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HomeMy WebLinkAbout1990-2968 Heath 91-09-03 DecisionONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L'ONTARIO GRIEVANCE SETTLEMENT BOARD commission DE DES GRIEFS REGLEMENT- 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1z8 180 RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 (4 16 326- 1388 : (4 16) 326- 1396 2968/90, 3165/90 IN THE MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWE EN OPSEU (Heath) BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING - and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Emp l oyer M. Gorsky Vice-Chairperson J. Carruthers Member R. Scott Member K. Whitaker Counsel Barristers & Solicitors Ryder, Whitaker, Wright, Chapman J. Smale Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors July 15, 1991 1 DECISION There are two grievances before us: Grievance 2698/90 (Exhibit 41, dated January 7, 1991, where the statement of grievance is: I grieve that the Province of Ontario has caused deletions to this officer's pay without just reason. After complaining about same Management of the Correctional Services has refused to Explain or correct such errors. Contrary to the Collective Agreement and the Ontario Labour Relations Act. The settlement desired was: Correct & Explain all changes in writing without Penalty or Bonus. Grievance Number 3165/90 (Exhibit 31, dated February 6, 1991, contains the following statement of grievance: On or About 31 JAN. 91 Management did cause IMPROPER & ILLEGAL deductions from my pay contrary to the Collective Agreement. The settlement desired states: Make Restitution The grievances arise but of the same series of incidents. The Grievor was, at all material times, a Correctional Officer 2, employed at the Bluewater Youth Centre which is located in Goderich Ontario. On September 27, 1989, the Grievor, in the course of using a pesticide within the institution, suffered physical injury being the result of his having inhaled pesticide fumes. As a result, he was absent from work on February 20 and 21, 1990, and from February 25 to June 26, 1990, both days 2 inclusive, for a total of 92.50 days. He filed a claim with the Workers' Compensation Board (Claim Number 17935884-0). Article 54 of the Collective Agreement entitled "Workers' Compensation" contains the following provisions: 54.1 Where an employee is absent by reason of an injury or an industrial disease for which a claim is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made, any payments made under the foregoing provisions in excess of that to which he is entitled under sections 52.1 and 52.6 of Article 52 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer. 54.2 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his credits. 54.3 Where an award is made-under The Workers' Compensation Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in section 54.2 and the employee has accumulated credits, his regular salary may be paid and the difference between the regular salary paid after the period set out in section 54.2 and the compensation awarded shall be converted to its equivalent time and deducted from his accumulated credits. 54.4 Where an employee receives an award under The Workers' Compensation Act, and the award applies for longer than the period set out in section 54.2 (i.e. three (3) months), and the employee has exhausted all attendance credits, the Employer will continue subsidies for Basic Life, L.T.I.P., O.H.I.P, Supplementary Health and Hospital and the Dental Plan for the period during which the employee is receiving the award. 3 54.5 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under the Workers' Compensation Act, the employee shall not be entitled to a leave-of- absence with pay under Article 52 (Short Term Sickness Plan) as an option following the expiry of the application of section 54.2. Articles 52.1 and 52.6 of art. 52 (Short Term Sickness Plan), referred to in art. 54.1 are as follows: 52.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of- absence with pay as follows: (i) with regular salary for the first six (6) working days of absence, (ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar. year. 52.6 An employee on leave-of-absence under sub-section 52.1(ii) of this Article may, at his option, have one quarter (1/4) of a day deducted from his accumulated credits (attendance, vacation or overtime credits) for each such day of absence and receive regular pay. The Employer continued to pay one hundred per cent of the Grievor's salary for the entire period of 92.50 days that he was absent as a result of the incident. Ms. L. Illman, the Office Manager at the Bluewater Youth Centre, sent a memorandum to the Grievor, dated January 7, 1991 (Exhibit 11 indicating that she had advised the payroll department to recover 27.50 days from the Grievor for the period May 21, 1990 to June 26, 1990. This memorandum was confirmed in a letter from Ms. Illman to the Grievor, dated February 5, 1991 (Exhibit 6), where it is was 4 further stated that the amount to be recovered would be deducted from his pay cheque in accordance with the following schedule: 31.01.91 9.50 days $4,493.40 14.02.91 6.00 days 943.20 28.02.91 6.00 days 943.20 14.03.91 6.00 days 943.20 Total $4,323.00 These amounts were deducted from the Grievor's pay cheques in accordance with the schedule. (See Exhibit 8.) -Upon receipt of the memorandum of January 8, 1991, the Grievor filed grievance 2698/90, and upon receipt of the letter of February 5, 1991, he filed grievance 3165/90. The basis for the deductions being made from the Grievor's pay cheques was said, at the hearing, to arise out of the provisions of Article 54.2 of the Collective Agreement. Under that article, the Grievor, having been absent by reason of an injury for which an award was made under the Workers' Compensation Act, was entitled to have payment of his salary continued for a period not exceeding 65 working days. (We assume that the Grievor was absent for an intermittent period, as that is consistent with the correspondence and there was no suggestion that the period was for three consecutive months, which period would apply to a non- intermitent absence.) The Employer took the position that as the payment to the Grievor of 100% of his salary exceeded the period for which he was entitled under article 54.2 by 27.5 days, it was entitled to 5 recoup itself for the amount of the overpayment. As appears from the memorandum dated January 7, 1991 (Exhibit 11) to the Grievor from Ms. Illman, pending approval or rejection of the Grievor's W.C.B. claim, after the elapse of the 30 day period provided for in art. 54.1, his status was treated as being that of an employee subject to the Short Term Sickness Plan under art. 52.1. When the claim was approved by the making of an award by the Worker's Compensation Board (which occured after the expiry of the 65 day period referred to in article 54.2, although in an amount less than the Grievor considered to be correct, the amount of STSP paid pursuant to art. 52.1 was adjusted and all vacation and compensating time originally used to supplement his salary to 100% pursuant to art. 52.6 was also adjusted. This, in the view of the Employer, still left an overpayment to the Grievor, which it recovered in the manner above set out, with the compensation awarded under the Workers' Compensation Act being sent directly to the Grievor. Under the Workers Compensation Act award, the Grievor received cheques from the Workers' Compensation Board with respect to his claim totalling $3,525.77. A cheque for $2,825.23 was received by him on February 9, 1991 and a further cheque for $700.54 was received by him on February 27, 1991. The Grievor was an employee who was unable to attend to his 6 duties due to illness or and industrial disease as described in art. 54.1, and it is evident that Ms. Illman regarded this to be the case. As the Grievor had made a claim under the Workers' Compensation Act, his full salary was continued to be paid for a period of thirty days pursuant to art. 54.1 rather than paying him pursuant to the provisions of the Short Term Sickness Plan provided for under art. 52, which would have applied in the absence of a claim being filed under the Act, or upon no award being made. As the Grievor's claim had not been approved within the thirty day period specified in art. 54.1, he was paid in accordance with art. 52.1, and the Employer purported to use accumulated credits referred to in art. 52.6 "to supplement-[his] salary to 100%." The relationship between articles 52 and 54 was treated in the following manner by Ms. Illman: (a) Where the absence by reason of injury or industrial disease results in a claim being made under the Workers' Compensation Act, art. 54 is applied. For the first 30 days of absence by reason of injury or industrial disease the Grievor received his full salary. As an award was not made within the 30 day period specified in art 54.1, the Grievor was treated as if art. 52 applied pending the making of an award by the WCB. (b) The situation of the Grievor, in this case, was treated. 7 as being covered by art. 54.2 once the award was made: an employee who was absent by reason of injury or an industrial disease for which an award was made under the Workers' Compensation Act. The parties agree that if art. 54.2 applied to him, the Grievor would be entitled to be paid his regular wages for a period of 65 working days. In fact, the Grievor was paid full wages for an additional 27.5 days. This was as a result of his receiving payment pursuant to arts. 52.1 and 52.6 until it was clear that his entitlement was to be under art. 54.2 when an award was made with respect to his claim. (c) Until a claim is denied by the WCB, it is not possible to know whether art. 54.2 will apply. Until the claim is accepted and an award is made, or until the claim is rejected and no award made, there is no other provision that can apply to an employee in this situation except art. 52. That is, after the expiry of 30 days, without an award being made, the only provision that would authorize the continued payment to the Grievor would be art. 52.1. See Exhibit 11, which sets out the Employer's position in this regard. It is also clear that Ms. Illman resorted to art. 52.6 to supplement the Grievor's salary to 100%. There was no direct evidence that the Grievor had requested the deductions provided for in art. 52.6, but he he did not testify to the contrary. (d) Once it was ascertained that the award had been made, art. 54.2 was applied. At that time it was evident that the Grievor had been overpaid as he had been paid 100% of his salary for the 27.5 day period not provided for in art. 54.2. Counsel for the Grievor submitted that the Employer had made the overpayment under a mistake of law that had not been induced by the Grievor and, accordingly, it could not be recovered. Counsel for the Grievor also made a number of additional alternative claims: (1) If the overpayment was found to have been made under a mistake of fact, it would be inequitable to require the Grievor to repay it. (2) If the overpayment was as a result of a mistake of fact, then the Employer was estopped from recovering it. (3) If the overpayment was found to have been made as a result of a mistake of fact, and if the Employer was not estopped from insisting on repayment, or if it would not other-wise be inequitable for the Employer to insist on repayment, then we should find that the Employer had failed to treat the Grievor in a reasonable manner by failing to turn its mind to the specific financial problems faced by him as a result of the overpayment, and in refusing to create a more appropriate repayment schedule. In his' latter submission, counsel for the Grievor requested an order requiring repayment to the Grievor of all of the monies deducted from him on receipt of an undertaking to repay any additional monies received by him from the Workers' Compensation Board as a result of proceedings being carried out by him to obtain an increase in the award. It was the position 9 taken on behalf of the Grievor that the Workers' Compensation Board made an error in calculating the amount of benefits payable to him for the 27.5 day period in question, and that it was, pending resolution of his dispute with the Workers' Compensation Board, improper for the Employer to attempt to collect the alleged overpayment. Whatever the merits of the Grievor's appeal against the award of the Workers' Compensation Board, there is nothing in the collective agreement which required the Employer to do what the Grievor has requested: on the assumption that recoupment is permitted, withhold any action to recoup the overpayment pending determination of the Grievor's appeal. of the Workers' Compensation Board award. Counsel for the Grievor argued that the concluding sentence of art. 54.1 of the collective agreement provides for repayment in the circumstances there described but that no similair right exists in the case of an overpayment made under article 54.2, except as is provided under art. 54.3. As the Employer is said to have sought recoupment other than as is provided under art. 54.3, it did so in the absence of authority, and, hence, its actions were illegal. The Employer is said to have made the overpayment, which it later sought to recover, under a mistake of law, believing that it had the legal right to do so under article 54.1, and not as a result of a mistake of fact. 10 It was submitted on behalf of the Grievor that as he had received his full salary despite the fact that the 65 day period provided for under art. 54.2 had expired, and with the knowledge that he had an outstanding Workers' Compensation Act claim, the amount of which had to be ascertained, the Employer must have known that he would ultimately be entitled to less than his full salary. This is because the benefits under the Workers' Compensation Act would, of necessity, be less than the net salary payable to the Grievor. This, it was submitted, could not be a mistake of fact and the only reasonable conclusion was that the payment had been made under a mistake of law as to the Grievor's legal entitlement under the Workers' Compensation Act legislation or under the collective agreement, or both. We view the matter somewhat differently than counsel for the Grievor. Under the collective agreement, for the first 30 days of the Grievor's absence he was entitled to 100% of his salary pursuant to art. 54.1. As an award was made by the Workers' Compensation Board, the provisions of the last sentence of art. 54.1 did not apply. However, at the end of the 30 day period it was not yet known whether an award would be made. Under art. 54.2, an award having been made, the Grievor was entitled to his full salary for a period of 65 working days. In the case before us, where an award has been made under the Workers Compensation Act that was less than the Grievor's 11 regular salary, and where the award applied for longer than the 65 working day period provided for in art. 54.2, and the Grievor had accumulated credits, pursuant to art. 54.3, "his regular salary may be paid and the difference between the regular salary paid after the period set out in [article] 54.2 and the compensation awarded shall be converted to its equivalent time and deducted from his accumulated credits." In this case, if the overpayment had been made pursuant to art. 54.3, the Employer would have the option of continuing to pay the Grievor his regular salary and to recoup the difference between "the regular salary paid after the period set out in [article] 54.2 and the compensation awarded" by converting the amount "to its equivalent time" and deducting it "from his accumulated credits." The period after the 65 working day period specified in art. 54.2 was from May 21, 1990 to June 26, 1990, and the statements contained in the Workers' Compensation Board cheque stubs (Exhibit 9) indicate the amounts that were paid on the claim during that period. Ms. Illman is said to have improperly interpreted art. 54.1. This is said to be indicated by examining Exhibit 11 where she stated: As per Article 54.1 of the Collective Agreement, pending approval of claim your absence was reverted to 12 STSP after 30 days. Now that the claim is approved, I have returned all STSP and balanced all vacation and compensating time originally used to supplement your salary to 100%. If the submission of counsel for the Grievor was correct, Article 54.1, in order to be interpreted in the way that Ms. Illman is said to have interpreted it, would have to provide in its final sentence that where an award had not been made by the Workers' Compensation Board within the 30 day period provided for in the first sentence of that article, then the employee would be paid in accordance with article 52 until' an award was made or until it was indicated that an award would not be made. If an award was made, then art. 54.2 would apply and all necessary adjustments made. Article 54.1, as it is written, only provides for the application of articles 52.1 and 52.6 where an award is not made and not where the status of an employee is in limbo pending determination of whether an award will be made. The parties have not expressly dealt with the situation where, as here, an employee is absent by reason of an injury or an industrial disease and makes a claim under the Workers' Compensation Act, and the Workers' Compensation Board makes an award, but not within the thirty day period specified under art. 54.1 or within the sixty-five working day period specified in art. 54.2. Ms. Illman, as the representative of the Employer, made her decision on the basis of there being such a provision in 13 art. 54.1 as we have above referred to. (See Exhibit 11.) She did not assume that there was such a provision, in which case her mistake might be characterized as one of fact (see George (Porky) Jacobs Enterprises Ltd, [1964] S.C.R. 326 at 329 per Hall, J., where the mistake as to the existance of a by-law and not as to the interpretatation of a by-law was treated as a mistake of fact). Rather, she interpreted art. 54.1 in the manner above described. Unless such a provision can be implied, she incorrectly treated the Grievor as being entitled to benefits under the Short Term Sickness Plan as set out in article 52.1 and as having the option (which she assumed he had exercised) under article 52.6, to have his accumulated credits used to increase the amount paid to him from 75% to 100% of his regular salary pending determination of whether an award would be made by the Worker's Compensation Board. When an award was made under the Workers' Compensation Act, after the 65 day period specified in art. 54.2, Ms. Illman then applied the provisions of art. 54.2, but not art. 54.3, to the facts of the Grievor's case. There is no express provision in art. 54 for 100% of an employee's salary being paid in the circumstances set out in art. 54.3 unless the difference between the regular salary and the amount paid under the Workers' Compensation Act award is deducted by converting the difference "to its equivalent time" and having 14 this "deducted from [the employee's1 accumulated credits." Ms. Illman did not testify at the hearing and we must rely on the reasons set out by her in Exhibits 4 and 11 as representing the basis for her actions. That is, that art. 52 applied after 30 days had elapsed until it was ascertained whether an award would be made with respect to the Grievor's claim. And, if the award was made after the 65 day period specified in art. 54.2, to balance the art. 52 accounts and treat the employee as if the award had been made after the 30 day period but before the expiry of the 65 day period, however, treating the monies paid after the 65 day period as having been paid pursuant to the provisions of art. 52.1 and art. 52.6 because it could not have been known whether art. 54. 2 would apply when they were paid. If an award is not made under the Workers Compensation Act, only then does the employee become entitled to Short Term Sickness Plan benefits under art. 52.1. The parties have agreed in art. 54.1 to treat an employee who has made a claim pursuant to the Workers' Compensation Act, where no award is made, as if no claim had been made and she is regarded as being in the same situation as an employee who is unable to attend to her duties due to injury or an industrial disease and who does not make a claim under the Workers' Compensation Act: that is, as an employee entitled to the benefits under art. 52. 15 The Employer paid the Grievor after the 30 day period specified in art. 54.1 pursuant to art. 52.1 and art. 52.6. If the provision set out above could not be implied into art. 54.1, the actions of the Employer would be based on a misinterpretation of that article and the monies paid to the Grievor after the 65 day period provided for in art. 54.2 would be treated as having been paid under a mistake of law. There is a lacuna in the collective agreement which does not expressly indicate what is to be done with respect to the payment to an employee after the 30 day period specified in art. 54.1 if no award has yet been made and the claim has not been denied before the expiry of the 30 day period, nor what is to be done if the claim is not denied or an award made until after the periods specified in art. 54.2. While it would appear to be sensible to do what Ms. Illman did, we are not entitled to decide what is sensible but what is required under the collective agreement. We are here merely to interpret the parties' intentions. Where they are not stated the opportunities for implying their "real" intentions are limited. Unless an implied term, as above set out, can be implied, the monies in dispute must be found to have been paid under the mistaken belief that the collective agreement provided that when an award is not forthcoming from the Workers' Compensation Board within the thirty days provided for in art. 54.1 or within the 16 periods specified under art. 54.2, the Grievor is to be paid under articles 52.1 and 52.6 pending the Workers' Compensation Board making an award. We were asked by counsel for the Employer to read art. 54.1 as if it contained the implied term above referred to. We note that art. 54.2 says nothing about what is to be done about monies paid to an employee beyond the 65 day working period specified there. There was no claim by the Employer that the payment of 100% of his salary to the Grievor for a period longer than that set out in art. 54.2 was pursuant to art. 54.3. We do not know how' such an argument could have been made given our comments set out above dealing with the application of the latter article. The Grievor was aware that he was receiving full salary during the period in question. We do not believe that he anticipated gaining a windfall, and his initial complaint was with respect to the harshness of the repayment schedule imposed upon him. counsel for the Grievor to the superintendent at the Bluewater Youth Centre, indicates that the Grievor's concern was with the repayment schedule which was considered to be unfair. Counsel stated: An examination of Exhibit 5, being a letter from It would appear that your calculations as to his hourly rates are appropriate and that the problem lies with an 17 under-calculation on the Board's part as to Mr. Heath's entitlement. In these circumstances, where the Board has presumably made an error in calculating Mr. Heath's entitlement, I would suggest that it would be a hardship for the Ministry to recover these funds for [sic] Mr. Heath before that problem is resolved by the Board. If you proceed with your recovery on the proposed schedule it will mean that Mr. Heath will be out of pocket close to $2,000 over the next couple of months. This is certainly something that will cause him and his family hardship and I would ask that the Ministry agree to defer the repayment schedule until we can determine where the error lies with the Board's calculation of Mr. Heath's entitlement. ... In a further letter, dated February 20, 1991 (Exhibit 7), to Mr. James Benedict, Manager, Grievance- Administration and Negotiation for the Employer, from counsel for the Grievor, the same position was taken, as is indicated from the following statement: I am sure that you are aware of the GSB's jurisprudence with respect to the collection of over payments. There is no doubt in my mind that this type of collection schedule would be ruled unreasonable by the Board ... . I would appreciate it if you could look into this matter and take whatever immediate steps are possible to adjourn the collection schedule as I have suggested. Although counsel for the Grievor, in his opening statement, limited the relief sought to a request for a declaration that the Employer failed to treat the Grievor reasonably; that it had failed to turn its mind to the difficulties faced by him; to create a repayment schedule that would not impose a hardship; and for an order not requiring repayment of the monies to the Grievor until such time as his appeal to the Workers' Compensation Board had been decided, it was only during closing argument that it was 18 argued that the overpayment had been made under a mistake of law, which the Grievor had not contributed to, and that, accordingly, the Grievor was entitled to return of the money without any obligation to repay it. And if the monies were paid unde a mistake of fact, it would be inequitable to require the Grievor to repay it or that the Employer was otherwise estopped from insisting on repayment. We are satisfied that the Grievor had not intended to make a claim for the return of the money without any responsibility for repaying it when he filed his grievances. This is substantiated by the statements contained in Exhibits 5 and 7 and there was no suggestion that the situation was otherwise until the hearing. As noted, it was only during the final argument that such a submission was clearly made. This is not a case where the justification for allowing a purportedly inaccurately drafted grievance to be modified at the hearing is that “... though the grievance may not be phrased technically correctly, nevertheless its meaning is and was quite clear to the [employer]." Dunham-Bush (Canada) Ltd. (1964), 15 L.A.C. 270 (Lang) at p.273. The manner in which the matter was pursued by the Union, up to and including the hearing of evidence, was only consistent with the Grievor pursuing a remedy which would have altered the repayment schedule of the amount paid to him by the Employer for the 27.5 day period. There was nothing to indicate that a claim was being made based on the monies not being required to be repaid by the Grievor. 19 This is a case more like Holmes Foundry Ltd. (1974), 4 L.A.C. (2d) 136 (Hinnegan) which' reviewed the real-ostensible grievance cases and concluded that the grievance was carefully prepared and that there was no justification for allowing the union to change the grievance at the hearing. The grievance was a perfectly good one, asking for double time for overtime hours worked on Good Friday. At the hearing, the union asked for double time for hours worked on Good-Friday. This is not precisely a real-ostensible grievance situation. It is an attempt at broadening the issue raised in the grievance. Because the second form of the grievance would call forth different arguments, changing the grievance completely, it fits in with the real-ostensible cases. In the Holmes Foundry case, the union was successful on the grievance as originally stated, but was not allowed to argue the additional complaint. In Hol mes Foundry, reference was made to TMX Watches of Canada Ltd. (1970), 22 L.A.C. 92 (Schiff), at p. 97, where the duty of the grieving party to "reveal its legal and factual positions during pre-arbitration procedures so that the procedures may play their full role as the primary forum of grievance settlement" is noted. In the case before us, if the overpayment could be treated as having been made under a mistake of fact, the Union might be successful on its arguments for relief against the alleged 20 harshness of the repayment schedule, but it is clear that the claim for the return of the money deducted, without any obligation to repay it on the part of the Grievor, never having been raised as part of the grievance could not now be dealt with. An alternative way of looking at the matter would be to consider whether it is possible to imply a term in the collective agreement to fill the lacuna described above. Arbitrators have a limited jurisdiction to imply a term into a collective agreement. As to the possibility of implying terms into a collective agreement, see: Teachers' Society vs. Winnipeg School District No. 1, 1976 S.C.R. 695; (1975), 59 DLR (3d) 228, at p.243 per Martland, J.; Bradburn et al v. Wentworth Arms Hotel Ltd. et al., 1979 1 S.C.R. 846 at pp.858-59. The restraint imposed upon a board of arbitration in implying terms into a collective agreement is referred to in re Sault S te. Ma rie B oard of Educati 'on (1979), 24 L.A.C. (2d) 6 (Palmer ) at p.11: ... can a board of arbitration imply a term into the collective agreement which would support the Illnion'sl claim?.... First, it is the view of this board of arbitration that we are not empowered to imply a completely independent term into a collective agreement. As we see it, our jurisdiction is limited to interpreting the actual contract before us. In so saying, we do not wish to preclude the possibility that in some circumstances a term can be implied into a collective agreement. We would think, however, that the situations would be ones where such a term was necessary to require the functioning of the contract as a whole. This does not appear to be the case in the present circumstances. 21 In the case before us, if we do not imply a term as described above the result would be that an employee who has filed a claim under the Workers' Compensation Act, where the claim had neither been accepted nor rejected within the periods specified in arts. 54.1 and 54.2, would not be paid pursuant to either art. 52 or art. 54 until the claim had been accepted or rejected. The parties could not have intended such a result. Such an interpretation would prevent the functioning of the provisions in the collective agreement relating to the payment to an employee who was absent because of illness or an industrial accident and who has filed a claim under the Workers' Compensation Act which was not accepted or rejected within the periods specified in articles 54.1 and 54.2. The Union would reject any suggestion that an employee whose claim has not resulted in an award being made within the times stipulated in articles 54.1 and 54.2 would be placed in limbo and cease to be entitled to payment until the Worker's Compensation Board made an award or declined to do so. There is a clear implication that if an award is not issued within the 30 day period provided for in art. 54.1 or the further periods specified in art. 54.2, the employee will be paid in accordance with articles 52.1 and 52.6. If no award is made, then the concluding sentence of art. 54.1 would apply. If an award is made then articles 54.2 and 54.3 would apply. 22 We conclude that Ms. Illman correctly interpreted the Employer's responsibilities under articles 52 and 54, and, when the award did not issue after the 30 day period following the filing of the claim, she correctly applied the provisions of articles 52.1 and 52.6. When the award was made, after the 65 day period provided for in art. 54.2, she correctly applied the provisions of that article to ascertain the entitlement of the Grievor. In doing so, she had to make the necessary adjustments as a result of the payments that were made to the Grievor pursuant to articles 52.1 and 52.6 pending an award being made by the Board. After making the necessary adjustments when the award was made by the Workers Compensation Board, because art. 54.2 and not arts 52.1 and 52.6 would then apply, the question arises whether the accumulated credits resorted to by the Employer under art. 52.6 in order to make up the difference between the 75% of regular salary payable to the Grievor under art. 52.1 and 100% of salary which was paid to him would be used, only now pursuant to art. 54.3. The difference between art. 52.6 and art. 54.3 is that art. 52.6 applies at the option of the employee while art. 54.3 merely provides that "regular salary may be paid" by converting accumulated credits to "equivalent time" and there would be the commensurate deduction from accumulated credits. 23 (Emphasis supplied.) We find that the payment made to the Grievor for the period in question at 100% of his regular salary was neither a payment made under a mistake of fact or law, but was a payment envisaged by the provisions of the collective agreement. Therefore, those cases dealing with payments made under mistake of fact where it would be inequitable to permit recoupment by an employer have no application to this case nor do those cases dealing with payments made under a mistake of law, where the monies paid would not be recoverable by the Employer. The only question remaining is: ought the Employer to have used the Grievor's accumu1ated credits under art. 54.3 when it became clear that art. 52.6 would no longer apply; As noted, above, the application of art. 52.6 is made dependent on that option being exercised by the employee. Art. 54.3 does not provide for its application on the basis of the employee's decision. The use of the word "may" indicates that resort to accumulated credits under article 54.3 is at the option of the Employer. Unlike the case of the lacuna, above described, there is no room here to imply a term which would convert art. 54.3 so as to make it apply at the option of an employee. Although there seems to be no reason why it ought not to have been applied, the Employer chose not to do so in this case as it had when art. 52.6 was applied. From the evidence of the Grievor, it appears that 24 there was some hostility between himself and Ms. Illman. We feel that if the relations between the Grievor and Ms. Illman had been better this matter would not now be before us. Although the Employer would have broad discretion as to whether to apply art. 54.3, it would have to, at least, do so in good faith. (See Boussuet 349/90 etc.) There was no explanation given as to why art. 54.3 was not applied when Ms. Illman applied art. 54.2. In the circumstances, we have no evidence that the Employer did what it had to do: apply its mind to the application of art. 54.3. We are certain that if it does so it will do what it did when it applied art. 52.6. We are also certain that it will consult with the Grievor to see whether he wishes to have his accumulated credits apply as provided for in art. 54.3. We would add that if we had been able to treat the overpayment as having been made as a result of a mistake of fact, we would not have found that the Grievor had significantly altered his financial position on the basis of the receipt of the overpayment. We are satifiied that he would have acted no differently or changed his manner of living if he had not believed that he was richer than he was. See Ottawa Board of Education (1986), 25 L.A.C. (3d) (P.C. Picher) at p.162, referring to Rural Municipality of Shorthoaks v. Mobil Oil Canada Limited (1975), 55 D.L.R. (3d) 1, at p.13: 25 In my opinion it should be open to the Municipality to seek to avoid the obligation to repay the moneys it received if it can be established that it had materially changed its circumstances as a result of the receipt of the money, and at p. 163, referring to United Overseas Bank v. Jiwani, 119771 1 All E.R. 733 (Q.B.). In the latter case, in order to found an estoppel one of the requirements is: ... he must show that because of his mistaken belief he changed his position in a way which make it inequitable to require him now to repay the money. Nor would we have issued such an order as was done in Tavlor 1077/89 (Samuels), where the Board concluded that it was inequitable for the Ministry to create a repayment schedule as it did and reduced the deduction of $43 from each paycheque to $20 from each of the Grievor's bi-weekly paycheques until the money which was overpaid had been repaid to the Ministry with no interest. The Board concluded that it was inequitable to create the particular repayment schedule because the grievor had altered her position on the assumption that she was entitled to the money by assuming financial obligations on the strength of receiving the money. This is not the case in the matter before us. Accordingly, for the above reasons, the grievances are denied subject to our directions with respect to the possible application of art. 54.3. Dated at Toronto this 3rd day of September, 1991. e Chairperson J. Scott Member