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HomeMy WebLinkAbout1993-1304.Filice.95-07-10 ~ I -" ONTARIO EMPLOYES DE LA COURONNE - t~ CROWN EMPLOYEES DE L'ONTARIO . . ... GRIEVANCE COMMISSION DE %~. ~~ 1111 SETTLEMENT REGLEMENT ~~ '. . BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 118 TELEPHONE/TELEPHONE (416) 326-1388 , . ,UJ(J..RUEJ)),I~~QWk.fj,J,JJl~.,2100, TORONTO (ON) M5G 118 FACSIMILE/TELECOPIE (416) 326-1396 RECEIVED GSB'"#) 1304/93 JUL 1 11995 OPSEU # 93F525 PUbu\..1 ~r::HVICE '-. APPEAL BOARDS IN THE MATTER OF AN ARBITRATION ~ Unde~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT -...., :~"t- Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Filice) I ~ Grievor, ~ and - The Crown (in Right of bntario (Ministry of c?rrectional services) Employer BEFORE S. stewart Vice-Chairperson ) A. Ryder FOR THE GRIEVOR Counsel Ryder, Wright, Blair ~ Doyle Barristers & Solicitors FOR THE G. Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctiona~ services HEARING May 11, 1995 \. .,,, , ~ DECISION , h. '( ~ I 'Mr. M. Filice has filed a grievance dated July '5,\ 1993 1 J arising out of the fact that he was riot placed ih~ a positiori' as a classifie<;l ~orr~c1;.ional offiqe~ after winning a competition at ( , f' Mimic~ Correctio~al centr~. -~he'competition Whicp\was won by Mr. ~ , Filice was urti~at~ly ca~celled anq it ~s the ~ositidh of the - Union that the cancellation of the competition was an - :: c . . '; ~T' . .. - ~ unreasonable 'ex~rcrse of 'managerial discretion: , .~-~.... - ~ , -t The Uriion ~lso ~:dyahced ~I1 eS1;:oppel ,ar'gument:, submitting ~ _I that Mr. ~fiice r.ea$on~~ly relie<;l ori his success in the - " ': .~, 'I. . '.' - competition in not 'applying 'for other permanent positions. Mr. . Filice is no longer employed ,by the Ministry of Correctional services :oy virtue of the fact that his last contract was not renewed. I~' is the position of the Union that Mr. Filice's "-{';- --r ultimate unemployment results from a detrimentai reliance on a representation?oy th~ Employer. ,-' ., Mr. Filiceftestified that after applying to work as a -, ~ '. , correctional officer with the Ministry Of Correctional Services he attended an orientation session, the focus of which. was a career in the correctional services. He testified that he was 0 .. intereste~ in pursuing ~ career in correctiona'I services and commended his employment as an unclassified officer on contract \ with the understanding that the rOute to a permanent career would be to ~pply for and obtain a permanent position Mr Filice applied for a permanent position after seeing a posting dated -..------- '" 2 I \ \ August 31, 1992 The posting indicates that there were twenty- four positions available at Mimico Th~ two intro4uctory , \," ' , , ,.. paragraphs of )th.e Icq}l1pet;itton notice stat.e as follows;,! ..... -,' or.l The -Mimico Correctional COn\plex requires ma'ture, responsiQle ind~viduals who can f~nction e~fecti~ely in a structdred: discipliried setting, to perfor~ ~ Ju~.1 range of duties related to th~ correctional care, control and supervision of inmates on an assigned shift, in either the Correctional qentr~ 0:: the Detention c7ntre, (,currently unde:: construction w~th an ,expect"ed,. m~d-Novemper 1992 qpert~ng). f-:- _ :.... '!,...... _ ... Successful candidates identified through this' competition may not have starting dates established until tpe actual opening date p{the Qetention Centre has been determined starting dates ~ay al$o be stagg,ered" t9 a~comm.odate statf training and orientation. Initial assignmehts may be, to either the Correctional Centre or the Detention , . " ' '. . ,. , . ' .,. ) Centre. J . , _,;,..1 - ~r. B. T~qmpsQn, deputy s~p~rintendent at Mimico; wa~ acting , \ ~ deputy superintendent ~~ the t~me Of the grievanc~. He was invo~ved in establi~~~ng the compet~tion to staff the new t .;.,.. __ detention centre. Mr. Thompson testified that interviews for the positions were conducted by teams of interviewers. He testified th~t prio~ to the inte~views it ~as ag~eEad among the interviewers \-. 1-' that they,would spegifically advise applicants of the tentative __ - t to, qr condition~l ~ature of the positions in that the qonstruction 1 - of the detention cent~e had not been completed and'~unding of the - positions) y!oulg,))ot be provided uptil the building was completed I and turned over to the Mi~istry of Correctional Services However, Mr. Thompson_wa~ ~nable to say whether Mr. ~ilice was ~ actually proviged with tpip information when he was interviewed. - \ ~ , 3 . Mr. Filice's ev~dence indicated that he was not As 'would be expected, it was anticipated at the time of the posting that the building wou:td -be completed and money for the positions would be made available as ,a matter of course \1 " -d J . , .- I Following" the c<;>mpetition, Mr Thompson issued letters to ~ the successful' applicants, including Mr. Filice. The relevant text of the lette~ to Mr. Filice dated~ -December 15, 1992 states - as follows:.,.;: I ?lm pleased t.o .advise you that you have been selected as a successful candidate. Your appointment to the position is conditional upon funding being received for ad~itional staffing complement and confirmatiqn of the official Deten'tiori Ce;ntr~ opening. When further 1nformation is received by th~s office, a formal letter of' ~ppointn(eht'. wili be sent to you confirming the actuql startr~g' date. ~ M~. Fi~~ce 'te~tified that upon receipt of the letter of - -, December '15, 1992 he made "'periodic inquiries to persons at Mimico Detention Centre to ~etermine when he would be starting in his new position. He testified that in December he was advised that - it was antiqipated that the detention centre would be open in .../ mid-Janu~ry. In January he was advised that the opening of the detention centre would be postponed for about a month due to building delays Mr. Filice made subsequent inquirie~ and was told about further building de'lays and Iproblems with materials Mr. Filice ultimately received a letter dated June 10, 1993 from Mr. I Leithead, Superintendent of Mimico, the text of which states as foliows '\ ...- " 4 ( Reference is made to the above noted competition and Mr. B. Thompson's letter of December 15, 1992 regardin,g the position of general duty officer at the Mimico Correctional Complex unfortunately, I must. advise that this competition h_as been cancelled. r Tlle decision to proceed -with recruitment for these positions in November, 1992 was ba~ed on projected staffing leve~s for the opening of the new detention centre in early 1993. We have s~bsequently experienced delays in ob~aining approved complement and associated funding, as weIr as as a series of lengthy, unexpected construction ael~ys. ~ More recently, staffing approvals have also been reduced ~ par~of the Ministry's Expenditure Control Plan. e These factors prejudice the competition and prevent us from proceeding with planned appointments. It is therefore nec~ssary to bring clo.sure to this process and end the ongoing uncertaint.y being experienced by the participants. Once these outstanding issues are resolved, and a firm date can be es.tablished f.or the opening of the detention centre, a pewco~petition w.ill be posted. shouid you wish to be considered for dne 0": these positions, it will be necessary for you to re-applyto this new posting. \ . Should you h~ve any further quest.lons or concerns regarding this decision, you are invited to attend an information se~$ionscheduled tor June 17, 1993 at 1330 hours, in the Administration building at the Mimico Correctional Complex. Should you wish to attend, contact the Superintendent's secretary at #(416)314-9604 to confirm your attendance Alternatiye,ly, if you, would I 1 prefer to obtain information from either Ms. S. Albert, Deputy Superintendent, or myself, please 'qq not hesitate to call. , Your patience in this matter is very much appreciated. - Mr. Filice testif ieci tl1at he did not attend the informati,on' meeting referred to in this le~ter and thus was not aware of what information was' conveyed ther~. Mr. Thompson gave evidence regarding the difficulties in the ~ .( I I I -.. - ~ ,- 5 construction of the detention centre He testified' that int~e spring of 1993 the building had still not been completed The Ministry was faced with a need to reduce expenditures and it was determined that one of the ways that those reductions would be achieved was that funding would be withdrawn for the staffing of -' the detention centre Mr. Thompson was not directiy involved in the discussions when the decision was made. He testi~ied, however, that he was aware that the decision was made in consultation with representatives of the OPSEU local at Mimico. "- Mr. Thompson acknowledged that the Employer was aware that the building would ultimately require staffing but stated that it was unclear when the building would be open and whether it would be opened completely. I ) - Mr. Filice 1;estified that he, had ~pplied for another ( correctional officer positio'riat Maplehurst, however, he did not pursue this application after December 15, 1992 because he anticipated that he would be commencing work at Mimico in. a classified position in the near future. Mr. Filice became aware of additional promotional opportunities between December 15, 1992 and June 10, 1993, however he did not apply for them for the same reason that he did not pursue the position at Maplehurst Mr ) I Filice acknowledged that no one in management told him not to ) apply for oth~r positions. He also acknowledged that when he received the letter notifying him that he was a successful applicant he was aware that his appointment was conditional on " ~ 6 the building opening and funding being received ; { Work on t~e detention centre continued and it was eventually ! completed. Funding for ~hirteen correctional officer positions was given formal approval. A letter dated August 12~ 1993 from Ms M Capobian<;::o, Regional Personnel Administrator, advised Mr Filice, along with the other twenty-four persons who had successfully competed in the earli~r competition, that there would be thlrteen positions available at ~imico. Mr. Filice applied again. He ~estified that at the commencement of the ./ interview the applicants were advised that in fact only six positions would be available. Mr Filice was not one of the \ successful applicants for the available positions. Mr Fili,ce testified that he became depressed and discouraged about the i possibility of, a career with the Ministry of Corrections. He ,- tes~ified that he sought med~cql attention for depression. He experienced difficulties with his attendance and there was some suggesti<;m in his evidence that this was the reason that his contract was not renewed. I I, The provision of the Collective Agreement governing the posting and filling o.f new posit~o~s is Article 4. There was no -~ allegation of breach of this provision and the Union did not take , issue with the right, in general, of t~e Employer to cancel a competiti,on. \ \ v \ ;;,.> ~ 7 '- I will deal first with the issue of estoppel. Estoppel is -. .....' an equitable doctrine and its essence is expressed in the - decision of Lord Denning in Combe y. Combe, [1951] ~ All E R 767 at p. 770 as follows:\ . .. where \ one party has, by his words.or conduct, made to the other a promise or q.!?surance which was int"ended to affect the legal +elations between them and to be acted on ac;;:<;::ordingly,then, once the other party .has taken him at Q~s word and ,J acted on it, the one, who gave the promise or{ assurance cannot afterwards.; be alloweq to revert to the previous legal relations as if no such promise or assurance had been made by him, but he 'must accept their legal rel<;ltions';sul;>ject to the qualification which he himself had so introduced, even though it is not ~upporteq ~n - ~ point of law by any consideration, but only by -.; his word,. In -this instance the "promise or assurance" relied on by th~ Union in support of theexistence"of an estoppel was not made to a party to the contract, ie, the Union, put r~ther to an individual employee As Mr. Ryder point~,d out, -in Re Pacific Press and Vancouver-New. Westminster Newspaper Guild (1987 ) 37 L.A.C. (3d), 411 (,Munroe), an estoppel WCiS foupe! to exist I notwithstanding the fact that the repres.;entation in issue Vias '\ made to an individual rather than to the bargaining agent. In MinistrV of ~orrectional Services and OPSEU (Hopkins,) , 373/86 (Springate),. reference is made to represent:ations to the grievor in the ,context of determining whether an estoppel was established However, al union represent~tive w~s also involved. In Re Metr,o Toronto civic Employees.' Union. Local 43, Canadian Driion of PUblic Emplovees and Municipalitv of Metropoli~an Toronto et aI. (1985), 50 0 R (2d) 618, Mr Justice Reid , -- ~- - -, -----~ " ~ 8 concludes that a representation by an employer to an individual ~ covered by a collective agreement, as opposed to the bargaining agent, does not form the basis for an estoppel. At p 628 Mr Justice Reid states: ... the doctrine of promissory estoppel has been applied only on the basis of the conduct of one party to the contract to another party. Employees represented by a union are bound by but ~re not themselves parties to a collective ,agreement. If representations to employees leads a union to forgo an opportunity to attempt to negotiate the substance of the 'negotiations into the agree~ent the doc'trine could apply. Even if I were to accept that the lack of any representation to \ I the bargaining agent is not a barr~er to the operation of the doctrine of estoppel in this case I agree with Ms. Basanta's sUbmission that there must be a reasonable link between t~e detrimental reTiance and the assurance relied upon. In this case the assurance relied upon was an appointment to a full-time I I position which, in the letter of December 15, 199~, is clearly ( described as conditional on tpe opening of the institution and Obtaining funding. \ As Mr. Ryder emphasized, the evidence did not ~ establish that Mr. Filice was advised of the conditional nature of the positions prior to this time. However, no kind of f assurance to Mr. Filice that could conce'ivably lead to detrimental reliance on his part can be said to exist prior to him/being offered the position It is only upon being advised I I that he was one of the successful applicants that any kind of concrete basis for a change of Mr Filice's position could I \ I possibly be justified However, when rir Filice was notified . '- .. \ w ~ - 9 that he was a successful applicant he was clearly advis~d that the appointment was conditional We are unable to accept the Union's position that the Employer ought properly to bear the responsibility of Mr Filice's failure to apply for other positions and his ultimate cessation: of employment by virtue of the fact that his f'inalcontract was not 'renewed-. The link betwe~n a conditional offer and these events is simply too tenuous to be viable. while" ,~as Mr Rydere~phasized, the J condition Cff.obtain;ing .funding for at least, some of the positions was ultimately 'fulfilled and the detention centre twas ultim~tely opened, this does not establish a ~ore viable ~e~ationship between the conditional offe~ provided and .Mr. F.ilice's reliance on it. -. I turn now to the issue of whether the E11Iployer's decision to cancel the competition is properly characterized as ~ unreasonable The Grievance Settlement Board has accepted that there is an obligation on the pa~t'ofthe Empl.oyej:- to ~x~rcise its rights under the Collective Agreement in a ,good faith manner, an Obligation e!11bodying, in certain resPects, an obligation to act reasonably In Bosquet, 541/90 (Corsky) , th~ EJtlployer's Obligations in instances such as these are dealt w~th ~n a detailed analysis At p. 58 of Bosquet it jsnoted that: " . . many words have been used to describe the possible ways of breaching fairness Obligations that may be imposed on an employer'~n ,administering rights granted under a collective agreement arbitrary, discriminatory, j unfair, bad faith ,__ unreasonable - '- .:> ~ 10 At P 59 of the decision reference is made to Schiralian, 914/86; ( (Roberts) where it is stated that "Reasonableness in this context is a species of good faith". At pp. 59-61 the decis~on in Bosquet goes on to state as follows In commenting on the use of the term "unreasonable" in some 'earlier decisions of the Board dealing with the good faith exercise of the statutory right to "release" a' probationary employee, the Board stateq, in Shaw, at p. 5-6: While this term (unreasonable) is utilized in the earlier decisions we do not take lit t~ mean that we can review the merits of the employee's job performance ,and ,reinstate him if we find that assessment was "unreasonable" that the employee had not met the jOb requirements. Reasonableness in this context iSJa species of good 'faith Whereas the phrase '''bad faith" could encompass a release improperly motivated or maliciously intended, "unrei;isonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If, for example, there was simply no evidence that a propationary employee had not fulfilled or could not fulfil the job '--- requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable exercise of authority - The Board in Shaw also deait with the fairness requirement that there be a rational relatio~ship between the facts and the release (at p.6) This factor was found to be "nearly synonymous with 'reasonableness'. " In holding that (ibid ). the employer's "'assessment that a certain set of facts justifies release is 'irrational' on any half- int~iligent view of the matter." the Board cautioned (ibid) that the rational relationship test should not be placed too high, as It is, ,easy to brand as "irrational" any r thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely .pecause a board of arbitration might have come to a different decision. ) ~ '; / '~ G ~ .:J. . 11 - That is, the test of good faith, in this context ig~ot o~e 6~ 'c6r~ectness In Bosquet the BO'ard was dealing with a statutory exclusive function of management However, in Ministry of GOvernment "- Services & OPSEU (McIntosh) 3027/92 (DissayaIike) the Board accepted ~hat the foregoing principles expressed in Bosquet were , applicable to decisions made "by the Employer in, relation to \ "- applications by unclassified employees for permanent positions ,/ "':;"'~' ! Mr. Ryder e~phasized in his submissions that I heard no ~ evidence from anyone iri,~: management who was directly involved in the d~cision to cancel the competition'., In his submission the I Employer has not met the onus of justifying its decision to - cancel the competition and I ought therefore to conclude that there has been an unreasonable exercise of managerial aecision making. There are many instances in which the failure of the decision maker to give evidence will compel a conclusion, that managerial discretion has not been exercised reasonably However, the Union bears the initial onus in cases such as this. In the circumstances of this case I am unable to conclude that the Union has established a ~rima facie case. The objective facts with respect to the delays in construction and reductions "- in expenditures were not in dispute While, as Mr Ryder emphasized, the Employer might well have taken approaches other ) than the cancellation of the competition, the mere existence of :.;:., I.. .,!' I 12 ( i these possibilities does not establish a prima facie case of unreasonableness. While Mr Filice's circumstances are I I am unc~bJ,e to conc,lude that there i's any basis upon unfortunate, which his grievance can be sustai1)ed. The grievance ,is therefore dismissed. ", Dated at Toronto, this 10th day of J~ly, 1995. ) -, I ",-,t- .~~ / . S..L. $tewart - Vice-Chairperson / ) j -' ) i ~