GSB#2006-0519

UNION#2006-0230-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sutherland)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Benjamin Parry Counsel Ministry of Government Services

HEARING

September 5, October 31 and November 20, 2008.

Decision

1The Board is seized with three group grievances filed by a number of Occupational Health and Safety Inspectors working out of the employer’s offices in Kitchener-Waterloo, Mississauga and London. They all relate to the employer’s refusal to extend a compressed work week (“CWW”).

2The parties agreed to initially litigate the grievance of Mr. Richard Sutherland from the Kitchener-Waterloo office, hoping to obtain some guidance from the resulting decision with respect to the rest of the grievances. Mr. Sutherland is party to the Kuehner et al, group grievance referred to in the union’s particulars set out infra.

3The employer made two motions to the effect that the Board lacked jurisdiction to entertain Mr. Sutherland’s grievance. The parties agreed that for the purposes of determining these motions only, I could treat the facts pertaining to Mr. Sutherland’s grievance, as particularized by the union, and as presented through opening statements of counsel, to be established. However, the employer reserved the right to challenge those facts, should the Board take jurisdiction over the merits of the grievance.

4Article 10.1 of the collective agreement provides as follows:

COMPRESSED WORK WEEK ARRANGEMENTS

10.1 It is understood that other arrangements regarding hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model agreement with respect to compressed work week arrangements is set out below:

5The article then goes on to set out a “Model agreement with respect to compressed work week arrangements.” The union conceded that the collective agreement does not oblige the employer to enter into a CWW agreement with any employee, and that it is a matter for the employer in the exercise of its management rights. However, the union claims that the employer had exercised its management rights unreasonably and in a discriminatory fashion with respect to Mr. Sutherland. The union points out that the employer has entered into CWW agreements with many Health and Safety Inspectors, who had been hired prior to the hiring of the grievor. Those inspectors work out of different offices within Ontario, including the Kitchener-Waterloo office, and continue to have CWW arrangements. The employer exercised its management rights in favour of these employees, but refuses to do so for this grievor. The union alleges that there is no business or operational justification for that differential treatment.

6Mr. Sutherland has made the additional claim of promissory estoppel. That claim is based on an alleged promise made during the job interview process, and later confirmed on Mr. Sutherland’s first day of employment, to the effect that upon the completion of the one year training period he would have a CWW. Mr. Sutherland completed his training period, but was denied the promised CWW, leading to the instant grievance.

7The employer’s primary position is that this grievance is in effect a claim that because the employer exercised its discretion and management rights to grant to certain employees a CWW arrangement, it should do the same for the grievor. This was referred to as a “me too” grievance. The employer submits that in the absence of any right to a CWW agreement under the collective agreement, and in the absence of a claim of bad faith or that the employer’s particular exercise of management rights impacted negatively or abridged a collective agreement and/or statutory right, the Board has no jurisdiction to deal with a “me too” grievance.

8The employer submits further that the union’s estoppel argument must fail because it is based upon a pre-employment promise, made at a time when no legal relationship existed between the grievor and the employer, and because the alleged promise was not related to any right under the collective agreement. In addition, the employer contends that a promise made to an individual employee cannot give rise to an estoppel.

The motion based the employer’s exercise of management rights

9For purposes of determining this particular motion, I accept as proven, the following material facts set out in the union’s particulars:

1. The enclosed are the particulars for the above-noted grievances. As indicated above, we have combined the particulars for both files in that they share some, but not all, characteristics. For example, there is a general claim by all grievors of discrimination in that the Ministry has wrongfully, unreasonably, and discriminatorily withheld the availability of a Compressed Work Week (hereinafter referred to as “CWW”) from the grievors in both files. In this regard, it must be assumed that the Ministry is fully aware that in its own Ministry that employees holding the same classification and carrying out the same duties as those of the grievors are afforded CWWs while the grievors (in both files) are not afforded CWWs. The practice of entering into CWWs is particularly prevalent in the northern and eastern Districts/Regions of the province and also occurs in the Districts/Regions in which the grievors work.

2. In the case of the Waterloo office (where all the grievors in Kuehner et al, are employed) the employees who were employed prior to the hiring of the grievors are afforded CWWs, whereas the grievors in that same office have been systematically refused CWWs. This is despite the assurances by management (outlined below) that once their training was completed the grievors could avail themselves of the CWW option.

3. None of the grievors in either file were afforded a CWW (despite their requests for one) and, hence, grievances were filed.

4. To date no grievor has been afforded a CWW despite their continuing request for one.

10Counsel for the employer submits that article 10.1 does not impose an obligation on the employer to enter into a CWW agreement with any employee. Nor does it require the employer to exercise a discretion. Counsel referred me to the following authorities. Re Glenny, 317/83 (Roberts); Re Ropars, 400/84 (Jolliffe); and Re Algerson et al. 1942/87 (Watters).

11In Re Glenny (supra) the Board was dealing with article 7.6, which was identically worded as the present article 10.1. At pp. 3-4, the Board wrote:

The Union essentially contended that under this provision management was obligated to exercise a discretion to enter into compressed work week arrangements with the Union, and that any dispute between the parties regarding the manner of exercise of that discretion was arbitrable.

It seems to us that this contention might have been well founded if the Union’s characterization of the nature of Article 7.6 were appropriate; however, it seems to us that Article 7.6, when fairly construed, falls far short of obligating management to exercise any discretion. Article 7.6 seems to provide no more than a consensual framework to enable individual locals and Ministries mutually to agree to institute compressed work week arrangements. Article 7.6 does not compel an unwilling party to enter into negotiations regarding the establishment of compressed work weeks. Both parties have to be willing to take advantage of the option that Article 7.6 makes available.

The Article merely provides an option. It does not obligate either party to negotiate, let alone reach final agreement. Where there is no mutuality, in the sense of a desire on the part of both parties to agree with respect to compressed work weeks, Article 7.06 of the collective agreement does not come into play.

12In Re Ropars, (supra) the Board quoted the foregoing portions of the Re Glenny decision with approval and concluded at p. 4 that “... it seems obvious to us that article 7.6 is purely permissive and creates no obligation in either party” and that “… it does not give any individual employee the right to complain that some such arrangement has not been unilaterally instituted by the Ministry”.

13In Re Algerson et al (supra), the Board in declining jurisdiction, reviewed the decisions in Re Glenny and Re Ropars and at pp. 3-4 wrote:

We have not been persuaded that these prior Boards of Arbitration were wrong in their interpretations of the article in question. We are in agreement with their ultimate conclusion that Article 7.7 does not provide for a discretion to be exercised by the Employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable work week. In view of our assessment in this regard, the award in Kuyntjes, 513/84 (Verity) is distinguishable in that it dealt with an article of the collective agreement which clearly called for the Employer to exercise a conferred discretion in the context of a request for a special leave. In such an instance, the Employer was properly found to be subject to certain restrictions in the exercise of their discretionary decision making.

14Counsel for the employer also referred me to Re Emmett et al, 0147/01 (Johnston). In that case, the Board agreed with the decisions set out above and reiterated that “If the employer refuses to sit down and negotiate CWWs, then article 10 does not come into play” (p.10). However, the Board seized jurisdiction in the particular circumstances before it, because the union had alleged that the employer’s refusal to negotiate CWWs had resulted in discrimination based on sex, and also breached the health and safety and overtime provisions of the collective agreement. At pp. 11-12 the Board wrote:

In making the decision that it was not going to sit down and negotiate a CWWS with the grievors, thereby determining that the schedules of work for these employees would not change, management was exercising the right to, amongst other things, manage the business as set out in article 2. But article 2 also fetters the right to manage by stipulating that this right is subject to the provisions of the applicable collective agreement. Therefore, if management’s decision contravenes any other provision in the collective agreement, it can be challenged by the union. In this case, the union has alleged that the employer’s decision has violated several provisions in the collective agreement dealing with discrimination, health and safety and overtime.

15In those circumstances, the Board determined as follows at p. 14:

Therefore in making the decision not to sit down with the grievors and attempt to negotiate a CWWS, management’s motives should be reviewed in light of the standard set out above. That decision must not be motivated by bad faith or discriminatory considerations and must be based on legitimate or genuine government purposes.

16The principle that results from the above-noted authorities (See also Re McIntosh, 3027/92 (Dissanayake) and Re Boulet, 1189/99 (Brown)) is that, for the Board to seize jurisdiction, there must be an allegation that the employer’s exercise of management rights resulted in a contravention or abridgement of a substantive right under the collective agreement.

17The union distinguished the authorities relied upon by the employer on the basis that in those cases there was no differential treatment of employees. Counsel submitted that in Mr. Sutherland’s case the situation was different, because the employer had exercised its management rights in a certain manner with respect to some co-workers of the grievor, but refused to treat the grievor in similar fashion. Counsel for the union submitted that that distinction is “a game changer”. It raised an issue of differential treatment without a business justification. In the cases relied upon by the employer, the union was attempting to force the employer to exercise the option it had to enter into CWW agreements by “coming out of its neutrality”. In the present case in contrast, submits counsel, the employer had already exercised its discretion in a certain way with respect to some employees identically classified and working in the same office as the grievor. The grievor was not seeking to force the employer to exercise its discretion under article 10.1. He only wants the employer to exercise that discretion with respect to him, as it did with respect to some of his co-workers.

18In my view, that distinction based on differential treatment does not assist the union. While the union alleged “differential treatment”, it explicitly stipulated that no discrimination based on a prohibited ground is asserted. Therefore, I agree with employer counsel that the union’s claim amounts to a “me too” argument, which this Board has repeatedly rejected, in the absence of a link to a substantial right under the collective agreement, i.e. that it resulted in a violation or abridgement of a right under the collective agreement. The Board has held that it has no jurisdiction over a grievance which alleges that the employer had failed to treat equals in similar fashion when exercising its management rights. It has held that despite the Supreme Court of Canada judgement in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, “… this Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. In other words, the matter must be governed by an express or implied term of the collective agreement”. Re Dobroff et al, 2003-0905 etc. (Dissanayake) at p. 25, and see also the authorities reviewed therein.

19The authorities reviewed above establish two propositions with respect to CWW arrangements. First, that article 10.1 does not impose any obligation on the employer to enter into a CWW arrangement with any employee. Second, article 10.1 “… does not provide for a discretion to be exercised by the employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et al, set out at p.7 (supra). It follows, therefore, that the employer’s decision to negotiate or not negotiate a CWW arrangement is a matter of a management right to “among other things, manage its business as set out in article 2.” (Re Emmett), (supra), at p. 11). Therefore, this Board has no jurisdiction to review the employer’s exercise of a management right, in the absence of a claim that such exercise (in this case the non-exercise) of management rights affected a right of the grievor under the collective agreement. Since the union has not made such a claim. Nor has it alleged bad faith. In the circumstances the Board lacks jurisdiction. Therefore, the employer’s first motion succeeds.

The motion in response to the union’s claim of promissory estoppel

20For purposes of determining this motion only, I accept the following facts set out in the union’s particulars as proven:

6. During the interview phase of the hiring process, Richard Sutherland met with Martin Donat, District Manager out of the Waterloo office and the District Manager out of the Windsor office (Bonnie Suhr).

7. During the interview, Martin Donat stated to Mr. Sutherland that one year after joining the Ministry of Labour, Mr. Sutherland would be entitled to partake in what Mr. Donat referred to as a “Compressed Work Week”. Mr. Donat explained that working a little extra time each day would allow Mr. Sutherland to have one day off every two weeks.

8. Mr. Sutherland had job opportunities in the private sector which he gave up in order to take the position in question. He accepted the position in question due to the representation made by Mr. Donat respecting the CWW, thereby abandoning the above-mentioned job opportunities.

9. After accepting the position as Inspector, Mr. Sutherland started with the Ministry of Labour on or about December 13, 2004. On that day, he confirmed with Martin Donat that CWW would be available to him. Mr. Donat confirmed that Mr. Sutherland had to complete one year of work with the Ministry of Labour first. [Again, this was the training period for Inspectors]

21The allegation is that the employer reneged on the promise made by Mr. Donat during the interview process, which was later confirmed on Mr. Sutherland’s first day of work. It is argued that Mr. Sutherland relied on the promise and suffered detriment in that he accepted the offer of employment by the employer over other job opportunities he had in the private sector. In these circumstances, the union claims that the employer is estopped from denying the promised CWW agreement to Mr. Sutherland.

22Before dealing with the motion itself, I make the following observations. During his submissions, employer counsel stated that the employer denies that it made the promise in the manner set out by the union. He stated that there may be an issue as to whether Mr. Donat, as a member of the interview panel, had the ostensible authority to promise a CWW to Mr. Sutherland. He stated that the particulars do not set out what specific CWW arrangement was promised to Mr. Sutherland, and that there is no evidence that the employer intended to be bound by the alleged promise. Finally. Counsel asserted that based on the particulars, it is not possible to conclude that the grievor in fact suffered any detriment by relying on the alleged promise. I record the foregoing as notice by the employer that it may be raising those issues in the event the Board seizes jurisdiction. However, I am not in a position and will not attempt to determine those issues at this stage. I only have particulars at the present time, which is very different from the evidence, which I do not have. For purposes of this motion, I must assume that the union will be able to prove the required elements of an estoppel. The issue to be determined at this stage is whether or not, in the circumstances set out in the particulars, the union is entitled to raise an estoppel, assuming that the alleged facts are true.

23The employer submits that an estoppel cannot be founded upon a pre-employment promise. Counsel submits that the union is in effect asking the Board to enforce an individual contract entered into between the employer and an individual employee, at a time when no employment relationship existed yet. Counsel submits that in a unionized environment, the only contract that can exist is the collective agreement, and that there is no room for individual contracts. To illustrate his point counsel posed the question, “If a prospective employee really wants the job, can we say OK you can have the job, but you won’t get any benefits or overtime pay.”

24Counsel points out that the Board’s jurisdiction under article 22.1 is limited to determining “complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention” of the collective agreement. He further referred me to article 22.14.6 which states that “The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreements”. He submits that the union, through its estoppel claim, is asking this Board to do exactly what is prohibited by article 22.14.6.

25I was referred to Loyalist College of Applied Arts and Technology (Board of Governors) and OPSEU (2003) 2003 CanLII 29709 (ON CA), 63 O.R. (3d) 641 as the Ontario Court of Appeal’s endorsement of the principle that a collective bargaining regime precludes individual bargaining of the terms or conditions of employment.

26Employer counsel submits further that the Board’s jurisdiction is limited to determining disputes that arise directly or inferentially from the collective agreement. It has no jurisdiction over disputes arising under a contract entered into outside the collective agreement at a time when the individual was not even an employee covered by the collective agreement. Citing the judgement in Goudie v. City of Ottawa, 2003 SCC 14, [2003] 1 S.C.R. 141 (S.C.C.) counsel submits that only a court of law has jurisdiction to entertain an action based upon such a pre-employment contract. As further support for the proposition that an arbitration board lacks jurisdiction over a pre-employment contract, counsel relied on Johnston v. Dresser Industries Canada, 1990 CanLII 6808 (ON CA), [1990] 75 O.R. (2nd) 609 (Ont. Ct. of Appeal); Re Ontario Power Generation, 2004 CanLII 94762 (ON LA), [2004] 137 L.A.C. (4th) 44 (Goodfellow); and Re University of Northern British Columbia, [1999] B.C.C.A.A.A. No. 125 (Kelleher).

27Counsel for the union submitted that the union was not relying on a contract entered into between Mr. Sutherland and the employer. Nor was it seeking to amend or add to the provisions of the collective agreement. It was simply relying on the equitable doctrine of promissory estoppel. He submits that the representation which the grievor relied upon, which forms the basis of the estoppel argument, was not “pre-employment”. The promise was initially made during the interview process prior to the grievor having an employment relationship, but was confirmed after he obtained employment status, on his first day of work. Counsel submits that the goal of the doctrine of estoppel is to redress the inequity of one party relying on the representation of another, to its detriment. The evidence, submits counsel, will establish that all of the elements of estoppel are present in Mr. Sutherland’s circumstances. He urged the Board to seize jurisdiction to hear Mr. Sutherland’s grievance on that basis.

28It is now well established law that where a workplace is governed by a collective agreement, there is no place for individual contracts between employees and the employer. Ainscough v. McGavin Toastmaster Ltd., 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718 (S.C.C.). However, I agree with counsel for the union that the doctrine of estoppel does not result in the creation of “a contract” or in altering the terms of the collective agreement. The effect of the application of estoppel is to prevent the party that made the representation from relying on its strict rights under the collective agreement against the party who had relied on that representation, to its detriment. It is a principle of equity, which prevents unfairness, by holding the promissor to its promise in circumstances where the promisee had relied on the promise and had suffered detriment.

29The board of arbitration in Re Grey Bruce Regional Health Centre, [1993] 35 L.A.C. [4th] 136 (McLaren) made the following observation at para. 9: “If the assurances given by the hospital are anything at all, they are in effect a representation giving rise to an estoppel. That is not an individual contract of employment. The grievors are employed under the terms of the collective agreement, but may be able to assert an estoppel with respect to a particular application of certain management rights in the collective agreement.” Those observations equally apply to the case before me.

30This Board has held that to give rise to an estoppel, the representation must have been made at a time, when a legal relationship existed between the parties. Thus in Re Brummel, 1584/91 (Kirkwood), in refusing to apply estoppel, the Board found that “… at the time the representations were made there was no agreement nor contractual relationship between the grievor and the employer” (p. 16) and that “the representation that was made in this case was an oral promise made to a person who was not an employee at the time, which for the purposes of this preliminary matter is to be taken to have induced that person to leave his job and take a job with the public service” (p. 18). This principle is consistent with the judgement of the Supreme Court of Canada in Goudie v. City of Ottawa, (supra).

31On the basis of the particulars, however, I find that the present circumstances do not offend the principle established in those authorities. The initial promise by the employer no doubt was made prior to the formation of any employment relationship between Mr. Sutherland and the employer. However, para. 9 of the particulars clearly states that “after accepting the position”, on the day Mr. Sutherland started his employment, Mr. Donat confirmed to Mr. Sutherland that a CWW would be available to him. In other words, the promise was initially made pre-employment, and was repeated post-employment.

32The next consideration is whether the promise in question relates to the application or interpretation of the collective agreement. That is a question of fact to be determined in each case. If a promise or representation is unrelated to the collective agreement explicitly or inferentially, then it cannot be the basis of an estoppel. See, Re Coubrough/Sinisalo, 3018/90 (Gorsky) and Re Brummel (supra). In this regard, the fact that the union conceded that its claim is not based on any alleged violation of the collective agreement, in my view, is irrelevant. A claim of estoppel is not a claim that the collective agreement has been violated. Indeed, if there is a violation of the collective agreement, there would be no need for the union to plead estoppel. It could simply grieve that the collective agreement had been violated. The issue is not about a violation of the collective agreement. It is whether the subject matter of the estoppel is related to or arises out of the collective agreement.

33Under the collective agreement there is no obligation on the employer to agree to any CWW arrangement. It is a matter of management right as part of its right to manage the business under article 2. However, the effect of the representation made to Mr. Sutherland in the present case is an undertaking by the employer to exercise that management right it has under the collective agreement in a certain way to the benefit of Mr. Sutherland. That is a representation directly, or at least inferentially, related to the collective agreement. This is particularly so, because the collective agreement explicitly speaks to CWWs, albeit only as an option available on agreement.

34As part of the employer’s position that individual bargains have no place in a regime of collective bargaining, counsel also pointed out that the union had no involvement whatsoever in the alleged representation. The representation was not made to the union, nor is there any claim that the union relied on the promise made to Mr. Sutherland. Counsel relied on Re Coubrough/Sinisalo, (supra) to argue that in those circumstances an estoppel cannot arise.

35In that case, the employer had made representations to be grievors at the time of their hire, that their hours of work would be 36.25 per week. Subsequently, the employer required the grievors to work 40 hours per week as set out in the collective agreement. The union claimed that the employer was estopped from imposing the hours set out in the collective agreement on the grievors.

36At pp. 5-6, arbitrator Gorsky sets out the employer’s position as follows:

1. That the alleged agreement made at the time of hiring between the representatives of the Employer and the Grievors could not bind the Employer. They were said to be invalid because they were inconsistent with the specific terms relating to the weekly hours of work for employees classified as Nurse 3 General, who were in Schedule 4 and, pursuant to art. 7.2 of the collective agreement, on a 40 hour per week work schedule.

2. That the alleged representation made to the Grievors with respect to the weekly hours of work could not support an estoppel as the Grievors were not parties to the collective agreement and no representation could be said to have been made to the Union.

37The Board, in dismissing the grievances, set out its conclusions at pp. 26-27 as follows:

1. The alleged representation with respect to the weekly hours of work made by representatives of the Employer to the Grievors at the time when each of them was hired conflicts with the provisions with respect to normal weekly hours provided for in the collective agreement and cannot result in the variance of the terms of the collective agreement.

2. The Union’s argument based on estoppel cannot succeed as the alleged representation was not made to a party to the collective agreement nor, can it be shown that the Union was in any way adversely affected by the representation.

3. Even if the provision with respect to weekly hours contained in the representation made to the Grievors could result in an obligation being owed to them by the Employer outside of the terms of the collective agreement, this Board has no jurisdiction to deal with such a claim.

4. The same result follows from the invocation of promissory estoppel based on the alleged representation which do not involve the Union, being the other party to the collective agreement.

38On the issue of the union’s non-involvement in the representation, the Board states at p. 19 as follows: “.. there has been no showing that the alleged representation made by the employer to the grievors was relied upon by the union to its detriment so as to support the doctrine of estoppel”.

39The Board in Re Coubrough/Sinisalo, does not explicitly state on what ground or grounds it came to the conclusion that the grievances must be dismissed. It makes the four conclusions set out above, and decides that “for the above reasons” the grievances must be dismissed. The decision could possibly be read in two ways. It could be, the Board determined that in the total context of the four conclusions it had reached, it would be inappropriate to exercise its discretionary authority to apply an estoppel. On the other hand, conclusions 2 and 4 above seem to suggest that because of the non-involvement of the union, the Board decided that it lacked jurisdiction to apply the doctrine of estoppel.

40There is judicial direction to the effect that boards of arbitration, and in particular the Grievance Settlement Board, “ … is in the best position to work out and assess the important policy implications of permitting access to the doctrine of estoppel by individual employees governed by this particular statutory frame work.” (O.P.S.E.U. v. Ontario (Ministry of Community and Social Services) 1995 CanLII 10660 (ON CTGD), [1995], 27 O.R. (3d) 135 (Div. Ct.) per Adams J.). The Court in that case stated that “the grievor’s treatment was obviously unfair”, and that the Board was not “bound” to dismiss her grievance as it did merely because her grievance depended upon a representation made to an individual.

41In my view, the following principles may be drawn from the decision of the Divisional Court: (1) There is no prohibition against allowing individual employees access to the doctrine of estoppel despite the non-involvement of the union. (2) Whether such access should be allowed must depend on a balancing of labour relations policy considerations with the equitable considerations of redressing individuals who have been unfairly treated. (3) An arbitrator is best situated, and therefore has jurisdiction, to do that balancing, and to decide in the particular circumstances before him or her, whether to recognize an estoppel.

42Arbitrator Richard Brown in Re Ontario (Ministry of Attorney General) and Association of Law Officers of the Crown , (2006) 2006 CanLII 93268 (ON LA), 151 L.A.C. (4th) 409, noted the prohibition against individual contracts in a unionized workplace, and wrote at p. 415:

Notwithstanding the legal prohibition against individual contracts, the courts have acknowledged the jurisdiction of arbitrators to apply the doctrine of estoppel, in appropriate circumstances, to grant relief to an employee based upon a representation made to that person by an employer. In Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) (1995), 1995 CanLII 10660 (ON CTGD), 27 O.R. (3d) 135 (Div. Ct.), the court quashed a decision of the Grievance Settlement Board dismissing a grievance on the sole ground that estoppel could not apply to a representation made by an employer to an employee covered by a collective agreement. Speaking for the court, Adams J. wrote:

There is a significant body of arbitral jurisprudence on the topic of detrimental reliance, albeit arbitrators have not always agreed on how grievances similar to the one before the Board ought to be resolved. … The development of a sensitive approach to the competing issues underlying these types of claims must fall within the jurisdiction of the only dispute resolution mechanism available to resolve them.

It must be remembered that our courts lack original jurisdiction with respect to the enforcement of collective agreements and in regard to lawsuits brought by or against trade unions: see the Rights of Labour Act, R.S.O. 1990, c.R.33. There is therefore little acquired experience in our courts to assist them in resolving these kinds of cases. For this same reason, recourse to the courts by unsuccessful grievors is problematic. Indeed, it is doubtful that any other forum is available should boards of arbitration reject these employee claims. On the other hand, labour arbitrators are mutually chosen by the parties because of their particular labour relations expertise and more permanent grievance tribunals, such as the Grievance Settlement Board, build up an impressive similar expertise. The Board, therefore, is in the best position to work out and assess the important policy implications of permitting access to the doctrine of estoppel by individual employees governed by this particular statutory framework. While there may be strong labour relations policy considerations which support the dismissal of the grievance, there was no superintending jurisdictional constraint which “bound” the Board to decide as it did. The Grievor’s treatment was obviously unfair. The Board must take responsibility for the determination of her grievance, whatever that outcome may be (page’s emphasis added).

In the italicized passage the court mandated arbitrators to reconcile the need to ensure fair treatment of individuals with the labour relations policy favouring collective bargaining, when deciding whether to apply the doctrine of estoppel in a particular case.

43Arbitrator Brown also quotes at pp. 416-417, the following obiter statement from Re George Brown College of Applied Arts Technology, (2003), 2003 CanLII 89557 (ON LA), 122 L.A.C. (4th) 130 (MacDowell):

[I]ndividual dealings, unsupported by the [collective] agreement, yielding legally binding conditions, pertaining to an individual employee and not others, seems inconsistent with the collective bargaining scheme, in which it is the union, and the union alone, that is ostensibly empowered to alter an employee’s legal rights. Different rights, or individually bargained conditions of employment, do not sit easily in this scheme – as the Ontario Court of Appeal has recently ruled in Loyalist College of Applied Arts and Technology v. O.P.S.E.U. Docket C37988, decision issued March 6, 2003 [2003 CanLII 29709 (ON CA), 225 D.L.R. (4th) 123].

This is not to say that estoppel can never be used to transform a “representation” to an individual employee into an “enforceable legal obligation”, or that individual rights can never be created outside the parameters of the collective agreement. The recent law supports the opposite view. And there is also something to be said for the proposition that parties should be held to their promises-even if they do not fit, strictly, into the written legal framework that binds them.

However, we think that a board of arbitration should be very careful about using estoppel in this way, lest it undermine both the certainty of the written document, and the union’s status as exclusive bargaining agent. At the very least, the claimant should be able to make out the traditional elements of estoppel (representation, detrimental reliance, etc.), and should also be able to show that the exercise of such equitable discretion “makes labour relations sense” in the circumstances, and is necessary to rectify a manifest unfairness. (pages 139-141)

44In OPSEU v. Ontario, the court was reviewing a decision of the Grievance Settlement Board. The court requires this Board to reconcile and balance the need to ensure fair treatment of individuals with the labour relations policy favouring collective bargaining over individual deals in a unionized setting. It is at least implicit in the court’s reasoning, that in appropriate circumstances the Board does possess jurisdiction to permit individual employees access to the equitable doctrine of promissory estoppel.

45In striking the balance envisaged by the Divisional Court, the Board must be cautious to ensure that recognizing individual rights flowing from an estoppel does not undermine the status of the collective agreement, or the status of the union as exclusive bargaining agent. (See, Re George Brown College of Applied Arts & Technology, supra). Those, in my view, would be the primary labour relating policy considerations which may raise concerns about recognizing an estoppel based on a representation made to an individual. Therefore, as arbitrator Brown observed in Re Ontario (supra) at p. 416, “How these competing considerations should be balanced may depend on whether the party seeking relief, based upon an estoppel, is an employer or a union acting on behalf of an employee.”

46In Re Grey Bruce Regional Health Centre, (supra), the employer’s objection to the jurisdiction of the board of arbitration was, inter alia, on the ground that the estoppel claim was based on representations made to the individual grievors, and therefore based on individual contracts of employment. While the Board did not explicitly address the issue of whether a representation made to an individual could support an estoppel, it is clear that it did not consider the fact that the representation was made to the grievors to be a barrier to its jurisdiction. Despite that fact, it concluded at para. 9 “that it has the jurisdiction to determine this matter inclusive of the estoppel issue, and there is no individual contract of employment between the hospital and these grievors.”

47In my view, the law as it presently stands is that set out by Adams J. in Re OPSEU v. Ontario, and followed by arbitrator Brown in Re Ontario (supra). That is, whether or not a promissory estoppel in favour of an individual grievor should be recognized in a unionized environment must depend on a balancing of the individual’s right to fair treatment, and the general labour relations policy favouring collective bargaining over individual deals.

48The judgement of the Divisional Court post-dates, the decision in Re Coubrough/Sinisalo. If the Board’s decision is to be read as standing for the proposition that the Board lacks jurisdiction to apply the doctrine of promissory estoppel based on a representation made to an employee without any claim of detrimental reliance on the part of the trade union, it is contrary to the pronouncement by the Divisional Court, and could no longer be considered good law. Promissory estoppel is part of the general law. Therefore, the judgement of the court must be treated as authoritative on the subject matter.

49In the present case, if the grievor had been made a promise of a CWW agreement as alleged, and if he had relied on that promise to his detriment, it would be manifestly unfair to him, to allow the employer to renege from its promise. I must therefore balance that need for fairness, with the labour relations policy considerations favouring collective bargaining over individual arrangements.

50As I have already noted, there is no right to a CWW under the collective agreement. Nor does it prohibit CWWs. However, by setting out CWWs as an option available, the collective agreement envisages that CWWs may be extended to employees by agreement. If the employer had made a representation that it would use its management rights to grant a CWW to Mr. Sutherland, on which he relied on to his detriment, recognizing that an estoppel is created does not run counter to or change the interpretation or meaning of the collective agreement. It merely allows the grievor to demand, based on a promise, a benefit which is in fact anticipated in the collective agreement. That does not affect the status of the collective agreement.

51In certain circumstances, recognizing an estoppel based on dealings between an employer and an individual employee may indeed undermine the union’s status and authority as exclusive bargaining agent. In those circumstances, the balance may be tilted in favour of the policy supporting collective bargaining over concern about the unfair treatment of the individual. The example employer counsel used, where a deal is struck between an employer and an individual that the latter could have a job provided he agreed to terms less favourable than the terms set out in the collective agreement, would be one such situation. Another would be, where an employer promises individual deals as a means of “dividing and conquering” the bargaining unit membership, as a means of undermining the authority of the union. That is not the situation here. The facts indicate that many employees performing the identical job as Mr. Sutherland in various offices in the province, including in the Kitchener-Waterloo office itself, enjoy CWW’s. The promise made to Mr. Sutherland was that he could have the same arrangement as that enjoyed by those co-workers of his. Those employees must have received their CWW’s with the approval of the employer, because there is no right to a CWW in the collective agreement. Therefore, by extending that same benefit to another employee, who had been made a promise that he would have a similar benefit, there can be no detrimental effect on the union’s status and authority as exclusive bargaining agent. It is apparent that the union itself does not consider that to be the case, because it is in fact actively advocating on behalf of the grievor to estop the employer from reneging from its representation. That must be one of the factors to be considered in determining whether or not applying an estoppel has the effect of undermining the union’s status as exclusive bargaining agent.

52For the foregoing reasons, I conclude that in the particular circumstances before me, the balance is clearly in favour of the need to remedy the manifest inequity to the grievor. There are no labour relations policy considerations which militate against the application of the equitable doctrine of promissory estoppel. Therefore, I find that the Board has jurisdiction to hear and determine the grievance on the basis of the union’s claim of estoppel.

Summary

(1) The first motion of the employer is upheld. In the circumstances of this case this Board has no jurisdiction to review the employer’s exercise of management discretion for reasonableness.

(2) The second motion of the employer is denied. In Mr. Sutherland’s particular circumstances, the Board does possess jurisdiction to hear and determine his grievance based on a claim of estoppel.

I remain seized with the instant grievance.