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HomeMy WebLinkAbout1990-0267.Poapst.90-09-25 - J / " ,'~r OIVTARIO EMPLOYÉS DE LA COURONNE ,4 CROWN EMPLOYEES DEL 'ONTARIO . . . GRIEVANCE COMMISSION DE " 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET W£ST, SUITE 2100, TORONTO, !,NTAFlJO. M5G lZ8 TELEPHONf£ITËUEPHONf£: (416) 325-1388 lBO, RUE DUNDAS OUe-ST, BUREAU 2100, TORONTO (ONTARIO). M5G 128 FACSIMILEITÉL£COPIE : (4HS) 326- /396 267/90 . IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ., Before THE GRIEVANCE SETTLEMENT BOARD BETWEBN OPSEU (Poapst) - I , Grievor .' - and - The Crown in Right of Ontario (Ministry of Revenue) . Employer - and - A. Barrett Vice-Chairperson M. Lyons Member R. Scott Member . FOR THE D. Eady GRIEVOR Counsel Gowl ing,. Strathy & Henderson "~ Barristers & Solicitors FOR THE K. Cribbie EMPLOYER Labour Relations Officer Personnel Services Branch '"' Ministry of Revenue HEARING: August 27, 1990 ... , I .' n - 1 - i In this g!ievance the union argues that the employer is estopped from unilaterally terminating a past practice of paying for 'meal breaks in certain circumstances, contrary to any requirement in the collective agreement that it do so, until the expiration of the current collective agreement. The grievor is one of approximately 20 property assessors to in the Cornwall office of the Ministry. Once a year {and sometimes twice} the property assessors hold "open houses" during Saturday and evening hours to explain newþroperty assessments to the public who come in to enquire or complain. In 1990 the grievor attended five such open houses between February 10th and February 15th. Sinc~ 1984 all property assessors in the Cornwall office have been given a paid one hour meal break during these open houses. Article 17.1.2 of the collective agreement which makes referenèe to meal breaks would not require a paid meal break in these circumstances. We did not hear evidence as to how this practice arose, but it was consistent from 1984 through 1989. In the summer of 1989 an audit on the branch books was done, and the payments were discovered and ordered discontinued. At our hearing the employer led evidence to show that the property assessors were clearly notified that the practice would I t / \~. - 2 - , ,- be discontinued as early as June of 1989. A memorandum dated June 21. 1989, did not refer specifically to open house dinner breaks and on the evidence of the grievor, and in our view, the notice was insufficient to serve as clear notification that the practice would I be discontinued. Similarly, minutes of an employee relations committee meeting dated October 5, 1989, dealing with lunch breaks not being considered overtimecwould also not constitute sufficient notice that the practice in question was to be discontinued. , However, we are satisfied on the evidence that at a staff meeting on November 20, 1989, all employees present were told of the discontinuance of the benefit. The grievor, Mrs. Poapst, was not present at the meeting; she was absent due to illness on that day. It is also undisputed on the evidence that the Regional Assessment Commissioner told the union local president in December 1989 that dinner hours at open houses would no longer be paid. l] scheduled The next open houses were for February 1990, as stated earlier. The first three property assessors who submitted time sheets for the open houses did not claim'a paid dinner break. The remaining 17 or 50, b~ing disgruntled about the change, claimed a paid dinner break, but all but the grievor were persuaded to drop their claim. Another employee relations committee meeting was held on February 15th and the new practice was very clearly spelled out at that meeting. I 1 - 3 - - The grievor claims that she was not aware until after she had worked the open houses tha.t she would not be paid for her - dinner break. If she had known, she would have complained through the union. The union cites the well known cases of Re: Canadian National Railway Co. et al. and Beattv et a1. ( 1981) 128 D.L.R. (3d) 236 lOnt Div. Ct.), and Re: Domq1as Inc. and United Glass and .. Ceramic Workersl Local 203 (1983 ) 9 L.A.C. (3d) 125 in support of the proposition that a long-standing past practice of paying for lunch breaks or sick days, contrary to any requirement in the collective agreement I cannot be unilaterally altered by the employer during the currency of a collective agreement. In our case both employer and union counsel agreed that an estoppel was created here, and that it can be terminated by the 9 . employer if sufficient notice is given. The employer says that "reasonable notice" is all that is réquired, and relies upon comments in the Domqlas case and G.S.B. 105/83 Boyd (Roberts) . In the Domalas case the arbitration board held that a long established past practice of paying employees for lunch breaks on certain shifts could not be discontinued during the currency of the collective agreement, based upon the premise that the union should have an opportunity to attempt to negotiate the benefit into the collective agr·eemen t , not having done so before based upon their l (~ , . .1 ,\ - 4 - understanding that the benefit would continue. At page 132 et seq. the arbitration board held: I "There is a range of responses that such reliance might engender. On the evidence we have held. that in these circumstances, it is reasonable that the representation not be revoked mid-term in the collective agreement. There may well be other circumstances, where on the evidence, a lesser . period would be a reasonable time within which to terminate, the estoppel. The remedy granted in any circumstances ought to be that which, on the facts, the equities would require." In Boyd the board stated: "Finally, with respect to termination of promissory estoppel, we note that varying views have been expressed as to when such an estoppel should terminate. In past cases, this Vice Chairman has adopted the view expressed by Lord Hodson in Ajavi v. Briscoe, (1964J 3 All E~R. 556 (P.C.), that the party against whom promissory estoppel operates ··can resile from his promise [not to enforce his strict contractual rights] on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his original position . . . [and] the promise only becomes final and irrevocable if the promisee cannot resume his position." Other arbitrators apparently have expressed the view that a promissory estoppel does not terminate until the date of termination of the relevant collective agreement. To this Vice-Chairman, this view seems too mechanical and approaches too closely. the forbidden territory of clothing with contractual status promises which are unsupported by consideration. Given the result l.n the present case, however, it is unnecessary for this Board as a whole to apply either viewpoint." While we do not agree with the statement of the Bovd board that "this view seems too mechanical and approaches too . I " , ~ - 5' - closely the forbidden territory of clothing with contractual status promises which are unsupported by consideration", we do agree that in some. circumstances, based on the equities, an estoppel can be terminated during the currency of a collective agreement. We find this is such a case. The situation arises only once a year, or twice at most, and affects a small number of property assessors employed by the Ministry. It is not a Ministry- wide practice, nor does it appear it was ever really discussed between the parties. In addition, no assurances were given that the practice would continue as in the G.S.B. Beauine 0606/86 case relied upon by the union. In Beaulne the board held that the employer was estopped from discontinuing its long-standing practice of providing free lunches for "day-shift employees during the currency of the collective agr~ement. At p. 6 is held: "In the face of a clear long-standing practice which had endured undisturbed through at least three sets of negotiations, and the assured continuance of which had been offered by a top ranking employer official, the employer is estopped from in m~d-contract unilaterally withdrawing from that position." , We distinguiSh the instant case from the Beaulne case on the basis that no assurances of a continuance of the practice were made by top-ranking employer officials. I . '.. "1 tf \ <~ -.6 - In this case the past pra~tice is restricted to very few employees, generally occurs only once a year, and involves a small amount of money, so the detrimental reliance, which is the fundamental consideration upon which an es.toppel is founded, is more notional than real. We find that the notice given by management to the staff . I and union local president in November and December 19891 prior to the February open houses, was reasonable in these circumstances. Accordingly the grievance is dismissed. DATED at Toronto, this 25th- day of September, 1990. t::t~~- ANNE BA ETT, ce-Chai erson . II I DISSENT II (Dissent to follow MICHAEL LYONS, Member Y!f~¥ - I~- ROLY SCOTT, Member , -:-~.