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HomeMy WebLinkAbout1985-0635.Walker.87-06-30BETWEEN: BEFORE: .- GRIEVANCE SETTLEMENT BOARD . . IN THE HATTER OF AN ARBITRATION . UNDER : THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT ,, BEFORE .~- -TRE GRIEVANCE SETTLKMENT BOARD .: OPSEU (Monica Walker) t - and.- ; i%E CROWN IN RIGRTOP ONTARIO (Ministry of the Solicitor General) P. Knopf , Vice-Chairman T..J. Kearney Member ii. Roberts Member FOR THE GRIEVOR: FOR TRE EWPLOYRR: REARING: I. Roland ~ Counsel Gowling and Henderson Barristers and Solicitors R. B. Itenson Chief Staff Relations Officer Management Board of Cabinet May 2'3. 1987 635185 DECISION This case involves a claim by the griever, Monica Walker, for overtime pay. At all relevant times, Ms. Walker was a Civilian Radio Operator employed by the Ministry of the Solicitor General at the Snelgrove detatchment of the Ontario Provincial Police since 1980. The radio is staffed on a 24-hour basis on a Sunday to Saturday rotating shift. Asa Schedule 4 employee under the Public Service Act, the grievbr was regularly scheduled to work 40 hours per week, fivs days a week. The undisputed evidence discloses that as far back as at least 1980, the Snelgrove datatchment has had a policy or practice of attempting to accommodate employees' desire to get an extended period of time off during the Christmas and' New Year holiday season. The Snelgrove detatchment is staffed by both employees of the Ministry of the Solicitor General such as the griever and members of the Ontario Provincial Police who are members of the Ontario Provincial Police Association and are under a different collective agreement. The practice in the detatchment has been to arrange the schedules so that an employee would have seven consecutive days off either over Christmas or New Year's, with attempts made to give them their preference. In order to do this, employees would often be scheduled to work more than five days per week in December and/or January which would technically violate the two operative collective agreements, but would not rasult in any extra hours over the two-month period. However, the practice continued in force until the Christmas period of 1934 when the facts involving the griavor's case arose. -2- The practice in the datatchment was to have the employees sign a list indicating their preference for the seven consecutive days off either'over Christmas or.New Year's. There is a factual dispute in the evidence elicited at the hearing'as'to whether-the grievor in fact signed this list indicating a~greference. "It is unnecessary to resolve this factual~dispute as nothing>about that dispute is relevant dr..determinative:of the issues in;,this case. The undisputed fact~is that the griever was scheduled so that she would have seven consecutive days off from December 23 to and 'fmteludifiij Deceinber~ 29. In order to provide for this and to ensure-coverage and proper staffing:for the department, the grievor'was also scheduled.to.%ork more than 40 hours per week on three different weeks in!the December.l984/January 1985 season. On or about December'18 or 2!l, 1984, the grievoz- made i't clear to the"Adtiinistrative Corporal at the Snelgrove detatchmen~ who is in charge of scheduling that while she was willing to work the' Christmas/New Year schedule as posted, she was asserting an entitlement to "combensating leave" or lieu time for the period that she was scheduled to work,-more than 40 hburs per week. Inother words, she would be willing to work the Chris-tmas/New Year schedule as gosted, but she was insisting upon her strict rights to overtime as provided 'under the collective agreement. The Administrative Officer;.Corporal Fell, stressed to 'the grievor that if she asserted s&h a-claim it would result in the detatchment ' ceas'ing'from'scheduling seven consecutive days: off over the hbliday season in years to come. However, the grievor persisted with her claim. The. result of this was that the griever was never paid any additional monies for the weeks that she.worked more than 40 hours in any one given week. However, over the December/January period, she was not called to work any greater number of hours over those months than would be required by regular scheduling. The Board has been advised that as a result of the grievor asserting,her rights in this grievance, the practic'e in the Snelgrove detatchment has changed with regard to the civilian staff. - 3 - I .’ ,. I : The relevant provision of the collective agreement is Article 13.4. That Article provides: Employees in Schedules 3 and 4 who perform authorized work in excess of . . . . 8 hours . . . . shall receive compensating leave of one and one half (l-1/2) hours for each hour of overtime worked, at a time mutually agreed u?on. Failing agreement, the Ministry shall reasonably determine the time of the compensating leave. The Ministry acknowledged at the outset of the case that the' grievor was scheduled to work i,n a manner that did not comply with the collective agreement because she was not given two consecutive days off after five days worked during the holiday season. The Ministry acknowledged that on a strict reading of the collective agreement, the grievance should succeed. However, it was argued that the long-standing practice in the detatchment to give seven days off at Christmas time by scheduling manipulations over the December/January period established a practice that estopped' the Union from asserting its strict legal rights in thiscase. Further, the Ministry stressed that over the four or the eight-week schedule, the grievor was called upon to work no more hours than she would normally have worked and she had the benefit of the seven days off over Christmas. Thus, the' only issue in the case was whether the doctrine of estoppel agplied. Arguing that the doctrine was applicable, the Ministry relied on the following cases: Sheopard and.Ninistq of Correctional Services, GSB File 510/82; Albrecht and Ministry of Correctional Services, GSB Pile 406/54 and Avery and Ministry of Transportation and Communications, GSB File 751/84. Counsel for the Union submitted that the doctrine of estoppel was not applicable in this case because there was no evidence of any knowledge on the Dart of the Union of the - 4 - ;. .~ ;. .;!,‘y,;.l .: i.. '.arrangcment that was in force inthe Snelgrove Jetatchment. It was submitted~ that 'the Union had~ to be fixed w,ith knowledge ,of 'a practice before the doctrine of estoppel could a2ely. Further'it was said that an understanding between the employees and the employer which may have accommodated the wishes of the employees could not be used as a bar to the Union from asserting its contrac,tu'al rightswhen the Union .- was not aware of the 'practice. The Union re'lied on the case of Metropolitan Toronto Police Association and Board of .Commissi~oners of Police for Metropolitan Toronto, decision of the Ont. Div. Ct., Ap'ril'28, 19 77;. ; Further, it was argued that there was.no evidence of any detrimental reliance on behalf of the Employer. On the: cont;ary, it was said that the Employer could.have enforced'the collective agreement by ., scheduling the grievor as she wanted because she had put the Employer on notice,before the Christmas holiday that she : would~ be enforcing her.strict contractual rights. The Board was referred to the cases of Barnfield and.Ministry of Transportation and Communication,. GSB.File 67/76; and Kerr and Ministry of Social Services, GSB File 362/80. The Decision The sole issue in this case is whether the doctrine of estoppel applies to the facts presented to the.Board. There is no question that the doctrine of promissory estoppel has been applied by this Board and has formed the basis of many awards. However, before'the'doctrine can be applied successfully, the proper factual basis must be laid' for the doctrine. The doctrine has been defined in a way that high1igh.t.s the two fundamental requirements for establishing the basis of its application: It is apparent that there are two aspects of the doctrine... There must be a course of conduct in which both parties'act or both parties consent and in which the party who later seeks to set up ths ; - 5 - estoppel is led to suppose that the strict rights will not be enforced. It follows that the person against whom the es toppel is set u;, will not be allowed to enforce his strict legal right if it would be inequitable to do so. The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up the estoppel has relied to his detriment. (Canadian General Zlectric Company Limited, (19711 22 L.A.C. 149 (Johnston) at page 150-51.) In the case at hand, it must be concluded that the evidence does not establish that the doctrine of esto?,sel asp stated above is applicable. First, there is no evidence that tier2 is a course of conduct that both par ties consen ted to.~ It is clear that there was an established practice or course of conduct at the Snelgrove detatchment that would, if it had been shown to have been carried out with the knowledge and consent of the Union, have formed one of .the bases of an es toppel. However, absolutely no evidence was produced to show that the Union ever had knowledge of the private arrangements that were made at ‘this detatchment. The arrangements only covered four employees of this Ministry. No grievance was ever filed regarding it, nor was there any evidence produced from either aarty indicating that the arrangements had ever come to the Union’s attention. Thus, it cannot be said that the Union was fixed with knowledge of the conduct or that it ever consented to it. A private arrangement by an individual or small group to waive their rights under a collective agreement is not sufficient to fix the union, which is the aarty to a collective agreement, with the imglici t consent to the breach of the agreement. (See Maritime Telephone 6 Telegraph Co. Ltd. (i3a3 ) , 12 Ls.4.C. (3d) 90 (Outhouse).) Secondly, there is no evidence that the Ministry has relied to its detriment on any course of conduct established by the Union. The fact that the Ministry may be liaole for violation of-the collective agreement is not in i,tself the kind of detriment that the doctrine contemplate's.', The detriment that the doctrine of estoppel is concerned about is the kind of situation where a party is led by a course of conduct by the other party to take some action or refrain from taking action that has resulted in its detriment. In the case at hand, 'the Employer was put on notice that its planned course.of aztion, would be challenged by the employee and ultimately the Union. But the Employer persisted in the course of conduct despite such 'notice. Thus, the concept of detrimental reliance is not applicable in this case. For all these reasons , we must conclude that the Employer has not made out its de~fence of promissary estoppel in this case. The Employer having acknowledged that the scheduling did not comply~ with the collective agreement, it inevitably follows that this Board finds that the collective agreement has been breached. ~The facts established that there were three weeks in which the grievor worked in excess of 40 hours and is therefore entitled to be compensated for those days in accordance with the collective agreement. While the grievor had initially asked for "compensating days" for the overtime worked, we were advised that she is no longer employed by this Ministry. Thus, counsel for the grievor asked that she be awarded payment for the days she worked in excess of 40 hours aer week at the overtime rate.~ The grievor also claims interest on that amount. Accordingly, the Board awards that the grievor be compensated for violation of the collective agreement by being paid for four days at her overtime rate applicable in December 1984 and January 1985 and interest on that amount in accordance with the Board's usual formula. The Board is confident that the parties and their representatives will be able to wbrk out the mathematics associated with this award. However, in the~event that our further assistance is required ‘# -7- with regard to implementation, we retain jurisdiction over the matter. DATED at Toronto, Ontario, this 30thday of June, 1987. Q///4 . * I - Paula Knopf, Vice-Chairman q-j&--- : T. J. Kearney, Memae: i-b-$?-. ; H. Roberts, Member