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HomeMy WebLinkAbout1982-0509.Hanwell.84-05-14IN l?lE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: ._ For the Employer: Hearings: OPSEU (Jim Hanwell) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer K. Swan Vice Chairman K. O’Neil Member A.G. Stapleton Member M. Mercer-DeSantis Grievance Officer Grievance Section Ontario Public Service Employees Union P. Van Horne Staff Relations Officer Persontie Branch Ministry of Correctional Services April 25, 1983 June 27, 1983 -2- DECISlON This case raises a matter of first impression before the Grievance Settlement Board, and one which is not without considerable difficulty. While there is no real dispute about the facts upon which this matter is to be determined, the parties are divided by~.the question of what rights the Griever has arising from these facts, and what remedies he may be able to seek before this Board. . The Counsel for the parties were able to ‘provide us with some assistance by producing an agreed statement of facts, which is in the following form: 1. 2. 3. 4. 5. 6. 7. Jim Hanwell, the Griever commenced employment with the Government of Ontario in May of 1973. In April of 1982, Mr. Hanwell was a Probation Officer II in the Brampton District Office. Some time after April 26, 1982 and before May 7, 1982, he applied for a Probation Officer II position in accordance with competition K-0812-82. At the con- clusion of the competition, Mr. Hanwell was awarded the job in Barrie. The parties agree that at the time of competition, there was a policy on relocation expenses (Policy dated Jan. 82) found in the Ontario Manual of Administration... The parties agree that since the inception of Collective Bargaining, the policy referred to above, or one very similar to it, has been applied to employees who success- fully achieve promotion under Article 4 of the Collective Agreement. Mr. Hanwell received a letter dated March 7, 1983 that spoke to the issue of relocation costs. The parties agree that there is a Memorandum of Agreement between OPSEU and the Ministry of Correctional Services and it does not speak to the issue of relocation expenses. Should Board uphold grievance, actual amounts owing should be remitted to parties but Board remain seized.. -3- 8. The parties do not agree on the issue of the Board’s jurisdiction. 9. The parties do not agree that relocation expenses should be paid as a result of a lateral transfer under Article 4 of the Collective Agreement. 10. The parties do not agrre that there was estoppel by conduct either by the employer or employee. While paragraph 10 of the agieed statement may seem somewhat cryptic, it really contains the essence of the dispute between the.parties, since each party advanced an argument asserting an estoppel binding upon the other party in relation to these facts. Indeed, despite the agreement cited above,’ it would be of value to expand upon these facts in order to understand the situation before us. To begin with, Mr. Hanwell had wished for some time to transfer from the Brampton District Office to a more rural setting, he had made requests on several occasions for a “lateral transfer” to positions in the Barrie area, and he had~ applied f?r some Posted vacancies which were subject to competition as well. He had not been successful in any of these attempts up to the time of the events upon which this grievance is based. What is interesting about these earlier incidents is found in Exhibit 4, a letter dated March 7, 1978 from R.L.T. Cracknell, Regional ~Administrator for the Probation and Parole Service for the Western Region, by which the Griever was informed of a prospective vacancy in Owen Sound, and was informed .‘Yhis would be a lateral transfer f,or which the Ministry does not pay relocation or moving expense%” Subsequently, by a further letter to the Griever dated April 10, 1978, Mr. Cracknell points out ‘Iwe have now been instructed that a competition has to be held for the Owen Sound position for which we interviewed you on March 2ls.t.” -4- This distinction between a “lateral transfer” by way of a request from an individual employee to fill a vacancy, and the requirement to hold a competition for the vacancy which is open, becomes very important in the present case because, as may be seen from the agreed statement of facts, when the Griever was awarded the position in Barrie which he now holds, he was awarded that position following a competition. The issue between the parties is whether, under the Employer’s Relocation Expenses Policy, the Griever is entitled to be paid relocation expenses in circumstances where, as here, he is awarded a position through a competition which is in the same classification as the one which he held at the time.of his application. The Union argues that, by implication from the collective agreement and by incorporation of the Employer’s policy by reference into the collective agreement, the Griever is entitled to payment of relocation expenses in these circumstances. In the alternative, the Union argues that the Employer is estopped from denying that the Griever is entitled to relocation expenses, relying upon the extended scope of .the doctrine’ of estoppel described in Re CN/CP Telecommunications and the Canadian Telecommunications Union (1981);~b L.A.C. (3d) 205 (Beatty) a decision which was upheld by the Ontario Divisional Court in Re CNR Co., et al and F.katty.et al (19X1), 34 O.R. (2d) 385. The Employer, on the other hand, objects to the Board exercising any jurisdiction in this case at all, on the basis that whatever rights the Griever may have, if any, come from a document which does not form a part of the collective agreements and which is subject to interpretation and application at the discretion of management only. The - Employer also relied upon the facts cited above relating to an earlier application by the Griever to move to the Barrie area as constituting an estoppel against him !. i -5- personally, so as to prevent him from raising any entitlement to relocation expenses in circumstances such as the present. We have been referred by the parties to only one mention anywhere in the collective agreement to the Employer’s policy relating to relocation expenses. That is in Article 24.2.2, which includes the sentence “relocation expenses shall be paid in accordance with the provision of the Employer’s policy.” It is common ground that Article 24, which provides for the reassignment of surplus employees to vacant positions in certain circumstances, does not apply to the present situation; the Grievor was not a surplus employee, and there was no attempt so to characterize him by either party. The position which the Crievor claimed was posted under Article 4 of the collective agreement, and a selection took place pursuant to the criteria set out in Article 4.3. There seems to be little doubt that the Employer’s Relocation Expenses Policy has been applied to successful applicants under Article 4 for a very considerable time, pre-dating even the inception of collective bargaining under the present legislation, although there is some dispute as to the application of the policy in circumstances where an employee successfully claims a ‘position at the same classification level as that which he or she held at the time of making the application, at least with respect. to the practice in this Minktry. We shall turn to that issue subsequently. Leaving aside for the moment the question of whether we have any jurisdiction to interpret the policy, we think it is important to set out certain aspects of the policy to understand how the present dispute arises. The policy sets out, under the heading “General!‘, the essence of the entitlement to relocation expenses as follows: / ‘. -6- An employee who ir transferred from one place of employment to another at the request of a ministry shaU be reimbursed by that ministry for the relocation expenses incurred in accordance with Part II of this policy. An employee who is transferred at his/her own request, may, at the discretion of the deputy head, receive partial re- imbursement for hi/her relocation expeqG, in accordance with Part III of this policy. While this excerpt does not specifically use the expressions, it draws a distinction between what are called elsewhere in the document “ministry-requested relocation” and “employee-requested relocation”. Part II of the policy, for example, which is referred to in the first paragraph of the quotation above is headed ~“Ministry-requested relocation”, while Part III of the policy is entitled “Employee-requested relocation”. Leaving aside the detail of the two provisions, the policy provides that employee-requested relocations will normally be at an employee’s expense, subject to a discretion in the deputy head to authorize payment of a portion of the expenses. The Employer claims that the Griever fits into this second category, and further asserts that the discretion of the deputy head has not been exercised in his favour, and that he is therefore not entitled to “’ relocation expenses. .’ It is interesting to note that the definitionsection of the policy defines “employee-requested relocation” as “a relocation resulting from a formal request for a transfer made by an employee and not connected. with an employment competition”, while a “ministry-requested relocation” is defined as “a relocation, other than an employee-requested relocation, and including a relocation resulting from an employment competition”. Nothing in the policy suggests that there is any distinction to be made between relocations which result from an employment competition and which involve a demotion for the employee, and those which result -7- in a relocation to a position in the same classification level. Were we entitled, as part of our jurisdiction, to interpret this policy, we think that it would be the inescapable conclusion that the policy on its face applies to ?he Griever’s situation so as to entitle him to be paid his relocation expenses. It is simply impossible, given the definitions quoted immediately above, to conclude that this is anything c-- ,:~other than a “ministry-requested relocation”, in respect of which the provisions for payment of relocation expenses are mandatory.. This brings us to the evidence upon which the Union relies to establish an estoppel. Andrew Todd has been Chief Negotiator for the Union since 1973; and he was engaged in the negotiations in 1974 for the first collective agreement between the present parties of which the present Working Conditions and Employee Benefits Agreement is a direct successor. His evidence about the negotiating history of the agreement was.completely uncontradicted by the Employer, and we have no hesitation in accepting it in its entirety. Mr. Todd testified that, at .the time of entering into the first collective agreement, ittwas decided not to deal with the question of relocation expenses, among other matters, because the Employer had in place a number of policies which were thought to be sufficient to cover these issues. It appears that the Union bargaining team considered this policy, along with a number of others, to see whether their terms should be negotiated with the Employer, and that there had indeed been a proposal made to the Employer to incorporate this policy and others by reference into the collective agreement. In the long run, no specific reference incorporating these positions was ever made. On the other hand, Mr. Todd testified that the Employer had always applied this policy to relocation which took place as a consequence of competition -a- under Article 4. When the time came to negotiate Article 24, dealing with situations arising where an employee was facing lay off unless a vacancy could be found, Mr. Todd testified that the Employer and the Union agreed that in such extreme circumstances, they would waive the provisions of Article 4,~regarding the placement of surplus employees as more important than the seniority rights which Article 4 imports. Indeed; Article 24.13 specifically waives’ Article 4 in accordance with this understanding. In Mr. Todd’s recollection, the Union negotiating team then specifically asked the Employer whether it would undertake to allow the relocation expenses policy to apply to persons who were required to move under Article 24, given that Article .4, to which the policy was usually applied, would be suspended for such moves. Mr. Todd recalled that the Employer eventually agreed to this proposition, and the sentence quoted above from Article 24.2.2 came from that agreement. Mr. Todd gave evidence that the Union has never received any notice that the Employer intends to alter the policy or its application during the currency of the present collective agreement. If there were any such notice or any such attempt, Mr. Todd testified that the Union would first try to dissuade the Employer from any such steps, and would take the very next opportunity to put all the provisions of the policy into the collective agreement pursuant to the collective bargaining process. There was also evidence before us relating to the practice in other ministries in respect of the application’of the Employer’s policy. Mary Pracey, who had held a series of supervisory and personnel positions in the Ministry of Community and Social Services until her retirement in 1982, had been responsible for~the application of this policy in the Barrie area for a period related to the time i -9- of the Crievor’s transfer there. It was her evidence that the policy was appIi,ed in her Ministry in the way which the Union now claims on behalf of the Grievor, and she gave details of two cases of employees in the same classification as the Griever, but employed by the Ministry of Community and Social Services instead of the Ministry of Correctional Services, who were allowed relocation expenses in circumstances identical to the Griever’s transfer. Confirming evidence was given by one of these two employees, and another employee of the Ministry of Tourism and Recreation who had been transferred to Barrie following a competition in circumstances similar to the Griever gave evidence that he had been paid his relocation expenses pursuant to the policy. To counter this evidence, the Employer called an employee who had not been paid expenses for a ~move from a PO2 position in Chatham to a position at the same level in Bancroft, which position he obtained as the successful candidate’in a competition in 1980. The Employer also called Mr. Joe Whibbs, the Regional Personnel.Adminktrator for the Peterborough area ‘of the Ministry of Correctional Services, who gave evidence that that Ministry has not~paid relocation expenses for “lateral transfers”, movements from one position to another at the same classification level, even where the new position was obtained fo~llowing a competition, for as long as he has been in Personnel in the Ministry, some II years. While he gave no specific details of any individual cases, he. asserted that local union stewards knew this policy because it has been consistently applied, and~that so far as he knows this is the first grievance which has been pursued on point. ‘It does not appear from the evidence that the Grievor was ever specifically warned that, if he succe%fuily applied for the position in Barrie, he would not be entitled to relocation expenses. It appears that the issue arose only . - 10 - after he had been successful, and that he moved to Barrie at his own expense under protest and subject to the grievance which he filed and which is now before us. The Employer’s only evidence of estoppel against the Grievor himself comes from the events in 1978 when he applied for a position in Owen Sound but was told that ^ he would have to move at his own expense. To dispose of this matter, we do not think that this constitutes an estoppel against the Grievor of any kind whatsoever. It is perfectly clear that the statement made to him about his eligibility for relocation expenses in 1978 was made at the time when he was applying for what the policy calls an “employee-requested relocation”. It was only some time later that the employer recognized that the position would have to be posted, and no new notification was given to him at that time that the same conditions would apply. As against the Grievor himself, therefore, no finding of estoppel is possible. We turn, therefore, to the very difficult question of whether we have any jurisdiction ,.to award to the Griever the relocation expenses to which he appears to be entitled in accordance with the terms of the employer’s policy and in accordance with the practice, insofar as we have any evidence, of all of the ministries except the Ministry of Correctional Services. The Union first argues that the policy has been incorporated by reference into the collective agreement, and that we therefore have jurisdiction to interpret it and to apply it in accordance with its terms, as well as to provide a remedy for a breach~of the policy. The Union’s argument was not pressed very hard, however, and we do not think that any very strong argument for incorporation can be made. The only reference in the collective agreement is found in Article 24.2.2, and it may well be that the policy is incorporated for the purposes of that article. But it requires a very substantial interpretive leap to find from the incorporation of the policy in Article 24 an implied interpretation into Article 4 as well. While we have no doubt that the parties fully intended that the policy should apply to Article 4, that falls far short - 11 - of establishing the kind of link between the policy and the collective agreement that would indicate an intention by the parties to give us interpretive jurisdiction over the policy. We turn next to the estoppel argument. This argument.is one which relies upon the doctrine of estoppel set out in Re CN/CP Telecommunications and Canadian Telecommunications Union, supra. That case has been extensively commented upon in a number of subsequent arbitration cases, including Re: Consolidated - Bathurst Packaging Ltd and International Woodworkers America, Local 2-2#2 1982, 6 L.A.C. (3d) 30 (MacDowell) and Re Municipality of Metropolitan Toronto and Canadian Unions of Public Employees, Local 43 (1982), 7 L.A.C. (3d) 74 (Teplitsky). Briefly put, the CN/CP case expands the doctrine of estoppel, which is traditionally applied to keep a party from the collective agreement which has represented to another. party that it will not enforce its strict rights under the collective agreement from subsequently insisting upon those very rights to the detriment of the other party. In CN/CP, the estoppel was not in relation to the non-enforcement of express rights under the collective agreement, but with the continuation of certain benefits which were not in any way’~~provided for expressly in the collect@ agreement, but which had come to be relied upon by persons covered under the collective agreement by virtue of some thirty years of application; Thus the CN/CP case permits an estoppel to be used as the foundation of~,a claim by one party against another for rights which are not set out in the collective agreement, rather than merely as a defence against the exercise of rights set out in the collective agreement but which have been suspended by a representation not so set out. The jurisprudence refers to this distinction as that between a “sword” and a “shield”, and the older cases suggest that an estoppel may never be used as a sword, but only as a shield, that is, as a defence to an attempt to insist upon strict legal rights arising from the collective agreement. After - 12- reviewing the classical statement of this distinction in Combe v. Combe, b953 1 All E.R. 767, arbitrator Beatty in the CN/CP case, at page 213,, continues as follows: All that is required is that the conduct or representation be related to-or more properly modify-some pre-existing legal relationship. To repeat that is all that is meant by the assertion that the doctrine canoot have any effect on its own. kside from that limitation, which obviously has no application in the circumstances of this case, where it is conceded a valid collective agreement exists between the parties, there is no purpose to drawing a sword/shield distinction. The courts have doubted its utilitv: See Re Tudale Explorations Ltd. and Bruce et al fi978), 88 D.L.R. (3d) 584. 20 O.R. (2d) 593; the academics have roundly comdemned it, see B.J. Reiter, ‘Courts, Considera- tion and Common Semen, 27 U.T.L.J. 439 (19771, and some arbitrators have (wisely) ignored it, see, e.g., Re Intemationaf Moulders Union and Jamaica Mfg~Canada~ Ltd. (19661, 18 L.A.C. 13 Khristie). Jndeed, as Mr. Levinson quite properly argued, if it were not ignored, the doctrine could almost never be utilized by trade unions except in cases in which.they were responding to a grievance of the employer. Such a result, which would systematically allow one side to the collective bargaining relationship to avoid the obvious “attractiveness of the notion of estopped” reduces to rubble the already crumbling support of the distinction in tbe context of labour relations. What CN/CP stands for, in short, is the proposition that the doctrine of estoppel may be used to alter the legal relationship between the~parties, and not merely the collective agreement, provided that the other requirements of the doctrine are met. Those requirements are variously stated in the cases, but they include at least the requirement that one party must have represented to the other;~ whether by expressed words, by implication or by conduct, that it would act in a certain way, and the other party must have relied upon that representation in ordering its own affairs subsequently. Some of the cases suggest that the second party must alter its own affairs to its detriment, although precisely what constitutes that detriment is not entirely clear from the jurisprudence. If the CN/CP case is adopted, the inference is that the legal relationship between the - 13- agreement, but also by representations that a certain non-contractual practice will continue even if the collective agreement is not altered to include it. On the facts of the present case, we think that an estoppel in CN/CP terms has clearly been made out. Here the Employer had in place, long before collective bargaining began, ,a policy relating to relocation expenses. Upon examining the adequacy -of that policy, the Union determined that there was no necessity to put that policy into the collective ‘agreement, and the collective agreement was.therefore structured without any provision relating to this matter. While the facts as testified to by Mr. Todd to this point might not have been sufficient to raise an estoppel, subsequent events clearly reinforced the strength of the representation being made by the Employer and the significance of the reliance by the Union. Despite the non.-inclusion of the policy into the collective agreement, the policy has remained in effect until the present time and employees have been reimbursed under it in cases of relocations which took place under the express terms of the collective agreement. Moreover, when the provisions of Article 24 were negotiated, the parties included a specific provision in Article 24 to provide for relocation expenses in a way that is simply inconsistent with any other conclusion than’that both parties took it to be obvious that the policy applied to relocations which took place pursuant to the provisions of Article.4.. In our view, this conduct by the Employer very clearly constituted a representation that the policy would remain in effect indefinitely, despite its non-inclusion in the collective agreement. .The reliance by the Union upon this representation is, of course, obvious. Even without Mr. Todd’s evidence as to what he thought the Union would do were the Employer to give notice that the policy would be withdrawn, it is - 14 - self-evident that the Union has refrained from negotiating any relocation expenses provisions ‘into the collective agreement on the basis of the continuing availability of the Employer’s policy in this respect. In our view, this set of facts clearly constitutes an estoppel in the expanded sense of the doctrine found in the CN/CP case. The precise nature of this decision should be, however, very narrowly stated. In our view, the Employer has become estopped by its own conduct from denying, for the term of the present collective agreement (and afterward, unless notice is given to the Union in time to permit it to bargain collectively on the subject) that the relocation expenses policy applies to all relocations taking place under Article 4 in accordance with its terms, and from refusing to pay employees in accordance with the policy. It may .not be that every policy which the Employer has promulgated will be simiIarIy fixed by the doctrine of estoppel. In the present case, there is the significant fact that the collective agreement expressly mentions the relocation expenses policy in Article 24, an article which applies notwithstanding the provisions of Article 4, and does so fin such a way as to make it obvious that the Employer must have been representing t,hat payments were intended to be made under Article 4 and would continue to be so made. While it is obvious that this finding is close to the limit of the doctrine of estoppel even as set out in CN/CP case, it appears to be in accordance with the expression of that policy as set out by then arbitrator and as approved by the ,. . . .. Divisional Court. This leads us to the final difficult point. The doctrine of estopped seems only to go so far as to prohibit the Employer from withdrawing its policy and its application according to its terms to Article 4. There has never been any ..i~ suggestion in any of the case law that an esto,ppel can incorporate an extrinsic - 15 - document into a collective agreement for the purpose of vesting an arbitrator with jurisdiction to interpret that document, and we would be extremely reluctant in going so far, as we pointed out to the parties in the course of argument. Estoppel is essentially a factual matter, and does not usually have the effect of vesting jurisdiction in, a decision maker that was not there to begin with; many of the cases, indeed, suggest that estoppel cannot be the source of an adjudicative jurisdiction. While this has given us very considerable difficulty, we think that the doctrine of estoppel is designed to bind the party to the collective agreement to behave in a certain way for so long as the estoppel continues. In many cases, even under the more conservative view of the doctrine of estoppel followed before the CN/CP case, arbitrators have held one party to be bound by a representation that it would accept a particular interpretation of a provision of the collective agreement. In the case before us,. we think that what the Employer has 1 represented to the Union is that it will be bound not only by the policy but also by the practice under the policy in particular cases. The overwhelming evidence before us was that the Employer in general has applied the policy in cases like the Griever’s in such a way as to entitle him to relocation expenses. The evidence relating to the Ministry of Correctional Services wasgeneral in nature, and the only individual employee who was called before us had a history of an earlier requested transfer which would not have entitled him to relocation expenses and which might have mi$ed him as to his entitlement. Moreover, he gave evidence . that he had not inquired into the policy and had simply accepted what he had been told when he won the competition for his new job. Even accepting, however, that “’ one Ministry out of the entire Ontario Public Service has pursued a different (if apparently incorrect) interpretation df the policy, it is important to observe that .~ .~~ the collective agreement is between the Union and Management Board of Cabinet on behalf of The Crown in Right of Ontario. While there are provisions for - 16 - individual ministries to make separate agreements with the Union in certain circumstances, it was common ground that no such agreement was made in this case. The Management Board of Cabinet is the Employer, and it is Management Board of Cabinet which has the direct relationship with the Union in respect of the policy from which the present estoppel has arisen. The practice to which the Union is entitled to look, therefore, is the practice generally applicable in the Public Service, and not the practice which, on the sketchy evidence before us, appears to have operated exceptionally in the Minktry of Correctional Services. It was in. reliance upon the general practice that the Union forebore to ~make any express attempt to negotiate a relocation expense provision into the collective agreement, and settled for the implication in Article 24 about the application of the employer’s policy; consequently, it is that practice which the Union is entitled to assert against the Employer to found an estoppel until the Union is able to renegotiate the collective agreement. In the result, we find that the Grievor is entitled to payment of relocation expenses in accordance with the practice prevailing across the Ontario Public Service for payment of relocation expenses under the Employer’s policy in circumstances where an employee has been relocated pursuant ~to a competition conducted under Article 4 of the collective agreement. ,By agreement of ‘the parties, we remain seized of jurisdiction to determine the precise amount .of compensation available to the Griever in the ev.ent that the parties are not able to determine it by agreement. - 17 - DATED at Toronto, Ontario this 14th day of May, 1984. K.P. Swan Vice’Chairman K. O’Neil , Member r A.G. Stapleton Member /lbw