GSB #1299/98

OPSEU #98U098

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Community and Social Services) Employer

BEFORE Ken Petryshen Vice Chair

FOR THE Elizabeth Mitchell, Counsel

GRIEVOR Koskie Minsky

Barristers and Solicitors

FOR THE Sunil Kapur, Counsel

EMPLOYER McCarthy Tetrault

Barristers and Solicitors

HEARING November 16, 1999 and May 25, 2000.

DECISION

In a Union grievance dated August 25, 1998, the Union alleges that the Employer has contravened Article 6 of the Collective Agreement, specifically sub-sections 6.3.2 and 6.3.3. From this grievance arose a dispute between the parties as to whether a particular Memorandum of Agreement and an attached Addendum, together commonly referred to as the Enhanced Accountability Framework (the “EAF”), continues to exist and is enforceable by the Union. The Union’s position is that the Employer continues to be bound by the EAF while the Employer takes the position that it is no longer obliged to comply with the terms of the EAF. The facts relevant to this dispute can be summarized as follows.

In December 1993, the Employment Equity Act, 1993 (the “EEA”) became law in the Province of Ontario. The EEA was designed to provide employment equity for four designated groups, namely aboriginal people, people with disabilities, members of racial minorities and women. The EEA required the Employer and the Union to jointly prepare an employment equity plan in accordance with the regulations. The Employer and the Union established various committees which were involved in the process of preparing an employment equity plan by the legislated date of September 1, 1995. In addition to the four groups designated by the EEA, the parties intended to include francophones as a designated group in the OPS employment equity plan.

As the process of preparing an employment equity plan progressed, certain advocacy groups within the OPS raised concerns about the impact of downsizing on aboriginal people and people with disabilities. On the basis of these concerns, the Employer and the Union agreed to certain provisions to assist persons who fell within these two designated groups. These provisions are set out in the EAF which was executed by the parties on March 30, 1995.

The Memorandum of Agreement and the attached Addendum read as follows:

Memorandum of Agreement

Between

The Crown in Right of Ontario

(Represented By Management Board Secretariat)

and

The Ontario Public Service Employees Union

(OPSEU)

Based on the advice, support and participation of the OPS Advisory Group on Employment Equity for Persons With Disabilities and the Ontario Native Employment Equity Circle, the parties to this memorandum have agreed to the following measures to assist in the retention and placement of classified and unclassified aboriginal employees and classified and unclassified employees with disabilities within the OPS.

Upon ratification of the parties and written confirmation of support of this

Memorandum from the OPS Advisory Group on Employment Equity for Persons With Disabilities and the Ontario Native Employment Equity Circle, the following measures will be implemented:

1. The employer commits to implementing the Enhanced Accountability Framework as described in the attached addendum.

2. Where the employer determines there is a continuing need for the work being performed by the employee, the affected employee’s unclassified contract not shall be terminated prior to the existing expiry date. Where the employer determines that a continuing need for the work being performed by the employee extends beyond the contract expiry date, the contract will be extended up to the date where the employer determines the need for the work stops.

3. Where the employer determines there is no continuing need for the work then the employer shall take the appropriate action under the Enhanced Accountability Framework.

4. A Job Referral Network (Jobnet) be established to offer assistance in matching the skills of job-threatened unclassified aboriginal employees and employees with disabilities for referral to suitable vacancies that have cleared the surplus list as well as those registered vacancies of 3 months or more. Until a Jobnet database is operating this individual matching for referral will be carried out manually.

The Jobnet will be coordinated with the Bargaining Unit Redeployment Committee (BURC), and weekly reports on employees using the Jobnet will be provided to OPSEU by the employer.

The BURC, Jobnet reference group and representatives of the aboriginal and employees with disabilities networks will meet immediately to determine the most effective means of establishing this link.

5. Where a classified or unclassified aboriginal employee or employee with a disability has specific concerns over the application of the process outlined in this agreement and attached addendum, the employee will bring these concerns to the attention of the Employment Equity Division. The Employment Equity Division will notify the employee concerned that advisory groups and OPSEU are available for representation. The EE Division, in conjunction with Negotiations Secretariat and Redeployment staff of Management Board Secretariat shall immediately review the case.

6. The parties agree to commence a process regarding a return to work/modified work program for OPS employees represented by OPSEU. The program would include employees returning from STSP, LTIP and WCB.

7. Classified aboriginal employees and employees with disabilities will continue to retain full use of any existing employment security entitlement they have under the current collective agreement.

8. Aboriginal employees and employees with disabilities will be identified only on the basis of voluntary self-identification. At the time of voluntary self-identification, the Ministry EE Manager will inform the employee of this agreement and their entitlement to accommodation.

9. The effective date of this understanding, including the addendum hereto, is from December 8, 1994. The terminal date of this understanding is the date of agreement on the OPS employment equity plan.

10. This agreement in no way limits the right of the parties to seek a resolution of complaints by the Ontario Human Rights Commission.

11. On ratification of the parties the employer agrees to inform employees of the assistance available under the terms of this agreement and addendum to assist employees in fully utilizing these provisions. The employer agrees to seek the advice, support and participation of the advisory groups and the union in this communication.

12. The JCC-EE, the OPS Advisory Group on EE for Person With Disabilities and the Ontario Native EE Circle agree to meet to review the process, data and outcomes on or before June 30, 1995.

As agreed by the parties in Toronto, on this 30^th day of March, 1995.

ADDENDUM

ENHANCED ACCOUNTABILITY FRAMEWORK

The following outlines the process to be used when the Enhanced Accountability Framework is triggered:

For unclassified employees:

1. Ministry line managers, at the earliest possible time, forward to their Employment Equity office a list of the names and dates when unclassified employees are intended to receive a notice of termination.

2. The Employment Equity Office determines whether the action will result in job losses for self-identified unclassified aboriginal person or person with disabilities.

3. Where it is determined that such an unclassified job loss would occur, the employee’s line manager, Director and Assistant Deputy Minister undertake a further analysis to determine whether it is possible to offer a contract extension or a new contract to that particular employee.

4. Where such an offer is not possible, the line manager, Director and Assistant Deputy Minister, with the assistance of Ministry Human Resources consultant/Employment Equity Office, undertake a comprehensive search to find another suitable position for that person within the Ministry.

5. If this search is unsuccessful, written approval to terminate the employee must be sought from the Employment Equity Manager and the Deputy Minister who must be satisfied that a comprehensive search has been undertaken and that there is a compelling business case necessitating the job loss.

6. Upon receipt of written acknowledgement from the Employment Equity Manager and Deputy Minister that no suitable position can be found for the person within the Ministry, the line manager provides written notice of termination to the employee, with a copy to the Ministry’s Employment Equity Manger and OPSEU.

7. On a quarterly basis, the Employment Equity Office of each ministry report to the EE Division of MBS on the number of persons with disabilities, aboriginal peoples and other designated group members who have been assisted by the Enhanced Accountability Framework. The EE Division will provide the information to OPSEU.

For classified employees:

1. Ministry line managers, at the earliest possible time, forward to their Employment Equity office a list of the names and dates when classified employees are intended to receive a notice of layoff.

2. The Employment Equity office determines whether the action will result in job losses for self-identified classified aboriginal persons or persons with disabilities.

3. Where it is determined that such a classified layoff notice would be issued, the employee’s line manager, Director and Assistant Deputy Minister undertake a further analysis to ensure there is a compelling business case necessitating the layoff notice.

4. Upon receipt of written acknowledgement from the Employment Equity Manager and Deputy Minister that there is a compelling business case for the layoff, the line manager provides written notice of layoff to the employee, with a copy to the Ministry’s Employment Equity Manger.

5. The job security provisions of the collective agreement apply.

6. On a quarterly basis, the Employment Equity Office of each ministry report to the EE Division of MBS on the number of persons with disabilities, aboriginal peoples and other designated group members who have been assisted by the Enhanced Accountability Framework. The EE Division will provide the information to OPSEU.

As can be seen, the EAF contains measures to assist aboriginal people and people with disabilities in retaining employment with the OPS. The implementation of these measures depended on action to be taken by departments such as the Employment Equity Division (the “EED”) and the Employment Equity Office (the “EEO”). These departments were established to assist in the development of the employment equity program. To a considerable degree, the EAF references and relies on the provisions in the EEA. Paragraph 9 of the Memorandum of Agreement addresses both the effective date and the terminal date of the EAF. The effective date of the EAF is December 8, 1994 and the terminal date is the date of agreement on the OPS employment equity plan. Mr. Kevin Wilson, who at the relevant time was the Employer’s Manager of Union-Management Relations and a participant in the EAF negotiations, testified that the parties viewed the EAF as a transitional agreement to deal with certain issues prior to the creation of the OPS employment equity plan. Ms. Mary Ellen Cassey is a Union representative who at the relevant time worked in the Union’s job security unit and had been assigned to the employment equity committee. Ms. Cassey confirmed in her evidence that the EAF was a temporary document which was to end with an employment equity plan, but that the establishment of the OPS employment equity plan never occurred.

A provincial election in June 1995 resulted in a change of government. The provincial Progressive Conservative Party, as part of its platform, had promised to revoke the EEA. With the election of the Harris government, there was an almost immediate impact on the ongoing process to establish an OPS employment equity plan. In early June 1995, a representative of the Employer advised Ms. Cassey and the members of her committee that there would no longer be any discussions regarding employment equity. There were no further efforts to negotiate an employment equity plan. Bill 8, an Act to repeal the EEA, was introduced in October 1995 and was passed in December 1995. With the repeal of the EEA, administrative departments such as the EED and the EEO were dismantled.

Prior to the election of the Harris government, the Employer and the Union had

commenced the re-negotiation of the Collective Agreement. The election resulted in a break in the negotiations, but bargaining recommenced during the Fall of 1995. Mr. Kevin Wilson was the spokesperson for the Employer during these negotiations and Mr. Andre Beckerman was the spokesperson for OPSEU. Mr. Wilson testified that during a bargaining session in October or November 1995, after Bill 8 had been introduced, Mr. Beckerman asked him about the status of the EAF. Mr. Wilson testified that his response was that the EAF was nullified. The bargaining session referred to consisted of persons from both sides of six bargaining units and the central bargaining committee, totaling approximately one hundred people. The Union asked no further questions about the EAF and it did not table a proposal to provide for the continuation of the EAF. It appears that neither party made a note of the exchange between Mr. Wilson and Mr. Beckerman. Neither did the parties execute a document which confirmed an understanding that the EAF was no longer operative. The Union did not call a witness to contradict Mr. Wilson’s version of the exchange between himself and Mr. Beckerman. Mr. Beckermen died in 1998.

The parties did agree to a new Collective Agreement on April 1, 1996 (the “1996 Agreement”), after a strike which lasted for approximately five weeks. Article 20.20 of the 1996 Agreement is entitled “TERMINATION OF MEMORANDA OF AGREEMENT”. Section 20.20.1 of that article provides that four specific memoranda of agreement of various dates are terminated effective January 1, 1996. The EAF is not listed in Article 20.20. Mr. Wilson testified that he did not think it was necessary to include the EAF on the list in the circumstances. He formed this view because the EEA had been repealed, the EAF was a transitional agreement, he had advised the Union during bargaining that the EAF was nullified and the Union did not take issue with the Employer’s position by making an employment equity proposal.

Before the 1996 Agreement was executed, Vice-Chair Roberts issued a decision dated February 12, 1996, which decided that the parties intended the EAF to be legally enforceable. The grievor in that case, who had self-identified as aboriginal, filed two grievances, one in May and another in August 1995. These grievances were heard on December 1, 1995 and January 12, 1996, and raised the issue of whether the Employer had complied with the EAF. The Employer challenged the GSB’s jurisdiction by claiming that the document was not enforceable through the arbitration procedure. Vice-Chair Roberts dismissed this objection. He determined that the EAF was legally enforceable at arbitration by virtue of an estoppel and that the Employer was precluded from exercising its management rights inconsistently with the Memorandum of Agreement.

Although the issue of when the EAF terminated was not before him, Vice-Chair Roberts noted in passing that the EAF was effective from December 8, 1994, “until the effective date of the dismantling of the employment equity program…” After reviewing the Memorandum of Agreement and paragraph 9 in particular, Vice-Chair Roberts concluded that the EAF was in effect when the grievances before him were filed, but that it was not in effect by the time he heard the evidence and issued the decision. I agree with the Union that Vice-Chair Roberts’ comment concerning the duration of the estoppel is obiter.

In a grievance dated October 10, 1996, Ms. L. Mulligan alleged that the Employer contravened the EAF. This grievance came to the attention of Mr. Cameron Walker in June of 1997 while he was working in the Union’s grievance department. Since Mr. Walker was unaware as to whether the EAF was still in existence, he discussed the matter with Ms. Cassey. Mr. Walker and Ms. Cassey both testified about certain conversations that they had with other Union officials regarding the status of the EAF. It is unnecessary to set out the details of this evidence. Suffice it to say that the Union officials they spoke to expressed the opinion that the EAF was still in existence and that they should proceed accordingly. They both asked Mr. Beckerman about the status of the EAF and they testified that Mr. Beckerman advised them that there was no agreement between the parties that the EAF was not still in effect. On the basis of the information and the instructions they received, the Mulligan grievance proceeded to arbitration. The grievance was eventually adjourned pending the outcome of the Union grievance. Mr. Walker acknowledged that by the time he testified, he was aware that the Employer had ceased implementing the EAF in June 1995.

In the course of its submissions, the Union noted that the EAF was a significant agreement and argued that there is no basis for concluding that it is no longer in effect. Although it was only intended to be effective until the implementation of the employment equity plan, such a plan never did materialize. The Union accepted that the EAF was not part of the Collective Agreement as well as Vice-Chair Roberts’ conclusion that it was enforceable by estoppel. The Union submitted that the estoppel could only be brought to an end by a timely and clear notice. In its view, the circumstances in this case do not support the conclusion that the Employer clearly advised the Union that the EAF was terminated at a time to give the Union the opportunity to bargain the issue. In reviewing the relevant circumstances, the Union referred to the absence of any written notice or a document which evidenced an agreement to terminate the EAF, the evidence of Mr. Beckerman’s response when asked about the status of the EAF and the absence of a reference to the EAF in Article 20.20 of the 1996 Agreement. In the Union’s view, the estoppel cannot be brought to an end by what it characterized as a chance comment by Mr. Wilson.

The Employer made three submissions in support of its position that the EAF ceased to exist in 1995. By referring to the termination provision in paragraph 9 of the Memorandum of Agreement and the clear requirement that an employment equity plan had to be in place no later than September 1, 1995, the Union argued that the parties intended that the EAF would expire on September 1, 1995. The Employer also argued that the doctrine of frustration applied in these circumstances, having regard to the repeal of the EEA and with it the elimination of the structure which was designed to support the EAF. Finally, the Employer took the position that it had provided the Union with clear and timely notice of the termination of the EAF, thereby ending the estoppel.

After reviewing the facts and the parties’ submissions, it is my conclusion that the Union’s contention that the EAF continues to be an enforceable agreement is not sustainable. Although the other positions taken by the Employer may have merit, I will focus, as the parties did, on the Employer’s position that the estoppel has been terminated.

The Employer and the Union were in agreement that an estoppel can be terminated by a party giving clear notice to the other party in a timely fashion. What divides the parties on this issue is not the applicable legal principle, but rather a disagreement on whether the facts support the conclusion that the Employer gave appropriate notice in this case.

As previously noted, Mr. Wilson testified that he advised the Union in the course of bargaining in October or November 1995, in response to a question from Mr. Beckerman, that the EAF was nullified. Mr. Wilson’s evidence on this point was not directly contradicted by anyone from the Union involved in the negotiations. The absence of a written record of this discussion and the evidence relating to Mr. Beckerman’s comments about the status of the EAF in 1997 does not discredit Mr. Wilson’s testimony. The Union did not argue that Mr. Wilson’s evidence concerning his exchange with Mr. Beckerman was not truthful. Given these circumstances, it is my conclusion that Mr. Wilson did advise the Union during bargaining in October or November 1995 that the EAF was nullified when Mr. Beckerman asked about its status.

In order to assess the Union’s claim that Mr. Wilson’s comment to Mr. Beckerman during bargaining did not constitute clear notice to end an estoppel, it is necessary to have regard to all of the circumstances. Although it may have been prudent to make a note of the comment, the absence of a written record is not determinative of whether the notice is adequate. I agree with the Employer’s submission that there is no requirement that notice to end an estoppel must be in writing. The events which preceded Mr. Wilson’s comment at the bargaining table provide a context to the comment and serve to explain why little formality was required. Both parties viewed the EAF as a transitional agreement that would end with the agreement on an employment equity plan. With the election of the Harris government, the employment equity committees were quickly disbanded. In early October 1995, the new government introduced Bill 8, an Act to repeal the EEA, and began the process of dismantling the departments which had been created to implement and administer the EEA. When the parties met in bargaining during the Fall of 1995, the Union could not reasonably have been under any illusions about what road the government intended to follow with respect to employment equity. It is unlikely that the Union would have had any reasonable basis for believing that the EAF would survive. The relatively brief comment by Mr. Wilson at a full bargaining session that the EAF was nullified should not have been a surprise to the Union. In these circumstances, Mr. Wilson’s comment to the Union constitutes clear notice to the Union of the Employer’s intention to end the estoppel. I note that the hearing before Mr. Roberts took place after Mr. Wilson indicated to the Union that the EAF was nullified. The Employer’s position on the arbitrability of the EAF in the proceeding before Mr. Roberts, which was also advanced before the completion of bargaining, would also have provided the Union with an indication of the Employer’s stance on the EAF.

The facts also support the conclusion that the notice to the Union provided by Mr. Wilson was timely. Mr. Wilson made his comment at a time when there were many months of bargaining still ahead. The Union had an opportunity to make a proposal and to bargain for the continuation of the EAF.

The absence of a reference to the EAF in Article 20.20 does not compel the conclusion that the EAF continues to exist. A provision which provides that four Memoranda are terminated as of January 1, 1996, does not necessarily compel the conclusion that other Memoranda, such as the EAF, continue to exist, particularly in the face of evidence which clearly suggests otherwise.

For the foregoing reasons, the Union’s claim that the EAF continues to be enforceable through the mechanism of estoppel is dismissed. The clear and timely notice from the Employer brought the estoppel to an end prior to the execution of the 1996 Agreement.

Dated at Toronto, this 3^rd day of October, 2000.