GSB# 2005-3289
UNION# 2005-0999-0030
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)
Union
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Owen V. Gray Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Fateh Salim Counsel Ministry of Government Services
HEARING
April 12, June 11, July 10, 2007.
Decision
1In this proceeding the union challenges the employer’s termination in November 2005 of what the union describes as a “policy” of paying extra compensation to land ambulance dispatchers when they provide mentoring to new dispatchers. The union claims that the employer is obliged to continue paying the extra compensation for the life of the current collective agreement. That obligation is said to arise from an estoppel based on the employer’s conduct, and not from any express or implied provision of the collective agreement.
2After their opening statements the parties identified certain facts on which they could agree and outlined the testimony that their witnesses would give. They each then agreed that the other’s witnesses would testify as described, and that this dispute could be argued and determined as though such testimony had been given, on the basis of that testimony and the agreed facts.
The Facts
3This decision refers to the affected employees as “dispatchers” for ease of reference, but their formal job titles are “Communications Officer” and “Communications Supervisor.” During the term of the previous collective agreement, those two land ambulance dispatcher positions were classified as “Communications Officer 2” and “Communications Officer 3,” respectively. The Communication Officer class standards applied to communications officers in a variety of positions in the Ontario public service, not just to those who dispatched land ambulances for the Ministry of Health and Long-Term Care. Concurrent with the advent of the current collective agreement, the affected employees’ positions were reclassified as “Ambulance Communications Officer 1” and “Ambulance Communications Officer 2,” respectively. As their name implies, the new Ambulance Communications Officer class standards apply only to ambulance dispatchers.
4The “policy” that the union says the employer is obliged to continue applying was announced by the employer in a memorandum issued in September 2002 (hereafter, the “mentoring compensation memorandum”):
Emergency Health Services Branch Effective Date: September 23, 2002
Communications Officer Mentoring Program - Compensation Pilot Project For Ministry Operated Central Ambulance Communications Centres
This pilot project is being introduced to address concerns about workload management and competing priorities for CO2 and CO3 employees who, in addition to their routine duties, act as mentors for newly hired communications officers who are entering the mentoring phase of their job learning.
Upon hiring, a communications officer candidate typically undergoes a multi-part, standardized training program prior to commencing mentoring. Upon successful completion of the required core and local training programs delivered by Communications Training Officers (CTO) and approved training resources, the communications officer candidate is ready for local mentoring placement at their home CACC. Local mentoring typically lasts a minimum of six (6) weeks. During the mentoring phase, the candidate’s training is consolidated in a real-world setting under the guidance of an experienced communicator.
Although dispatching duties must take priority over mentoring activities, it is recognized that communicators incur an additional workload when mentoring new staff. Typically, this work takes the form of preparation and evaluation activities related to the day-to-day practical aspects of call taking and dispatching. Evaluation involves observing and noting new communications officer’s performance throughout the shift and completing an end of shift performance summary report.
Under this pilot project the manager will compensate communicators, who are suitable and agree to provide mentoring activities, for preparation time for the mentoring shift. A participating communicator who undertakes an authorized eight (8) hour mentoring shift shall be entitled to one and one half (1.5) additional hours of pay at the overtime rate. Longer shifts involve more mentoring evaluation, documentation and summation work. Consequently, a participating communicator who undertakes an authorized twelve (12) hour mentoring shift shall be entitled to an additional two (2) hours of pay at the overtime rate.
For greater certainty:
8 hour shift = 8 hours at straight time (8 x 1 = 8 hours) plus 1.5 hours at overtime (1.5 x 1.5 = 2.25 hours)total is 10.25 hours of pay at the employee’s basic hourly rate
12 hour shift = 12 hours at straight time (12 x 1 = 12 hours) plus 2 hours at overtime (2 x 1.5 = 3 hours) total is 15 hours of pay at the employee’s basic hourly rate
It is anticipated that this pilot project will help ensure that the preparation and evaluation of mentoring activities related to the practical aspects of call taking and dispatching are completed appropriately.
This pilot project will be evaluated after a suitable time frame.
5The memorandum says that in addition to performing his/her regular dispatching duties during a shift in which s/he mentors a new dispatcher, a dispatcher who mentors is also expected to spend a certain amount of time on preparation for mentoring and on “evaluation, documentation and summation work” concerning the new dispatcher. It seems to dictate or pre-estimate the amount of time these additional duties should take, preauthorize that amount of overtime work and undertake that compensation for that time will be paid to the mentor at overtime rates in addition to his/her regular pay for the regular shift hours. A casual reader of the memorandum might infer that dispatchers who mentor were expected and required to spend more time at work than those who just perform their regular dispatching duties. On that view, an undertaking to pay for the pre-authorized additional time at overtime rates would be unremarkable and entirely consistent with the employer’s obligations under the collective agreement then in force.
6What I have said that a casual reader might have concluded was not what was intended or understood or implemented, however. Dispatchers who mentored were not actually expected or required to spend more time performing their combined mentoring and regular dispatching duties than non-mentoring dispatchers were expected to spend on their regular dispatching duties alone. What might appear to be an undertaking to pay mentors for pre-authorized additional work time at overtime rates was actually understood by all concerned to be an undertaking to provide extra compensation not authorized or required by the collective agreement (but calculated by reference to what it would require the employer to pay for some notional overtime hours) for each regular shift during which mentoring was performed.
7The employer issued the mentoring compensation memorandum and began paying the mentoring bonus after a series of health and safety work refusals, primarily in Oshawa, in which dispatchers refused to participate in mentoring new dispatchers. In that connection the Union had taken the position that mentoring duties were not part of the dispatchers’ jobs and had also alleged that their performing them increased the dispatchers’ job stress to the detriment of their health.
8The employer’s witnesses would testify that when it implemented the mentoring compensation pilot project it thought that perhaps the then applicable class standards and job descriptions did not sufficiently flesh out a requirement that dispatchers participate in providing training. The Ministry was going through a major recruitment drive and needed lots of experienced dispatchers to assist in training new ones. It also recognized that dispatchers were underpaid, and that this project provided a means of improving their compensation pending a more comprehensive solution to that problem. There is no suggestion that the employer shared any of these thoughts with the union at any material time, however, nor that the employer ever expressly agreed with the union that mentoring duties were not part of the dispatchers’ jobs as they were then defined. The union’s claim that mentoring was not part of the dispatchers’ jobs was never adjudicated.
9The employer implemented the mentoring bonus unilaterally. It did not seek or obtain the union’s agreement to it. The union was aware of the mentoring compensation memorandum and that, as a result, dispatchers who mentored were being paid more that those who did not for the same number of hours worked. It did not challenge the employer’s practice of paying the mentoring bonus.
10The parties later settled some grievances and OLRB proceedings relating to benefits and alleged strike reprisals in a Memorandum of Settlement dated May 17, 2004. The terms of that agreement included an increase in the maximum pay for dispatchers (by adding two higher paid steps to the salary grid for their positions) and a pay increase for all land ambulance dispatchers (by moving all existing dispatchers up two steps on the grid). The agreement also provided as follows:
- Class Standards
The Employer will carry out and conclude a review of the existing Communications Operator class standards by October 31, 2004. This review will include Air Ambulance positions in Emergency Health Services. Any monetary outcomes will be negotiated in the next round of bargaining.
During the negotiations that led to this settlement agreement no one said anything about whether or not the project described in the mentoring compensation memorandum and the resulting practice of paying the mentoring bonus would continue after the results of a review of the class standards were implemented. Nothing at all was said in that connection about the memorandum, the pilot project, the mentoring bonus or extra pay for mentoring.
11Later in 2004, the employer circulated proposed new class standards for a new, separate Ambulance Communications Officer class series, as well as new position descriptions for the land ambulance dispatcher positions of Communications Officer and Communications Supervisor, which were to be classified as Ambulance Communications Officer 1 and Ambulance Communications Officer 2, respectively. Before finalizing the new class standards, the employer consulted with the appropriate union officials and with employees of the different communications centres. During those consultations no one said anything about whether or not the project described in the mentoring compensation memorandum or the resulting practice of paying the mentoring bonus would continue after the new class standards and job descriptions were implemented. Nothing at all was said in that connection about the 2002 memorandum, the pilot project, the mentoring bonus or extra pay for mentoring.
12The collective agreement in effect when the mentoring bonus was implemented expired at the end of 2004. During negotiations for the renewal of that agreement, the parties negotiated pay rates for land ambulance dispatcher positions with reference to the new class standards and job descriptions for them. The pay rates on which they agreed provided dispatchers with a substantial increase: employer witnesses would have testified (without contradiction) that the pay increase was 34 percent over the dispatchers’ 2002 pay levels.
13During that collective bargaining no one said anything about whether or not the project described in the mentoring compensation memorandum and the resulting practice of paying the mentoring bonus would continue for the redefined and reclassified dispatcher positions when the negotiated changes came into effect. Nothing at all was said in bargaining about the memorandum, the pilot project or the mentoring bonus. Neither party proposed that there be different pay rates, or additional pay, for dispatchers when they mentor new dispatchers. Nothing in the resulting collective agreement requires that dispatchers be paid more when they mentor new dispatchers.
14After the terms of the new collective agreement were settled in 2005, around the time it expected that the negotiated pay increases would be implemented, the employer issued the following on memorandum (hereafter, the “wrap-up memorandum”) dated October 20, 2005:
MEMORANDUM TO: Ambulance Communications Officers Ministry of Health and Long-Term Care Central Ambulance Communications Centres
FROM: Tony Campeau Manager, Land Ambulance Programs
RE: Wrap-up of Mentoring-Compensation Pilot Project
As many of you are aware, the ministry operated CACCs have faced some significant challenges over the past few years. One of the most important of those challenges was the recruitment, training and retention of Communications Officers. I am pleased to notify you that through the dedication and effort of ministry operated CACC staff and management we have been successful in meeting this challenge.
In order to collectively meet our recruitment, training and retention challenges, a number of changes needed to occur. These changes included the development of new position descriptions to better reflect the duties and responsibilities of CACC staff, an improved collective agreement and an improved CORE training program. One of the temporary measures that helped us manage the challenges was the Mentoring–Compensation Pilot Project. This temporary project was put into place to recognize staff who were tasked with the responsibility of on-the-job training of new Communications Officers while the other above noted improvements were being pursued.
The new position description and the new class standards for Ambulance Communications Officers recognize the responsibility of providing on-the-job training for new staff as part of the core job duties. As a result of this recognition and the compensation for this role in the new OPSEU collective agreement, the Mentoring Compensation Pilot Project is wrapping up effective November 6, 2005.
Employees who incur overtime while training new staff will be compensated for that overtime as per the collective agreement, if it is authorized by the manager.
For those of you who participated in the Project over the past 3 years, I would like to extend our appreciation for your commitment and professionalism in assisting new staff prepare for their career as Ambulance Communications Officers. Although the Project is now complete, the role of all experienced Ambulance Communicators in shaping the future of new staff through the on-the-job training remains vital to the success of the new communicators in their chosen careers. It is also vital to the success and quality of emergency health services communications across the province.
Thank you for your continuing professionalism in the dispatching of ambulance services.
15The employer says, and the union accepts, that the considerations identified in the second paragraph of the wrap-up memorandum were considerations when the employer’s adopted the policy or pilot project described in the 2002 mentoring compensation memorandum and implemented the resulting practice of paying a mentoring bonus. The employer’s witnesses would testify that the obligation of dispatchers to participate in providing training was elaborated in the new class standards and job descriptions, as the wrap-up memorandum stated, that the dispatchers’ compensation was addressed in bargaining and (as I have already noted) that the dispatchers received a 34 per cent increase in pay relative to 2002 pay levels. The employer also says, and the union accepts, that the reasons it gave in the wrap-up memorandum for wrapping up the project were its actual reasons for doing so.
16The union’s witnesses would testify that the matter of additional pay for mentoring was not raised as an issue in bargaining for the current collective agreement, either with the union by affected employees or by the union in negotiations with the employer, because (as far is it was concerned) there had been no indication that the project described in the mentoring compensation memorandum and the resulting practice of paying the mentoring bonus would end on the implementation of the new class standards. They would say that the union saw no significance to the new class standards on this issue, since the old class standards and job specifications had also spoken to training. Had the union understood that the employer saw it differently, they would say, the union would have proposed additional pay for mentoring during negotiations for the current collective agreement.
Argument
17The union argued that an estoppel arises from the employer’s having failed to give the union notice during collective bargaining that it intended to discontinue its practice of paying a mentoring bonus, because had the union known of the employer’s intention to do so it would have sought to negotiate that practice into the collective agreement, and its having foregone the opportunity to do that will have been to its detriment if the employer is permitted to rely on its strict legal rights with respect to payment for mentoring under the new collective agreement.
18The union submitted that part of the context supporting such an estoppel was the employer’s agreement in 2004 that it would negotiate any “monetary outcomes” of its review of the applicable class standards during subsequent collective bargaining. In the wrap-up memorandum the employer identified the new class standards and job descriptions as reasons for discontinuing the mentoring bonus. That showed that in the employer’s mind the discontinuance was an outcome of its review of the applicable class standards. Since that outcome was monetary in nature it was something that the 2004 agreement had obliged the employer to raise explicitly during collective bargaining. In this connection the union submitted that because the class standards and job descriptions in force in 2002 also spoke to training, the references to training in the new class standards and job descriptions did not represent a significant change in that regard and gave it no warning or notice of the prospect that additional pay for mentoring might be discontinued. Thus, in the union’s submission the employer’s silence at the bargaining table about the prospect of its discontinuing the mentoring bonus amounted to a representation that it would not be discontinued during the term of the collective agreement for which they were bargaining.
19In support of its submissions, the union’s counsel cited Re Maple Lodge Farms Ltd. and United Food & Commercial Workers, Local 175 (1991), 1991 CanLII 13421 (ON LA), 24 L.A.C. (4th) 211 (R. M. Brown), Re Stirling Place and United Food and Commercial Workers International Union, Local 175/633 (1997), 1997 CanLII 25149 (ON LA), 62 L.A.C. 289 (Pineau) and Re Hamilton-Wentworth Catholic District School Board and Ontario English Catholic Teachers Association (2005), 2005 CanLII 94242 (ON LA), 144 L.A.C. (4th) 70 (Herman). He submitted that the Maple Lodge Farms award identified a “general rule” that when a compensation practice not reflected in the collective agreement exists at the time of bargaining for renewal of the agreement and the employer does not give the union express notice during bargaining that it will not consider the practice binding for the life of the renewal agreement, the employer will be estopped from changing that practice for the life of that renewal agreement. He argued that the language used in the 2002 mentoring compensation memorandum, particularly the use of the phrase “pilot project” to describe the project and the statement in the last sentence that the pilot project would be “evaluated after a suitable time frame,” did not amount to notice that the employer would not consider the resulting practice binding for the life of the renewal agreement.
20The union argued in the alternative that even if the employer’s silence at the bargaining table about extra compensation for mentoring was not a representation that its practice of paying such compensation would continue for the life of the agreement, in view of paragraph 3 the 2004 settlement agreement it was at least a representation that the outcome of its review of the class standards would have no impact on the continuation of that practice. The union submitted that even on this view of the representation, the employer was estopped from discontinuing the practice on the basis of changes in class standards.
21The employer argued that there was no unequivocal representation of the sort that could support the estoppel contended for by the union here. The practice of paying extra compensation for mentoring was introduced unilaterally as “pilot project” that was to be evaluated after a “suitable time frame.” A “pilot project” is a project of limited duration that may or may not continue in a greater or lesser form after review but cannot be expected to continue indefinitely. The memorandum was not a representation that the practice would continue for the life of the next collective agreement, and was not intended to affect the employer’s legal relationship with the union.
22The employer noted that the pilot project was adopted in part because the union had taken the position that mentoring was not part of the job of ambulance communications officers under the then applicable job descriptions and class standards. New class standards and job descriptions were devised making it clear that mentoring would be part of the job. The monetary outcomes of those new class standards for Ambulance Communications Officers were negotiated in 2005 as the parties’ agreement in 2004 had contemplated. Substantially higher wage rates were the result. If the union had wanted dispatchers to be paid different pay rates depending on whether or not they were mentoring, or if it wanted a commitment that the pilot project would extended to the new jobs for the life of the contract, then in the employer’s submission the union had had the obligation to raise that at the bargaining table.
23Employer counsel cited the requirements of estoppel as described by this Board (differently constituted) in Brown, 0513/86 (Barrett) at pages 6-8 as quoted in Hawke 870/90 (Fisher) at pages 3 and 4. He also referred to Re Chronicle Journal and C.E.P., Loc. 191 (2003), 2003 CanLII 68736 (ON LA), 117 L.A.C. (4th) 385, which rejected the distinction that arbitrator Surdykowski felt the Maple Lodge Farms and Stirling Place awards had made between compensation and other collective agreement issues when it comes to the application of estoppel in circumstances where there is nothing in a collective agreement about a particular issue. Reference was also made to Re Atomic Energy of Canada Ltd. and Atomic Energy Labour Alliance (1986), 1986 CanLII 6733 (CA LA), 22 L.A.C. (3d) 225 (Swan), Re Janes Family Foods and United Food and Commercial Workers International Union, Local 1000A (2006) 2006 CanLII 36615 (ON LA), 156 L.A.C. (4th) 304 (Trachuk) and Canadian National Railway Co. and C.A.W. Canada, Loc. 100 (2005), 2005 CanLII 94129 (CA LA), 137 L.A.C. 282 (Jones).
24With respect to the alternate argument described in paragraph [20] above, employer counsel initially expressed concern that it went beyond the scope of this grievance by seeking, in effect, a remedy for an alleged breach of the 2004 agreement. When union counsel confirmed that that agreement was only relied on as part of the context in which silence at the bargaining table was said to amount to a basis for the estoppel claimed by the union, employer counsel noted that changes to the class standards were not the only reason given for wrapping up the pilot project and that even if the employer’s silence amounted to a representation about the impact of changes in class standards on pay for mentoring it should not have the remedial consequence sought by the union. He asked for an opportunity to research that remedial issue and make additional argument about it at a later date. His concern in that regard was resolved by the parties’ agreement that both parties would have a further opportunity to make submissions on the appropriate remedial consequences if I were to find the basis for an estoppel of some sort in the conduct relied on by the union.
Analysis and Decision
25Chief Justice Dickson described estoppel this way in Scotsburn Cooperative Services Ltd. v. W. T. Goodwin Ltd. (1985), 1985 CanLII 57 (SCC), 16 D.L.R. (4th) 161 (S.C.C.) at pp. 168-9:
The essence of estoppel is representation by words or conduct which induces detrimental reliance. A more exhaustive definition is offered in Spencer Bower and Turner, The Law Relating to Estoppel by Representation, 3rd ed. (1977), at p. 4:
[W]here one person (“the representor”) has made a representation to another person (“the representee”) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may after-words take place between him and the representee, is estopped as against the representee, from making or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner objects thereto.
This Board (differently constituted) described estoppel in Brown, 0513/86 (Barrett), at pages 6 – 8 (as quoted in as quoted in Hawke, 870/90 (Fisher), at pages 3 and 4):
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 promise reasonably to believe that an undertaking was being given.
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.
The promise must be one that is voluntarily given; not extracted by force or coercion.
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.
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 the promisee 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.
It must be shown that the alteration of position by the promisee 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 expense [sic] or implied promise, when to do so would be unconscionable.
26In Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 1981 CanLII 4518 (ON LA), 4 L.A.C. (3d) 205, arbitrator Beatty applied the doctrine of estoppel to require that an employer continue a long standing practice of paying weekly indemnity benefits from the first day of sickness for certain categories of employees, even though the applicable collective agreement provided that there would be a waiting period before such benefits would be payable. In his judgment dismissing an application for judicial review of that award (reported as Re Canadian National Railway Co. et al. and Beatty et al. (1981), 1981 CanLII 2953 (ON HCJDC), 128 D.L.R. (3d) 236 (Ont. Div. Ct.)), Mr. Justice Osler noted (at p. 241 of the report) that
The arbitrator found as a fact, as he was bound to do in view of the agreed statement, that the employer adhered to a course of conduct which reasonably induced the union to believe that the entitlement of the employees in question to sickness benefits would not be governed by the strict legal rights set out in art. 30 but rather would conform to the long-standing practice of paying wages during a waiting period. He found also that it would be inequitable to allow the employer to insist on the terms of art. 30 as the limit of its obligation to the employees. As submitted to the arbitrator by the union, if there had been any indication given by the employer that it had intended to commence applying the terms of art. 30 strictly despite the opposite practice of so many years, the union would have had the opportunity of seeking to negotiate a clause in the agreement to preclude the employer from so doing. At the foot of p. 10 of his award (Record, p. 14) the arbitrator finds:
The detrimental reliance then of assuming the practice would continue, lies in the union’s inability to require the employer to negotiate its change in its practice during the life this agreement. After a practice of this duration, if the employer anticipated changing it, it had an “affirmative duty” to alert the union of its intention in order to give it an opportunity to negotiate a note of the kind the parties fashioned for their vacation package.
Justice Osler further observed (at pp. 243-4) that
What the arbitrator did here, however, was not to interpret the agreement but to make a finding as to its proper application and to give consequential relief.
That finding surely fits within the principles enunciated by Denning L.J. in Combe v. Combe, cited above. By its conduct in persistently paying many classifications of employees from the first day of illness in the face of a clause providing for a waiting period, the company gave the union an assurance which was intended to affect the legal relations between them. The union took the company at its word and refrained from requesting a formal change in the agreement. The company should not now be allowed to revert to the previous relations as if no such assurance had been given.
27Prior to the award in CN/CP and subsequent court judgment, some arbitrators had said that the doctrine of estoppel could be used as a “shield” against the assertion of rights but not as a “sword” to create rights, and there were debates about how the one sort of use was to be distinguished from the other. In Re Hallmark Containers Ltd. and Canadian Paperworkers Union, Local 303 (1983), 1983 CanLII 4814 (ON LA), 8 L.A.C. (3d) 117, arbitrator Burkett commented that the CN/CP award and the judgment on judicial review had put an end to the sword/shield distinction, but added this caution:
… The elimination of the distinction does not mean, as has been suggested by some, that a union can enforce all longstanding work place practices by way of estoppel if the employer has not reserved his right to alter these practices during the term of the agreement. Indeed, given the statutory requirement that a collective agreement be in writing and the broad discretion usually given to management under the management’s rights clause of a collective agreement, this would be a strange result. There may be work place practices which do not conform to the express terms of the collective agreement, as a payment of weekly indemnity benefits during the three-day waiting period did not conform to the weekly indemnity provisions in CN/CP, supra. The failure of an employer to reserve his right at the bargaining table to alter this type of practice may, as in CN/CP, supra, give rise to an estoppel. However, there are innumerable other work place practices which exist at the discretion of management under the management rights clause and are not referable to any other provision of the collective agreement. It is generally accepted in labour/management relations that in the absence of specific language in the agreement to codify these practices, they exist at the discretion of the employer. It could hardly be found, therefore, that silence at the bargaining table with respect to these types of practices constitutes a representation by the employer that he is waiving his right to change them during the term of the agreement. That is not to say, however, that a representation by the employer at the bargaining table that he will maintain an existing practice, might not serve to estop the employer from subsequently relying on his authority under the management rights clause to modify the practice during the term of the agreement.
28I have reviewed the awards cited by the parties as well as many of the awards cited in those awards. The facts dealt with in those awards dealt were materially different from the facts of this case. Accordingly, with one exception I do not intend to refer to them directly in this decision.
29At the heart of any estoppel claim are questions of fact: what representation was made and what detrimental reliance, if any, did it induce? When representation by conduct is alleged, the representation alleged must be shown to have been the unequivocal implication of the conduct in the context in which it occurred. To show that one party’s act or failure to act was induced by the words or conduct of the other, it is not enough to establish that the action or inaction was that party’s subjective reaction to the words or conduct. If the response was not the reaction actually intended by the party making the representation, it must at least be shown to be the foreseeable and objectively reasonable reaction to the representation before the representation can be said to have induced the response.
30Many reported awards have arisen out of an employer’s discontinuing a practice more favourable to its employees than the applicable collective agreement required. In such cases the union generally asserts that if it had known during negotiations for that collective agreement that the employer would thereafter discontinue the practice, it would have bargained to add the practice to the employer’s obligations under the collective agreement. That is not enough to support a finding that estoppel prevents the employer from altering the practice for the life of the agreement, however. Before it can achieve that, the union must establish that before or during that bargaining the employer represented by its words or conduct that it would continue the practice for the life of the ensuing collective agreement, and that it was that representation that induced it not to raise the matter in bargaining.
31In Maple Lodge Farms, supra, arbitrator Brown found as a fact that the employer had represented to the union that it would continue the practice in question for the life of the collective agreement:
On the evidence before me, I conclude that the employer’s conduct induced union representatives to believe this practice would not be terminated during the life of the collective agreement and that this belief was reasonable.
(page 220 of the report). I do not understand the lengthy reasons that precede this finding to say that if a practice concerns compensation the mere existence of the practice will compel such a finding despite any surrounding circumstances that would otherwise support a contrary conclusion. I do not understand the Sterling Place award to stand for that proposition either. If either of those awards does stand for that proposition, however, then I respectfully decline to follow it.
32The origins of the practice in issue here are not lost in the mists of time at a distance spanned by multiple collective agreements. It began in late 2002, during the term of the most recently expired collective agreement. It was implemented unilaterally. Whether or not the union was right in its claim that mentoring was not one of the duties contemplated by the class standards and job descriptions then applicable to dispatchers, payment of the mentoring bonus implemented by the employer was clearly not provided for in the collective agreement. There was no reason for the union to believe that the practice reflected an employer belief – reasonable or otherwise – that the collective agreement required the payment.
33When the practice of paying a mentoring bonus was introduced, the employer expressly described it as a “pilot project” that would be evaluated at a future time. As the Concise Oxford Dictionary notes (9th ed., Clarendon Press, 1995, at p. 1036), a “pilot” project is an “experimental undertaking or test.” A test project comes to an end when the tester decides to end it and continue, enlarge or discontinue the activities of the project. The language that the employer used when it implemented the practice was a clear reservation, if any was needed, of its right to discontinue the practice at a time of the employer’s choosing. The fact that that time was not specified in advance did not diminish the reservation.
34Leaving aside for a moment any effect the 2004 agreement may have had on the significance of the employer’s silence about the practice in bargaining, the initial reservation of a right to evaluate the practice at any time, and by implication discontinue it at any time, had not been withdrawn, altered or diminished by any words or conduct of the employer when the parties began bargaining for the renewal of their collective agreement. In that context I would conclude that the past payment of a mentoring bonus to dispatchers, in combination with the parties’ silence about it at the bargaining table, did not amount to a representation or undertaking by the employer that such payments would continue for the newly reclassified dispatcher jobs for the life of the next collective agreement.
35How does the parties’ 2004 agreement affect the meaning of the employer’s silence about mentoring bonuses during bargaining in 2005?
36On this issue counsel debated whether the admittedly different words used reflect significant differences between the old Communication Officer class standards and the new Ambulance Communication Officer class standards as regards the duty of dispatchers to participate in training and mentoring of new dispatchers. On this point it is significant that the union has not said of the new class standards and job descriptions, as it did of the old ones, that mentoring is not part of the jobs thus defined. In any event, in considering the effect of the 2004 agreement on the meaning of silence in bargaining I do not think it matters whether there was an objectively significant difference between the old and new class standards as regards training and mentoring duties.
37Paragraph 3 of the 2004 agreement said that the employer would review the class standards that applied to dispatcher positions, and that “Any monetary outcomes will be negotiated in the next round of bargaining.” The parties presumably intended this to be something more than mere acknowledgement of an opportunity they would have had in any event. Whatever it added to the parties’ obligations, however, nothing in the language used suggested that the addition was anything but mutual.
38The focus of the provision was on having the compensation for any reclassified positions dealt with at the bargaining table. It is counterintuitive that an agreement with that focus could add weight to a claim that something that was not negotiated at the bargaining table should thereafter determine compensation for a reclassified position. Having specifically agreed beforehand that compensation for newly reclassified positions would be dealt with at the bargaining table, it was not reasonable for the union to have believed that some issue of compensation specific to the newly reclassified dispatcher positions would be determined by a pre-reclassification, unilateral employer practice that had not even been discussed, rather than by a provision that had been both discussed and agreed upon at the bargaining table.
39From the employer’s perspective, its proposals at the bargaining table did cover compensation for mentoring for the newly reclassified dispatcher positions: the wages rates offered were rates to be paid to employees performing the duties contemplated by the new class standards and job descriptions, duties which included mentoring. Assessed against a background that included the parties’ express agreement that compensation for these positions would be negotiated at the bargaining table, the union’s failure to propose a mentoring bonus at the bargaining table was a representation that no such bonus would be sought or expected for the newly reclassified positions.
40In short, the 2004 settlement agreement does nothing to enhance the union’s claim to an estoppel.
41Considered in the context of what the employer said in the 2002 mentoring compensation memorandum and what the parties agreed to in paragraph 3 of the 2004 memorandum of settlement, the employer’s silence at the bargaining table about the mentoring compensation pilot project and the payment of bonuses for mentoring was not a representation to the union that the reclassification of the dispatcher positions would not result in the termination of the mentoring compensation pilot project. Accordingly, I need not consider whether such a representation could have been the basis of an estoppel in the circumstances of this case, where reclassification was not the only reason given for the discontinuance.
42Further to my observations in paragraph [34] above, when paragraph 3 of the 2004 memorandum of settlement is added to the analysis my conclusion remains the same: the employer’s silence at the bargaining table about the mentoring compensation pilot project and payment of extra compensation for mentoring was not a representation that dispatchers would be paid a mentoring bonus during the life of the collective agreement for which the parties were bargaining.
43For those reasons the union’s estoppel claim fails, and this grievance is dismissed.
Dated at Toronto this 23rd day of July, 2007.