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HomeMy WebLinkAbout2003-0417.Smith.04-04-02 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0417 UNION# 2003-0604-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (SmIth) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Tim Hanmgan Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER John SmIth Semor Counsel Management Board Secretanat HEARING March 29 2004 2 DeCISIon The gnevor Shane SmIth, has gneved that the Employer has vIOlated ArtIcle 20 of the collectIve agreement, whIch deals extensIvely wIth employment secunty At the first day of heanng the Employer raised two prelImInary obJectIOns to my JunsdIctIOn. It took the posItIOn that the matter IS not arbItrable because the Umon and gnevor are bound by Minutes of Settlement whIch specIfically resolved the gnevor's employment status Under those Minutes the gnevor waived hIS nghts under ArtIcle 20 and cannot rely on them now AddItIOnally the Umon specIfically agreed that no gnevances would be filed In respect of employees affected by the Minutes and cannot forward a gnevance In these CIrcumstances The Employer relIed on the folloWIng cases, OPSEU andMinistry of Transportation (1999) GSB # 0320/98 (Mikus) and OPSEU and MinistlY of Transportation GSB # 2445/02 (r Brown) The facts gIVIng nse to the gnevance are essentIally In agreement. The Minutes of Settlement and Release referred to above arose from the Employer's decIsIOn to outsource some of ItS work, specIfically ItS road maIntenance work In the Sudbury area. The Minutes speak for themselves Minutes of Settlement and Release WHEREAS the partIes wIsh to resolve on a wIthout preJudIce and precedent basIs any and all dIfferences as follows 1 The Mimstry wIll be permItted to close ItS call for tendersIRFPs, evaluate announce the preferred bIdder award and proceed wIth ImplementatIOn wIth regard to the outsourCIng of all work In RFPs referred to by numbers 98-7 to 98-22 and theIr assocIated addendums 2 OPSEU wIll wIthdraw ImmedIately all gnevances (indIvIdual, group or polIcy) ansIng out of the outsourCIng of the work contracted for In the RFPs and theIr assocIated addendums and agrees not to file any future gnevances (indIvIdual, group or polIcy) In relatIOn thereto 3 OPSEU hereby releases the Mimstry from all lIabIlIty wIth regard to all actIOns, past, present or future relatIng to the outsourCIng of the work contracted for In the RFPs and agrees not to bnng any gnevances or other actIOn relatIng to those past, present or future actIOns 4 In consIderatIOn of the above, the partIes agree to the folloWIng process wIth regard to the outsourCIng of the work referred to In these RFPs (a) The Mimstry wIll IdentIfy the employees who wIll be affected by the relevant RFPs 3 (b) The Mimstry wIll then remove the folloWIng categones of employees from the relevant RFPs (i) Those employees elIgIble to pensIOn bndge as of December 31 1998 (j) Those employees who are In receIpt ofLTIP or WCB as of the date the RFP IS advertIsed (c) The remaInIng employees wIll be provIded the opportumty to select In wntIng wIthIn 5 workIng days of reCeIVIng notIce of the electIOn optIOn not to be Included In the applIcable RFP In default of electIOn (wIthIn the five day WIndow) the employee wIll be deemed to be Included In the RFP (d) Employees who elect not to be Included In the RFP wIll be declared surplus The date of the surplus notIce wIll be at the sole dIscretIOn of the Mimstry Upon receIpt of the surplus notIce, the affected employee wIll eXIt the OPS ImmedIately Upon eXItIng the OPS these employees wIll receIve only the benefits set out below. (i) paY-In-lIeu of notIce In accordance wIth ArtIcle 202 and (iI) (a) the greater of separatIOn allowance In accordance wIth ArtIcle 20 3 or (b) enhanced severance In accordance wIth paragraph 4 of AppendIx 9 and (ill ) termInatIOn payments In accordance wIth ArtIcle 53 or 78 5 The employees who elect not to be Included In the RFPs wIll not be elIgIble for any other benefits or nghts under the collectIve agreement. NotwIthstandIng the generalIty of the foregoIng, these employees have no other nghts under ArtIcle 20 6 Employees who are elIgIble to pensIOn bndge as of December 31 1998 wIll receIve the benefits of paragraph 2 or 3 of AppendIx 9 whIchever paragraph IS applIcable 7 Employees who are In receIpt ofLTIP ofWCB as of the date the RFP IS advertIsed wIll be Issued a notIce of surplus ImmedIately upon receIpt of the surplus notIce, these employees must eXIt the OPS Upon eXItIng the OPS these employees wIll get the same benefits provIded to those employees who elected to opt out of the RFP 8 For employees who elect to be Included In the RFPs a) The partIes agree that these RFP' s (98-7 to 98-22) wIll contaIn the mandatory language set out In Schedule "A" b) The Jobs offered pursuant to the RFP' s wIll not specIfy duratIOn. 9 The partIes agree that there wIll be no rated cntena or HRlF or negotiatIOns In relatIOn thereto 10 The partIes agree that the provIsIOns of paragraph 8 meet the Mimstry' s oblIgatIOns under AppendIx 9 In relatIOn to those employees who remaIn attached to the RFP 11 The partIes agree that Robert GavIn wIll be removed from the Temporary Modular Bndge tender and wIll be provIded the same benefits as employees who elect to opt out of the RFP on the same terms and condItIOns 12 The partIes also acknowledge that the Mimstry may outsource work by means of managed outsourCIng contracts, and QualIty and Standards outsourCIng contracts If the Mimstry at ItS sole dIscretIOn, were to choose to use these means of outsourCIng, the partIes agree that the employees who are affected by such outsourCIng, wIll be dealt wIth In the manner outlIned In paragraphs 4 to 7 of these Minutes of Settlement and Release 13 The partIes agree that the Mimstry wIll have no other oblIgatIOns In relatIOn to AppendIx 9 wIth regard to the outsourCIng referred to In paragraph 12 4 14 The provIsIOn of these Minutes of Settlement and Release apply to those outsourCIngs whIch are announced pnor to December 31 1998 15 The partIes agree that these Minutes of Settlement and Release constItute the entIre agreement between them and supersede any and all wntten agreements or undertakIngs between them In connectIOn wIth or IncIdental to the outsourCIng referred to In these Minutes of Settlement and Release 16 The partIes agree that Vice-Chair Loretta Mikus wIll remaIn seIzed wIth regard to any Issues concermng ItS applIcatIOn, InterpretatIOn or any alleged breach of ItS terms Dated November 13 1998 The gnevor receIved a letter dated November 24 1998 that descnbed the two optIOns avaIlable to hIm as a result of the prevIOUS settlement. That letter set out the condItIOns of each optIOn as follows, If the gnevor decIded to have hIS posItIOn lIsted In the RFP the Mimstry would Include In the RFP a reqUIrement for an offer of employment equal to at least 85% of hIS salary recogmtIOn of hIS servIce for purposes of vacatIOn and benefit entItlements, recogmtIOn of hIS semonty for purposes of layoff and promotIOns and a Waiver of any probatIOnary penod and, If the gnevor elected thIS optIOn, the letter advIsed hIm he would gIve up hIS nghts under ArtIcle 20 or AppendIx 9 and would only be elIgible for termInatIOn pay pursuant to artIcle 53 or 78 The second optIOn outlIned In the letter explaIned that hIS posItIOn would be declared surplus on the date the contract commenced and he would eXIt the OPS Upon eXItIng he would receIve paY-In- lIeu as per ArtIcle 20 2, the greater of the ArtIcle 20 3 separatIOn allowance or enhanced severance under AppendIx 9 paragraph 4 termInatIOn payment under ArtIcle 53 or 78 and the nght to apply to restncted competItIOns untIl December 1 2001 The letter further advIsed the gnevor that these would be hIS only entItlements under the collectIve agreement If he were to select thIS optIOn and set out the sum of money he would be paid In the CIrcumstances The gnevor was also advIsed to read over AppendIx 9 and ArtIcle 20 and to speak to hIS Umon representatIve before makIng up hIS mInd. The gnevor opted for the latter and removed hIS name from the RFP On January 22, 1999 he was sent a letter from the Human Resources CoordInator confirmIng hIS electIOn and adVISIng hIm hIS posItIOn had been removed from the RFP On May 3 1999 the gnevor was advIsed that the MaIntenance Contract 98-21 had been awarded and he would be surplussed as of May 28 1999 5 Unfortunately for the gnevor before he could be surplussed, he suffered a heart attack. He was off on short-term sIck leave for 6 months followed by two years ofLTIP benefits After the change of defimtIOn to "any occupatIOn" the gnevor was demed further benefits He appealed unsuccessfully and In January of 2003 the Employer was Informed that he was ready to return to work. To thIS pOInt In tIme the partIes agree that the gnevor had made hIS electIOn to be surplussed and waived hIS semonty nghts under ArtIcle 20 The Umon conceded that the Employer had no addItIOnal oblIgatIOns to the gnevor and the gnevor had no remaInIng claims agaInst the Employer The problem arose when the Employer advIsed the gnevor by letter dated January 31 2003 that he was entItled to pre-notIce oflayoffunder ArtIcle 20 and that, under ArtIcle 42 10 he had the folloWIng optIOns, pay In lIeu of notIce or work dunng the notIce penod and look for a posItIOn to exercIse your recall nghts The gnevor was Informed that he could broaden hIS geographIc parameters If he was prepared to relocate The gnevor elected to remaIn on staff and a letter confirmIng that agreement was sent to hIm on February 7 2003 Dunng thIS tIme dIscuSSIOns had taken place about a new posItIOn and the gnevor was advIsed that an alternatIve Job was avaIlable In Kenora. The gnevor's eVIdence would have been that he accepted the offer told hIS famIly about the move and began dIscussIOns wIth real estate agents about relocatIng. However before he could do that, he was advIsed In a letter dated February 27 2003 that because of the Minutes of Settlement and Release sIgned In 1998 hIS only nghts flowed from that document, not the collectIve agreement. He was therefore entItled to pay In lIeu of notIce for 6 months, legIslated severance under ArtIcle 53 and the separatIOn allowance under ArtIcle 20 or the enhanced severance under AppendIx 9 As stated prevIOusly the partIes are agreed that, absent the offer In the letter of January 31 2003 the gnevor had no remaInIng nghts to employment. He elected to remove hIS Job from the RFP and Instead chose to receIve pay In lIeu of a possIble Job offer Mr SmIth, counsel for the Employer took the posItIOn that the gnevor's electIOn on 1998 determInes hIS entItlement to the provIsIOns of the collectIve agreement. However that IS not the Issue before me The Umon's argument IS not based on a repudIatIOn of the Minutes of Settlement and Release or on an alleged breach of those Minutes Its argument IS based on the eqUItable doctnne of estoppel Mr Hanmgan, counsel for the Umon, took the posItIOn that the actIOns of the 6 Employer on and after January of 2003 gave nse to an estoppel The doctnne reqUIres that, where a party by words or conduct, makes a promIse or an assurance to another party that affects the legal relatIOnshIp between them and the other party acts on It, the one who gave the promIse or assurance cannot revert to the prevIOUS legal relatIOnshIp In thIS case the gnevor was promIsed aJob In Kenora, took steps towards makIng that move by alertIng hIS famIly about the move and speakIng to real estate agents It would be IneqUItable to rescInd that offer It relIed on the Ontano DIVISIOn Court decIsIOn of Ontario Public Service Employees Union v MinistlY of Community and Social Services [1995] OJ No 3869 for the authonty of a Board of ArbItratIOn to determIne whether the doctnne of estoppel applIes In the case before It. The Employer submItted that It had sImply made a mIstake In offenng the gnevor the optIOns set out In the letter of January 2003 and It had a nght to correct that mIstake DECISION The only Issue before me IS whether the Employer by ItS conduct, IS estopped from relYIng on ItS stnct nghts under the collectIve agreement. If the Umon argument falls, the partIes are agreed that the gnevor has no ArtIcle 20 nghts and the gnevance must be dIsmIssed. There IS no doubt that the gnevor waived hIS nghts to a Job when he elected to remove hIS posItIOn from the RFP In 1998 But for hIS heart attack, he would have eXIted the OPS on the date set out In hIS confirmatIOn letter of May 3 1999 The terms of the Minutes of Settlement and Release could not be clearer Not only dId the Umon agree to ItS present terms but also undertook to file no further gnevances In respect of the RFPs mentIOned In the Minutes There IS no dIspute that the letter of January 31 2003 offenng the gnevor the optIOn to work out hIS notIce and exerCIse hIS bumpIng nghts was sent In error He had no such nghts at the tIme DId the offers In that letter tngger a new set of nghts? I thInk not. It was not Intended to alter the legal relatIOnshIp between the gnevor and the Employer It cannot be conferred In these CIrcumstances that was the Employer's IntentIOn. The 1998 Minutes of Settlement and Release expressly resolved all matters relatIng to thIS and other RFPs and expressly prohibIted the Umon from filIng any gnevances In the future related to those RFPs The letter of January 31 2003 was a mIstake The Employer IS entItled to rectIfy that mIstake AddItIOnally there IS no 7 eVIdence that the gnevor acted on the offer of employment. The offer was rescInded wIthIn a month of It havIng been sent and the gnevor had taken no steps to IndIcate he had relIed on the Employer's promIse to hIS detnment. I have no doubt that, when the gnevor was advIsed that the Job In Kenora was not avaIlable to hIm, he was greatly dIsappoInted. Nevertheless, that dISappOIntment cannot transform a mIstake on the Employer's part to a legal oblIgatIOn that otherwIse does not eXISt. For these reasons the gnevance IS dIsmIssed.