GSB#2012-0512, 2012-0513, 2012-0514, 2012-0935, 2012-1970, 2012-2426, 2012-3021

UNION#2012-0453-0001, 2012-0453-0003, 2012-0453-0002, 2012-0453-0005, 2012-0453-0010,

2012-0453-0011, 2012-0453-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lawless et al)

Union

• and -

The Crown in Right of Ontario (St. Lawrence Parks Commission)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Robert Fredericks Ministry of Government Services Legal Services Branch Counsel

HEARING

May 24, 2013

Decision

1Seven grievances were referred to the Board for mediation/arbitration (“med/arb”) and scheduled for a hearing before me. The grievors are seasonal employees within the meaning of Article 32 of the collective agreement. The seven grievances, which were filed during the course of the 2012 season, largely (i.e. directly and indirectly) relate to changes (i.e. reductions) that were implemented in the duration of the grievors’ seasonal contracts. Five of these grievances were filed by Mr. Lawless. The sixth grievance was filed by Messrs. Lawless and Geneau (and by a third grievor who has since withdrawn his claim as well as his individual grievance, the seventh referred to me). In addition to the issues related to the duration of the seasonal contracts, Mr. Geneau also complains that he was wrongfully deprived of the opportunity to perform certain work in advance of the commencement of his seasonal contract, work which he has performed in numerous previous years outside of the scope and prior to the commencement of his seasonal contract. (I will refer to this work, as the parties did, as Group 2 work, to distinguish it from the seasonal work.) Historically, the Group 2 work consisted of irregular days (perhaps anywhere from one to three days per week over a period of several weeks for an average cumulative total number in the range of 36 hours).

2There is an eighth grievance, which was not part of the grievances initially referred to arbitration. It was filed by Mr. Lawless on or about February 5, 2013, during the course of the current 2013 season and raises similar issues to his other grievances. The parties agreed that this eighth grievance should be included for determination in the hearing before me.

3The parties agreed to proceed by way of the medarb procedure. In further efforts to expedite the proceedings they prepared an agreed statement of facts and documents. In addition, the union prepared a will say statement in relation to Mr. Lawless’ evidence. Finally, we also heard some limited viva voce evidence (including cross-examination) from Mr. Geneau, which centred on a factually disputed area relating to his claim of having been promised he would, once again (this time, for the 2012 pre-season), be awarded the Group 2 work he had previously performed.

4The parties, in a further effort to expedite matters, agreed to the following manner of proceeding. One of the union’s arguments in the case rests on the doctrine of estoppel. That argument depends, among other things, on the union’s claim that the employer made certain promises to each of the grievors. The employer disputes the veracity of the evidence pointed to by the union in that regard. Further and in any event, the employer asserts that the evidence, even if accepted as true, is insufficient to establish any relevant employer promise was made to either grievor, certainly not any promise that would be legally sufficient to ground the claim for estoppel. However, in lieu of calling the employer’s contrary evidence, the parties agreed that I should rule on the employer’s motion to dismiss the case on the basis of the evidence and materials before me. The parties further understood and agreed that if the employer was unsuccessful in its motion, it would be afforded an opportunity, before any final determination was made, to present its contrary evidence and would also be extended the right, should it so choose, to cross-examine Mr. Lawless as to the contents of his will say statement.

5The parties filed some ten typewritten pages of agreed facts and will say statements. Nineteen documents were attached to those materials. The parties, again in the interests of expedition, agreed that it was not necessary for me to set out or otherwise elaborate those facts in any detail. They agreed that a summary decision should issue – the objective is to resolve the current disputes, not to create lasting jurisprudence.

6The most general outline of the facts is as follows. The grievors are seasonal employees. As such their collective agreement rights are severely circumscribed. Essentially, upon completion of a season of employment, such employees have the right to be offered employment in the same position in the following season on the basis of seniority. There is nothing in the collective agreement, however, which either guarantees such work will be available or specifically fixes the term of any such future position. And while it may be a violation of the collective agreement for the employer to offer some or all of a relevant position to a junior employee, that is not the claim here. The grievors assert that the employer’s determination to commence their seasonal contracts at a date later than in the prior year(s) is a violation of the agreement. In addition, Mr. Geneau claims that the employer’s determination to not offer him certain pre-season work (i.e. work which is not subject to even the very limited right of employees to claim seasonal employment) is also contrary to the collective agreement.

7On the face of it, these claims are doubtful at best. There is no specific collective agreement provision that deals directly with or provides any explicit right that corresponds to the claims advanced.

8The grievors were able, however, to marshal further legal and collective agreement resources in an effort to vindicate their claims. First, they claimed that the employer’s actions were motivated by anti-union animus contrary to the collective agreement. Second, Mr. Lawless asserted that some work, which he could have performed, was improperly contracted out to an outside company. And finally, in the submission that attracted the lion’s share of the parties’ attention, it was claimed that, on the basis of promises made to the grievors, the employer was estopped from conducting itself in the manner it had. I will deal with these in turn.

9There is simply no evidentiary basis for the claim that the employer was motivated by anti-union animus. Even if the grievors’ union activities coupled with the reduced term of their contracts is sufficient to shift an onus of explanation to the employer (a proposition whose soundness I need not address here), the agreed facts easily meet any such onus. In short, it is not disputed that the changes the employer implemented were not restricted to the grievors but had wide application throughout the workplace in both management and bargaining unit quarters. One simply cannot conclude that the grievors were “singled out” because of their union activity or for any other improper reason. Further, neither was it disputed that the employer was facing significant fiscal challenges, which resulted in the implementation of broad ranging changes. Clearly, it was that legitimate operational concern which motivated the employer’s actions which, understandably, were less than welcome to both the grievors and other workplace participants. And neither does Mr. Lawless’ invocation of a minor scheduling incident that occurred in October 2012 bolster any claim of anti-union animus. The event itself was not the subject of any grievance at the time. Indeed, even the instant grievance (i.e. the most recent one, dated February 2013), the only grievance before me that was filed after the event in question, makes no specific reference to the October 2012 event or to the assertion of anti-union animus. This is hardly surprising since, from the perspective of the claims advanced in the grievances, there is little new in the 2013 season. The employer’s staffing approach is largely a continuation of that adopted in the previous season.

10To the extent the grievances rest on a claim of anti-union animus, they must be and hereby are dismissed.

11The claim of improper contracting out is even weaker than the previous one. It was not contended that the collective agreement contains any explicit prohibition with respect to contracting out. Neither was it disputed that the employer’s decision to contract out certain work was (apart from the anti-union animus claim I have already dismissed) taken in good faith and for legitimate operational reasons. On that basis alone, the grievances, insofar as they claim improper contracting out, must be and hereby are dismissed.

12It is worth noting, however, that, even if a challenge to the contracting out could be successfully mounted in this case, I am at pains to see what possible impact the contracting out had on Mr. Lawless. The work that he complains was improperly contracted out was relatively modest in scale. But, more importantly, it was performed after Mr. Lawless’ seasonal contract had already commenced, i.e. while he was otherwise already working. Mr. Lawless appeared to be of the view that because it was work he had the capacity to perform, he was somehow entitled to require the employer to have had it performed at a time when he (i.e. Mr. Lawless prior to the commencement of seasonal contract) was available to do it. This is a wildly creative approach to collective agreement interpretation.

13This brings me finally to the issue of estoppel. I will not dwell on the point that these are assertions of estoppel writ large – there is no provision of the collective agreement that relates directly to the claims. Neither is the argument advanced in the most traditional form, i.e. that a representation had been made that strict compliance on a contractual right would not be required. I put this and other related aspects of the claims aside to focus on two points in relation to each of the grievors: whether a clear and unequivocal promise was made and whether the grievors relied, to their detriment, on those promises. The grievors’ cases differ somewhat but they both suffer shortcomings in relation to these aspects of the estoppel doctrine.

14In relation to Mr. Lawless the facts are relatively bare: with respect to the “promise” he asserts (in his will say) that at his October 2011 appraisal meeting, he “was assured by [his supervisor] that his return date for the following year would be in early February, 2012”. However, the written record of that very same appraisal meeting, signed by both Mr. Lawless and his supervisor, indeed indicates that Mr. Lawless was being recommended for re-hire, but also includes the disclaimer that the recommendation “should not be misconstrued as an offer of employment”. On January 25, 2012, Mr. Lawless was advised that, due to financial constraints, his start date for the 2012 season would be delayed until April 2, 2012. He worked for a period of 27.6 weeks. When I consider this evidence (together with other references to hiring practices in prior years), I am unable to conclude that Mr. Lawless was the recipient of a clear and unequivocal employer representation that was intended to affect legal relations. Thus, a basic element of the ingredients required to establish an estoppel is missing.

15Even if I am mistaken in this conclusion, I also remain unconvinced that Mr. Lawless relied on the asserted promise to his detriment. The agreed facts in this regard are equally sparse:

Mr. Lawless alleges that, had he known earlier that his 2012 seasonal contract would be reduced by a period of 7-8 weeks, then he would have requested an unpaid leave of absence for the period from the bulk of the seasonal contract to accept a private, six-month home renovation contract that was available.

16The peculiar ring of this claim of detrimental reliance is confounded by the parties further agreed facts – specifically that such a leave would have been denied by the employer for operational reasons. Effectively, Mr. Lawless appears to complain of being deprived of the choice he would then have faced: to either withdraw his leave application and return to work or to be absent without leave (which, in turn, would have resulted in the loss of his seniority). I say “appears” because neither the reliance nor any resulting detriment is clearly articulated, apart from the paragraph cited above. Whatever detriment he may have suffered beyond being spared having to make this choice was not established. Mr. Lawless may have foregone the opportunity to work on a six-month renovation project. Instead he worked on his seasonal contract (for slightly more than) that length of time. It seems clear he could not, in any event, have done both. I am unable to conclude on the basis of what is before me, that there was any reliance resulting in detriment.

17I have no doubt that, at the end of the previous season, both Mr. Lawless and the employer would have had legitimate expectations that the next contract season would commence in February. That, however, does not amount to an immutable legally enforceable promise. Thus, whether because of the failure to establish a clear and unequivocal representation intended to affect legal relations or the absence of detrimental reliance, the claim on behalf of Mr. Lawless, to the extent it is based on the doctrine of estoppel, must be and hereby is dismissed.

18Finally, Mr. Geneau’s estoppel claim must also be dismissed. While his evidence, might, on its face, go slightly further toward the goal of establishing a clear and unequivocal representation, I am not persuaded that it ever really achieved that objective. Mr. Geneau was quick to assert the conclusion that a promise had been made but was somewhat short on the specific details of what precisely was said. In any event, even if I am mistaken in my conclusion that he has failed to establish a clear and unequivocal representation intended to affect legal relations, there can be no doubt whatsoever that he did not rely, to his detriment, on any such representation.

19It will be recalled that the work Mr. Geneau complains he did not receive was not full-time work. Rather, it was Group 2 work, which in the past had consisted of irregular days (perhaps anywhere from one to three days per week over a period of several weeks for an average cumulative total number in the range of 36 hours). Mr. Geneau’s evidence was that he was or could have been working elsewhere (at a job which would have provided similar irregular hours). He opted to forego that work in anticipation of the work he believed the employer had promised him. And when he discovered that work (i.e. with the employer) would not be available. He opted not to try to (re-)secure his alternate employment. He conceded that he would have been able to do so successfully but opted not to so as to avoid displacing a junior colleague. This does not amount to detrimental reliance. While both parties applauded Mr. Geneau’s selfless restraint in not displacing a colleague in another workplace, the employer, correctly in my view, underscored that Mr. Geneau made choices, which undoubtedly had an impact on his volume of work. But these were his choices. There was no reason advanced as to why Mr. Geneau (given the sparse hours involved) could not have worked both jobs (had the work with the employer been available) – in other words, there was no necessity for him to have parted ways with his other employer. More significantly, after he discovered that his work with this employer would not be available, he could have, but chose not to, return to his other employer. Mr. Geneau’s circumstances were the result of choices he made. Any economic hardship he suffered was a result of his choice, not a direct result of his reliance on what he may have misunderstood to be a promise from his employer.

20Having regard to all of the foregoing, these grievances are hereby dismissed.