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HomeMy WebLinkAbout1994-0151.DALEY96_10_24 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (41") 326-13g(j GSB # 151/94 OPSEU # 94A561 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Daley) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional services) Employer BEFORE 0 Gray Vice-Chairperson M O'Toole Member S Urbain Member FOR THE D Wright GRIEVOR Counsel Ryder, wright, Blair & Doyle Barristers & Solicitors FOR THE J Benedict EMPLOYER James F Benedict Dispute Resolution Services Inc HEARING January 9, 1995 June l3, 2l, 1995 October 3, 1995 February 6, 13, 14, 1996 i l Decision The grIevor, Mark Daley, was first appomted to the unclassIfied servIce for a fixed term as a correctIOnal officer m May 1990 He was re-appomted from time to time thereafter HIS last appomtment was for the perIOd July 1 to De- cember 31, 1993 Throughout hIS employment he worked at the Metro Toronto East Detention Centre ("MTEDC") On or about October 14, 1993, the grIevor and another unclassIfied correc- tIOnal officer at MTEDC, Sebastian Gallagher, were mJured m an automobIle ac cIdent. As a result of theIr mJurIes, they were both unavaIlable for work through out the period from October 14 to December 31, 1993, when theIr eXIstmg ap pomtments expIred. The grIevor and Mr Gallagher both receIved letters dated January 24, 1994 from DIane Doherty, then Supermtendent of MTEDC, adVIsmg them that they would not be re-appomted. The body of each letter read as follows. Our records mmcate that you have not been avaIlable to attend work smce October 15 1993 as a result of your mvolvement in a car accIdent, Durmg a meetmg wIth Mr K. CowIe, Deputy Supermtendent shortly after your accIdent, you expressed concerns regardmg your status as an unclassI fied employee who would not be avaIlable for duty for an mdefmIte penod of tune. You were advIsed by Mr Cowie that for the short term thIS would not present a problem. Gwen that your current contract expired on December 31, 1993 and you con tmue to be unavailable for duty, I must mform you that you will not be of fered a new contract. Please arrange to return all mmIstry Issued Items (i.e. clothmg, Identllica tIon card, parkmg card, standmg orders etc,) to Mr L, Jeffers Secunty Manager, as soon as possible. I would hke to take thIS opportumty to wIsh you well m any future endeav ours, Thereafter, the grIevor and Mr Gallagher both filed grievances, allegmg that theIr employment had been wrongfully termmated contrary to ArtIcle A of the partIes' collective agreement. SectIOn A.l 1 of that artIcle proVIdes that. There shall be no mscrunmatIOn practIsed by reason of race, ancestry, place of ongm, colour, ethmc ongm, cItIzenshIp, creed, sex, sexual onentatIOn, - 2 age mantal status, family status, or handIcap, as defmed m sectIOn 10(1) of the Ontano Human RIghts Code (OHRC) The grIevor and Mr Gallagher both alleged that the decIsIOn not to re-appomt them constItuted dISCrImmatIOn on the basIs of handIcap In addItIOn, the grIevor alleged that the decIsIOn was prompted by hIS havmg spoken out at about that time at a press conference of the CommIsSIOn on SystemIC RacIsm m the OntarIo Crlmmal Justice System, where he had saId that he had been subject to ongomg, unchecked racIal dISCrImmatIOn m hIS employment as a correctional of- ficer Initially, the partIes agreed that thIS gnevance be heard together WIth Mr Gallagher's. Both gnevances came before us for hearmg on January 9, 1995 The employer's representative InitIally sought to raIse a prelImmary ObjectIOn to our JunsdICtIOn, but ultimately agreed to deal WIth the matter of JunsdICtIOn m closmg argument. The hearmg that day was adjourned after Union counsel had made hIS openmg statement, to gIve the employer's representatIve the opportu nIty to mvestIgate partIculars Union counsel had gIven of mCldents of racIally motIvated treatment allegedly expenenced by the gnevor dunng the course of hIS employment. Thereafter, the partIes agreed to have thIS board hear the two grIevances separately In February 1996, before the Union had closed ItS case m chIef, the partIes settled that portIOn of thIS gnevance whIch rested on allegatIOns of dlscnmma- tIon on the baSIS of race, and those allegatIOns were WIthdrawn. The hearmg con- tmued WIth respect to the allegatIon that the employer had dlscnmmated agamst the gnevor on the baSIS of handIcap contrary to ArtIcle A. The Evidence The employer produced from ItS records copIes of 10 documents eVIdencmg the gnevor's employment for the perIOd from May 28 1990 on. All but one of these documents IS a standard form entitled "Appomtment to UnclaSSIfied Serv Ice," whIch the parties refer to as a "contract." It sets out the appomtee's name and address and other personal data, the effective date and expIry date of the appomtment and the nature of the employment. There IS a space for the em- ployee's SIgnature beSIde the words "I accept the above terms and conditIOns." Below that IS a block whIch mcl udes spaces for SIgnatures of a 3 - "Dlrector/Supermtendent/Area Manager" and an "AuthorIzed Personnel Admm- Istrator" Only 5 of these 9 documents was sIgned by the gnevor A date appears besIde the gnevor's sIgnature on 3 of those 5 one IS a date 9 days after the con tract's effectIve date, another 23 days afterwards and a thIrd 6 days afterwards. The grievor testIfied that those would have been the dates when those docu- ments were presented to hIm for signature, and that It was not uncommon for hIm to go for lengthy perIOds of tIme - up to a year - wIthout bemg presented wIth a contract for sIgnature There IS no "contract" for the perIod AprIl 1 to June 3, 1991 There IS, however, an "UnclassIfied Staff Request" form requestmg approval of an "extensIon of workmg hours" to 40 per week for the perIOd March 4 to June 3, 1991, to back-fill for a classIfied correctIOnal officer on secondment to ProbatIOn and Parole There IS no prOVISIOn on that form for the employee's signature It bears the supermtendent's SIgnature certlfymg that funds are avaIlable, the Re- gIOnal Personnel AdmIIDstrator's SIgnature supportmg the request and the Re- gIOnal DIrector's SIgnature approvmg It. The gnevor testIfied that he was mvolved m an earlIer motor vehIcle aCCI- dent on May 29, 1992, and was unavaIlable for work from that tIme untIl Sep- tember 10, 1992, when he returned to lIght dutIes. One of the gnevor's contracts had an expIry date of June 30, 1992 There was then a contract for the penod July 1 to September 30, 1992 sIgned by the supermtendent but not by the gnevor That and all subsequent contracts described the grlevor's prevIOUS em- ployment WIth the MIIDStry as "May 28, 1990 to present." There IS no contract document for the perIOd October 1 to December 31, 1992 The last two of the contracts m tIme (covermg the penods January 1 to June 30, 1993 and July 1 to December 31, 1993), both SIgned by the grlevor, con tamed this note PLEASE UNDERSTAND THAT RENEWAL IS NOT GUARANTEED AND IS DEPENDENT UPON YOUR WORK PERFORMANCE AND/OR THE IN STITUTION'S STAFFING REQUIREMENTS AT THE TIME The gnevor testIfied m cross-exammatIOn that he probably receIved copIes of these last two contracts He saId he read the note about renewal at the tIme, but stated that It was "no mdlcatIOn m my mmd of anythmg " - 4 - As a result of the automobIle accIdent on October 14, 1993, the grIevor suffered soft tissue mJUrIes to hIS neck and back and laceratIOns and other mJu rIes to hIS knee He was hospItalIzed overmght. He saId he could not walk for about two weeks thereafter wIthout a "faIr amount of dIscomfort." He receIved extensIve physIOtherapy after the aCCIdent. He testIfied that he would not have been able to return to work until late sprmg or early summer of 1994 It appears he had no prognOSIS WIth a defimte return date until March 1994 The grIevor testified that despIte hIS mJurIes, he attended at the work place on October 15, 1993 to delIver a note he had obtamed that day from hIS famIly phYSICIan. The note mdlcated that he had been mvolved m a motor vehI- cle aCCIdent and was unable to work untIl further notIce, due to multiple soft tis sue mjurIes. The grlevor stated that he delivered thIs note to Kevm Cowie, the Deputy Supermtendent at MTEDC, and met WIth hIm for about 15 mmutes He testIfied that Mr COWIe "more or less baSIcally saId" that there would be no problem WIth hIS employment as long as he supplIed medIcal certIficates and kept hIm abreast of thmgs. The grIevor stated that after the meetmg WIth Mr COWIe on October 15, 1993, he telephoned the InstitutIOn every 2 or 3 days, even though he had not been asked to do so He testified that each time he called he asked for Mr COWIe, and that he spoke to Mr Cowie on several of those occasIOns On others, he saId, he spoke to Mr COWIe's secretary or, occaSIOnally, to a shIft supervIsor He saId that m each call he described hIS condItIOn, relayed whatever hIS doctor had saId and mdlcated that he dId not yet have a return date In cross-exammatIOn It was put to hIm that Mr COWIe would testify that these calls had not taken place The grIevor mamtamed that they had. At the time of these events, MIke McKmnon was the Vice-PresIdent of the local umon whIch represents employees at MTEDC He testified after the grIevor dId He saId the grIevor contacted hIm by telephone shortly after the aCCIdent and told hIm that he had spoken WIth Mr COWIe He stated that he advIsed the grIevor to keep notes of hIS conversatIOns WIth management thereafter He also testified that dUrIng a meetmg he had WIth Mr COWIe after the grIevor's aCCI dent had become common knowledge, Mr COWIe mentioned that he had had a telephone call from the grIevor and remarked that It was not made from a car 5 phone Mr McKmnon belIeved that thIS conversatIOn occurred after the gnevor had told hIm about hIS havIng spoken wIth Mr CowIe Mr COWIe testIfied that he first became aware of the gnevor's accIdent from a teleVISIOn news report. A conversatIOn at work the followmg day con- firmed that the gnevor and Mr Gallagher had been Involved m that accIdent. Mr CowIe stated that the gnevor telephoned hIm at work a couple of days later In thIs telephone conversatIOn the gnevor asked Mr CowIe whether he knew about hIS accIdent, told him a bIt about hIS InJunes and saId the dIagnosIs was not finalIzed. Mr CowIe testIfied that he asked the gnevor to keep hIm posted on what hIs condItIOn was, and the grlevor agreed to do so The conversatIOn lasted less than 5 mmutes. Mr CowIe testIfied that he had no conversatIOns wIth the grIevor after that. He also testIfied that he dId not receIve the doctor's note of Oc- tober 15, 1993, nor another note the gnevor claImed to have delIvered later m October 1993 Counsel for the umon expressed concern about thIS latter eVI- dence, observmg that the gnevor's earlIer testImony that he had delIvered these notes to Mr CowIe had gone unchallenged m cross-exammatIOn. He objected that there had been a VIOlatIOn of the rule In Browne v Dunn (1893), 6 R. 67 (H.L.), and asked that we Ignore Mr COWIe's contradIctory eVIdence on thIS pomt, leavmg the gnevor's testImony uncontradIcted We ruled that m the Clr cumstances of thIS case, the umon's opportumty to recall the gnevor m reply adequately redressed the employer's faIlure durmg hIS cross-eXamInatIOn to gIve the grIevor notIce of the mtentIOn to lead contradIctory eVIdence and an opportu- mty to explam or otherwIse address the allegatIOns. Durmg cross-exammatIOn umon counsel drew Mr COWIe's attentIOn to the Supermtendent's letter of January 24, 1994, whIch was marked as copIed to hIm and referred to hIs haVIng had a "meetmg" WIth the gnevor He stated that he dId not recall a meetmg WIth the gnevor and thought he would recall one If It had occurred. He saId he had not raIsed WIth the Supenntendent any concern about the accuracy of her letter, In whIch she stated that there had been a meetmg He dId not recall the gnevor expreSSIng concern about hIS employment status. He agreed that m hIS one telephone conversatIOn WIth the gnevor he had saId somethmg to the effect suggested In the SuperIntendent's letter- that for the short term the gnevor's unavaIlabIlIty would not be a problem. - 6 Mr CowIe testified that m October 1993 there were between 45 and 53 unclassIfied correctIOnal officers at MTEDC Some time m the late fall of 1993 there were meetings at whIch some unclaSSIfied correctIOnal officers complamed that there were not enough hours of work for them all. He saId he and Mr DeFranco, another member of management, met to dISCUSS how many un classIfied officers were needed, and later made a recommendatIOn to the Super- mtendent that they dId not need all those they had. In the conversatIOn wIth the Supermtendent two contracts were dIscussed, mcludmg the grievor's Mr CowIe stated that as the gnevor had not worked smce October and the remammg un- classIfied officers were still not gettmg enough work, he told the Supermtendent that they dId not need to renew the contract wIth the gnevor to fulfill the mstItu- tIon's operatIOnal needs. He belIeved that thIS conversatIOn occurred at a meet- mg m the first week of January 1994 Although he dId not know the date or time, he was sure It was m that week. He was pressed m cross-exammatIOn on whether that meetmg, or some meetmg about renewals, would have occurred m December 1993 He stated that he thought the Supermtendent would have wanted to deal WIth It m December, but the reVIew process was still "fledglmg" at that pomt and he dId not thmk that the renewal of contracts, the contracts of the gnevor and Mr Gallagher as well as the contracts of others, was addressed before the meetmg m the first week of January 1994 Diane Doherty was Supermtendent at MTEDC from August 1990 untIl some time after the letter to the gnevor of January 24, 1994 She testified that she was the one who made the deCISIOn not to renew the gnevor's appomtment that expIred on December 31, 1993 She stated that she had made that deCISIOn around the time the letter was sent. Ms Doherty stated that a commIttee chaIred by Mr COWIe was estab- lIshed to reView the mstItutIOn's needs for contract correctIOnal officers Her goal was to have the committee's recommendations before It came time to renew con- tracts, and that contracts would be SIgned before the employee's next sluft after hIS pnor contract expIred She saId that m the past, contracts had blended mto one another WIthout any assessment of the mstItutIOn's needs. She stated that the note that renewal was not guaranteed was added to the contracts both to satisfy the reqUIrements of the Employment Standards Act and to adVIse staff that at the end of a contract penod there would be an assessment of mstItutIOnal 7 needs and of the performance of each correctIOnal officer She testified that by the end of December 1993 the mstItutIOn's needs were less than they had been earher, and she had heard complamts from unclassIfied officers that they dId not have enough work. In her exammatIOn-m-chIef, Ms Doherty stated that she deCIded not to renew the grIevor's contract because he was not needed and was not avaIlable The grIevor had not come to her, she saId. She knew that they (the grIevor and Mr Gallagher) had been m an aCCIdent. She saId she had assumed that they had found other work and were not mterested. Mr CowIe had told her there had only been one call from the grIevor There had been no other contact wIth semor staff concermng mterest m contmumg the employer-employee relatIOnshIp The grIevor had preVIously partIcIpated m a modIfied work program. He knew such programs were avaIlable both to those receIvmg Workers' CompensatIOn benefits and those wIth non-work-related mJUrIes. He had not apphed for such a program. She assumed that he was not mterested Just because the grIevor's contract was not renewed, she saId, dId not mean that he could not apply for another contract m the future once he had recovered. In cross-exammatIOn, umon counsel put It to Ms. Doherty that she had made the decIsIOn not to renew at the end of December 1993 She denied thIS, saymg that she had been m Fort Lauderdale on a 10 day vacatIOn at the end of December, and could not have made the decIsIon then. She acknowledged that she would have left for FlorIda knowmg that the contracts of unclaSSIfied officers, mcludmg the grIevor's and Mr Gallagher's, were expIrmg at the end of Decem- ber She dId not thmk she sIgned any contracts for unclaSSIfied officers before the end of December She beheved she reviewed the contracts and sIgned contracts for other unclaSSIfied officers when she returned from vacatIOn "after ChrIstmas" - that IS, m early January 1994 At that point she sIgned contracts for all but Daley and Gallagher, to whom she says she gave "a couple of weeks grace" as she did not know what to thmk because they had not contacted her She went on to suggest that the employment status of unclaSSIfied officers would somehow have contmued after December 31st untIl the meetmg at whIch she sIgned new con- tracts m early January 1994 Union counsel suggested to Ms Doherty that she had not sIgned contracts for Messrs Daley and Gallagher when other contracts were sIgned because they 8 were not avaIlable and had not mdlcated an mterest. Her reply was that they were "AWOL," essentIally She saId the deCISIOn not to renew Mr Daley's con tract was no dIfferent from the decIsIOn about Mr Gallagher- they were both m the same sort of sItuatIOn and she had not had any contact from eIther of them. She was cross-exammed about the testImony she had given before thIS panel 3112 weeks earher m connectIOn wIth Mr Gallagher's grIevance She saId she could not remember what she had then saId about havmg made a deCISIOn m Decem- ber not to renew at that tIme but to gIve them a grace penod She saId she could not remember whether the sIgmng of contracts for other unclaSSIfied officers was m late December or early January The employer's representatIve stated that It dId not take the pOSItion that It creates hardshIp to keep someone on the hst of unclaSSIfied employees who IS not bemg called to work. Argument Umon counsel observed that the Issues here are IdentIcal to those m Mr Gallagher's grIevance (GSB FIle 0152/94), whIch had been argued before thIS panel 8 days earher He submItted that we should accept the grIevor's eVIdence where It conflIcted wIth that of Mr CowIe, suggestmg that Mr CowIe's recollec tIon was flawed and that the events m questIOn would have seemed more sIgmfi- cant to the grIevor than to Mr CowIe at the tIme they occurred. He acknowl- edged that Ms. Doherty's testImony m these proceedmgs had been mconcluslve on the timmg of the decIsIOn not to renew the grlevor's contract when other con tracts were renewed. He asked us to take note of what we had heard from her m the Gallagher hearmg, and to conclude that she had changed her testImony m thIS proceedmg because she has come to apprecIate ItS sIgmficance m the mean- tIme. He invIted us to find that the deCISIOn not to renew the grIevor's appomt- ment was made m December 1993 whIle the gnevor was stIll an employee Ac- cordmgly, he argued, the complamt that the deCISIOn was a breach of ArtIcle A was one over whIch thIS board had JUrISdIctIOn because the alleged dISCrImma tIon occurred whIle the grIevor was stIll an employee PLtLrn, 1685/92, May 3, 1993 (Kaplan) Umon counsel argued m the alternatIve that If the deCISIOn not to renew was made m January 1994, the grIevor was stIll an employee m January 1994, - 9 based on Ms. Doherty's assertIOn that the employee status of unclassIfied officers had contmued beyond December 31, 1993 to whenever she made a deCISIOn about the renewal of theIr contracts He asserted that someone could be an employee for purposes of the collective agreement even though they were not an employee for purposes of the Pubhc Sermce Act In the further alternative, umon counsel argued that If the decIsIOn not to renew was made m January 1994, then there were two addItIOnal bases on wluch thIs board would have JunsdICtIOn to prOVIde a remedy One of these alternate arguments rested on the proposItIOn that an un- claSSIfied employee has two nghts. the rIght to work for a perIOd equal to the length of hIs/her appomtment, and a rIght to be consIdered for renewal when that perIOd of work IS completed It followed, counsel saId, that when he became mJured the gnevor was entitled to return to work for 10 addItIOnal weeks once he recovered and then be consIdered for a further contract. These were nghts whIch crystallIzed whIle he was still an employee, nghts whIch we could enforce not- wIthstandmg the expIry of hIS appomtment. The other of these alternative arguments was that the employer was es- topped from assertmg that thIS board lacks JurIsdICtIOn, because the employer had led the gnevor to believe that hIS mJunes were not a threat to hIS Job secu- nty There were two employer representatIOns on whIch counsel saId thIS estop- pel was based. One was a representatIOn by Mr CowIe. Counsel argued that he gave an assurance that as long as the gnevor kept hIm apprised he should not be concerned for hIS Job In that respect, he noted that the employer's own letter of January 24, 1994 had recited that an assurance had been given. He submItted that there was also a representatIOn ansmg from the way contracts had been handled in the past. some had not been SIgned by the gnevor, others had not been SIgned until after theIr effective dates, and one had been renewed durmg hIS previous absence due to injUry Umon counsel submItted that these actIOns represented to the grIevor that he need not be concerned about or take steps to ensure the renewal of lus contracts, that these were meamngless techmcalItIes Umon counsel argued that the grIevor had relIed to hIS detnment on these representatIOns If he had known he had to act by December 31, If he had been told hIS appomtment would not be renewed If he was still not healthy, counsel 10 saId, then he could have provoked a management decIsIOn and filed a grIevance prIOr to that date, whIle he was stIll an employee entitled to the protectIOn of Ar tIcle A. The detrIment was the loss of the GrIevance Settlement Board as a forum m whIch he could pursue a claIm that the deCISIOn not to renew constituted dIS- CrImmatIOn on the baSIS of handIcap WIth respect to the alleged breach of ArtIcle A, counsel argued that the deCISIOn not to renew was based on the grlevor's unavaIlabIlIty HIS unavaIlabII Ity was due to the effect of hIS mJurIes, whICh m the umon's submIssIOn consti- tuted a handIcap as defined by the OntarIO Human R~ghts Code and, therefore, a handIcap wlthm the meamng of ArtIcle A of the collective agreement. To base an appomtment deCISIon on unavaIlabIlIty m those CIrcumstances was therefore a breach of ArtIcle A. Reference was made to Re The Crown m R~ght of Ontarw (Mimstry of Health) and Ontano Pubhc Sermce Employees' Umon (Martm) (1993), 31 L.A.C (4th) 129 (Dlssanayake), Re The Crown In R~ght of Ontano (Mimstry of Government Sermces) and Ontarw Pubhc Sermce Employees Umon (Kimmel/Leaf) (1991),21 L.A.C (4th) 129 (Kaplan) Counsel submItted that the approprIate remedy for thIS breach was a dIrectIOn that the employer compen- sate the grIevor for lost earmngs from and after July 1994, re-appomt the grIevor for a SIX month term and thereafter consIder hIm for further re-appomtment on the same baSIS as other unclassIfied officers. Miller and MacPha~l, 531/82, Janu- ary 3, 1990 (VerIty) and Inkumsah, 968/91, October 14, 1992 (Stewart) were CIted WIth respect to remedy The employer's representative mVIted us to prefer Mr COWIe's eVIdence to that of the grIevor where they dIffered, He noted that medIcal reports filed to es- tablIsh the date on whIch the grIevor could have returned to work also mdlcated that the grIevor had suffered from cogmtIve dysfunctIOn and memory dIfficulties after the aCCIdent. He argued that Ms Doherty's testimony was largely Irrele- vant, and in any event dId not mdlcate bad faIth, dISCrImmatIOn or breach of Ar tIcle A. He asked us to find that the first deCISIOn whIch treated the grIevor and Mr Gallagher dIfferently from other officers was made after December 31, 1993 The employer's representative asserted that deCISIOns concermng the makmg or renewal of unclassIfied appomtments could not be revIewed by thIS board no matter when they were made He also argued that the grIevor had not been subjected to unlawful dISCrImmatIOn. The fact that the grIevor's appomt- 11 ment expIred on Its expIry date was not dlscflmmatory The gflevor could not work. He was not depflved of work he was capable of performmg or of benefits to whIch he was entitled There was no suggestIOn that the gflevor's return to work could have been accommodated before or at the time the challenged decision was made In any event, he argued, any alleged dlscflmmatory treatment occurred after the gflevor ceased to be an employee on December 31, 1993 Thus, ArtIcle A could not apply and thIS board was WIthout JUflsdlCtion to reVIew or remedy the allegedly dlscflmmatory treatment. With respect to umon counsel's estoppel argument, the employer's repre- sentative noted that before there can be an estoppel there must be a flght, repre- sentatIOns, rehance and detflment. He submItted that there was no flght upon whIch the employer had represented It would not rely The employer at no time told the gflevor that It would not exerCIse ItS flghts under the Publw Sermce Act He argued that the commumcatIons rehed upon by the umon were too weak for a reasonable person to draw from them the representatIOns suggested by the un- Ion. Even If there was an estoppel, he saId, It was not one that tlus board could enforce because our JUflsdlctIon could not extend to events after December 31, 1993 In reply, umon counsel submItted that there was no dIstmctIOn to be made between expIry and re-appomtment, that there was no dIfference between al- lowmg a contract to expIre and decldmg not to renew It. He acknowledged that the effect of hIS argument was that the decIsion whether to renew or not has to be made before the eXIsting contract expIres. With respect to the estoppel argu- ment, he saId the flght management had represented It would not exerCIse was ItS flght to not renew the gflevor's contract. Mr COWIe had not put any hmlt on that. In the alternative, If Mr COWIe had saId something hke "m the short term" as alleged m the letter of January 24, 1994, the meanmg that the grlevor could take from those words had to be Judged m the context of the gflevor's haVlng preVIously retained employee status durmg an absence wluch spanned the re- newal of hIS re-appomtment WIthout any actIOn on lus part. 12 Umon counsel emphasIzed that It was not the decIsIOn to write a letter to the grIevor that was bemg attacked, It was the decIsIOn to treat hIm dIfferently from other unclassIfied officers. In response to a questIOn from the board about the applIcatIOn of sec tIon 17 of the Human Rtghts Code, umon counsel argued that the sectIOn does not apply unless undue hardshIp IS shown. He noted that the employer made no claIm that retammg the grIevor as an mactIve employee would have caused It any hardshIp A close comparison of thIS sectIOn of our deCISIon WIth the correspondmg sectIOn of our contemporaneous deCISIOn m Gallagher, 0152/94 would suggest that some arguments made there were not made agam here. The argument m thIS case took place soon after the argument m that one. It seemed understood that we should take mto account the arguments and authOrities that had already been cIted to US on common legal Issues We have done so Decision The umon's argument focuses on two deCISIOns m WhICh the employer treated the grIevor (and Mr Gallagher) differently from other unclassIfied cor rectIOnal officers at MTEDC The first was the deCISIon by the Supermtendent of MTEDC to defer consIderatIOn of the renewal of the grIevor's re-appomtment. The second was her subsequent deCISIOn not to renew hIS appomtment. The un IOn says both deCISIOns VIOlated ArtIcle A of the collectIve agreement. I t IS common ground that the grIevor spoke with Mr COWie shortly after hIS automobIle accIdent, that Mr COWIe asked the grIevor to keep hIm mformed and that Mr COWIe told the grIevor that his mabIlIty to attend work was not a problem. There IS a conflict in the evidence about whether thIS dIscussIOn took place m a telephone conversatIOn, as Mr COWIe testified, or m a face-to-face meetmg, as the grIevor testified Except perhaps for purposes of an assessment of the credibIlIty of the wItnesses, It IS Immaterial how that commumcatIOn took place. There IS also a stark conflIct on the questIon whether the grievor dId keep Mr COWIe mformed thereafter Mr COWIe says he dId not hear from the grIevor after the mItIal conversatIOn. The grIevor says he called Mr COWIe's office every two or three days after October 15, 1993, and actually spoke to hIm on several - 13 occaSIOns ThIs IS a very materIal pomt, because It relates to the reason gIven by the Supermtendent for the first of the two decIsIOns m Issue It seems mherently unlIkely that someone m the grIevor's cIrcumstances, havmg been asked to keep Mr CowIe mformed WIth respect to hIS condItIOn, would have telephoned Mr CowIe's office as frequently as every two or three days Nothmg about eIther the request or the grIevor's progress warranted hIS calling that frequently There is no corroboratIOn that he actually dId such a re- markable thmg HaVIng heard from a subsequent umon wItness that the grIevor was advIsed to keep notes of such conversatIOns, It seems sIgmficant that the grIevor offered no notes of the several conversatIOns he claIms to have had wIth Mr Cowie, eIther m hIS exammatIOn m chIef or after It was put to hIm m cross- examination that Mr CowIe would say there were no such conversatIOns It seems unlIkely that someone who had zealously telephoned at a frequency no- one had mVlted would not also have zealously kept notes he had been speCIfically ad vIsed to keep Mr CowIe's testimony that he dId not hear from the grIevor after the Im- tIal conversatIOn IS consIstent WIth what Ms. Doherty saId he told her more than two years earlier, on the occaSIOn when she decIded to defer conSIderatIOn of the grIevor's re-appomtment. Ms. Doherty was challenged m cross-exammatIOn as to the tImmg of that meetmg She was also challenged as to her havmg accepted Mr COWIe's statement at that meetmg that the grIevor had not been heard from, WIthout havmg checked WIth others who mIght have heard from the grIevor It was not put to her, however, that she was mIstaken in recallmg that Mr COWIe saId that to her at that meetmg, nor that her testimony to that effect was a fab- rICatIOn. It was clear, as Ms. Doherty saId m re-exammatIOn, that she could not recall whether the meeting was m late December or early January Her abIlIty to recall bemg told at the meetmg that the grIevor had not been heard from IS not mconsIstent WIth her mabIlity to accurately recall when the meetmg took place We accept her testimony that Mr COWIe told her at that meetmg that the grIevor had not been heard from smce shortly after hIS aCCIdent. It IS not apparent what motive Mr COWIe would have had at the tIme of that meetmg to misinform Ms. Doherty WIth respect to commumcatIOns WIth or from the grIevor Accordmgly, we accept Mr COWIe's testimony that the grIevor dId not speak WIth hIm after the mItIal telephone conversatIOn m mId-October 14 One of the Issues here, as m the Gallagher gnevance, IS whether we have JunsdIctIOn wIth respect to allegedly dIscrImmatory acts whICh occurred after December 31, 1993, when the gnevor's appomtment expIred We made these ob- servatIOns m our decIsIOn on Mr Gallagher's gnevance The gnevor's employment was m the unclassrlied servIce The Publw Servwe Act provIdes that a mmIster or hIS or her desIgnate may appomt a person to the unclassrlied servIce for a specrlied penod. It also provIdes that such a person ceases to be a pubhc servant at the end of that specIfied pe- nod. By ItS terms, the relevant collective agreement apphes only to pubhc servants. The employer's treatment of someone after he or she has ceased to be an employee covered by the collective agreement IS not governed by that collective agreement, unless the treatment m Issue IS m respect of an entI tlement whIch arose while the indIVIdual was still an employee For exam pIe some amounts earned by an mdIvIdual durmg employment may not be due and payable until a tune when the indIvIdual IS no longer an employee The failure to pay those amounts could still be the subject of a gnevance on that mdIvIdual's behalf even though It occurs after he or she ceased to be an employee, because the employer's obhgatIOn to pay arose out of and dunng employment governed by the collective agreement. One of the unIon's arguments IS that m October 1993, when the gnevor bec~me unable to work as a result of hIS mJunes, he had two vested nghts WhICh then survIved the expIrY of hIS appomtment, the nght to work for a period equal to the balance of the SIX month penod for whIch he had been appomted, and the nght to then be conSIdered for further appomtment, The suggestIOn, m other words, IS that the employer had two obhgatIOns to the gnevor as a result of appomtmg hIm to unclassIfied employment for the pe- nod July 1 to December 31 1993 first, to prOVIde a period or penods of em ployment totalhng SIX months dunng whIch he was phYSIcally capable of performmg available work, and then to conSIder hun for re-appomtment. On thIS theory, the employer would be obhged to re-appoint at the end of the term of their appomtments every unclassIfied officer who had been un available for any part of that term due to a handicap We do not accept that theory The grIevor's appomtment was for a calendar penod. Neither the ap pomtment nor the contract whIch reflected It guaranteed the grIevor any particular amount of work, nor dId the collectIve agreement. The gnevor's unavailability for work due to handicap durmg the term of his appomtment dId not create any obhgatIOn on the employer's part to employ hIm beyond the calendar term for whIch he had been appomted. NeIther the collectIve agreement nor thell" appomtments nor theIr stan dard form contracts gIve those appomted to the unclassIfied servIce for a specmed calendar penod the nght to re-appomtment at or after the end of that penod. While m practice such persons could expect to be conSIdered for re-appomtment WIthout makmg a formal apphcation, partIcularly when theIr contmumg response to call ms demonstrates theIr mterest m contmued employment, It would be mapt to descnbe thIS as a nght. Unclassmed em ployees certamly have a right to be treated WIthout unlawful dIscrunmatIOn m respect of re-appomtments, Just as apphcants for a fIrst appomtment do That nght anses under the Human Rtghts Code for all those seeking ap- pomtment to the public servICe, whether or not they are currently so em - 15 - ployed, ArtIcle A of the collectIve agreement also provIdes the employees It covers with a right to non.dIscrImmatory treatment durmg the course of therr employment. That mcludes treatment relating to re-appomtment for a further term tf that treatment occurs while the mdIvIdual IS an employee Ptttrn, 1685/92, May 3, 1993 (Kaplan), Merson 0016/93 (Gray) The gnevor s last appomtment to the unclassIfied servIce exprred on De- cember 31, 1993 He ceased to be an employee covered by the collectIve agreement at the end of that day The UnIon argues that the employer IS es- topped from ralsmg thIS as a lImItatIOn on our JUriSdIctIOn under the collee tIve agreement to redress any dIscnmmatory treatment whICh may have oc curred thereafter We do not accept that argument. Lord JustIce Dennmg described estoppel thIS way m thIS often-quoted passage from Combe v Combe, [1951] 1 All E R. 767 at p 770. The prmcIple, 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 mtended to affect the legal relatIons between them and to be acted on ac cordmgly, then, once the other party has taken hun at hIS word and acted on It, the one who gave the promIse or assurance cannot after wards be allowed to revert to the prevIOUS legal relatIOns as If no such promIse or assurance had been made by hun, but he must accept therr legal relatIOns subject to the qualIficatIOn whIch he hunself has so mtro- duced, even though It IS not supported m point of law by any consIdera tIOn, but only by hIS word, We agree wIth the UnIon that a promIse or assurance made orally or by con duct may support an estoppel. There IS no requrrement that the representa tIOn on which an estoppel IS based be made m writmg. The employer words and conduct relIed upon by the UnIon here dId not mtroduce mto the employer's legal relatIOns wIth the grIevor any quahfica tIOn mconsIstent wIth ItS subsequent conduct. It IS not apparent that eIther the grIevor's sIgnature or a written "contract" was needed to make hIS ap pomtments to the unclassIfied servIce effectIve. As the mmIster's desIgna~ the Supermtendent dId what had to be done to effect the appomtment, and the gnevor entered mto the employment so authonzed, The fact that hIS SIg nature on documents relatmg to hIS appomtments was not obtained or only obtamed after the effectIve date of the appomtment m questIon dId not amount to a representatIOn that the employer would exerCIse ItS right to ap pomt m a partIcular way thereafter Nor did the fact that hIS employee status was contmued durmg a period of mability to work from WhICh he was later returned to work constItute a representatIOn that the employer would exerCIse Its right to appomt m a sunIlar way on a subsequent occaSIOn, Mr COWIe's assurance m October 1993 about the unpact of the gnevor's unavailability on hIS employment was qualIfied by the phrase "m the short term," or words to that effect. ThIS was not a representatIon that the em ployer would ineVItably re-appomt the grIevor when hIS current appomtment exprred. It was also qualIfied by the observatIOn that he would have to keep the employer up to date on hIS status and provIde doctor's notes on request, GIVen that context, the assurance was certamly not one on whIch the gnevor could fairly claun to have relIed after he failed to promptly respond to are. quest for another doctor's note 16 In short, the estoppel argument fails for want of a sufficIent representa tIOn on whIch to base It. It IS unnecessary to determme whether the alleged detrrmental relIance was of a sort WhICh could support an estoppel, nor whether there are any Circumstances m whIch an estoppel based on repre- sentatIOns to an mchvIdual employee should or could gIve the board Junschc tIOn to redress the employer s alleged dIscrrmmatory treatment of someone after he or she has ceased to be an employee. Here, as m Gallagher, the assurance Mr CowIe gave m mId-October dId not amount to a representatIOn that the employer would mevltably re-appomt hIm when hIS current appomtment expired. Furthermore, Mr CowIe's assurance m thIS case was also coupled wIth a request that the grIevor keep hIm up to date We have found that the grIevor faIled to do that. Accordmgly, the assurance, such as It was, dId not address the sItuatIOn whIch eXIsted when the Issue of re- appomtment arose Here, as m Gallagher, the estoppel argument falls for want of a sufficIent representatIOn on whIch to base It, and our JUriSdIctIOn here IS lIkewIse lImIted to applymg ArtIcle A to the employer's behavIOur up to Decem- ber 31, 1993 Durmg cross-exammatIOn, Ms Doherty expressed the belIef that the em- ployee status of unclassIfied correctIOnal officers would have contmued past the December 31, 1993 expIry date to whenever she turned her mmd to the questIOn of theIr re-appomtment. Her after the-fact opmIOn to that effect does not make It so Some act by the mInister or hIS delegate would have been necessary to extend employee status of any of the affected unclassIfied officers whose appomtments expIred December 31, 1993 There IS no eVIdence that any such act occurred be- fore the meetmg at whIch the Supermtendent renewed the appomtments of oth- ers and deferred consIderation of the re-appomtment of the grIevor and Mr Gallagher As m Gallagher, we accept Mr COWIe's testimony that that meetmg was held m early January 1994, not December 1993 Accordmgly, that deCISIOn could not be a breach of ArtIcle A, because the grIevor was not an em- ployee when It was made Our jUriSdIctIOn here IS lImIted to applymg Article A to the employer's treatment of the grIevor up to December 31, 1993, when by the terms of hIS ap pomtment and by operatIOn of law he ceased to be an employee covered by the collective agreement. We have found that the dIfferential treatment complamed of here occurred after that date Accordmgly, that treatment of the grlevor can- not be a breach of ArtIcle A, and the grievance must be dIsmIssed. In the Clrcum- 17 stances, we do not have to determme whether the employer's decIsIOn not to re- new the gnevor's employment would have vIOlated ArtIcle A If It had been made m December 1993 We do WIsh to note, as we dId m our deCISIon m Gallagher and for reasons we set out there, that that questIOn could not have been properly an- swered sImply by notmg that the unavaIlabIlIty to whIch the employer responded was a result of the gnevor's dIsabIlIty In summary, we have found that the allegedly dIscrImmatory treatment complamed of occurred after the gnevor appomtment expIred on December 31, 1993, when he ceased to be an employee covered by the partIes' collective agree- ment. We are not persuaded that Article A of that collective agreement can be applIed to the employer's treatment of the gnevor after December 31, 1993 Ac- cordmgly, Mr Daley's gnevance IS dIsmIssed. Dated at Toronto thIS 24th day of October, 1996 I M. O'Toole, Member OPSEU (Daley) and the Crown in Right of Ontario (MCS) 0151/94 Dissent WIth all due respect, I must dIssent from the maJonty In thIS matter Mr COWIe, Deputy SuperIntendent, testIfied that in December 1993, he had a meetIng wIth the unclassIfied staff who were complaInIng about not gettIng enough hours Mr CowIe met WIth Mr De Franco the Semor AssIstant Supenntendent, as part of an on-goIng reVIew of contracts and concluded they Just dIdn t need all of them. Mr Cowie testified that of the two contracts sIngled out, one specifically dealt WIth Included the gnevor's Mr Cowie concluded that SInce the gnevor had not worked SInce October and the unclassified staff were stIll not gettIng sufficIent hours that the contract Just wasn't needed Mr CowIe was asked by employer counsel as to when he make this recommendatIon to Ms Doherty, the SuperIntendent. Mr CowIe replIed that he was pretty sure It was In the first week of January When questioned by umon counsel about why the gnevor's contract was not renewed, Mr Cowie stated they weren't avaIlable and theIr contracts were not needed. Employer counsel asked Mr Doherty whether or not an unclassIfied staff who IS not avaIlable would be acceptable, the answer was no When Ms Doherty was asked about the grievor, she replIed that we dIdn't need him, and he was unavaIlable Ms Doherty then went on to testIfy that apart from one phone call to Mr CowIe, the gnevor had not contacted her to express any desIre for future employment. Ms Doherty thought the gnevor had found another Job When questIOned by umon counsel Ms Doherty demed making the decIsIon not to renew the grievor's contract m December 1993 Ms Doherty testIfied that an assistant, Ms Thompson, had prepared those contracts expinng In December pnor to Ms Doherty leavIng for vacatIon but could not recall when she signed them. Later, Ms Doherty acknowledged that at the end of December, she had signed all the contracts except Gallagher's and Daley's She deCIded to gIve them a couple of weeks' grace Then, Ms Doherty retracted that answer and stated she could not recall when the contracts had been sIgned As in the Gallagher gnevance, this member must conclude that the effectIve decision not to renew the gnevor's appoIntment was made In December whIle the gnevor was stIll an employee The decIsIon not to renew was based on the gnevor s unavaIlabilIty and the objective of reducmg the number of unclassified staff The gnevor s unavaIlabIlIty was due to the effect of his injuries WhICh constItutes a handIcap as defined by the Ontano Human RIghts Code and, therefore, a handicap wIthm the meamng of ArtIcle A of the CollectIve Agreement. Therefore, as the employer breached ArtIcle A before the gnevor s appoIntment expIred on December 31, 1993, I would have up-held the gnevance Dated at Toronto thIS 18th day of September 1996 ~ ~ S UrbaIn, Member