AD HOC 225

IN THE MATTER OF AN ARBITRATION

BETWEEN:

NORTHWESTEL INC.

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 1574

(the "Union")

IN THE MATTER OF WILLIAM NELSON

 

 

SOLE ARBITRATOR: Dwayne W. Rowe

 

There appeared on behalf of the Company:

Timothy S. Preston, Q.C.

 

And on behalf of the Union:

Mr. Murray Smith

 

 

A hearing in this matter was held at Whitehorse, Yukon on March 4, 1988.

AWARD

NorthwesTel Inc., (the Company) and the International Brotherhood of Electrical workers, Local Union 1574, (the Union are parties to a collective agreement pursuant to which I am the arbitrator chosen by the parties to resolve the grievance by making a final and binding decision.

The issue to be decided is whether the grievor was entitled to receive an allowance as a married person for the period between January and November 1986. On October 22, 1986, pursuant to a Review, the company determined the grievor was not entitled to the married person allowance and retroactively placed him on a single person status as at January 1, 1986. The appropriate deduction was made from his pay. In addition, he was disciplined by way of a one day suspension. The discipline imposed gives rise to a related issue as to whether it was justified pursuant to Paragraph 2.01 of the collective agreement then in effect.

Ms. Judy Corley, Manager of Human resources for the company, testified that in late October 1985 while at work, she saw a notice in the Whitehorse newspaper to the effect that one Susan Nelson was separated from her husband, William Nelson. As a consequence, Ms. Corley sent a letter dated October 29, 1985 to the grievor pointing out the newspaper notice and requesting him to confirm in writing whether or not his married status remained within the definition of the policy, a copy of which Ms. Corley included in her letter.

The grievor by way of a letter dated October 31st 1985 responded by stating, inter alia, the following:

Yes, I am legally married. No, I am not legally separated. I am, however, under a trial separation.

This means I am still paying financial support to my wife (and pets) and meeting all the necessary expenses until we get back together.

Trial separation was the only alternative I had in order to save our marriage.

I hope you realize that this is not a permanent state of affairs. It was not, and it is not , my intention not to inform you of any change in a legal relationship with my spouse.

Subsequent to receipt of this letter, Ms. Corley also received a telephone call from Mrs. Nelson to the effect that she and Mr. Nelson were separated.

In the course of discussions with Mr. Roland Boone, Business Manager for the Union, concerning other matters at about the end of October 1985 , Ms. Corley raised the subject of Mr. Nelson's marital situation. Mr. Boone spoke to the grievor and at a meeting with Ms. Corley on November 5th 1985 related to her his understanding that the Nelson's were undergoing a trial separation with a view to resolving their marital difficulties. Ms. Corley agreed to depart from strict adherence to company policy and informed Mr. Boone she would allow a trial separation period to be considered under married status, thereby permitting the grievor to continue to receive his allowance as a married person. That decision was communicated by Mr. Boone to the grievor. Ms. Corley made a note at the bottom of Mr. Nelson's October 31st 1985 letter (Exhibit 5) to remind herself to "check with Nelson end of January". In early January 1986 Ms. Corley was aware of a travel benefit claim submitted by the grievor requesting holiday airfare for himself and his wife, Susan. He completed the appropriate form (Exhibit 7) in which he certified information contained therein to be correct including these words:

I hereby claim the person/s names below as my dependant,/s as defined in the administration manual Section 4. They reside with me at my headquarters location.

Ms. Corley referred the claim to the grievor's supervisor, Mr. Brian Russell who advised her the Nelson's were still married, were going to travel outside (out of Whitehorse) together and recommended the airfare be paid. Ms. Corley assumed, in light of the travel benefit claim and the information received from Mr. Russell, that the grievor and his wife had reconciled. The travel claim was therefore approved.

The grievor continued to receive his married person allowance as part of the Northern Living Differential and there was not further communication of any kind between or among Judy Corley, the grievor, and Roland Boone on the subject of the grievor's marital status. In early October 1986 Ms. Corley happened to learn from Jocelyn Mackenzie, a company employee, that Mr. Nelson was living in the basement suite of a house at 707 Wheeler Street, Whitehorse, recently purchased by Ms. Mackenzie. This information caused Ms. Corley to send a letter (Exhibit 6) dated October 3rd 1986 to the grievor notifying him of a review to be held by her on October 8th 1986 regarding his "failure to advise of a change in your marital status" as defined in the Administrative Manual Section 4.0". The review was held resulting in deduction of overpayment of married allowance retroactive to January 1 , 1986 and a one day suspension without pay or benefits while imposed, the suspension to be served November 13th 1986. The overpayment was in the sum of approximately $860 and, as it happened, was deducted by the company in one bite from a pay cheque payable just before Christmas. In cross-examination, Ms. Corley stated that she did not cheek back into the Nelson's situation at the end of January as originally contemplated in the memo to herself made on November 5th 1985. She stated she had become satisfied the Nelson's had reconciled in January 1986, forming that opinion on the basis of the grievor's documentation sent in support of the travel benefit claim for himself and his wife. She agreed the travel claim fell within the "toleration period" for the trial separation which was to be permitted until the end of January 1986, according to her understanding.

Brian Russell testified he had known of the grievor's marital troubles but didn't think Mr. Nelson had moved into separate housing although he did know Nelson was away from the marital home on an occasional basis. He was satisfied the Nelson's were going on holidays together and advised Ms. Corley of that fact. Jocelyn Mackenzie testified she purchased a house at 707 Wheeler Street in August of 1986 and William Nelson was a tenant in the basement until October or November of that year. Ms. Mackenzie did not know Susan Nelson and said she saw William Nelson most mornings as he left 707 Wheeler Street to go to work.

Roland Boone testified that Ms. Corley agreed to permit the grievor to receive a married person allowance during a trial separation period. He was not aware of any limitation thereon to the end of January 1986 or otherwise. He saw the Nelsons out together from time to time in 1986 and thought no more of the matter until it came up again in November.

William Nelson testified he and his wife separated on September 23, 1985. He took a place at 707 wheeler Street and his wife remained in their marital home at 158 Rainbow Road. He stated he spent at least three nights a week at 158 Rainbow Road with his wife. As well, he came there every morning to drive her to work. When the matter of his status arose in 1985 he wrote to Ms. Corley and after talking to Roland Boone understood the company was going to tolerate a trial separation while continuing to pay him a married person allowance. He thought Ms. Corley was aware that he and Mrs. Nelson had separate residences and regarded the entire period from October 1985 to October 1986 as a trial separation. It was not until December 28, 1987 upon receipt of a petition for divorce that he acknowledged the marriage was beyond repair. In cross-examination the grievor stated he and his wife had not attempted marital counselling since the summer of 1985. He said although his wife paid $300 per month by way of rent for occupying 158 Rainbow Road he still had to subsidize her living costs, provide transportation and pay his own costs for the suite at 707 Wheeler Street. When he applied for the travel claim benefit in January of 1986 he assumed his wife, Susan, was a dependant because he was still responsible for much of her living expenses. He also stated he thought of a "legal separation" as a separation under written agreement between the parties whereby they agreed to live apart. Mr. Nelson's annual gross income was approximately $42,000 in 1986 and apart from the house at 158 Rainbow he had also, for the previous seven years, owned a house in Wolf Creek which had been rented out.

Under the Administrative Manual (Exhibit 1) a definition of married status is:

a married employee whose family is living with him/her.

In paragraph 6 of the same manual dependants is defined as:

the employee's spouse who reside(s) with him 

It is obvious that married persons may be physically separated for a period of time due to travel, work related duties, or other reasons and yet be married in the sense there is no intent other than to remain a unit. Also, unhappy differences may arise which lead one or other of the parties to vacate the marital home for a "cooling off" period. Neither of the preceding scenarios would, as a matter of a common sense interpretation, be seen to change the status of those persons from married to single.

In this case, however, notwithstanding the holiday travelled together in January 1986, the Nelson's were in fact separated. It is apparent they continued to have an ongoing relationship but it was not the kind usually associated with persons who are functioning as a marital unit. They maintained separate residences. Mrs. Nelson became a tenant of Mr. Nelson and paid rent, although from time to time there may have been a collection problem on his part. He drove her to work and stayed at her place three nights a week. Their relationship was that of a couple who, while still legally married, recognized that continuous cohabitation in the usual sense was not, for them, possible. Mr. Nelson physically resided at 707 Wheeler Street subsequent to September 23rd 1985 and Mrs. Nelson did not reside with him in the ordinary sense.

It is therefore my decision to uphold the deduction of the married person allowance for the period between January 1, 1986 and November 5, 1986. The company was entitled to rely on the representations made Nelson in his travel claim form filed in January 1986 that his wife, at that point, "resided" with him. The "toleration period" previously considered by Ms. Corley to extend to the end of January was thought by her to have outlived its usefulness. Despite the misunderstandings which arose and despite the grievor's own conception of his marital status, it cannot on all the evidence, be said to have fallen within the definition as set forth in the Administrative manual. To consider the Nelson's situation to be covered by the letter and intent of that policy is unreasonable. The deduction of the overpayment from one cheque just prior to Christmas was unfortunate but I cannot find any sinister motivation for that occurrence on the part of the company. Mr. Nelson could have requested the company deduct the amount in instalments but again, his inaction was based on a vague assumption others could discern the workings of his mind.

I turn now to the matter of the one day suspension which was imposed for the grievor's "failure to advise the company of your change in status" (extracted from Exhibit 8). In the mind of the grievor his marital status had not changed at all since the date of his letter to Ms. Corley, that is October 31, 1985. To his way of thinking the trial separation continued until December 27th 1987 when he was served with a petition for divorce. Therefore he honestly believed there had been no change in status and consequently no need arose to further advise the company of any minor adjustments to the status quo.

Ms. Corley had reason to believe and did believe the Nelson's had reconciled in the ordinary sense as at January 1986. Both Ms. Corley and the grievor were operating under a mutual mistake, although not a common mistake, as to fact. While on an objective test I cannot find the grievor to be entitled to the married person allowance, the honest subjective belief of the grievor throughout should not subject him to discipline. He did not consciously deceive or intend to deceive the company about his marital status. As a result, I order the suspension vacated with restoration of pay and direct the record of the discipline be removed from the grievor's file.

I do not consider the collection of the overpayment from the grievor to be objectionable or to offend any equitable principles. I have considered in that sense the following criteria: the origin of the error, the conduct of the parties, the length of time of the overpayment, the amount, the financial position of the grievor and the minimal effect of the overpayment on his lifestyle. Therefore the repayment by way of deduction will not be disturbed.

DATED this 11th day of March, 1988, at Sidney, British Columbia.

(signed) DWAYNE R. ROSS

Arbitrator