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HomeMy WebLinkAbout1991-1584.Brummell.93-01-04 ONTAI~O EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DE L'ONTARIO GRIEVANCE C~MMISSlON DE · SETTLEMENT REGLEMENT BOARD DES GRIEFS 180, RUE DUNDAS OUEST, ~UREAU 2700, TORONTO (ONTARJOJ. 1584/91 iN T~ ~TTER OF ~ ~IT~TION Un4er T~ CRO~ EHP~ES COL~CTI~ B~AININ~ ACT Before ~ GRI~CE SETT~~ BO~ BE~EN OPSEU (B~mmell) Grievor The Cro~ in Right of Ontario (Minist~ of Health) ~plo~er B~FO~ B. Kir~o~ Vice-Chai~erson J. Car~thers Me. er ~- D. Montrose Me. er FOR THE P. Chapman GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors PO~THE P. Murray ~MPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARINg July 28, 1992 DECISION ON THE F.,HPLOYER'S PRELIMINARY OBJECTION The grievor joined the public service on June 19, 1989, as a maintenance carpenter. The grievor claimed he accepted his position in the public service after representations were made by the Employer to the grievor that his employer and employee pension contributions and his resulting pension credits could be transferred to the Public Service Board without any cost to him. In fact, the transfer cannot be done without the grievor paying approximately $58,000. The Union is asking this Board to order the Employer to pay the required sum to transfer the pension credits to the Public Service Board. Employer's counsel objected to the Board's jurisdiction to determine this matter. Employer's counsel argued that matters of superannuation were within the ~exclusive functions of management and outside the Board's jurisdiction. Union's counsel agreed that this was a matter of superannuation, but argued the Employer's actions aRd representations had estopped the Employer from relying on its management's rights, and therefore the matter was subject to the Board's jurisdiction. The parties agreed that the Board ought to make its determination on this jurisdiction before hearing the merits. The facts as they relate to this preliminary matter are as follows. The grievor had been employed for 12 years and three months by Canadian National Railway ("CN").and held 12 years three months pensionable services under the CN pensionable plan. While the grievor was employed with CN, he won a job competition for the position of maintenance carpenter at the Brockvilte Psychiatric Hospital. He joined the public service on June 19, 1989, as a maintenance carpenter. However, he took a leave of absence from - - Page 3 CN to try out the job, before he terminated his employment with CN. Prior to terminating his employment with CN, the grievor spoke to Shirley~Drummond, the Senior Personnel Clerk at the Ministry, and asked whether he could transfer his pension credits from CN to the Public Service Pension Plan. He asked whether the transfer would be under a reciprocal agreement. The grievor understood that under a reciprocal agreement, ~he .employer and employee contributions in his pension fund could be transferred to a new employer's pension fund without any cost to him, and would allow him to have full pensionable service with a new employer. We are advised by counsel that this is an accurate understanding oX the effect of a reciprocal agreement entered into by two employers over pension credits. Ms. Drummond told the grievor that she was unsure, but she would check. She subsequently advised the grievor before the grievor left his employment with CN that a reciprocal agreement was in place and his credits would be transferred without cost to him. Approximately one year after the grievor left CN, the problem surfaced. At the end of 1990, the Public Service Pension Board sent forms to the grievor and to the Employer permitting the transfer of Credits between Via Rail and the Public Service Pension Board. The grievor showed Ms. Drummond that the name of his previous employer was wrong. Ms. Drummond corrected the forms and returned them to the Public Service Pension Board. The grievor became concerned that there may be a problem with the transferring his pension credits and again asked Ms. Drummond if it was permitted. He was then given a memorandum saying that there was no reciprocal agreement between CN and the Public Service Pension Board. Ms. Drummond agreed to write to the Board and did so in a letter dated February 11, 1991, seeking clarification. On February 11, 1991, the Public Service Pension Page 4 Board sent a letter to the grievor advising him that there was no reciprocal agreement between CN and the Public Service Pension Board, but indicated that under the new Public Service Pension Act the grievor could buy back his credits. The cost of the buy back was calculated at approximately $88,900.00. The grievor's previous employer could transfer the employee contribution of approximately $30,000.00 to the Public Service Board without a reciprocal transfer agreement. In June 1991, when the grievor I learned that it would cost him approximately $58,000.00 to place himself in the same position as he was when he left CN, he filed this grievance. Following the filing of the grievance, the Employer ~ade representations to the Public Service Board appealing the Public Service Board's interpretation. In January 1992, the Public Service Board confirmed to the Employer and grievor that there was no reciprocal agreement in place. ' The Public Service Board proposed an alternative. As the grievor had filed under the previous Public Service Superannuation Act, the Public Service Board recommended that the grievor file under the new Act, which had different transfer provisions. Through a series of letters, the Public Service Board also asked the CN to forward both the employer and employee contributions. This grievance was~originally scheduled for hearing in early 1992. As the parties had not received any response from CN the parties agreed to adjourn the hearing. Both parties continued to maintain contact with the Public Service Pension Board, and press CN to transfer the credits. CN finally responded on July 21, 1992. CN also confirmed that there was no reciprocal transfer agreement and advised the Employer and the grievor that it was not prepared to transfer the employer and employee contributions to the Public Service Board without the reciprocal agreement. CN agreed to only transfer the employee contributions. - - Page 5 The union advised the Board that if the Board was to proceed to hear the merits of the case, the Union would lead evidence to show that the grievor would not have terminated his employment with CN if he had not been able to transfer the pensionable credits without cost to himself. If he had known of any cost to transfer the credits or any other problems he would have looked for employment elsewhere. The grievor was not under any urgency to leave CN, but was planning ahead around possible future changes at CN. The Employer admitted that Ms. Drummond represented to the grievor that there was a reciprocal agreement in place. For the purposes of this preliminary matter, the Employer took the position the board was to assume that the Employer advised the grievor that she would look into the pensions and advise him on the reciprocal agreement. It was the Employer's understanding that the Ministry of Government Services advised Ms. Drummond that there was an agreement. The Employer assumes that the Ministry of Government Services thought that VIA Rail and CN were the same employer. However, if this matter should proceed on its merits, the Employer will disagree as to what precisely was represented, at what time. Employer's counsel also stated that it would lead evidence that the Employer was unaware that the grievor had been employed with CN at the time of winning the competition, and that he terminated his employment with CN on the representations made %0 transfer his pensions credits. Araument Employer's counsel argued that this~ grievance was inarbitrable as superannuation does not fall within the Grievance Settlement Board's statutory jurisdiction. Sections 18 and 19 of the Crown Employee's Collective Bargaining Ac% ("CECBA") limit the Grievance Settlement Board's jurisdiction to only those matters arising from the collective agreement and those matters Page 6 specifically referred to in Article 18(2) of CECBA. Section 18(1)(b) specifically gives management exclusive rights over superannuation and specifically ousts the Grievance Settlement Board's jurisdiction over management's exclusive rights. Employer's counsel argued the board's jurisdiction, is limited to those matters that are rooted in a collective agreement and the Board had no jurisdiction to enforce a verbal agreement. She relied on Fournier and Ministry of Health GSB #86/76 (D.M. Beatty), OPSEU (Changoor) and Crown in Right of Ontario (Ministry of Transportation) GSB #526/82 (R.L. Verity), OPSEU (Maddock) and Crown in Right of Ontario (Ministry of Community and Social Services) GSB #1947/87 (R.J. Delisle), the Nova Scotia Supreme Court Decision of Re Hawker Siddele¥ Canada Inc., Trenton Works Division and United Steelworkers of America, Local 1237 150, D.L.R. (3d) 509, OPSEU (Coubrough/Sinisalo) and the Crown in Right of Ontario (Ministry of Health) GSB #3018/90 (M. Gorsky) and Sim and Bain Crown in Right of Ontario (Ministry of Correctional Services)GSB #1387/86, and 1388/86 (P.M. Draper). Employer's counsel submitted that the 'conclusions that ought to be drawn from the case law were that: (1) The Grievance Settlement Board has no jurisdiction to force an oral promise especially in circumstances where the rights are not embodied in the collective agreement. (2) Estoppel is only applicable when there is a right embodied in the collective agreement. (3) Estoppel is to prevent a Party from relying on the strict contractual rights. (4) Estoppel must apply only to the parties to the collective agreement. Page 7 Employer's counsel argued that there has been no breach of the collective agreement. Employer's counsel also argued that any alleged failure to properly deal with the transfer of the grievor's pension credits to the Public Service Pension Plan was not a disciplinary matter, as alleged by the grievo~ in his grievance, and therefore was outside the collective agreement. Employer's counsel argued that the grievance procedure and the arbitration procedure cannot be used to create rights where none exists under the collective agreement or under CECBA. Similarly damages that~do not specifically relate to an article of the collective agreement are outside of the jurisdiction of the Grievance Settlement Board. She argued this Board has no inherent jurisdiction to do justice, no matter how compelling the case may be. As Article 27 prohibits the Grievance Settlement Board from altering, amending or enlarging the collective agreement, any attempt by this board to make any order relating to pension credits would violate article 27. Employer's counsel further argued, that even if an obligation was shown to exist, because it was made at the time of hiring, it falls outside the collective agreement. There is no jurisdiction to deal with the matter. Therefore, in summary, the Board has no jurisdiction to hear the matter or to apply the issue of estoppel, as the claim for pension credits does arise from the application or interpretation of the collective agreement. Union's counsel admitted that this is a matter of superannuation which is within the exclusive jurisdiction of management under Section 18(1) of CECBA. However, Union's counsel argued that the Grievance Settlement Board has recognized that it does have jurisdiction to enforce matters which are within exclusive management's rights and are outside the provisions of ' the collective agreement where the employer has limited its rights by exercising its discretion. She submitted that if the Union is. able to show that the components of estoppel are met the Employer cannot rely upon its exclusive management's rights as a defence. The Union submitted that the Employer ~ade representations to the grievor that the pension credits would be transferred in full, the grievor detrimentally relied on those representations, terminated his prior employment and became an employee of the Ministry. The Employer was therefore estopped from relying on its management rights and must be ordered to pay the cost of transferring the. credits to the Public Service Board. The Union relied on the cases of OPSEU (Baars, et al) and the Crown in Right of Ontario (Ministry of Culture and Communication) GSB #457/90 (S. Stewart) OPSEU (Hall) Crown in Right of Ontario (Ministry of Correctional Services) GSB #579/90, 580/90 (M. Wafters) OPSEU (Hopkins) The Crown in Right of Ontario (Ministry of Correctional Services) GSB #373/86 (I. Springate) Re Pacific Press Ltd. in Vancouver-New Westminster Newspaper Guild, Local 115 31 L.A.C. (3d) (D.R. Munroe) and Canadian National Railway Company, et al v. Beatty, et al (1981) 4, L.A.C. (3d) 205, and the Divisional Court Re. C.N.R et al. and Beatty et al. (1981) 128, D.L.R. (3d) 236', 8~ C.L.L.C. at p. 12,785; Decision Sections 18 and 19 of CECBA establish the Board's jurisdiction. They state: 18(1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds'and locations of equipment and classification of positions; and Page9 (b) m~rit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the' subject matter of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; '(b) that he has been appraised contrary to the governing standards and principles; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such'matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 19(1} Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of their differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the' matter and its decision is final and binding upon the parties' and the employees covered by the agreement. The relevant portions of Article 27 of the collective agreement state: 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or diiferences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether the matter is arbitrable. Page 10 27.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend, or enlarge any provision of the collective agreement. Section 18(1) of the collective agreement specifically gives the Employer the exclusive function to deal with superannuation and excludes the Board's jurisdiction, when it states "such matters will not be the subject of collective bargaining nor come within the jurisdiction of a Board". Union's counsel agreed that there was no breach of the collective agreement. She argued that the Union was relying upon the application of the collective agreement, which was within the Board's jurisdiction. Union's counsel did not point to the application of any particular article of the collective agreement, but relied on the application of the doctrine of estoppel.. The doctrine of estoppel has been applied to limit management rights and confer the board jurisdiction. Lord Denning's exposition on the doctrine of estoppel in Central London Property Trust Ltd. v. High Trees House Ltd. [1947] 1 K.B. 130 has been the foundation of its application. The quotation that has been used so often to articulate the principles of estoppel is : 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 affect 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 if no such promise or assurance had been made by him, but must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration,, only his word. Lord Denning went on to emphasize that "the doctrine is only applicable in those circumstances (i) where the parties have Page 11 already entered into a definite and contractual relationship..." In the context of management-union relations, the collective agreement creates this contractual basis against which the conduct or representations are applied. The application of the doctrine of estoppel has evolved over recent years. In the earlier decisions, such as the 1977 decision of OPSEU(~ournier), boards frequently did not consider applying the doctrine of estoppel. Boards looked strictly to the rights conferred by the collective agreement. In OPS~.u(Fournier), the grievor asked for and was given permission to be taken off vacation leave and put on bereavement leave when her husband died while she was taking her vacation. When the grievor returned from her leave, the grievor learned, that her absences were considered part of her vacation, as she was not entitled to the leave under the terms of the collective agreement. To meet the criteria of the bereavement leave provisions, the grievor had to "otherwise be at work" which did not encompass being on vacation. The board did not even consider the concept of estoppel. The board held that the board's jurisdiction was circumscribed by the four corners of the agreement. It did not have any jurisdiction to apply an oral agreement between the grievor and her employer, which was contrary to the provisions in the collective agreement. In OPSEU(Changoor), the collective agreement was silent on the right to schedule overtime and therefore the right fell within management's exclusive rights. The board recognized that the employer made an oral promise to the grievor to schedule him two instances of overtime, but did not keep its promise. The board found that the board did not have jurisdiction to enforce an oral agreement which was not supported or embodied in the collective agreement. The grievor's entitlement had to be found within the collective agreement. As a collateral matter, however, that board accepted the limitations on the use of promissory Page 12 estoppel as a defence to an allegation of contractual breach, rather than as a sword to assert a claim. OPSEU(Maddock) followed OPSEU(Changoor) and declined jurisdiction to enforce an agreement the grievor made with her supervisor, when there was no provision in the collective agreement that supported her entitlement. The CN/CP case has been a pivotal point in the approach to the application of estoppel. The CN/CP case is not in variance with the earlier cases in the sense that the entitlement to a right must arise from the collective agreement, but it departs from the earlier cases, as it accepts the use of the doctrine of estoppel to assert a right that arises from the conduct of a party in the application of the collective agreement. In the CN/CP case, the Canadian National Railway Company became a successor employer to Canadian Pacific Limited. The court upheld the application of estoppel by conduct when the arbitrator considered the application of the collective agreement. The preceding employer had paid sick pay benefits to some of its employees without waiting for the three day waiting period to pass as required by the collective agreement. When the successor employer purchased the company, it wished to revert to the strict wording of the collective agreement. Arbitrator Beatty applied the doctrine of estoppel by conduct and held that the employer had represented to the employees that they would not be governed by the strict legal rights as set out in the collective agreement, but by the longstanding practice. The court recognized that the application of collective agreements is squarely within the jurisdiction of arbitrators in labour"disputes. The arbitrator was not interpreting the collective agreement, but making a finding as to its proper application and giving consequential relief. The 'court recognized that the arbitrator was not modifying the collective agreement, but was applying the collective agreement as represented by one party to the other. Page 13 The Nova Scotia Supreme Court considered, but distinguished the CN/CP case in the Hawker Si44ele¥ case. The court held that the arbitrator was limited by the terms of the collective agreement. The court found that the arbitrator erred when he relied on evidence of past practice to support a claim made by the union that was not found in the collective agreement. The court did not accept the use of promissory estoppel in areas where there was no provision in the collective agreement. The court distinguished the CN/CP case from the facts before it, by concluding that in the CN/CP case, there was a provision in the collective agreement that conferred rights, against which promissory estoppel was applied, whereas in the Hawker Si4dele¥ case, the contract was silent on the rights in issue, and there was nothing to which promissory estoppel could apply. The court found that the effect of Lord Denning's exposition on the application of promissory estoppel is that the conduct of one party induces the other to believe that the strict rights under the contract, the collective agreement in that case, will not be enforced. It "only applies in cases where one party is able to point to the relevant collective agreement for an explicit statement of the legal rights which he, she or it alleges have not been enforced." Therefore the court l~m%ted the application of the doctrine of estoppel to situations which flowed from the application of a ter~of the collective agreement. It is now well established that promissory estoppel or estoppel by conduct .have a place in labour matters and can be considered in the interpretation and application of collective agreements. Since CN/CP, the affect of the application of the doctrine of estoppel has been to limit management's rights. Estoppel is used, however, where representations made by the employer flowed from the application of the collective agreement as evidenced by the conduct, promises or actions of a party. Although CN/CP also established that the doctrine of estoppel was applicable to representations made by the parties to the contract, in some cases, the doctrine has since been extended to P~ 14 representations made by the employer to individuals, which representation was then relied upon by the union to its detriment,(OPSEU(Baars)). In some situations, it has been extended further to apply not only between the parties to the collective agreement, but between individuals, ((OPSEU(Hopkins)), (Re Pacific Press)). In OPSEU(Baars), the employer presented guidelines to the union on how it would contract out work, a~ter two earlier grievances for overtime were filed. The union withdrew its grievances, after receiving the guidelines and payment for the grievors. In the grievance decided by the panel chaired by vice- chairperson Stewart, the grievors alleged that the employer violated its overtime provisions by failing to provide overtime work on a rotational basis in accordance with the Local Minutes of Understanding, which was attached to the collective agreement. The union claimed that the employer failed to follow its representations on the earlier guidelines and violated the overtime provisions by contracting out work contrary to the guidelines. The board found that the grievances were properly characterized as contracting out grievances and fell within the employer's exclusive discretion. The board held that those matters falling under s.18(1) of CECBA are within the employer's exclusive rights, unless the Union is able to establish that the doctrine of estoppel should apply so as to restrict the employer in the exercise of its rights. Estoppel applied only to the parties to the contract. The board found that it was significant that the agreement was not a complete ban on contracting out and did not negate the employer's statutory rights. It was consistent with the preservation of statutory powers. This case is similar again to the CN/CP case in that the board had to consider whether the letter of understanding that was attached to the collective agreement was to be followed or was its application modified by the employer when exercising its management rights. Pagel5 In OPSEU(Hopkins), the board extended the application of the doctrine of estoppel to representations made by a party to the contract to an individual, where there was no reliance by the union on the representations of the employer. In this case, the grievor was ill and was approaching the end of his vacation and sick leave credits. The employer advised the grievor that he could resign, go on long term income protection or be transferred into a less stressful position, until the grievor was able to perform his usual position. The collective agreement limited the option to return to a former position six months from the transfer. The grievor chose to accept the less ~tressful position. The grievor made the request to return to his position well after the six months had passed. The board held that the employer had made an open ended offer to the grievor, as to when the grievor could return to his former position and could not now rely on the wording of the collective agreement. This case is again similar to the CN/CP case in that the grievor is able to use the.doctrine of estoppel to limit the employer from relying on the strict wording of the collective agreement in contradiction to the employer's earlier representations. Again the representations flowed from the application of the collective agreement. In Re Pacific Press the issue was whether the grievor was a permanent employee under the terms of the collective agreement. The board accepted the principle that estoppel is aDplied in labour relations matters. As estoppel was considered a relevant principle, the board accepted evidence on alleged representations and made findings on the representations made. The board found that the employer represented to the grievor, who was a temporary employee, that he would become a permanent employee. Based upon the board's determination on the employer's representations, the board found that the employer was estopped from denying the grievor his status as a permanent employee. The case which is most similar to the case before this board is the case of OPSEU(Coubrough/$inisalo) and Ministry Page 16 of Health. Two employees were told at time of hire that their work week was 36.25 hours. There was innocent and not intentional misrepresentation on the part of the employer to hire the employees for other than a 40 hour work week. They were later given a memorandum confirming a 40 hour work week. The collective agreement stipulated that the normal work week was 40 hours. The board held that as the "agreement" made at the time of hire was inconsistent with the collective agreement, it did not bind the employer. After a lengthy review of arbitral jurisprudence, the board declined to apply estoppel, as it found that the representations was not made to one of the parties, nor was the union affected adversely. The board further found that if the representation was one which the employer made that was outside the collective agreement, the board has no jurisdiction to deal with it. Vice-chair Gorsky states at page 19: To the extent that the Grievors may be pursuing their claims based on their having achieved rights outside the collective agreement, we have no jurisdiction with respect to such matters and this would also apply to the claim for estoppel arising out of the alleged representation made at the time of hiring where it does not affect the Union party to the collective agreement. The cases presented by both parties reflect that the boards' jurisdiction over the application of collective agreements using estoppel. Although the Halls case does not go so far as to explain the limitations of the use of estoppel, when the board found that it was within management's exclusive rights to determine the area of search for a job vacancy, the employer's representations to the grievor did in effect, affect the applications of the vacancy provisions. In this case, at the time the representations were made, there was no agreement nor contractual relationship between the grievor and the employer. When the grievor took the position and severed his employment with CN, the basis for the consideration of estoppel crystallized. Upon joining the public service the Page 17 grievor obtained the right to have this~ Board determine whether the issue was arbitrable. Our jurisdiction is determined by sections 18 and 19 of CECBA. Aside from the particular areas set out in sections 18(2) and 19, our jurisdiction arises from the collective agreement. As the'exercise of management functions'and the exercise of the obligations under a collective agreement must together encompass all the rights and obligations of the parties, whenever management acts in a manner that is inconsistent with the collective agreement, or differs from the strict wording of the collective agreement, the employer must either be breaching the collective agreement, applying the collective agreement and thereby placing restrictions on its management rights, or acting within its exclusive management'rights. We have jurisdiction only in the first two cases. In each case of estoppel, the actions, representation, conduct or promises of one party to another, do not reflect the strict wording of the contract governing their relations. In a sense, upon the reliance on these representations by the other party, a separate arrangement is created. However, when that arrangement is considered with the contract that governs the parties, the arrangement modifies the strict wording of the contract, when it is applied. Our jurisdiction arises not from the representations made by the employer which restricts their management rights. Our jurisdiction arises from the contract, the collective agreement. We have jurisdiction when the conduct, representations or promises of the parties affects the application or interpretation of the contract. There is a distinction between representations made by a party which are relied upon by the other, which may create a tortious or even separate contractual basis for a cause of action, and representations which can estop a party from relying on the strict wording of the contract in the application o r interpretation of a contract. While the arrangements, representations and promises may appear to reflect a separate agreement, the affect of the legislation has provided the board jurisdiction only in those cases where that agreement or arrangement flows from the application or interpretation of the collective agreement. The resulting change in the collective agreement from the words contained in the agreement is not a modification of the agreement made by the Board contrary to article 27.16, but is the application of the agreement, which reflects the modification of the agreement made by the parties through their actions. We find that the representation that was made in this case was an an oral promise made to a person who was not an employee at the time, which for the purposes of this preliminary matter is to be taken to have induced that person to leave his job and take a job with the public service. This change was to the employee's detriment. However, the claim that the Union makes is not based upon any violation of the collective agreement,' but is rather an attempt to enforce a representation that falls outside the collective agreement and falls within the exclusive rights of the Employer.. The grievor may have a cause of action, but we unfortunately, we do not have jurisdiction to resolve the issue between these parties. We cannot go beyond the jurisdiction the legislation has provided. We accept that where the criteria for estoppel is established, and the actions, promises or representations flowed from the interpretation or application of the collective agreement, estoppel limits management's rights to the actions or representations made. In this case, the Union agreed that there was no breach of the collective agreement. Although the union argued that it was relying on the application of the collective agreement there was no provision that is the basis of that argument. On the assumptions that we were asked to Page 19 make, we have enormous sympathy with the griever, however, with true regret, we uphold the Employer's preliminary objection and dismiss this grievance. Dated at Toronto, this 4th day of Ja.uary, 1993. B.A. Kirkwood, Vice-Chairperson "I Dissent" (dissent to follow) J. Carruthers, Union Member D. Montrose, Employer Member RE BRUMMELL GSB#1584/91 DISSENT I have read the decision of the majority in this matter and with respect, I must dissent. I am particularly concerned with their comments the Baars (GSB #457/90) and Hall (GSB #579-80/90) decisions, in which this Board had previously dealt wi~h issues of estoppel in cases dealing with management rights under CECBA s. 18(1). In my view, both cases clearly establish that a party can assert an estoppel argument against a management right even where there is no specific collective agreement provision governing the matter in issue. The majority appears to reject this reasoning in their comments on page 18, although they have not clearly explained their reasons for departing from these decisions. In additi~on, I am concerned with their conclusion, also on page ~ that the representation to the grievor was made at a time when he was not an employee. In fact, the evidence clearly showed that Mr. Brummell had already been offered and accepted a j.ob with the Ministry, and had even begun work (although he had not yet terminated his employment with CN) at the time of his conversations with Mrs. Drummond. Given that it was'~bsolutely clear on the evidence that Mr. Brummell was misled by the employer with the effect'that he left his job with CN and is now unable to transfer his pension credits without a cost of more that $50,000, I would have found that there was an estoppel in this case and that as a result the Ministry should have t~o bear the costs of the transfer. A decent pension is one of the main benefits an employee gains from long service with an employer, and Mr. Brummell had been deprived of his pension from CN due to the mistake made by his present employer. It appears to me employer or representative owed prosPective employee a duty of care, I feel this duty of care has been breached. ~hers, Union Member February 7, 1993