Nurse doesn't need safety footwear, so employer isn't on the hook for $100 reimbursement
J.D., an RPN at the Waypoint Centre for Mental Health in Penetanguishene, Ont., since 1985, put in a claim seeking reimbursement for $100 in December 2010 under article 16.16 of the collective agreement.
In December 2008, the Waypoint Centre was divested from the Crown. Until that time, employees were Crown employees and subject to the terms of the collective agreement between the Ontario Public Service Employees Union (OPSEU) and the Crown.
A successor collective agreement between OPSEU and the new employer came into effect on Jan. 8, 2010.
Old contract, new successor agreement
There were some changes in the language of the new agreement concerning the employer’s obligation to provide safety equipment. Article 16.16 of the new, successor agreement specified the employer would provide a safety footwear allowance where safety footwear was "required."
The old contract between OPSEU and the Crown also acknowledged the employer’s obligation to provide safety equipment where it was required.
However, with respect to safety footwear, article 9.3 of the old contract also said: "The purchase of safety shoes or boots for on-the-job protection of the purchaser shall be subsidized as per the applicable practice in each ministry."
Article 9.4 of the old agreement said that "current practices relating to the supply and maintenance of apparel for employees shall continue during the term of this collective agreement."
Before the arbitrator, the union asserted — and the employer did not dispute — that the former Crown employer did have a practice of reimbursing employees who chose to wear safety footwear under the footwear allowance whether safety footwear was required on the job or not.
The union said the new employer, as successor, was required to follow the dictates of past practices. In this case, the Crown had a practice of reimbursing employees who chose to wear safety footwear at work even if it was not required.
The union said the language in article 16.16 of the new contract did not restrict the potential for reimbursement to situations where the "employer requires" the use of safety footwear. In this case, J.D. felt he required safety footwear and no evidence was provided to suggest he didn’t.
Clearly, the union said, there was ambiguity in the new contract language. There was also evidence of past practice that favoured the union’s interpretation. Moreover, there was an issue of estoppel, because the employer did not signal its intent to cease the existing practice of reimbursement. The union therefore had no opportunity to address the issue in bargaining.
The employer argued there was no existing practice under the current collective agreement that obligated it to provide reimbursement for safety footwear in the manner suggested by the union.
The employer said its assessment team, which included union members, did not conclude that safety footwear was required for RPNs.
No ambiguity
The employer rejected the union’s argument with respect to estoppel. There was no evidence of "detrimental reliance." It was clear, the employer said, that the parties had addressed the issue of safety equipment in the negotiations for the current collective agreement and there was no ambiguity as alleged by the union. The arbitrator agreed.
"It cannot be said that the language of the current collective agreement is ambiguous. The words of article 16.16 are clear, capable of interpretation and there is nothing in the language or the evidence to suggest any ‘latent ambiguity.’ As for the claim that the past practice establishes an estoppel, that too cannot be accepted. The practice arose under a different collective agreement where the continuation of practices was protected and where the language acknowledged their existence. After divestment, this bargaining unit negotiated a new collective agreement with this employer, amending the safety equipment language, eliminating the reference to ‘practices’ and establishing new provisions to protect the parties’ respective rights."
The union did not make the case for an objective need for safety footwear. There was no history of foot injuries. The bipartite assessment team did not conclude safety footwear was a requirement for RPNs. No claim or reference was made to requirements under Ontario’s Occupational Health and Safety Act.
J.D. may have thought safety boots were a good idea but there was no objective evidence to support the argument that safety footwear was objectively required for RPNs in that workplace.
"In order for the union to succeed, it would have had to meet the onus of establishing such a requirement. That onus has not been met."
The grievance was dismissed.
Reference: Waypoint Centre for Mental Health and Ontario Public Service Employees Union, Local 329. Paula Knopf — Sole Arbitrator. Jason Green for the Employer. Eric del Junco for the Union. June 12, 2013. 7pp.
