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Home My WebLink About1989-0097.Worsley, Daigle & Milgate.89-10-10 ONTA RIO EMPL o YES DE LA COURONNE '"' CROWN EMPLOYEES OE L'ONTARIO · ' ', GRIfiVANCE C,OMMIOSION DE SETTLEMENT REGLEMENT BOARD' DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, oNTARIO. M.SG 1Z8. SUITE2100 TELEPHONE/T~:I..~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M~G IZ8- BUREAU 2100 (416) 598-0688 , *. ' 97/89, 98/89, ,256'/89 IN THE MATTER OF AN ARBITRATION .- · · Under THE CROWN E~iPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OkBEU~ (Worsley/Daigle/Milgate) " Grievor - and - The Crown'in Right of Ontario (Liquor Control of Board) Employer Before: ' ' .P. Knopf Vice-Chairperson · . .. M. Vorster Member ,' G. Milley Member For the Grievor: E. Mitchell Counsel K'oskle & Minsky Barristers & Solicitors J. Miles' President Ontario Liquor Board Employees Union For the Employer: R. Little Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing: July 28, 1989 DECISION This case involves three grievors and the Union's dispute with the Employer over the calculation of their accumulated, seniority. ~All three Grievors are classified as "casual staff". The p.arties agree that under the collective agreement, 'the seniority of casual employees is calculated on the basis of' "hours. worked", Deing~ hours actually worked. Article 32.5 reads: ~" For~the purpose:of.Article 32.4, 32.7' and 21.5(D), the seniority of .a casual employee shall be calculaLted· from his first day of work of his most recent date of h£re on the basis of total hours worked, ~ut no seniority shall accumulate in any calendar year in which a casual works less than 400 hours. A seniority list of the casual employees assigned to work unit or department shall be posted twice .al year. However, these grie'vors have Dean workinG at the Durham warehouse facility. In late 1987, a seniority list for the warehouse was postad creditin9 thes~. three grievors with hours accumulated while off work On a Workers' Compensation claim. The next seni6rity list published for the warehouse did not include, these workers' Compensation hours and the Employer takes' ~]%a~ position that the grievors' seniority rights 'should'~only b'e determined in accordance with the collective agreemen['.'"'.The Union says the Employer is estopped from relyi~g~.upon the collective agreement and that the grievors' seniority accumulated under the Durham Warehouse practice now cannot De ~taken away from them. There is no real dispute over the relevant facts. The collective agreement applies province-wide to five warehouses, 650 stores, and several head office units. The Durham warehouse opeaed in 1985. It has a permanent staff of about 150 employees and a casual staff of approximately 24. The seniority accumulated by the casuals is of great significance ~to them because it affects their layoff and recall rights, their entrance to the permanent work force and - their preference for job assi§nments. In 'the past, the Union '-did: hOC directly get seniority 1isCs .l~repa're~ by ~he -Employer. The" Un[on'received these t'nro~9~ 'me local stewards. The understandin9 of the: Union President, Don Miles,-was ~at since [985, the Durham-warehouse was c'rediting Workers' Compensation time..o~f .towards the seniority of casuals. Mr. Miles got. this-impression through workers from the' shop· f. loor and thlrOugh an"unnamed management person who said that the placement of one pe:son on the s~niority list would nOt alter while he was absent on a 'Workers' Compensation claim.. However, no one in manaQement ever directly .said tha~ the warehouse was crediCing Workers' ~ Compensation absences Cowards seniority until the issuance of a senioriCy list oa ~ovember 30, 1987 which clearly credits .alll three gri~vors with "earned hours" Jccumulated while absent on' a WCB claim. ' ' But early in 1988,. the Employer and [he Union me: for "purposes· of clarifying p~omotion procedures. This involved the-fixing of senior~ti; lists ia the various ·locations throughout the Province. The Office of the Director of Human Resources Administration began generating seniority lists for all the locations and giving them to the Union to check for 'discrepancies. The uncontradicted evidence of Bill MacDowell, General Mamager of the Durham war:=.house, is that all decisiOns involvin9 seniority rights ~hereafter were made on'the basis of :~e list generated from the Director's office. This new list did not credi~ amy of the ~rievo~s with any hours accumulated on Workers' Compensation leave. However, the Union was never formally notified that the Employer had changed its position wi th regarJ ~o the senlority of the Durham casuals. But this change in position significantlf affected ~he three grievors. The seniority list posted in December of 1988 only credited hours actually worked. All three 9rievors have had significant absences due to Workers' Compensation injuries. Prior to December of i988, Mr. Worsley had been listed' as second on the seniority list. However, he was called in to see the Shipping Manager at that time and was told 'that the warehouse's "practice" had changed and that he w0ul-d now be 26th on the list. Similarly, in January of ~'989, Ms. Daigle not'iced she was not on the recall list at 'the'same level as other employees who had been hired with her. She was told that this was because the Employer was now "going by. tn~ contract" and. only crediting hours worked for seniority. Ms.. Milgate's recall in early 1989 was also adversely affected because she was not credited with luer time off.on a WCB injury.. :' "'This whole issue was addressed by the parties in their~Dargaining, for the 1989-1990 contract. In October of 1988,.~ the Union p~esented a proposal to the Employer to. the effect that time off on Workers' Compensation absences and maternity leave for 'casual employees should be credited 'towards seniority. This right already existed for the permanent staff. 'But the Employer would not agree to the proposal for casuals. The negotiations resulted in a new collective agreement with a term running from January 1, 1989 to December 31, 1990 and with the wording of Article 32.5 as · ci'ted ;~Dove remaining in tact. -.'' Counsel for the Union argued that the evidence ". established that a practice existed at tae Durham warehouse whereby Workers' Compensation time was counted for seniority throughout the 1987 and the 1988 collective agre-~ment. Thus, "it"was said that the practice should prevail on the basis of 'an estoppel created by t~e Employer. It was argued that because management unilaterally composed and posted the . seniority list, established the practice and then advised employees'of the change of the %)ractice, the grounds for estoppel had' been created. Counsel stressed the importance of seniority.~jto_'the'~employees and t~at it affects promotions, recalls, layoffs, and job 'preference. Thus, it was said that there'was a..great deal of reliance Dy the individuals and a Great deal of expectation created when t~he Employer be~an to credit WorKers' Compensation absences for 6asual employees.. It was argu,~d that the es.toppel bound the Employer until the commencement of the 1'98.9-'1990 collective agreement. Thus, we were' asked to make a declaration to ensure that the seniority which could have.accumulated to tne grievors up to December 31, 19a9 De credited to them. In the alternative, it was argued that the practice could be considered to De so · widespread tna~ all the employees at the Durham facility sho~uld he"credited with seniority accumulated during Workers' Compensation absences up to December 31, 1988. Counsel referred' us to the following cases: Re R. HuDer and Co. (Canada) Ltd. (1976), 11 L.A.C. 309 (Shime); Ford Motor Co. of Canada Ltd. (I983),. 13 L.A.C. (3d) 38 (Kennedy); Steinberg. Inc. (1985), 20 L.A.C. (3d) 289 (Foisy); and Toronto Hospitial for the Treatment of Tuberculosis (1~70), 22 L.A.C. 11'9 (Brown). In response, the Employer aruued that the doctrine of estoppel should not De applied here. The Board was raminded that the concept of s~=niority deals with competin~ rights between employees. It was said t_hat the Employer's actions should not De allowed to De used to allow some employees to assert ri~hts ov-=r o~hers. In the alternative, it was said that even if estoppel could De applieJ here, it is not an appropriate cas~ because the evidence does not establish a long-standln9 and consistent practice which is necessary for the application of the doctrine. It was ar.~ued that if the evidence of t_~is case formed the foundation for an estoppel, it would mean that every variation created by a local administration over a province-wide agreement could create an estoepel. ~his would undermine collective bargaining. Further, it was said that there was no evidence of i'.: detrimental reliance by the Union, only by the individual · Grievors. On the issue of remedy, it was arGue~ that the only r~.medy which should De considered would be one which · would De l~mited to these three 9rievors because the : Grievance was not filed as a policy grievance. The Board was ': referred tO the following cases: Treasury Board (Post Office :Department) and Provencher (1978) 20 L.A.C. (2d) 440; 3 Me croDoli tan '~oronto Association for the Mentall~ Retarded (1983), 9 L.A.C. (3d) 58 (LanGille); R. Hube$ Co. (Canada) .. Ltd. (.1977), 14 L.A.C. (2d) 231 (Weatherill); Consolidated-Bathurst Inc~ Bathurst Division (1985), 19 L.A.C. (3d) 231 (Kuttner); M_or~ica Walker and Ministry of the Solicitor Gene.ra__~l, GSB File 635/85, decision dated June .. 30, 1987; Metropolitan Toronto Civic~Em_Rlo_~e__es Union, Local 43 Canadian Union of Public Emplo_yees and Municisali_ty~q~ Metropolitan £oronto et al. (1985), 50 O.R. (2d) 618; and ~ Maritime Teleqr_a~h & Telephone Co. Ltd. (1983), 12 L.A.C. -~ (3d) 90 (Outhouse). The Decision · The Union's case is based entir.~ly on the doctrine of ~ estoppel. The Union concedes that ~he rights it is claiming for these three Grievors do not exist under the collective agreement. Instead, the Union asserts that the practice of :' t~e Employer is such that, havin9 conferred a b~neflt upon ': these grievors, it cannot now take those seniority benefits : away. However, there is grave d~fficulty in applying the doctrine of estoppel by practice to the case at hand. First of- all, seniority rights involve relative claims between employees to privileges available on the basis of defined length of service. But the concept of estoppel : ! 'app-lies. between the two parties to the collective aqremeent, beinG .the Union and t~e Employer. The ability o~ an Employer' to' confer' rights upon one group of employees, to the detriment of another Group of employees, simply Dy conduct or practice has been seriously questioned by r Mr. Weatherill 1~1 Re ~{uber Co., su~, at pa§e 233, whera he wrote; Se'niority rights, however, while asserted in grievances against an employer, necessarily involce '.' th~ assertion of superior rights to those of other '~ employees. It is difficult to see how an issue decided on Grounds of estoppel as between two employees can be said to create a res ~udicata affecting the interests of others. '-"The Company cannot, we think, be held to have given the ~rievor rights not contemplated by the collective agreement, to the detriment of other employees. In essence, t~e Huber case seems to question the propriety of -using a doctrine of fairness such as estoppel between the parties in order to adversely affect the individual rights of employe_~s which have vested' under the language of collective agreement. With that in mind, it is also helpful to review the t~orough analysis of the arbitral jurisprudence in the Consolidated _Ba_thurst case, supra at page 241 regarding doctrine of estoppel and its application to labour rela~ions~' From this extensive body of jurisprudence can De drawn several baslc propositions. First the doctrine can only properly apply where there is in existence some contractual or other legal relationship. ?hat a collective bargaining r~la~lonship, even absent a collective agreement, can fulfil that requirement cannot now Oe disputed. Secondly, the words or conduct from which I t is said that the estoppel springs must be clear and unamoiGuous if the inference is to be drawn that legal relations were intended to be affected. A Gloss on this doctrine has been accepted by many arbitrators, namely, tNat silence or acquiescence can in some circumstances fulfil the requirement of clear and unambiguous conduct: see Re Consolidated- Bathurst _Pac_k_aGi_n~ Lt__d., [(19~2), 6 L.A.C. (3d) 30 (MacDowell)] at p. 40, as well as the Ci_t_~_o__f Penticton case [(1978), 18 L.A.C. (2d) 307]. Finally, it is said that to found an estoppel there must be detrimental reliancce. T~e entire principle is infused with that spirit of justice, equity and fair play which lies at the heart of our legal system. But the doctrine is only to De applied where appropriate and it has been said that it "is not something which an arbitrator should seize upon to justify the imposition of an individualized, . intuitive and ill-defined brand of justice": Re Pacific Forest Products Ltd. [(1983), 14 L.A.C. (3-~) 151 (Munroe)], at page 1611 Such misuse risks deDasin~ those verf principles of justice, equity and fair play which the doctrine has been fashioned to buttress. In particular, at page 244 of the same case, Arbitrator Kuttner reviews the use of estoppel based on past practice: ... to found an estoppel on past practice it is necessary to establish the existence of a long-standing and consistent practice in circumstances comparable to that in which it is alleged the estoppel arises. In CN/CP Telecommunications, [1981] 4 L.A.C. (3d) 205],a practice of some-~0 years' standing was said to give rise to an estoppel; in Re Pacific Forest Products, su~r_~a, one of 21 years' standing was said to give rise to an estoppel; in the City of Toronto case, [1967] 18 L.A.C. 273] the practice was of some 17 years' standing. In addition, in t~ose cases where past practice has been successfully emplofed to found an estoppel, it has been one consistent, clear and unambiguous and comparable to the very circumstances at issue. We must now apply these principles to the facts at hand. Taking t~e Union's evidence at its best, it can establish that at one location in the Province, the ~mployer was willing to recognize seniority in a way that varies from the collective agreement and which wor~s to the benefit of these three Grievors. Again, taken at its ~>est, the Union's evidence could suggest that this began as early as 1985. But that evidence does not withstand the test of reliability that we must impose to found a case for estoppel. The evidence of the practice from 1985 to 1987 is based upon the Union · President's belief 'as~ to how seniority was being applied and upon the belief of some of the grievors. But it is not based upon any direct representation made by management and not upon any evidence of actual decisions taken by management on that undersanding. 'the evidence does clearly shows a seniority list published' in November of 1987 that varies from the collective agreement. But there is no evidence that this list was used by management to decide all seniority-based decisions such as promotion or recall. While some of the Union witnesses believed this to be so, and we do not.doubt the honesty of their belief, the evidence was simply insufficient to prove the proposition. For a claim of estoppel to succeed on the basis of past practice, the onus is on the Union to persuade us that there has been a "long-standing consistent practice". On the evidence before us we cannot conclude the practice of recognizing WCB absences for seniority was long-standing at the Durham warehouse. We are only certain as of 1987 and only for a few months. Nor was it proven to be consistent at that location and/or consistent with the multitude of other locations in the province. Finally, as stated above, we need to be shown some element of detrimental reliance in order to apply the doctrine of estoppel. It is not sufficient that the individual grievors will be ha~med if the doctrine is not recognized or that they relied upon it themselves. See Monica Walker and Ministry of the Solicitor General, s_.u_pr~a. We must De shown that the Union relied to its detriment in its dealinqs with the Employer because it was le~ to believe that the Employer would not revert to the strict provisions of the collective agreement at Durham. However, nothin9 in the Union's evidence suggested that the Union was.led to conduct itself in any such way or that it felt it did not need to clarify the position. On tt%e contrary, even though the Union said it believed that the Durham warehouse may' be recognizing Workers' Compensation' absences, the evidence shows that the Union was aware that the position at Durham may not create any enforceable rights. This is clearly shown by the evidence that the Union negotiators ta~)leJ a proposal in October of 1988 which sought to have seniority of casuals accrue during Workers' Compensation absences. The tabling of the proposal is essentially a recognition that the r~Ghts were not there previously. Thus, the evidence does not suggest any' detrimental reliance by the Union. Finally, what we essentially have he£e ss a province-wide operation where a seniotity list was issued in one location which incorrectly credited Workers' Compensation absences towards seniority. There is no evidence that the Union relied o~ this mistake o~ practice in any of its dealings with the Employer. There is not sufficient evidence to e.sLablish that the Employer applied this local practice over a long period of time or that'it applied it consistently. If we were to apply the doctrine and hold the Employer to its mistake, seniority positions calculated on the basis of the collective agreement for the rest of the local union would De significantly affected. Estoppel is a doctrine of fairness, Ir'is a discretionary principle. cannot De applied here, Given the fact of no Union detrimental reliance and insufficient evidence of consistent practice. But even if we a~e wronG about that, it would not be appropriate on the facts of this case to allow three employees ~o ~enefit from the Employer's mistake at the expense of the other employees who have accumulated seniority in accordance with the parties' mutual understanding of the collective agreement. To do otherwise would De to in~ite employers to try to establish preferential treatment to favourite employees through a course of conduct and thus divide the bargaining unit. Therefore,. for ali these reasons, we cannot allow r, he gr].evance t:O succeed.' DA'rED at: Toronr-o On~;ario ~;hi.s 10th da~ o~ Ocg0ber,. ' '~. "' ', P. KnoBf - VSce-Cfi~Person ,...~ _ .. G. Milley - Member