OPSEU (Karen Brown) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 1988 CanLII 10147

GSB# 0513/86

Under

Before

BETWEEN

OPSEU (Karen Brown)

Grievor

and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

A. Barrett Vice-Chairperson

F. Taylor Member

G. Peckham Member

APPEARANCES

For the Grievor

J.E. Mosher Counsel Gowling & Henderson Barristers & Solicitors

For the Employer

W.N. Emerson Employee Relations Officer Human Resources Planning & Program Design Branch Min. of community and Social Serv.

Hearing

April 5, 1988

DECISION

The grievor is a Communication Instructor at the Rideau Regional Centre, a residence for physically and developmentally handicapped people. The griever started work with the Rideau Centre in 1973 as Project Staff. She then obtained a certificate as a Mental Retardation Counsellor in 1976 and by 1978 was certified as a Bliss Symbolics Instructor. She has been teaching Bliss Symbolics ever since under various other job titles such as Ward Programmer, Speech Aide and Residential Counsellor. Under any of these job titles she has always been a Schedule 4.7 employee whose hours of work are set out in Article 7 of the Collective Agreement as being 40 hours per week and 8 hours per day.

The grievor was always aware that she was a Schedule 4.7 employee and therefore was required to work 40 hours per week. However she says that when she was hired into the Speech and Audiology Department in 1981, the Chief Speech Pathologist, who was in charge of the department, told her that her hours would be 8.15 a.m. to 4:30 p.m. with a one hour lunch break from 12 – 1.00 p.m. This constituted only a 36½ hour week. Sometime in 1985 the start time was changed to 8.00 a.m. and the griever was then working a 37½ hour week. Then at a staff meeting of the whole Speech and Audiology Department consisting of seven people on March 14th, 1986, the then Chief Speech Pathologist, Ms. Garrett, brought to the attention of the staff the fact that some Communication Instructors had been using one hour for lunch for some time when they were only entitled to a ½ hour for lunch. It was noted that Speech Pathologists are required to work only 37½ hours per week, but Communication Instructors are required to work 40 hours per week. The Minutes of the meeting show that the Chief Speech Pathologist said she would discuss the matter with her Supervisor, Mr. Fournier, and all staff would be notified by a memorandum if and when a change was to occur. For the present time the practice was to remain as is. At the next department meeting on April 13th, 1986 the Communication Instructors, including Ms. Brown, were advised that they were to take only ½ hour for lunch beginning April 18th, 1986.

As a result Ms. Brown filed this grievance alleging that the employer was estopped from reverting to the strict wording of the Collective Agreement by its past practice of openly allowing her one hour for lunch in direct contravention of the terms of the Collective Agreement. As a remedy the grievor seeks overtime pay for the extra ½ hour per day worked from April 18th, 1986 to March 1987 when a new Collective Agreement was signed and the estoppel can be deemed to have come to an end.

The employer resists on various grounds. Ms. Garrett, who has been the Chief Speech Pathologist since 1982, testified that she was not aware the grievor was taking an hour for lunch. She says that the Speech Pathologists and Communication Instructors in her department generally work quite independently with little direct supervision from her. She did not 'police' their lunch hour. She said she only discovered the grievor was taking an hour for lunch at the end of 1985 or early in 1986. She said that the majority of Communication Instructors took only ½ hour for lunch unless they had specifically requested more time for special purposes. Although the griever stated that at least one other Communication Instructor was taking an hour for lunch on a regular basis, Ms. Garrett denied any knowledge of this.

Ms. Garrett could not explain how two Position Specifications for the grievor's job appeared to have incorrect and inconsistent working hours set out in them. The Position Specification in place when the grievor was hired as a Bliss Instructor indicated working hours of 8.15 - 4.30 p.m. and a work week of 40 hours. These figures are inconsistent with each other because even with ½ hour for lunch the working hours total only 38 ¾ hours. The new Position Specification for Communication Instructor was drawn up in 1983 and signed by Ms. Garrett. It again specified working hours from 8.15 - 4.30 p.m. Ms. Garrett says at the time she signed this Position Specification she knew the working hours were in error but for some reason thought someone else would correct them.

In 1984 Ms. Garrett posted a timetable schedule in her office and asked each of the Communication Instructors to indicate on a daily basis where she would be for each hour block of time throughout the day from 8 a.m. to 4.30 p.m. On these pre-printed forms the 10 a.m. block has "coffee" printed across the schedule for each day of the week. The schedule for 12 p.m. has "lunch" printed across for every day of the week; as does the schedule for 12.30 p.m. Ms. Garrett says that if an employee wanted to fill in another activity during the lunch hour she would have to “white-out” the word “lunch”, or cross it out and fill in her other activity. She said that even if nothing had been filled in on these 12 or 12.30 p.m. time slots she would not necessarily assume that an employee was on lunch but might simply assume that the instructor was in the office. She said that employees did not really need to fill in the square when they were in the office; only when they were out of the office.

The grievor testified that when she was hired in the Speech and Audiology Department the Chief Speech Pathologist then was Ms. Colette Massie. The grievor testified that Ms. Massie told her the hours of work were 8.15 a.m. to 4.30 p.m. with a lunch break between 12 and 1.00 p.m. Ms. Massie who now lives and works in Vancouver was not called to give evidence at the hearing, presumably due to the expense of bringing her here, but the Union submitted an affidavit sworn by her testifying to the fact she had been a supervisor in the Speech and Audiology Department from 1973 to April 1982 and that each time she hired a new employee into the department she would explain in detail the daily routine to her. This daily routine consisted of working hours from 8.15 a.m. to 4.30 p.m. with a lunch break between 12 and 1.00 p.m. In her affidavit Ms. Massie said that she could not specifically recall explaining this routine to Ms. Brown but she assumed she had done so because it was part of her normal practice to describe the working day thusly to each employee. The employer strongly opposed the introduction of this indirect evidence; but we admitted it subject to the reduced weight it must be given due to the inability of the employer to cross-examine on it.

It was agreed by all witnesses at the hearing that the lunch break for the residents of the Centre was from 12 to 1.00 p.m. and Communication Instructors would not be working directly with the residents during that time unless they were involved in rare feeding programmes. The grievor herself testified that sometimes she was so busy she did not take a lunch break at all; but when she did take a lunch break it was one hour.

With respect to the affidavit evidence of Colette Massie, we have no difficulty accepting it as corroboration of the griever's testimony that she thought she was entitled to a one hour lunch break. We found the grievor to be a credible witness and we find as a fact that she was openly and continuously taking one hour lunch breaks from 1981 through to 1986. We further find as a fact that she was aware she was required to work 40 hours per week pursuant to the Collective Agreement, but believed an exception had been made by management in her case and in the case of other Communication Instructors. Ms. Brown conceded that the one hour lunch break was not an integral reason for accepting the job and that even if she had been advised from the beginning that she was entitled to only a ½ hour lunch break, she would still have taken the job.

The doctrine of "promissory estoppel" is one that is often raised in labour relations circles since the well-known Divisional Court decision in Canadian National Railway Co et al v. Beatty et al (1981) 34 O.R. (2d). The doctrine was examined in depth by Dr. M.A. Hickling in an article in the U.B.C. Law Review in 1983 entitled Labouring with Promissory Estoppel: A Well Worked Doctrine Working Well?, from which we extrapolate certain general principles, quoted loosely.

Where parties are bound in a contractual relationship (as in the case of an employer and a union) one party may be estopped from asserting its strict legal rights pursuant to the agreement if it has failed to do so in the past and certain other requirements are met. The requirements are:

i) The party with the contractual right makes a representation to the other party that it will not be insisting on strict compliance with that right. The representation need not be expressed but can be implied from the conduct of the party making it. The conduct gives rise to an estoppel only where it leads the promisee reasonably to believe that an undertaking was being given.

ii) The representation relied upon must be clear and unequivocal. Conduct which is ambiguous or subject to a number of conflicting interpretations cannot form the basis of an estoppel.

iii) The promise must be one that is voluntarily given; not extracted by force or coercion.

iv) The promise must be one which was intended, or was reasonably construed as being intended, to affect the legal relations between the parties. A person may well grant an indulgence without ever intending to forego his strict legal rights. The promisor is not estopped from relying on terms which in the past have not been enforced through error or inadvertence.

v) The person relying on estoppel must show that he altered his position on the strength of the promise or representation that was made. An alteration of position may take the form of a·positive act or that of an omission. It is sufficient if the promissee has been induced to conduct himself differently than he otherwise would have done. Such conduct must be shown however to have been in reliance on the promise. In the labour relations context reliance may take the form of forebearing to raise an issue at the bargaining table which but for the promise would otherwise have been raised.

vi) It must be shown that the alteration of position by the promissee was to his detriment or prejudice.

In essence the object of the doctrine is to prevent a party from acting in a manner inconsistent with an express or implied promise, when to do so would be unconscionable.

The Union relies strongly on a G.S.B. decision No.510/82 (Sheppard). In that case it appeared that Correctional Officers at the Don Jail in Toronto who were also Schedule 4.7 employees and required to work 40 hours per week, had in practice for many years only been working a 37½ hour week. After many years the Superintendent of the institution decided to revert to the strict wording of the Collective Agreement and require all Correctional Officers to work 8-hour days. The employer sought to avoid the doctrine of promissory estoppel on the basis that one collective agreement applied to all ministries in the Ontario Government; that the Toronto Jail Correctional Officers could not have bargained individually as a group; and there was therefore no detrimental reliance or foregone bargaining opportunity.

The Board rejected this argument on the basis that while the collective agreement is a centralized one, that does not mean that the interests of employees within individual ministries are not capable of being taken into account. The Board found that the furor which followed the ministry's decision to enforce its strict contractual rights eloquently demonstrated that if adequate notice had been given the Union would have attempted to renegotiate the relevant language of the collective agreement. The grievance was accordingly allowed and the Correctional Officers were compensated with overtime pay from the time the practice was changed to the time of the signing of the next collective agreement.

The facts of our case have many of the earmarks of a promissory estoppel. We believe the griever was told she could have one hour for lunch when she was hired into the Speech and Audiology Department, and we believe she relied upon that representation to take one hour for lunch on the days she took lunch. We have the griever's evidence that at least one other Communication Instructor (Ms. Commodore) also took one hour for lunch on many occasions with the griever. About the other Communication Instructors we heard some contradictory evidence, certainly insufficient to determine that they all took one hour for lunch on a regular basis.

The Position Specifications contain clear errors about the hours of work: one has an internal inconsistency. However neither of these Position Specifications mentions a lunch break and we are left only with the evidence of Ms. Brown indicating that she was told she could have a one-hour lunch break.

Hereafter, the estoppel argument runs into roadblocks: the representation of reduced work hours was made only to the griever and not to the Union, or a whole block of employees within the Union. The Union did not rely on the representation to its detriment. Even the grievor did not rely on the representation to her detriment in that there was no evidence she would have declined the job or involved herself in attempting to bargain reduced hours had she known the employer intended to insist on the strict terms of the Collective Agreement. The grievor is one of a small group of Schedule 4.7 employees in a very small department, and we cannot find that the representation made to her was made to other employees in her group. The supervisor, Ms. Garrett, may have been “willfully blind" to Ms. Brown's lunch-hour practices, but that does not amount to a representation by the Employer to the Union that it intended to suspend its strict legal rights under the Collective Agreement, and intended the Union to rely upon that promise. What really happened here is that this employee was granted an indulgence which she enjoyed for many years, through error and/or inadvertance of her supervisors. The doctrine of promissory estoppel would not permit us to extrapolate from that circumstance a promise made by the Employer to the Union that all Communication Instructors or all Schedule 4.7 employees were not required to work 40 hours per week. The evidence does not go that far.

Accordingly the grievance is dismissed.

DATED at Toronto this 10th day of August,1988.