, the parties agreed that the Board should in deal only with this aspect of the grievance. : the it ia 1lY The employer relies on the wording of Article 5.6 of the collective agreement. Pursuant to this article, the grievor was entitled to retain hi: former salary and to automatically return to the correctional officer 2 position only for a period of six months. After that, his classification as a security officer would become his regular . . classification. ‘In the normal course, return to the correctional officer 2 position tibuld depend.on whether he was successful’ in obtaining such a’ po’siti’on under&the’ job : ,’ posting procedures of the collective,agreeme’nt; The ‘union, ., .: I however, contends.that the employer is estopped from applying .’ .? the six-month limitbecause of what the grievor was told when he accepted the security officer position. . The doctrine of estdppel is. one which arbitrators, including this Board;’ ha&-applied when ~. interpreting, the rights of part-ies under a collective agreement. The essence of the doctrine -was set out by Denning L.J. in Combe v. Combe,~[1951 1 1’All E.R. 767 at p. 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 affe.ct 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 i.f no such promise or assurance had been made by him, but he’ must accept thei,r .-legal relations ’ subject to the qualification which he himself has so introduc.ed, even t$ough it is no,t supported in point of law by any .consideration, but only. by his word.. ._ The issue of what constitutes a promise or’assurance which is intended to affect the legal relations of the parties to a collective agreement was discussed in some detail in’ Re - _ - - 12 - Atc,mic Energy of Canada Ltd. and Atomic Energy Labour - Alliance (1986), 22 L.A.C. (3d) 225 (Swan). Ln that case, it - was concluded that there had been no such intent. In reaching this conclusion, however, the arbitrator referred with approval to an article by Professor M. A. Hickling entitled “Labouring with Promissory Estoppel: A Well-Worked Doctrine Working Well?“, 17 U.B.C. Law Rev. 183 ~(1983). In a section entitled “The’Requirements and Limits’ of Promissory Estoppel” Professor Hickling commented as fol’lows: Fourthiy, one of the crucial elements: of estopped is that 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 lIegal rights. In the instant case, the evidence: falls short of establishing that the employer gave an expres,s assurance to the union or the grievor that it would not enforce the six-month time 1,imit during which the grievor, could automatically return to the correctional offi’cer 2 position. The grievor and Mr. Barber, however, understood Mr. Watson to be making an open-ended offer in this regard. Mr. Watson was not silent on the issue of time limits. He i~ndicated to the grievor that he would continue to receive the salary of a correctional officer 2 only for six months. Given the reference to a time limit with respect to thi’s point, but not with respect to when the grievor could return to his previous position once able to do SO, we believe it was reasonable for the grievor and the union to believe that no such time limit would apply. The grievor acted on his understanding of Mr. Watson’s comments. Having.led the grievor and the union’into reasonably believing that no time limit would apply, the employer is now estopped from applying the six-month limit to the grievor. The employer takes the position that any offer Mr. Watson may have made to the grievor ,relating to his return to the correctional officer 2 position has lapsed by the passage of time. This argument cannot succeed. The grievor was required to elect whethe.r or not to accept the security officer position or go on long term income protection. The.passage of time has not undone the results of that decision. Accordingly, we view the empl,oyer’s conduct as still being a relevant consideration in assessing the grievor’s current status. The grievance succeeds to the extent that we .have found that the grievor had a right to return to the correctional officer 2 position when medically fit to do so. The employer is to assess the grievor’s fitness to return to that position, including.assessina the medical note ~provided by him, in accordance with its general practice in such matters. If, in accordance with this assessment, the grievor is judged fit to perform the work of the posi~tion, he is to - I* - be reinstated as a correctional officer 2. We will remain seized of this matter with respect to the implementation of this award and any compensation which may be payable to the grievor. DATED at Mississauga cbis 17rn daf 0f hay, 19&d. -amp - Member \