AH - 191
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
THE CANADIAN SIGNAL AND COMMUNICATIONS UNION
IN THE MATTER OF A UNION GRIEVANCE RELATING TO THE PAYMENT OF WAGES DURING THE WAITING PERIOD FOR WEEKLY INDEMNITY BENEFITS
SOLE ARBITRATOR: J.F.W. Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Toronto on June 17, 1986.
The Dispute and Joint Statement of Issue in this matter is as follows:
The grievance arises as a result of the Company’s discontinuance on February 1, 1986 of payment of wages to S & C technicians during the up to 3-day waiting period prior to receipt of Weekly Indemnity Benefits.
JOINT STATEMENT OF ISSUE
The Union contends:
That the employer must continue to pay sickpay to S & C Technicians during the up to 3-day waiting (qualifying) period. The Union further contends that the employer’s conduct is contrary to the provisions of Article 26 and any and all other relevant provisions.
The Company contends:
That the grievance does not satisfy the requirements of Article 12.7 of the Collective agreement, since it does not involve the interpretation or alleged violation of the Collective agreement, and is, therefore, not arbitrable. Further, the Company denied the Union’s contentions.
There is no dispute as to the facts. The collective agreement, dated November 7, 1985 (and said to be effective as of January 1 of that year), covers various signal and communications classifications, including that of S & C Technician. About one hundred of the five hundred members of the bargaining unit are in the later classification.
The bargaining unit is one which was updated by order (dated October 17, 1984) of the Canada Labour Relations Board, on an application made as a result of the company’s merger of certain of its operations. It appears that the persons now classified as S & C Technicians and members of the bargaining unit represented by the union party to the instant case had previously been members of another bargaining unit, represented by another bargaining agent, or had been in excluded positions. They had, whether by virtue of the provisions of a collective agreement or of the application of company policy, been entitled to certain benefits which included weekly indemnity payments in respect of loss of earnings due to illness or accident occurring outside the workplace. Except in cases of hospitalization, such benefits were payable from the third day of absence. It had, it is acknowledged, been the company’s practice nevertheless to pay the employees in question their regular wages during the three first days of such absence. It is the company’s position that it made such payments to the employees ex gratia.
The other employees in the bargaining unit were also entitled, under the collective agreement by which they were formerly bound, to similar weekly indemnity benefits. It does not appear, however, that in their case, payment of wages was made during the three-day period preceding entitlement to benefits.
Article 26 of the collective agreement calls for the continuance of the employee benefit plan and for its application to the employees in the bargaining unit. It is acknowledged that the plan provides (subject to the special cases mentioned), for the payment of benefits following a three-day qualifying period. There is no allegation that the company has failed to keep such a plan in effect, or to cause appropriate payments to be made following the three-day period. There has, then, been no violation of article 26. The thrust of the grievance is not really that the benefit plan has been violated. It is rather that the company has not paid S & T Technicians their regular wages during the first three days of absences for which weekly indemnity benefits become payable, as it did in the past.
There is no doubt that the company did follow such a practice with respect to the employees in question. It is also the case that it ceased that practice during the life of the current collective agreement. On January 16, 1986, the company issued the following memorandum:
This has reference to our present practice of paying S & C technicians represented by the Canadian Signal and Communications Union, their regular wages for any working days included in the qualifying period for Weekly Indemnity Payments (a maximum of three working days in each instance)
These payments are not required pursuant to the Collective Agreement. Furthermore, this group of organized employees is the only one so compensated.
Accordingly, this practice is to be discontinued effective February 1, 1986, thereby placing S & C Technicians on the same basis as other organized groups within the S & C Department.
There is no suggestion that what the company did was contrary to any provision of the collective agreement, and indeed it was not. It is for that reason that the company submits that I have no jurisdiction in the matter, having regard especially to the provisions of article 12.7 of the collective agreement:
A grievance concerning the interpretation, or alleged violation of this agreement - - shall - - be presented - - - .
The union contends, however, that the company is estopped from relying on the terms of the collective agreement in the circumstances of this case. It should be said that there is no allegation that the company made any express representations with respect to article 12.7. Nor is the allegation that there were any express representation in respect of payment of wages to employees not otherwise entitled thereto. The allegation is that the practice with respect to such payments ( which practice is acknowledged), carried the implicit representation that it would continue, and that the union relied on such representation to its detriment, so that the company is now, by its conduct, estopped from relying on the silence of the collective agreement with respect to the payments sought.
The mere fact of making a payment does not necessarily involve any representation that such payment will be made in the future. The continued practice of making payments may, however, give rise to a reasonable expectation that such practice will continue, at least, to speak of the present case, during the term of the benefit to which the practice will continue, at least, to speak of the present case, during the term of the benefit to which the practice relates. Where such an expectation reasonable arises, the conduct of the party creating such expectation may be said to amount to a “representation”. In the instant case, it does not appear that there was any such representation made to the present bargaining agent: the past practice which the union seeks to have continued for the benefit of some of the members of the bargaining unit is not one whose benefits its own members enjoyed prior to the merger of the company’s operations. Any “representation”, then, was made either to a former bargaining agent or, in some cases, to individual employees, not members of any bargaining unit.
The union, that is the present bargaining agent, was aware of the past practice, and hoped at least that it would be continued in the cases of those of its members who had previously received it, or would have received it. Indeed, the union, as a member of a group of unions, advanced a demand, as part of its notice to bargain which led to the most recent negotiations, in respect of payment for the three-day qualifying period for weekly indemnity benefits:
Effective January 1, 1985, weekly indemnity benefits shall be paid at the rate of 100% of basic salary, eliminate three (3) day waiting period.
Such a provision was not agreed to, and does not appear in the collective agreement. That demand, however, was a general one, made on behalf of a number of bargaining agents. In respect of the particular group of employees involved here - who had had the benefit of the past practice in respect of their previous employment with the company - the matter was spoken of informally between the parties, following the determination by the Canada Labour Relations Board, and prior to the negotiation of the current collective agreement. The union President, who was, “aware that the S & C people had a benefit that the rest of my bargaining unit didn’t have”, was advised by the company that the continuation of that benefit through the life of the collective agreement being negotiated could be assured. Such advice, clearly, contradicted (or at the very least put a term to), any “representation” which might have been inferred from the past practice which had existed in respect of the employees in question.
The locus classicus of the modern doctrine of estoppel by conduct is, of course, the judgment of Denning, L.J., in the case of Combe v. Combe, (1951) 1 All E.R. 767, at p. 770, cited in CN/CP Telecommunications, 4 L.A.C. (3d) 205 (Beatty), at p. 207:
The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualifications which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.
As in the CN/CP case, there exists here a valid collective agreement between the parties. While then facts in the instant case are not the same as those in the CN/CP case, the issues are similar, as set out at p.208 of that case:
What is in issue is (1) whether there was some conduct on the part of the employer that induced the union to believe that the strict legal rights - - would not be enforced, and (2) whether, “having regard to the dealings which have taken place between the parties”, it would be inequitable to allow the employer to insist on those rights.
As to (1), it is clear from what has been set out above that the union was not induced to believe that the company would not “enforce its strict legal rights” under the collective agreement generally. The union was well aware that the collective agreement did not provide for member of the bargaining unit the benefit it now seeks: it sought that benefit at negotiations, but did not obtain it, and entered into the collective agreement without it. As to the group of employees who had, under the previous employment arrangement, either as individuals or as members of some other bargaining unit, received wages during the qualifying period, the union - and it is the union with whom bargains are to be struck: see the McGavin Toastmaster case,  1 S.C.R. 718 - was given no reason to believe that the payments would continue for long, and certainly not that the “legal relations” between the parties were intended to be affected in that regard.
There was, I find, no representation intended to affect legal relations in the instant case, nor, even if there were, did the union rely on such representation to its detriment. In any event, with respect to issue (2) as it was put in the CN/CP case, there is, in the circumstances of the instant case, no inequity in the company’s relying on the terms - or rather the silence - of the collective agreement. That is clearly so having regard to the dealings of the parties as set out above. It is also true, I think, when regard is had to the actual situation of the employees in question: what is sought on their behalf is a benefit not available to other, now members of the same bargaining unit, and to whom the same general terms and conditions of employment ought to apply. Justice involves treating like cases alike; the employees in question are, with respect to the material provisions of the collective agreement in a like case to their fellow members of the bargaining unit. Even if (as I do not consider to be the case), the company might have been under an obligation to continue the waiting-period payments to them in the past, they do not carry such benefits with them into a new collective bargaining relationship.
By section 107 (1) of the Canada Labour Code, a “collective agreement” is an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters. In the instant case there exists a collective agreement which is silent on the matter in issue. It provides for weekly indemnity payments. In the past, the employer made certain additional payments, beyond those it was required to make, to certain of its employees. Following a reorganization of the company’s departments, and further to a decision of the Canada Labour Relations Board, those employees now find themselves in a new bargaining unit, represented by a new bargaining unit, represented by a new bargaining agent, and subject to a new collective agreement. What is sought on their behalf is the continuation, in these changed circumstances, of the extra payments, and the enforcement of that claim at arbitration, as though the collective agreement so provided, even although it is clear on the face of the agreement that it does not so provided. The circumstances of this case, I find, do not estop the company from requiring that some violation of the collective agreement be shown. There has been none, and the grievance must accordingly be dismissed.
DATED AT TORONTO, this 11th day of July, 1986.