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HomeMy WebLinkAbout1983-0105.Boyd.83-12-28Between: Before: IN THE UTTER OF AN ARBITRATION Under TRE CROWN El&'PMYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD R.J. Roberts Vice .Chairman J. hlcManus Member W.A. Lobraico Member For the Grievor I. Freedman OPSEU (Stan Boyd) Grievor , ~.. - And - The Crown in Right of Ontario / (Ministry of Correctional Services) Employer Legal Director, Grievance Section Ontario Public Service Employees Union For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: November 3. 1983 -2- DECISION In this arbitration then 'griever claims reimbursement for the cost of meals that he consumed in restaurants while attending a one week refresh& course for Correctional Officers in Guelph, Ontario. For reasons which follow, we deny the grievance. Most of the evidence' in this case was stipulated between the parties. The~re was only one witness, who was called to testify on behalf of then Employer. It seems that the Ministry of Corrections operates a number of staff training programs, including basic training, consolidation , . training, . refresher training, advanced studies, and training programs for shift IC's. Xany of these training prygrams are conducted at the 'Guelph Correctional Centre. In fact, the evidence indicates that up until November, 1981, all such training was conducted at Guelph. The qrievor has been employed as a Correctional Officer since July 2, 1977. As such, ' the grievor must have gone through the basic training and consolidation training programs of the Ministry when they were conducted at the Guelph Correctional Centre. In the fall of 1982, the Ministry I -3- notified the grievor that he was required to attend another training course at Guelpii. This was a refresher course. It was scheduled to run from November 29 to December 3, 1982, inclusive. At the time, the grievor was posted at the Elgin- Middlesex Detention Centre in London, Ontario. Several weeks prior to leaving for the course he was advised by management that he could choose between commuting daily to and from Guelph.or taking advantage of accommodation which was provided by the Ministry at the staff training facility. This advice was in accordance with a standard memorandum which was issued by E.G. Lockyer. the , . Co-ordinator, Staff Development Centre, Brampton. This memorandum purported to set forth a number of instructions / to staff attending the training course at Guelph. One of these instructions was that meals were "provided in the staff cafeteria, Guelph CC". The grievor was informed that this instruction meant that he would not be reimbursed for the cost of any meals he opted to consume elsewhere. Ultimately, the grievor decided to opt to accept accommodation at the Staff Training Facility rather than commute back and forth to London; however, he de- clined to eat his meals in the staff cafeteria. Instead -4- , he ate at restaurants. When he returned to London, the grievor submitted a meal expense claim for reimbursement for the amount paid for these meals. The total claim was for $98.00. When this claim was disallowed, the grievance leading to the present arbitration was filed. At the hearing, the Union essentially submitted on. behalf of the grievor thatin disallowing the grievor's claim'the Ministry had violated the provisions of sections 17.2.1 and 17.2.2 (b) of the collective agreement. These provisions read as follows: 17.2.1 Cost of meals may be allowed only: 17.2.2 If during a normal meal period the employee is t%velling on government business other than: . . . (b) within twenty-four (24) kilometers of his assigned headquarters, . . . .Y The Union submitted that during the period of is refresher i, course the grievor was travellingon"government business" more than 24 kilometers from his headquarters and as such was entitled under these provisions to be reimbursed for the cost of his meals. The Union reinforced this submission by noting that neither statute nor any other provision of the collective agreement empowered the Employer to decide where an employee who meets these criteria should consume his meals. -5- ( The Employer submitted, inter alia, that even if the Union were correct regarding the meaning of sections 17.2.1 and 17.2.2(b), both the Union and the qrievor were estopped from denying the rrght of the Employer in the circumstances of this case to instruct employees to eat their meals in the staff cafeteria and deny employees reimbursement for the cost of meals eaten elsewhere. This submission was based upon the doctrine of promissory estoppel. This estoppel was raised, the Employer submitted, in the undisputed fact that since approximately 1947, the Employer's practice of providing free meals in the staff cafeteria for course participants and not authorizing reimbursement for meal expenses incurred elsewhere has been applied consistently under normal circumstances. The Employer claim- ed that the forebearance of the Union to exercise its alleged contractual right in the light of this longstanding, open and notorious practice of the Employer must b: deemed to constitute a constructive promise not to do so in the circumstances of this case, a promise upon which the Employer was entitled to rely in making its arrangements for staff training at Guelph. We agree. It is difficult to imagine that neither the grievor nor the Union was aware of this longstanding practice of the Employer. On the facts, it would seem that practically all Correctional Officers were exposed to , - 6 - one or more staff training courses in Guelph. The grievor must have been there at least twice before. On the evidence, the same practice regarding meals must have been experienced by the grievor and thousands of others like him several times over. Yet, until now, the matter never was grieved. (In this regard, we note that there was no evidence to indicate that over the years the relevant provisions of the collective agreement had changed.) Even 'if the relevant provisions of the collective agreement did provide 'the grievor with the right for which the Union contended, the Union and the grievor must be taken to have been es~topped by their conduct from insisting upon this contractual right. Under the doctrine of promissory estoppel, their conduct must be construed as a promise not to so insist. This is sufficient to dispose of the grievance at hand. As a practical matter, this case could end here; however, because the Union indicated at the hearing that it might consider the submission of this grievance to constitute sufficient notice to the Employer to terminate any estoppel for future cases, we believe that it'might be wise to mZke a few observations,'.albeit in dictum, regarding (1) the most appropriate ~interpretation of ss. 17.2.1 and 17.2.2 of the collective agreement; and (2) the matter of termination of promissory estoppel. -9- clothing with contractual status promises which are unsupported by consideration. Given the result in the present case, however, it is unnecessary for this Board as a whole to apply either viewpoint. The grievance is dismissed. DATED IN London, Ontario this 28th day of I&&r , "I dissent" (Dissent to follow) J. McManus, Member W.A. Lobraico,Member