IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 11
RE: GRIEVANCE OF KEVIN CLIFFORD
Sole Arbitrator: John M. Moreau QC
Appearing For The Union:
Ken Stuebing - Counsel
Luc Couture - International Representative
Brian Strong - Senior Systems General Chairman
Don Mclaughlin - Eastern General Chairman, Eastern Canada
Kevin Clifford - Grievor
Appearing For The Company:
Susan Blackmore - Manager Labour Relations, Edmonton
Johanne Cavé - Counsel
Alain DeMontigny - Sr. Manager Labour Relations
Ron Nicol - Asst. Chief Engineer, S&C
A hearing in this matter was held in Montreal, PQ on May 16, 2008.
A. PARTIES TO THE DISPUTE
1. The parties before the Arbitrator are the International Brotherhood of Electrical Workers, System Council No. 11 (the “Union”) and the Canadian National Railway Company (the “Company”).
2. The dispute referred to the Arbitrator involves employees governed by Collective Agreement 11.1 between the Union and the Company which governs the service of Signal Coordinators, Signal Technicians, Signal Testmen, Leading Signal Maintainers, Leading Signal Mechanics, Signal Maintainers, Signal Mechanics, Assistant Signal Maintainers and Signal Helpers.
The Company’s decision to terminate S&C Coordinator Kevin Clifford’s top-up payments.
C. JOINT STATEMENT OF ISSUE
On June 14, 1990, Kevin Clifford sustained serious injuries while working as an S&C Assistant in the Fraser Subdivision when his track scoot was struck by a Little Giant. As a result of this workplace accident, Mr. Clifford has been unable to return to his regular duties.
Mr. Clifford returned to work effective August 21, 1990. Since 1990, due to his functional limitations and restrictions, Mr. Clifford has only been able to work 6 hours per day as a S&C Coordinator in a sedentary position in Edmonton, AB. The Company provided wage top-up of 2 hours per day from January, 1999 until May 10, 2007, when the Company informed Mr. Clifford and the Union that the top-up would no longer be paid.
The Union claims that in January 1999, Mr. Clifford’s S&C Manager, Ron Niccol, and Mr. Clifford agreed that he would receive top-up pay of two hours per day until Mr. Clifford was compensated for his loss of earnings by the British Columbia WCB, or until Mr. Clifford was no longer experiencing any wage loss because of his work related injuries.
The Union claims that the Company is estopped from discontinuing the top-up pay to Mr. Clifford. The Union further contends that the Company’s termination of top-up pay breaches Article 27.1 of Agreement 11.1, the Canadian Human Rights Act and/or the Canada Labour Code.
The Union requests that the top-up pay be reinstated from May 10, 007 ongoing (subject to the terms of the original 1999 agreement).
The Company denies the Union’s contentions and declines the Union’s request.
For the Company: For the Union:
“Susan Blackmore” “Luc Couture”
Susan Blackmore Luc Couture
Labour Relations Manager International Representative
The Union provided a detailed account of the grievor’s June 1990 accident. Mr. Clifford and a co-worker were riding a track scoot to determine the correct locations for the purpose of installing transponders and signs. The track scoot was travelling at approximately 1 to 3 mph when it was suddenly hit from behind by a Little Giant excavator, which the Union noted was being operated in excess of 20 mph. The track scoot was derailed on impact and the grievor was knocked unconscious. According to the Union’s account, the grievor’s body was jammed over the front hi-rail axel and twisted under the Little Giant, with the grievor then emerging head first under the trailing hi-rail axel. The Union contends that the details of the accident and the severity of the grievor’s injuries were never properly reported, as evidenced by the subsequent file reports of the incident, including those of the WCB. The grievor was treated for his injuries by his family physician, Dr. Patterson.
The grievor returned to work on August 21, 1990. He was unable to perform all of his pre-accident duties. The grievor states that he was assured by his Manager at the time, Mr. G. Crigton, during several post-accident conversations, that he would be taken care of no matter what happened.
The grievor has had ongoing difficulties performing the key components of his employment since the date of the accident due to medical problems arising from his injuries. By 1993, the grievor’s physical difficulties resulted in the establishment of temporary work restrictions and he was accommodated in various positions within the S & C Department. The grievor was off work from June 19, 1997 to November 10, 1997 due to aggravation of his injuries. He returned to work on November 10, 1997 on a graduated basis starting at two hours per day as a S & C Assistant.
On July 15, 1998, the grievor was advised by the WCB that it had determined the grievor could return to his full-time job without restrictions. The Company, after discussions with the Union, arranged for the grievor to attend on a professional rehabilitation clinic for the purpose of providing WCB with an additional physical assessment. The report from the clinic indicated that the grievor could only work six hours per day and also outlined a number of physical work restrictions.
The grievor returned to work for six hours per day during the first week of January 1999 at the S & C Department in Edmonton. The Union alleges that the grievor met on January 5, 1999 with Mr. Ron Nicol, senior manager of the S & C Department, and that Mr. Nicol orally agreed to pay the grievor a top-up of two hours per day. The Union claims that the only condition attached to the top-up payment was that it would end if the grievor received compensation from the WCB for his ongoing wage loss, or until he was no longer experiencing any wage loss because on his injuries. The Company, in reply, states that Mr. Nicol, in his conversations with the grievor, at no time made a binding agreement or gave the grievor any guarantee as to the duration of the top-up payments. The top-up continued uninterrupted from 1999 through to August 2002. During this time, the grievor actively pursued the appeals process with the WCB.
The Company advised the Union in writing on August 15, 2002 that it would only continue to top up the grievor’s salary with a maximum of two hours per day until July 31, 2003, provided that his physical restrictions continued to limit him to working six hours per day. The Company concluded the letter by indicating that it was under no obligation to pay the grievor the two hour top-up as it related to his ongoing disputes with the WCB “…but would continue to top up Mr. Clifford until the date noted [July 31, 2003] above in consideration for circumstances surrounding his WCB claim. This will be done without prejudice and will not be precedent setting”.
The grievor did not receive a final ruling on his appeal to the WCB by July 31, 2003. Nevertheless, he continued to receive the top-up payments from the Company. The Company claims that this ongoing payment of the top-up was an administrative oversight. It notes that the payments continued well after the grievor received a final ruling from the WCB Appeal Tribunal, which denied his claim in a decision issued on April 19, 2002. On May 7, 2007, the Company wrote to the grievor indicating that it had come to its attention that the WCB had issued its decision denying his appeals. The Company noted in the letter that the payments were intended to be for a finite period while the grievor progressed his case through the WCB. As a result of the WCB decision, the Company indicated to the grievor in the same correspondence that he would no longer receive top-up payments.
Dealing with the submissions of the parties, the Union first alleges that the Company violated article 27.1 of the collective agreement which reads:
27.1 An employee is prevented from completing a shift due to a bona fide injury sustained while on duty will be paid for this full shift at straight time rates of pay, unless the employee receives Worker’s Compensation benefits for the day of the injury in which case the employee will be paid the difference between such compensation payment for the full shift.
I agree with the position of the Company on this issue that the above language is clear and unambiguous. It speaks to the right of an employee to be paid for the entire day he is injured should he or she be unable to complete their shift as a result of the injury. It does not, as the Union submits, allow for any further ongoing guarantee of wage loss to be paid by the Company, or any third party such as the WCB, for a loss resulting from an occupational injury. To uphold the interpretation of the Union would be to read into the collective agreement a right that the parties never intended.
The pivotal submission of the Union is that the Company is estopped from now claiming that they are not bound by the agreement of January 5, 1999 where the Company agreed to pay the top up. As stated in the joint statement, the Union maintains that the agreement between Mr. Clifford and Mr. Nicol was that the top-up payments would only end if the grievor was compensated for his loss of earning potential by the WCB or if he was no longer experiencing any wage loss because of his work-related injuries. The Union further argues that the Company did not modify that agreement in their August 15, 2002 correspondence. The Union also points out, as evidence to support the estoppel, that the top-up payments remained uninterrupted following the receipt of the August 15, 2002 letter right through to May 2007.
The Company’s response is that there never was a binding agreement in place and that the payments to the grievor were done on a “without prejudice” basis to assist him during the time his case was under appeal to the WCB. The Company submits that the grievor was on notice as of August 15, 2002 as to the Company’s position on the top-up and there was no response by way of letter, grievance or otherwise to the Company’s position to discontinue payments as at July 31, 2003. The Company further submits that the top-up payments from April 14, 2004, the date of the final WCB appeal decision, to May 10, 2007 were an administrative oversight.
The main elements of the doctrine of estoppel have been repeated frequently in the jurisprudence. The Company cited CROA 2650 where the principles of estoppel, as set out in the decision of Arbitrator Stanley in Consumer Glass and Aluminum & Glass Workers (1986) 24 LAC (3d) 309, are noted as follows:
(1) a representation made by the Company either verbally or by conduct to the employee
(2) an intention on the part of the employer that the representation would be relied upon by the employee
(3) actual reliance on the representation by the employee; and,
(4) detriment suffered by the employee as a result of his reliance.
The above principles capture the classic elements of the equitable doctrine of estoppel: representation, reliance and detriment. The first part of the test requires a representation by the Company to the employee. In this case, the Union relies on the initial discussions between the grievor and Mr. Nicol of January 5, 1999 as the evidentiary foundation for the representation acted on by the grievor to his detriment. The grievor and the Union point to the ongoing top-up payments as evidence of the agreement. Mr. Nicol, however, has no recollection of any conversations with the grievor where he guaranteed the grievor a perpetual wage top-up. .
What the evidence shows is that the top-up payment was, from the outset, inextricably tied to the grievor’s appeals to the WCB. The WCB issued its initial decision on July 15, 1998 and the grievor’s appeals to the WCB followed. The basis for the arrangement was articulated in the August 15, 2002 letter where there is a clear reference to the WCB appeal process and that the Company was under no obligation to pay the top-up “… as it relates to on-going disputes Mr. Clifford may have had, or continues to have, with the WCB.” As the Company notes, the Union did not take issue with that position, either by way of reply correspondence or by filing a grievance.
What clearly emerges from the evidence is that the Company was prepared to assist the grievor during the period he processed his appeal claims through to the WCB, but no longer. Indeed, a logical inference to draw from the August 15, 2002 letter is that it was anticipated those claims would be resolved, one way or the other, by about a year later-July 31, 2003. In the absence of a decision by the WCB on July 31, 2003, the Company simply continued to pay the top-up. That decision to do so was nothing more than a good faith effort on the part of the Company to adhere to its original undertaking to keep the grievor whole until a ruling was received from the WCB. As it turns out, the WCB ruling of April 19, 2004 did not come to the Company’s attention until May 10, 2007.
I accept the uncontradicted evidence of the Company that the payments continued beyond April 19, 2004 due to an administrative error. The fact that those payments continued for a considerable period of time beyond April 19, 2004 does not change the original character of those payments as being a temporary top-up that the Company agreed to pay until such time as the WCB rulings were finalized. As noted in, CROA 2638, an administrative error cannot form the basis for an estoppel.
As a general rule both unions and employers must be given the latitude to correct oversights or mistakes in the administration of their collective agreement without necessarily being met with an argument of estoppel based solely on their past practice.
In summary, I accept the Company’s position that there never was a legally enforceable agreement struck between the parties to pay the grievor until he was compensated for his loss of earning potential or experiencing any wage loss due to the accident. The Company never made such a representation to the employee and in fact was clear, at least as far back as August 15, 2002, that the top-up payments would only continue until the grievor had exhausted his appeal avenues with the WCB. In the absence of any clear representation otherwise, I cannot find any evidentiary basis to support the grievor’s case for application of the doctrine of estoppel. The top-up payments, in a nutshell, can be properly characterized as ex gratia payments on the part of the Company while his case wound its way through the lengthy WCB appeal process.
The Union also advanced an argument claiming that the Company violated its obligations pursuant to s. 239.1 of the Canada Labour Code which reads as follows:
Canada Labour Code
239.1 (1) Subject to subsection (4) and to the regulations made under this Division, no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence from work due to work-related illness or injury.
(2) Every employer shall subscribe to a plan that provides an employee who is absent from work due to work-related illness or injury with wage replacement, payable at an equivalent rate to that provided for under the applicable workers’ compensation legislation in the employee’s province of permanent residence.
(3) Subject to the regulations, the employer shall, where reasonably practicable, return an employee to work after the employee’s absence due to work-related illness or injury.
(4) An employer may assign to a different position, with different terms and conditions of employment, any employee who, after an absence due to work-related illness or injury, is unable to perform the work performed by the employee prior to the absence.
(5) The pension, health and disability benefits and the seniority of an employee who is absent from work due to work-related illness or injury shall accumulate during the entire period of the absence.
In particular, the Union claims that the Company breached article 239.1(2) which requires an employer to subscribe to a plan which provides an employee with wage replacement when absent from work due to a work-related injury. The Union further submits that the Company is in breach of the statute as a result of its failure to provide any top-up pay to the grievor since May 7, 2007. The Union submits that the Company is not relieved of its obligations under s. 239.1(2) to subscribe to a plan that provides wage loss replacement simply because of the WCB’s decision to provide compensation at less than the appropriate level required under the circumstances. The grievor should continue, in the Union’s view, to receive top-up as long as the grievor continues to experience a wage loss.
The statute, in my view, provides that the Company must replace income at the same rate as provided for under workers’ compensation legislation. The Company, simply stated, has fulfilled its obligations by reason of the grievor’s eligibility to access benefits under that legislation. Section 239.1(4) is also clear that the grievor may be assigned, as he has been here, to a different position with different terms and conditions of employment if he is unable to perform the duties of his pre-accident position.
The final argument proposed by the Union is that the Company failed in its duty to accommodate the grievor pursuant to its obligations under the Canadian Human Rights Act. The focal point of its argument is that the legislation protects against discrimination on the basis of disability and that the decision to end the top-up is a form of discrimination because it amounts to arbitrary treatment of a disabled individual. But for the grievor’s injury, the Union points out that the grievor would be in a position to work as a full-time S&C employee which allows for many opportunities, such as the ability to work overtime like other full-time employees.
The assessment of whether an employee has been accommodated to the point of undue hardship is a question of fact in every case. The essential facts here are similar to those found in Canada Safeway Ltd. V. Retail, Wholesale and Department Store Union, Local 454 (2004) S. J. No. 153, a case cited by the Company, where a disabled employee working less than full-time hours was seeking full-time employee status for purposes of claiming benefits. The Court of Appeal in that case stated in part as follows at paragraph 26 of the decision:
The duty to accommodate does not extend so far as to oblige an employer to provide better salary and benefits to a disabled employee than it provides to non-disabled employees working the same number of hours. Safeway fully discharged its obligations to accommodate the grievor by allowing her to work 32 hours per week and by compensating her on the same basis as other employees who worked those hours. Accordingly, there was no discrimination and no duty to “accommodate” further by providing enhanced benefits.
A similar approach was adopted in CROA 3060:
It is generally recognized that the Canadian Human Rights Act, and similar provincial statutes, are intended to protect the status of employees who may suffer physical disabilities or illness, against discriminatory treatment. On that basis, employer actions which may undermine seniority or eventual job security rights of disabled employees have been found to be discriminatory, and contrary to the Canadian Human Rights Act. In contrast, boards of arbitration have been careful to distinguish the issues of earned wages and benefits, recognizing that the denial of normal wages and benefits for time worked, to employees who are not at work is not of itself discriminatory.
The arbitral jurisprudence and the courts are therefore clear that the duty to accommodate does not require an employer to pay an employee if he or she is not at work. That is the case even though an employee is unable to work full-time hours as a result of their disability. This is not a case where the grievor’s job security rights are being undermined but simply a question of paying wages for hours worked, which is the basic tenet of any employment relationship. The Company, in the end, has satisfied its duty to accommodate the grievor by providing him with a position in the S & C Department where he currently works six hours per day. There is no further requirement for the Company to pay a top-up of two hours per day in order to satisfy its duty to accommodate the grievor to the point of undue hardship.
For all the above reasons, the grievance is dismissed.
Dated at Calgary, Alberta this 5th day of June, 2008.
JOHN M. MOREAU QC