GSB#2013-1923

UNION#2013-0202-0005

Additional Files listed in Appendix “A”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Eagles)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 14, 2014; January 26, 2015

Decision

1I have twenty grievances before me filed by ten Inspectors employed by the Ministry. In essence, the grievances allege that the Employer contravened the Collective Agreement when it made a change in August 2013 to its policy on the use of Ministry vehicles. Prior to the change, the Inspectors were permitted to keep the Ministry vehicle at his or her home, but as of August 2013, Tobacco and Raw Leaf Inspectors were required to leave the Ministry vehicle at their headquarters. The change in policy did not apply to Fuel Inspectors. This matter was heard pursuant to article 22.16 of the Collective Agreement.

2At mediation on May 5, 2014, the parties were unable to resolve the grievances and counsel discussed particulars and disclosure. The parties agreed to additional hearing dates, starting in November 2014. In anticipation of making a no prima facie case motion, the Employer took the position that the particulars filed by the Union on October 8, 2014, were not adequate. Following a conference call on October 28, 2014, during which counsel made submissions on whether the grievances were sufficiently particularized, I directed the Union to provide adequate particulars. In a document dated November 4, 2014, the Union included the particulars it had provided earlier as well as further particulars pursuant to my direction.

3The Employer did make a no prima facie case motion. The motion was argued on the basis of the particulars set out in the Union document dated November 4, 2014. For purposes of this motion, it was assumed that the particulars filed by the Union are true and provable. The Union’s particulars and its position, as contained in the document dated November 4, 2014, are as follows:

Background

1. The Grievors are employed as Fuel and Tobacco Inspectors with the Ministry of Finance. While there is a single position for Fuel and Tobacco Inspector, the Employer has, as a matter of practice divided this position such that an employee is generally a fuel inspector or a tobacco inspector.

2. In addition to the above there is another specialized position known as a “raw leaf inspector.” The Raw Leaf Inspectors travel to tobacco farms to ensure that the collection, storage and distribution of “raw” tobacco are in accordance with the law.

3. The Grievors work in teams of two, or very occasionally three. With the exception of the Raw Leaf Inspectors, it would be very unusual, for health and safety reasons, for a single inspector to travel to and inspect an inspection site.

4. With two exceptions, the Grievors work as tobacco inspectors. Tobacco inspectors have a variety of duties, however their main duty, on a day to day basis, is to travel to stores or other venues that sell tobacco product and perform inspections to ensure that the tobacco sales are in accordance with the law. Mr. Eagles and Mr. Gravel are the exceptions, and work as Raw Leaf Inspectors.

5. The Grievors, when they each began to work as Inspectors at the Ministry of Finance, were provided with a Ministry vehicle for work purposes. The Grievors were given strict instructions as to the use of this vehicle. They were not permitted to use the vehicle for any non-work related purpose. In addition they were instructed that it was their responsibility to find a safe place to keep the vehicle (such as a garage) at their own expense. They were also instructed that upkeep and repair of the vehicle was their responsibility, subject to reimbursement from the Ministry. In short, the vehicle was treated as their vehicle except in terms of payment.

6. Many of the Grievors were explicitly informed, upon accepting their positions, that they would have access to a work vehicle to travel to and from the office and other work sites.

7. Upon hire, the Grievors would begin an inspection day by arranging a mutually agreeable meeting place with their partners; this may vary depending on their inspection assignment for that day. They would then drive their work vehicles to that agreed upon location and take a single vehicle to their inspection sites. This process would be reversed at the end of the day. If it was more sensible, geography and time wise, one Inspector may also pick another up at his or her home.

8. Inspection sites are wide ranging over the region and the province. As a whole the Grievors most often attend inspection sites in Toronto, however they may be assigned to any part of a fairly far ranging geographical region.

9. The Grievors were “on the clock” from the time they left their homes, until the time that they returned.

10. This process was both time and cost effective for the Grievors and the Ministry. It was often more time and cost effective for the Grievors to meet and report directly to an inspection site rather than report to an office, and then an inspection site.

11. In or around August 2013 the Grievors were notified of a change of practice and a new protocol on the use of the Ministry vehicles. The Grievors were instructed that the work vehicles must be kept at their headquarters, rather than at their home.

12. They were further instructed to report to the headquarters at the beginning of the work day to pick up the vehicles. They were directed not to attend at or enter the office, but to immediately pick up their vehicles and go to their inspection site.

13. This created burdensome costs for the Grievors in the form of increased use of fuel and parking costs.

14. With the exception of Raw Leaf Inspections, the Grievors work in partners and take a single vehicle to attend at inspection sites. This means that it is not possible for them to park their vehicles in the parking space from which they take the Ministry vehicle.

15. In addition this creates a burden on the Grievors in terms of time. Rather than driving directly to an inspection site, which may be quite distant, they must drive to a Headquarter, often in the interior of a city first. For example, Ms. Cribbs must drive to the interior of Hamilton, pick up a Ministry vehicle and then leave the interior of Hamilton for the interior of Toronto. Prior to this protocol she was able to bypass Hamilton and head directly for her inspection sites.

16. The Grievors noted at the time of this change in policy, that the policy was changed only for the tobacco inspectors. It was not changed for the Fuel Inspectors.

17. In or around June 2012 there was a staff meeting in Oshawa. At this meeting Mr. Eberlin suggested that travel time to inspection sites should be considered mandatory overtime. The Inspectors as well as the Union voiced serious concerns about this, and the plan was abandoned.

Differential Treatment

18. The Tobacco Inspectors have raised numerous health and safety issues with their work place.

19. The Tobacco Inspectors have raised health and safety issues related to self defense training, uniforms, and communication devices that resulted in several grievances (2010-0105-0004, 2010-0105-0005, 2010-0154-0017, 2010-0154-0018, 2010-0154-0019, 2010-0202-0004, 2010-0202-0005, 2010-0202-0006, 2010-0202-0007, 2011-0202-0006, 2011-0202-0007). These grievances were eventually withdrawn in 2014. The Tobacco Inspectors claimed in these grievances that their communication devices were faulty creating dangerous situations for them; that they lacked necessary self-defense training and that their uniforms created a great deal of hostility for which self-defense training may be required.

20. As a result of the conditions for raw leaf inspectors, which created significant danger for the Tobacco Inspectors, a work refusal was taken in 2011. This resulted in an investigation from the Ministry of Labour; although the work refusal was found to be unwarranted, the Ministry made several orders to the Employer regarding compliance with the Occupational Health and Safety Act.

21. Several Tobacco Inspectors also filed a harassment complaint following the work refusal. This grievance was heard and dismissed by Vice Chair Watters (2011-0105-0003; 2011-0105-0001; 2011-0105-0002).

22. In 2013, two of the Grievors, Andrew Soutar and Bryan Drury, filed job competition grievances (2013-0202-0001-0002). This Grievance was settled in 2013.

23. The Tobacco Inspectors filed a grievance of the adequacy of their uniforms in 2013 (2013-0154-0035, 2013-0202-0015, 2013-0202-0016, 2013-0202-0017, 2013-0202-0018, 2013-0202-0019, 2013-0340-0061, 2013-0340-0062, 2013-0340-0063.) These grievances were also recently settled.

24. By comparison, the Grievors believe that there have been relatively few grievances filed by Fuel Inspectors, and certainly fewer on the wide scale of those filed by the Tobacco Inspectors.

25. In addition the Grievors were often informed that the Ministry vehicles could be taken away when they spoke to their supervisors about workplace issues or health and safety issues. For example, in or around May 2009, Mr. Parfit injured his hand. After he made a request for safety gloves, it was suggested to him that the vehicles may be taken away. Mr. Parfit had a similar experience after he brought up ballistic vests.

26. Mr. Gravel recalls, at the June 2012 meeting in Oshawa, that after there was some dissent expressed by the Tobacco Inspectors regarding the scheduling and overtime proposed by management, that it was suggested by Mr. Eberlin that they may lose their vehicles.

27. The Grievors were informed by Mr. Moodie at the Stage 2 Grievance meeting that no cost analysis on the new protocol was done.

28. The Grievors believe that it is significant that after they have raised a number of health and safety and workplace grievances that a substantial work privilege has been altered for the Tobacco Inspectors, although not for the Fuel Inspectors, who have filed fewer workplace-wide grievances. The Grievors feel strongly that in the absence of any business rationale, that the costly and disadvantageous unilateral change in the vehicle use constitutes reprisal for the many workplace wide grievances and the health and safety concerns filed by the Tobacco Inspectors.

Consequences to the Grievors

29. After the new protocol involving vehicles, there was no attempt on the part of the Ministry to find Ministry or OPS parking lots more geographically convenient to the Grievors where they could leave their Ministry vehicles. There was no attempt to make the new protocol easier, less costly, or more efficient for the Grievors.

30. This notwithstanding, certain individual inspectors have been given permission to park their Ministry vehicles away from their headquarters. Included in these employees are Steve Bohm and Randy Halls. When management was asked by Local 202 in or around August 2013 why some employees but not others were afforded this privilege, they were simply told that by Mr. Mike Moodie that “the Ministry could do that.”

31. When the change in practice occurred the Grievors were not provided with any after hours access to the office building. This meant that they had no access to facilities to change in and out of their uniforms, or access to the office building if they began their inspections before the office opened or finished after it closed.

32. When questioned about this the Ministry suggested that some Headquarters had change rooms. Those that did not have changing facilities would have to change clothes in the washroom. The Ministry informed the Grievors that they had no obligation to provide any facilities to change in and out of uniform.

33. In the course of inspections the Grievors often become dirty. Inspections may involve basements, crawlspaces, and outdoor areas. The Raw Leaf Inspectors attend at farms and may find themselves covered in attendant dirt or pesticides. The Grievors would suggest that it is unreasonable to expect them to, without changing clothes, get into their own cars.

34. The Grievors were also instructed to keep their work paraphernalia – devices, files and product – in their vehicles, or conversely to take them home.

35. There was no suggestion that the Grievors needed to report to the office before attending inspection sites; on the contrary they were explicitly ordered not to do so.

36. Below I will provide some particulars that are specific to each Grievor.

Tracey Cribbs

37. Tracey Cribbs is a Steward with Local 202. She began work as an Inspector for the Ministry of Finance in 2007.

38. Prior to her work at the Ministry Ms. Cribbs worked at Hamilton Public Health, also doing tobacco inspections. Ms. Cribbs resides in Haldimand, which is about 40 minutes from Hamilton. Ms. Cribbs has resided in Haldimand since she began working with the Ministry.

39. Ms. Cribbs was assigned to the Hamilton office, however her inspections range over the province. Initially she was assigned mainly to the Hamilton region, Niagara Region, Brant County, Kitchener Waterloo, Halton and Norfolk. She now spends a great deal of time inspecting sites in Toronto.

40. In 2007 at her time of hire the Grievor discussed her rate of pay with Brad Hughes, the Operations Manager. Ms. Cribbs argued that her experience in Hamilton Public Health suggested that she should not start at the bottom of the OPS pay scale.

41. Ms. Cribbs starting salary was about half way through the pay scale and she was explicitly told by Mr. Hughes that in addition to this, she would be receiving a Ministry vehicle.

42. Ms. Cribbs accepted the position on these terms. It is notable that in accepting this position that Ms. Cribbs earned significantly less than she did at Hamilton Public Health. Prior to her employment with the Ministry Ms. Cribbs earned approximately $63,000 annually. Her rate of pay at the Ministry was approximately $51,000. The inducement of a Ministry vehicle was key in Ms. Cribbs decision to accept employment at the Ministry even at reduced pay. Ms. Cribbs would not have accepted such a significant drop in pay if not for the use of the Ministry vehicle she discussed with Mr. Hughes.

43. The use of the Ministry vehicle was reiterated during the training period.

44. Ms. Cribbs purchased a new vehicle in 2011. It was the Grievor’s intention at the time to use this vehicle for off work transportation only. In purchasing this vehicle, the Grievor relied on Ministry’s representation that she would have access to a Ministry vehicle in which she could travel to work.

45. Ms. Cribbs is very uncomfortable transporting Ministry equipment and seized product from the Ministry vehicle into her own vehicle or the office from the underground parking lot. There are virtually no security measures in place, and Ms. Cribbs notes that the equipment and product may have significant value.

46. Since the change in practice Ms. Cribbs has accrued significant extra expense, including about $75 a week for gas and $120 a month for parking.

Ryan Eagles

47. Ryan Eagles began work with the Ministry in or around March 2006 in the Mississauga Office. He applied for a position in Hamilton in or around 2007. He has been performing duties in Raw Leaf Inspection since about June 17 2013.

48. Mr. Eagles was informed on the appropriate use of the Ministry vehicle during his training period by Mr. Bob Ledgerwood. This involved the right to use it to commute to and from work.

49. When Mr. Eagles began his position he was asked to provide photographs of a parking location and provide it to Mr. Cam Eberlin, showing where he could safely keep his Ministry vehicle.

50. When Mr. Eagles accepted his position as a Raw Leaf Inspection, he was informed that he would be expected to report to a Ministry headquarters to pick up his vehicle, rather than being able to take it home.

51. At that time, Mr. Eagles was informed that this protocol would be applied to all Inspectors, including Tobacco and Fuel. Mr. Eagles soon realized, however, that this protocol only applied to the Tobacco Inspectors.

52. Mr. Eagles has experienced some difficulties under this new protocol. For example, on or around February 2014, Mr. Eagles was ordered to attend a 9 am meeting. It was difficult for him to report to headquarters no earlier than 8 am when the building opened, change into his uniform, and then attend at the meeting location by 9 am. When he mentioned this difficulty to Mr. Cam Eberlin, he was informed that if he was late that disciplinary action may be taken.

53. There was no discussion on any way in which it would be more feasible for Mr. Eagles to make the meeting.

54. In or around June of 2014 Mr. Eagles was informed that fellow inspector Randy Halls would be permitted to park his vehicle in a lot in Tillsonberg rather than at his headquarters. He was informed by Mr. Eberlin that this was a trial period. Despite requests from the Grievors the outcome of this trial period has not been explained or communicated to them.

55. Mr. Eagles, like all the Grievors, has accrued significant extra expenses, including parking, additional fuel costs for about 60 kilometers day, and an additional hour a day travel time.

Eric Gravel

56. Eric Gravel began work with the Ministry in or around July 2006. At his time of hire Mr. Gravel lived in Oakville. In or around 2010 he moved to Grimsby, Ontario.

57. The Grievor was informed just before he began work with the Ministry that he would be provided with a Ministry vehicle he could take home and use to attend work. He was instructed by Mr. Bob Ledgerwood that he had to have a safe place to park it.

58. The Grievor was aware, in advance of his application, that the position involved the use of a Ministry vehicle through friends that worked for the Ministry.

59. The use of the Ministry vehicle was reiterated during the training period.

60. In or around 2012 the Grievor was offered the duties as a Raw Leaf Inspector, which he accepted. In or around March 2013 Mr. Eberlin informed the Grievor of a new protocol that would prohibit him from taking his vehicle home.

61. At this time he was offered the option of returning to his duties as a Tobacco Inspector. However, Mr. Eberlin alerted him that all Inspectors would be soon prohibited from taking Ministry vehicles home, including Fuel Inspectors.

62. To date, Fuel Inspectors are still permitted to bring their Ministry vehicles home.

63. As the Grievor was instructed to find safe parking for the Ministry vehicle, the Grievor in fact rented an additional parking spot at a cost of $50 a month for the Ministry vehicle.

64. Eventually the Grievor sold a second household vehicle in order to accommodate the Ministry vehicle in his driveway. Since the change in protocol, the Grievor has had to, again, purchase a second vehicle.

65. The Grievor, as mentioned, moved to Grimsby in 2010. Prior to the move he spoke with his manager, Cam Eberlin about the move. Specifically he asked Mr. Eberlin if he would be scheduled in the west more often if he moved to Grimsby. Mr. Eberlin told him that was “no problem”. This representation was a significant factor in the Grievor’s final decision to move. The Grievor would not have moved to Grimsby but for this discussion with Mr. Eberlin.

66. Although Mr. Gravel has approached Mr. Eberlin several times about alternatives to parking the Ministry vehicle at the headquarters, his manager has declined to even discuss any alternatives.

67. For example, the Grievor suggested that he could park his Ministry vehicle at a Ministry of Transportation facility nearer to his home, but this was peremptorily refused, without any reason.

68. The Grievor has approached Mr. Eberlin and Mr. Moodie to discuss the change in the use of Ministry vehicles. Particularly he has brought up the ways in which this new policy caused inefficiencies in the use of the Tobacco Inspectors working hours. He has, however, never been provided with an explanation or cost analysis.

69. Mr. Gravel has accrued extra costs as a result in this change of protocol, including about $120 a month in parking, additional fuel costs and the necessity of repurchasing a second vehicle, after selling one to make room for the Ministry vehicle.

Darrin Parfit

70. Darrin Parfit began work with the Ministry in or around March 2009. Mr. Parfit was aware, prior to applying to the position, that the position came with a Ministry vehicle and the conditions attached to it.

71. On the day he was offered employment with the Ministry, he was also offered a position with another organization. Mr. Parfit believed that the compensation offered by the other organization was superior and informed Mr. Cam Eberlin that he was concerned about the lower pay of the Ministry position.

72. Mr. Eberlin asked if he could call Mr. Parfit back in ten minutes. In ten minutes Mr. Eberlin called back and informed Mr. Parfit that instead of being started at the bottom of the pay grid, he would be started at the top grid, including a merit increase. Mr. Eberlin in this call urged the Grievor to factor in the additional “perks” of the job – these included lunch expenses and the use of a Ministry vehicle. Mr. Eberlin urged him to consider these as “part of the compensation package”.

73. The use of the Ministry vehicle was reiterated during the training period.

74. The Grievor had experience commuting long distances to work; in the past he had paid significant amounts in commuting costs. Mr. Eberlin’s inducement of the use of a Ministry vehicle to travel to work was a significant factor in Mr. Parfit’s decision to work for the Ministry. The Grievor would have accepted the other position he was offered but for this conversation with Mr. Eberlin.

75. When the Grievor received his first pay cheque, however, the pay rate did not match that which was in his letter of offer. Mr. Eberlin then said that the Ministry could not pay what had been offered. Mr. Eberlin said that “he couldn’t tell him [Mr. Parfit] not to grieve, but would caution him”. Mr. Eberlin informed the Grievor that “people remember these things.” As a result of this conversation, Mr. Parfit did not file a grievance.

76. In or around September 2013 the Grievor had a discussion with Mr. Jack Telfor as well as Fuel Inspectors Andrew Markel and Ferkyl and Tobacco Inspectors Richard Curado. In the course of the conversation Mr. Telfor was asked about the change in vehicle use and assured the Fuel Inspectors that their vehicle privileges would not be changed. Mr. Curado reminded Mr. Telfor that he, as well as the Grievor were told that the use of the vehicle was “part of the compensation package” when they were hired. Mr. Telfor agreed that he had told them that, and indicated that it was what he told all his staff.

77. In or around July 2013, the Grievor interviewed for a temporary position as an Operations Manager. He inquired with Mr. Moodie and Ms. Chiodi as to whether he would retain his Ministry vehicle for the duration of that assignment. He was informed that he would not. He then spoke to Mr. Telfor and advised him that he would not be pursuing the position if it did not include use of the Ministry vehicle. The position was offered to another candidate.

78. Mr. Parfit estimates that he works in Toronto about 17% of the time. The rest of the time he works outside the GTA. This resulted in Mr. Parfit often attending at his headquarters only to turn around to attend at inspection sites. This often involves passing by or near his home on his journey from his headquarters to the inspection sites.

79. Mr. Parfit has been involved in several health and safety and general workplace issues during his time at the Ministry, including the request for gloves and vests detailed above. In addition:

• He requested training in Violence Response Procedures, in or around July 2009

• He sent multiple emails regarding greater efficiencies in the department to Mr. Ian McKinnon in or around July 2009 and April 2010. This issue also came up with Ms. Jennifer Wong in or around January 2011. Further emails were sent in or around December 2011.

• He expressed serious concern when he was asked to report to an inspection site alone and to work with a TEO rather than an Inspector in or around June 2011. At this inspection illegal drugs were discovered. This occurred again in December 2011.

• He had an ongoing request for printer equipment that had been required by a Joint Health and Safety Committee resolution in or around January and February 2011. This issue came up again April 2011.

• He requested equipment including duty boots between February and April 2011; he was informed, erroneously that he could not purchase duty boots until the anniversary date of his hire. In fact there was an agreement between the Employer and OPSEU to allow Inspectors to buy boots on January 1.

• In or around December 2011 he requested WHIMIS training, which was never received

• Mr. Parfit was involved in ensuring that a health and safety incident in which a colleague was struck by a car was dealt with by the Health and Safety Committee in or around January 2012. The incident was not reported to the JHSC until the Grievor forwarded a report.

• He also registered some dissent to a management directive to take co-op students into the field.

• In or around August 2012 there was an incident in Kingston; Mr. Parfit wrote a report identifying gaps in safety procedures. Mr. Parfit was, on or around August 27, 2012 asked to attend a meeting with Mr. Cam Eberlin in which he was asked to rewrite the report. The Grievor refused to rewrite the report.

• In or around November 2012 the Grievor telephoned Ms. Campbell indicated that he would not take a co-op student into the field. He suggested there would be problems if the student was wearing a uniform, and requested a clear policy be issued dictating exactly what students could and could not do in the field. He received no response. This issue was eventually referred to the MERC in January 2013. This notwithstanding, the Grievor was asked to take a co-op student into the field on or about March 2013.

80. In or around January 2012 the Grievor was the subject of a complaint investigation. When he asked to see the letter of complaint, he was refused. When he made another request by email he was warned by Mr. Eberlin that “he was making [himself] look bad and that he should “back off.”

81. Like all the Grievors, Mr. Parfit has accrued significant additional expenses in parking, additional fuel charges and travel time. As mentioned above, Mr. Parfit actively considered these issues prior to accepting employment. He has a significant commute into North York; it is about three and half hours both ways.

Jack Lewis

82. Jack Lewis began work with the Ministry in or around June 2013. Mr. Lewis had previously worked as a supervisor in the Ministry of Transportation. He sought out this position as he believed it would provide better hours.

83. Mr. Lewis has two children in a shared custody arrangement, and predictability in hours is important to his complex family situation.

84. Mr. Lewis was aware that the use of the Ministry vehicle was part of the job.

85. This position paid approximately $13,000 less than his position in MTO. However, he considered the use of the Ministry vehicle and determined that it was a value to him of about $4,500 per year.

86. During his interview with Mr. Jack Telfer he inquired about the use of the vehicle, and was informed that it was kept at his home, that he started his work day from his home and that he would return, in the vehicle, to his home at the end of the day.

87. Mr. Lewis also made a phone to Human Resources and the Ministry of Government Services to ensure his understanding was correct.

88. The use of the Ministry vehicle was reiterated during the training period.

89. If not for the use of the Ministry vehicle and the concomitant effect on his hours of work, Mr. Lewis would not have left his position at MTO.

90. When the change in protocol occurred, it created a ripple effect both cost wise and personally, in Mr. Lewis’s life. As a result of this change, he had to leave his house earlier. As a result he had difficulty getting his young children to the school bus in good time. He was forced to engage outside childcare.

91. Mr. Lewis’s commute is about 30 minutes in duration.

92. Mr. Lewis estimates that he is paying an extra $50 per week in fuel. In addition he estimates that he is paying approximately $1,000 per year in additional maintenance. Finally he estimates that additional childcare costs have amounted to about $625.

93. Mr. Lewis has recently accepted a position with the Ministry of Labour. The revocation of the Ministry vehicle was a primary consideration when he sought a new position.

Dawn Holdaway

94. Dawn Holdaway lives about eight kilometers from her office. Since losing access to a Ministry vehicle she often takes the bus to work. This results in a cost of about $6.20 per day.

95. Ms. Holdaway was properly instructed on the proper use of the Ministry vehicle during her training period. This involved the right to use the Ministry vehicle to commute to work.

96. Ms. Holdaway has repeatedly asked to be involved in OnTax testing, Fuel testing and training in the Raw Leaf duties. She has been routinely refused.

Geoff Foster

97. Geoff Foster was aware that the use of a Ministry vehicle in traveling to and from work was a benefit of the position of an Inspector with the Ministry of Finance.

98. Mr. Foster was properly instructed on the use of the Ministry vehicle during his training period. This included the right to use the Ministry vehicle to commute to work.

99. Mr. Foster estimates that he spends an additional $60 per week driving his personal vehicle to his headquarters.

Bryan Drury

100. Bryan Drury has been employed by the Ontario Public Service for nearly 13 years. For the past eight years he has worked for the Ministry of Finance as a Motor Fuel and Tobacco Inspector. Prior to that he worked for the Ministry of Community Services and Corrections as a Correctional Officer. Directly prior to his career in the Ministry of Finance, he was employed by the Ontario Provincial Police as a Prisoner Transporter. Mr. Drury lives in Brantford, Ontario. In his position as a Prisoner Transporter he received a higher annual salary; he worked more hours and also received premium and overtime.

101. Mr. Drury has repeatedly applied for a position in which he would conduct Fuel Inspections rather than Tobacco inspections. He has also applied for a lateral transfer. He has never been granted such a position, even on a temporary basis.

102. Mr. Drury has been involved in several health and safety issues with the Ministry, including uniform and communications issues as outlined in the “General” section. He also has a current grievance regarding harassment scheduled at the GSB.

103. Mr. Drury was advised by Mr. Bob Ledgerwood in or around March 2006 that use of a Ministry vehicle was a part of the position. The use of this vehicle was a primary consideration for this Grievor in accepting this position, as at the time he accepted this position he had a considerable commute. If not for this representation of the use of a Ministry vehicle, the Grievor would not have accepted the position.

104. The use of the Ministry vehicle was reiterated during the training period.

105. Mr. Drury estimates that the costs he has accrued since the new protocol include about $750 in maintenance, fuel costs in the amount of 70 km per day and an additional hour of commuting time.

106. The Grievor parks his vehicle about 15 minutes away from his office in a free parking lot. As a result he has added about 30 minutes of walking time to the ordinary driving commute.

Position

107. It is the Union’s position that after inducing individuals into employment with the Ministry with promises of use of a Ministry vehicle in traveling to and from work, the Employer is estopped from denying the use of these vehicles for that purpose.

108. The Union will submit that the Employer has made an unequivocal representation that these vehicles were a part of the compensation package that the Grievors were entitled to rely on, rather than working conditions that may be subject to change. The Grievors were intended to rely on these representations, and they did so to their detriment. Several of the Grievors gave up higher paying positions as they were assured that the use of the Ministry vehicle offset the pay difference. Further, the Union will submit that it makes good labour relations sense in the circumstances to allow the estoppel, and that it would correct a manifest unfairness.

109. Further, it is the Union’s position that the change in practice has the effect of unilaterally altering the wages of the Grievors by imposing costs to attend work that did not exist at the time of hire. Indeed, the Union will submit that the Grievor were expressly told that these costs would not exist at their time of hire and were encouraged to calculate the absence of those costs into their wages. It is the Union’s position that this constitutes a violation of the wage grid of the Collective Agreement.

110. Further, it is the Union’s position that there is no legitimate business reason to unilaterally alter the rights of tobacco inspectors to use Ministry vehicles, while other inspectors continue unchanged. It is, as the Grievors have noted, significant that a group of union members who have been highly involved in health and safety issues and grievances in the workplace are the same members who find themselves stripped of a right they were explicitly promised at the time of hire while other Inspectors who are less engaged with the grievance process have their rights unchanged. It is the Union’s position that this constitutes reprisal under Article 3.2 and 3.3 of the Collective Agreement as well as a violation of section 50 of the Occupational Health and Safety Act.

4As reflected in the final paragraphs of the November 4, 2014 document, the Union advanced two positions in support of the grievances. The Union claims that the doctrine of promissory estoppel applies in this instance to preclude the Employer from changing the policy relating to the use of Ministry vehicles. The Union also claims that the Employer altered the policy on Ministry vehicles as a reprisal against the Grievors for exercising their rights to grieve violations of the Collective Agreement and the Occupational Health and Safety Act.

5Counsel made extensive submissions over two days of hearing on whether the particulars filed by the Union disclosed a prima facie case for the relief sought by the Union. Although I will refer to some of these submissions in my reasons, I do not intend to refer in any detail to all of the submissions or to all of the many decisions relied on by counsel. In support of the Union’s position that the doctrine of promissory estoppel could be applied in these circumstances and that the change in policy on the use of Ministry vehicles for certain Inspectors amounts to a reprisal against those Inspectors, Union counsel referred me to the following decisions: OPSEU (Couture et al) and Ministry of Government Services (2010), GSB No. 2008-3329 (Dissanayake); Ontario Public Service Employees Union v. Ontario (Ministry of Environment), [2005] O.G.S.B.A. No. 115 (Briggs); OPSEU (Evangelista et al) and Ministry of Attorney General) (2011), GSB Nos. 2009-1091 et al. (Harris); Scarborough (City), [1997] O.L.R.D. No. 4247; Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 1981 CanLII 4518 (ON LA), 4 L.A.C. (3d) 205 (Beatty); Canadian National Railway v. Beatty, [1981] O.J. No. 3137 (Div. Ct.); and, Consolidated-Bathurst Inc. and C.P.U, Local 120 (1984), 1984 CanLII 5234 (NB LA), 15 L.A.C. (3d) 423 (Kuttner).

6In support of his submissions that the doctrine of promissory estoppel did not apply in this case or that the change in policy concerning the use of Ministry vehicles was not a reprisal against the Grievors, counsel for the Employer relied on the following decisions: OPSEU (Balchan Changoor) and Ministry of Transportation and Communications (1983), GSB No. 526/82 (Verity); OPSEU (B. Maddock) and Ministry of Community & Social Services) (1988), GSB No. 1947/87 (Delisle); OPSEU (Coubrough/Sinisalo) and Ministry of Health (1992), GSB No. 3018/90 (Gorsky); OPSEU (Brummell) and Ministry of Health (1993), GSB No. 1584/91 (Kirkwood); OPSEU (Northover) and Ministry of Community & Social Services (1993), GSB No. 2279/92 (Dissanayake); OPSEU v. Ontario (Ministry of Community and Social Services), 1995 CanLII 10660 (ON CTGD), [1995] 27 O.R. (3d) 135 (Div. Ct.); OPSEU (Union) and Ministry of Health and Long-Term Care (2007), GSB No. 2005-3289 (Gray); OPSEU (Sutherland) and Ministry of Labour (2008), GSB No. 2006-0519 (Dissanayake); Doef’s Iron Works Ltd. v. Mortgage Corp. of Canada Inc., [2004] O.J. No. 4358 (C.A.); Casselman v. Ontario Public Service Employees Union, [2009] O.J. No. 2549 (SCJ); Reclamation Systems Inc. v. Rae, 1996 CanLII 7950 (ON CTGD), [1996] O.J. No. 133 (Gen. Div.); International Assn. of Fire Fighters, Local 255 v. Calgary (2011), D.L.R. (4th) 563 (Alberta C.A.); Anderson v. Anderson, [2010] B.C.J. No. 1284 (B.C.S.C.); Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Bowater Maritimes Inc. v. Communications, Energy and Paperworkers’ Union of Canada, Local 146, [2014] N.B.L.A.A. No. 1 (Filliter); Re Coca-Cola Bottling Co. and United Food and Commercial Workers International Union, Local 393W (2003), 2003 CanLII 89604 (ON LA), 117 L.A.C. (4th) 238 (Marcotte); Re Coca-Cola Bottling Co. and U.F.C.W., Loc. 175 (2003), 2003 CanLII 89511 (ON LA), 118 L.A.C. (4th) 124 (Marcotte); Ontario Power Generation Inc., [2013] O.L.R.D. No. 2788; OPSEU (Union) and Ministry of Government Services (2012), GSB No. 2011-2449 (Petryshen); OPSEU (Nadeau et al) and Ministry of Transportation (2009), GSB No. 2007-3497 (Gray); Re Cassiar Mining Corp. and United Steelworkers, Locals 6536 & 8449 (1986), 1986 CanLII 6627 (BC LA), 24 L.A.C. (3d) 257 (Hope); Re Toronto (City) and C.U.P.E., Loc. 79 (2002), 2002 CanLII 79057 (ON LA), 110 L.A.C. (4th) 1 (Petryshen); Re Royal City Bingo and Canadian Union of Public Employees, Local 399-12 (1999), 1999 CanLII 35914 (BC LA), 82 L.A.C. (4th) 235 (McPhillips); Re Amhil Enterprises and Workers United Ontario Council (2012), 220 L.A.C. (4th) 152 (Slotnick); Roach v. Treasury Board (Department of National Defence), [2006] C.P.S.L.R.B. No. 1 (Nadeau); Pronovost v. Treasury Board (Department of Human Resources and Skills Development), [2007] C.P.S.L.R.B. No. 72 (Guidon); Re Telecommunications Workers Union and Telus (2013), 238 L.A.C. (4th) 203 (Chankasingh); Complex Services Inc. v. Ontario Public Service Employees Union, Local 278, [2011] O.L.A.A. No. 321 (Davie); Windsor (City) v. Windsor Professional Firefighters Assn., [2011] O.L.A.A. No. 586 (Chauvin); Hicks v. Treasury Board (Human Resources Development Canada), [1997] C.P.S.S.R.B. No 43 (Chodos); Re York (City) Board of Education and C.U.P.E., Local 1749-B (1989), 1989 CanLII 9310 (ON LA), 9 L.A.C. (4th) 282 (H.D. Brown); Re Scarborough and I.A.F.F., Local 626 (1972), 1972 CanLII 1981 (ON LA), 24 L.A.C. 78 (Shime); Benteler Automotive Canada Corp. v. National Automobile, Aerospace, Transportation & General Workers Union of Canada, Local 1285, [2012] O.L.A.A. No. 114 (H.D. Brown); OPSEU (Difederico) and Ministry of Attorney General (2012), GSB No. 2008-0868 (Dissanayake); OPSEU (Wong) and Ministry of Government Services (2012), GSB No. 2010-0756 (Dissanayake); OPSEU (Hottinger) and Ministry of Community Safety and Correctional Services (2014), GSB Nos. 2009-1268 et al. (Tims); E.C. King Contracting, [2010] O.L.R.D. No. 589; Orenda Aerospace Corp., [2004] O.L.R.D. No. 2021; Mitchell v. Kerry’s Place Autism Services, [2012] O.H.R.T.D. No. 834; Sheahan v. Ottawa Police Services Board, [2011] O.H.R.T.D. No. 414; Christianson v. Office of the Independent Police Review Director, [2014] O.H.R.T.D. No. 1456; OPSEU (Koonings) and Liquor Control Board of Ontario (2006), GSB Nos. 2003-3101 et al. (Gray); Re Manitoba Housing Authority and International Union of Operating Engineers, Local 827 (1994), 1994 CanLII 18759 (MB LA), 41 L.A.C. 4th) 225 (Teskey); OPSEU (Union) and Ministry of Community Safety and Correctional Services (2006), GSB No. 2003-3766 (Briggs); OPSEU (Ross) and Ministry of the Solicitor General and Correctional Services (2003), GSB Nos. 2690/96 et al. (Herlich); and, OPSEU (Sidhu) and Ministry of Community Safety and Correctional Services (2006), GSB Nos. 1996-0717 et al. (Abramsky).

7After reviewing the particulars filed by the Union and after considering counsel’s submissions, I am satisfied that the particulars do not disclose a prima facie case for an estoppel and I am satisfied that they do disclose a prima facie case of reprisal. My reasons for these conclusions are as follows.

8The circumstances disclosed by the particulars that are relevant to the Union’s estoppel position are as follows. The Employer has had a policy for some time which provided Inspectors with the use of a Ministry vehicle. A feature of the practice of providing a Ministry vehicle was that Inspectors were permitted to take their Ministry vehicle home. This feature of the practice was ended by the Employer for some Inspectors in August of 2013. As of that time, Tobacco and Raw Leaf Inspectors were no longer permitted to take their Ministry vehicle home, but were required to leave their work vehicle at their headquarters. As noted previously, the central focus of the grievances filed by the ten Inspectors is on the Employer’s decision not to permit them to continue to take their work vehicle home. The particulars describe in some detail the additional costs the Grievors incurred by having to get from their home to their headquarters to get their Ministry vehicle.

9Representations by a manager were made to four of the Grievors before they decided to accept the Inspector position. In each case the manager represented that Inspectors were provided with the use of a Ministry vehicle which they could take home. As part of the representation, these Grievors were told that the use of a Ministry vehicle should be viewed as a part of the compensation package. The practice relating to the use of the Ministry vehicle was reiterated during their training period. It is these representations to the four Grievors which the Union relies upon to base its estoppel argument.

10The Collective Agreement is completely silent on the subject of the provision and use of a work vehicle, including the taking of a Ministry vehicle home.

11In Scotsburn Cooperative Services Ltd. v. W. T. Goodwin Ltd. (1985), 16 D.L.R. (4th) (S.C.C.) at pp. 168-9, the principle of estoppel is described as follows:

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 representer”) has made a representation to another person (the representee”) in words or by acts or conduct, or (being under the 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 afterwards take place between him and the representee, is estopped as against the representee, from making or attempting to establish by evidence, ant averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner objects thereto.

12The GSB has often had occasion to address the issue of estoppel. In a case of some vintage, Brown, 0513/86 (Barrett), the Board described the elements of estoppel in the following way:

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

2. 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.

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

4. 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.

5. 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 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 on 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.

6. It must be shown that the alteration of position by the promise was to his detriment or prejudice.

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

13As Employer counsel noted in his submissions, the equitable doctrine of estoppel contains a number of components, all of which must be met before an estoppel can be established. I will address some of the elements which have not been met on the facts referenced in the Union’s particulars.

14In the factual context of this case, a representation that is relied upon to base an estoppel must have an explicit or inferential link to the Collective Agreement. The Union took the position that the change in the Employer’s practice on the use of a Ministry vehicle is linked to the wage grid because the resulting additional costs incurred by the Grievors means that they are now compensated less than they were before the change in practice. Although the change in practice resulted in negative financial consequences for the Grievors, it is not possible to conclude that the change was linked to the wage grid or any other monetary provision of the Collective Agreement. The wages and other monetary features of the Collective Agreement paid to the Grievors remained the same after the change in practice. The fact that a manager told four of the Grievors that they should consider the provision of a vehicle a part of the compensation package does not alter the terms of the Collective Agreement. We are left then in this matter with merely a practice and representations about a work vehicle which have no explicit or inferential connection to the terms of the Collective Agreement. In the absence of such a connection to the Collective Agreement, the practice of providing Inspectors with a Ministry vehicle that they could take home and the representations made to the four Grievors cannot support an estoppel. The Union in effect is attempting to base the grievances on a practice or oral representations as opposed to basing the grievances on any rights created by the terms of the Collective Agreement. This is something it cannot do on these facts and for this reason alone is a basis for rejecting its position that an estoppel can be established in this case.

15With some legitimacy the Union did not argue that the practice itself of permitting Inspectors to take their work vehicle home constitutes a representation upon which an estoppel can be based. Just as the Employer had gratuitously permitted Inspectors to take their work vehicle home, there is nothing which precluded the Employer from withdrawing that gratuitous benefit. In the alternative, Employer counsel argued that the representations made to the four Grievors to persuade them to take the Inspector job cannot be the basis of an estoppel because the representations were not legally significant. I agree with this submission. The representations made by a manager to the four Grievors were in essence merely informing the Grievors about an existing practice. If the gratuitous practice of permitting Inspectors to take their work vehicle home can be unilaterally withdrawn by the Employer, a representation about the existence of that practice does not have any legal significance and cannot support an estoppel. This is not a case where the Employer had guaranteed by a representation to the Union or to Inspectors that the practice of permitting Inspectors to take their work vehicle would be continued for a certain period of time. It would be quite an odd result if the majority of the Inspectors had no rights flowing from the practice, but the four Grievors had the right to insist that the practice continue merely because they were told about the existence of the practice during the hiring process and had the practice confirmed soon after they were hired.

16The Union placed considerable reliance on OPSEU (Sutherland) and Ministry of Labour, supra, in support of its position on the estoppel issue. One of the motions made by the employer based on the Union’s particulars in that case was that the union’s estoppel argument must fail because it was based on a pre-employment promise and because the promise was not related to any right under the collective agreement. During the job interview process, a District Manager advised Mr. Sutherland that he would be entitled to participate in a compressed work week after one year of employment. Mr. Sutherland abandoned other job opportunities and accepted a position with the Ministry because of the representation about the compressed work week. On his first day of work with the Ministry, the District Manager reiterated that a compressed work week would be available to Mr. Sutherland after he had been employed for one year. The collective agreement contained a provision which indicated that it was open to the parties to enter into compressed work week arrangements. Mr. Sutherland grieved when the Employer failed to provide him with a compressed work week after he had been employed for one year. The Union successfully argued that the Board should reject the Employer’s motion. The Board determined that it had the jurisdiction to hear and determine Mr. Sutherland’s grievance based on a claim of estoppel. On the issue of whether the District Manager’s representation related to any right in the collective agreement, the Board determined that there was a sufficient link to the collective agreement, given that the collective agreement provided that compressed work week arrangements could be extended to employees by agreement.

17What clearly differentiates OPSEU (Sutherland) from the instant case is that the union was able to establish in OPSEU (Sutherland) a link to a term in the collective agreement. Even if there was a manifest inequity created by the representations of a manager to the four Grievors in the instant case, as claimed by the Union (but disputed by the Employer), the absence of any link between the subject of the grievances and a related right in the Collective Agreement, as noted previously, is an insurmountable hurdle for the Union in establishing an estoppel.

18I will make one further comment on a submission made by Employer counsel in relation to OPSEU (Sutherland). The Board recognized in that decision that a representation to base an estoppel must have been made at a time when there is a legal relationship between the employer and the employee. Although the initial representation relied on by Mr. Sutherland was made before he was hired, the Board found it significant that the representation was repeated post-employment when a legal relationship existed. Noting that his submission had not been made in OPSEU (Sutherland), Employer counsel argued in the alternative that I should find in the instant case that the repeated post-employment representations cannot base an estoppel given that the particulars do not indicate that there was any detrimental reliance on those representations. Employer counsel also referenced OPSEU (Brummell), supra, were the Board noted at p. 16 that “the basis for the consideration of estoppel crystallized” after the pre-employment representation and the grievor took the position offered on the OPS and severed his employment with a former employer. It is unnecessary for me decide whether the particulars must disclose some detrimental reliance in relation to the post-employment representation and whether the Union’s particulars in this case disclose any detrimental reliance in relation to the post-employment representations. I simply note that a matter not argued in OPSEU (Sutherland) about a post-employment representation and detrimental reliance is an interesting live issue and that whether there is any detrimental reliance connected to a post-employment representation depends, of course, on the particular facts of any given case.

19I turn now to briefly address the reprisal issue. In essence, the Union alleges that the Employer has exercised its rights to manage in bad faith by changing the policy on work vehicles in 2013 as a reprisal against Tobacco and Raw Leaf Inspectors for exercising their rights in filing grievances about workplace and health and safety issues. The particulars refer to instances of these Inspectors filing such grievances in 2010, 2011 and 2013. They indicate that Fuel Inspectors have not been as aggressive in filing grievances and that the change in policy does not apply to them. The Union refers to instances where a manager had indicated that the vehicle policy might be affected when some of the Grievors made complaints about work or health and safety issues. It is asserted in the particulars that the Employer has not provided a reason for the change in policy, that there was no business rationale for the change and that the Employer did not conduct a cost analysis to support a change in policy.

20I have considered the submissions of Employer counsel which formed the basis of his request that some of the particulars that relate to the Union’s reprisal position are not sufficient and should be struck. In light of these submissions I am only prepared to strike paragraph 27 of the particulars. This paragraph references a statement made by Mr. Moodie at a grievance meeting. The statement is protected by the grievance procedure privilege. Although some of the other concerns raised by the Employer about the particulars are not without some merit, I am not prepared to conclude that they are insufficient in the context of a prima facie case motion.

21In a case where the Union is alleging that the Employer has taken some action against a group of employees as a reprisal for their exercising certain rights, it is necessary for the Union to plead facts which illustrate that there is a causal connection between the exercise of those rights and the action taken by the Employer. The Employer takes the position that the Union has failed to provide particulars which would support the conclusion that there is a link between the Employer’s decision to not permit the Grievors to take their work vehicle home in August 2013 and the conduct of the Grievors in filing grievances about workplace and health and safety issues. After reviewing the particulars in their entirety, I am not prepared to conclude that the Union has failed to make out a prima facie case of reprisal. As noted above, the Union has asserted that the Employer made the change to the vehicle policy because of the grievance activity of the Grievors over a number of years and that managers have suggested that the vehicle policy might be affected when the Grievors complained about such matters. It also asserts that the change in vehicle policy did not apply to Fuel Inspectors because, unlike the Grievors, the Fuel Inspectors were not as active in filing grievances when compared to the Grievors. On the basis of its particulars, the Union is entitled to have the reprisal issue proceed to a hearing on the merits.

22For the foregoing reasons, the Employer’s motion as it relates to the estoppel issue is successful and the grievances in-so-far as they relate to that issue are dismissed. The Employer’s motion as it relates to the reprisal issue is hereby dismissed. The Union can contact the Register of the GSB requesting hearing dates for the reprisal issue if it is inclined to proceed with that issue.

Dated at Toronto, Ontario this 23rd day of July 2015.

Appendix A

Grievor

GSB#

OPSEU File#

Gravel, Eric

2013-1924

2013-0202-0006

Eagles, Ryan

2013-2423

2013-0202-0007

Eagles, Ryan

2013-2424

2013-0202-0008

Foster, Geoffrey

2013-2924

2013-0154-0030

Foster, Geoffrey

2013-2925

2013-0154-0031

Soutar, Andrew

2013-2926

2013-0202-0009

Soutar, Andrew

2013-2927

2013-0202-0010

Cribbs, Tracey

2013-2928

2013-0202-0011

Cribbs, Tracey

2013-2929

2013-0202-0012

Drury, Bryan

2013-2930

2013-0202-0013

11

Drury, Bryan

2013-2931

2013-0202-0014

Foden, Mark

2013-2936

2013-0340-0055

Foden, Mark

2013-2937

2013-0340-0056

Holdaway, Dawn

2013-2938

2013-0340-0057

Holdaway, Dawn

2013-2939

2013-0340-0058

Parfit, Darrin

2013-2940

2013-0599-0027

Parfit, Darrin

2013-2941

2013-0599-0028

Lewis, Jack

2013-3199

2013-0154-0032

Lewis, Jack

2013-3200

2013-0154-0033