HomeMy WebLinkAbout1977-0082.Ross.78-04-2482/77
CROWN EMPLOYEES 4161598 0688 Suite 2100
GRIEVANCE SETTLE~MIT
BOARD
180 ~undas Street vest
TOROA'TO, Ontario
Ef5G 128
IN THE MATTER OF AN ARBITRATION
Under The . . .
.Between:
Before:
.CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. David A. Ross
- and -
(Grievor)
The Crown in Right of Ontario
Ministry of Commtinify and Social Services (Employer)
For the Grieior
For the Employer
Hearing:
G. W. Adams - Chairman
:&Y. Fortier _ .Membef ,~..
I. K. Levack - Members
Mr. George Richards
Ontario Public Service Employees Union
1901 Yonge Street
Toronto, Ontario:
Mr. A. R. Rae
Personnel Branch
Ministry of Connnunity and Social Services
Toronto, Ontario
Suite 2100, 21st Floor,
180 Dundas St. W., Toronto
March 3rd, 1978.
, .’ .’
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In this case the grievor claims that he has been improperly paid
since &arch 1, 1977 and requests an order from the Board directing the
employer to reimburse him for ,311 monies lost.as well as a declaration
that the employer is not entitled to reclaim any monies from him
for the period in question preceding March 1. The grievor comenced
employment with the Ministry of Correctional Services July 7, 1975
.as a Correctional Officer 1. However subsequently he successfully
applied for a Rehabilitation Counsellor position in the Ministry
of Connnunity and Social Services and transferred to that Ministry
'effective June 21, 1976. The posted position for which he bid was
classified as a Rehabilitation Officer 2; however on his transfer'
a position was offered to him as a Rehabilitation Officer 1 and it
was required that he "underfill" the position for a period of two
years before proceeding to the Rehabilitation Officer 2 level. The
.letter from the Ministry to the grievor outlining this proposed
arrangement is dated June 16, 1976 and reads:
Personnel Services,
5th Floor,
Hepburn Block.
June 16, 1976
Mr. David A. Ross,
Apt. 803-B,
122 Bronte Street S.,
b!!lton, Ontario.
Dear Mr. Ross:
I am pleased to confirm om offer of the
position of Rehabilitation Counsellor with the
Lindsay District office, which is classified as
a Rehabili:ation Officer 1, Correctional Services.
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You will be required to underfill the position
for a period of two years before proceeding to
the Rehabilitation Officer 2, Correctional
Services level -- the salary range for ,which
is $12,082 to $14,107 per annum. Your
appointment is effective June 21, 1976 at d
salary of $207.63 per week ($10,834 per annum),
which is the third step in the salary range.
The full salary range is from $10,024 to $11,272.
per annum. You will be eligible for annual
r. increases,based on merit. .
I would like to extend congratulations
to you on you,= promotion end hope that you
enjoy your-new duties.
~YOur.5 truly,
(Signed)
: Phil Branston,
Personnel Representative
This~arrangement was apparently satisfactory .to the grievor
and he cornnenced employment June~21, 1976 with‘the employer classified
as a Rehabilitation Officer 1 and was paid at,the third step in the
salary range for thatclassification. The four steps of that range
that were in effect at the date of his transfer.were contained in
the collective agreement between the pa.rties covering the period
October 1, 1973 to September 30, 1975 (as amended). The four steps
were:
192.10 199.85 207.63 216.03
A little more than one month after his transfer the parties negotiated
~a new collective agreement dealing with wages ,for the period October 1,
1975 to September.30, 1976. Under this agreement the. salary range
for the Rehabilitation Officer 1 was increased and appeared as follows:
218.18 226.39 234.61 243.49
.
- d -
Accordingly, the grievor's weekly salary was increased to $234.68
Then on December 9, 1976 the parties negotiated a new wage agreement
for the period October !, 1976 to September 30, 1977 which had the
following effect on the position!s salary range:
243.45 252.24 261.03 270.53
Thus in the ordinary course of events one would have expected that
after December 9, 1976 the grievor's salary would have been increased
to $261.03 and because this increase was retroactive to October 1. 1976,
that the retroactive increase be paid to him as well.
". However by letter dated January 4. 1977 the employer advised-
the ~grievor that an error had been made in paying him at the third
step of the Rehabilitative Officer 1 salary range on his appointment
in June of 1976 and that it intended to correct this error for the
future by paying him at Step 1 from October 1, 1976 onward. Thus
instead of moving the grievor from a weekly salary of $234.61 to a
salary of $261.03 per week, the employer intended to adjust for its
error by limiting his salary increase to $243.45 which was the revised
first step of the position's range.
This so-called error had apparenfl.y resulted.from the
failure of Mr. Branston to correctly apply the employer's internal
administrative policy regarding the salary treatment of employees
when a promotion occurs. The general policy appears in the employer's
Manual of Administration and provides that when an employee is promoted
'he is to receive that rate of pay in the salary range of the new
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classification which is the next higher ,to. his,present rate of pay
except that where such.a change results in an increase of less than
3% he should receive the next higher salary rate again. In applying
this principle Mr. Branstdn appears to have chosen the third step
_ of the Rehabilitation Officer 1 salary range (207.63) because of:what
the grievor's weekly salary was as a Correctional' Officer 1 ($201,20).
However as a Correctional Officer 1 the grievor worked a 40 hour work
week and.was~.paid an hourly rate of $5.03 whereas as a Rehabilitation
Officer 1 he is required to work only 36.25 hours a week and his pay
/
is expressed in the agreement between the parties in weekly terms. In
'. a situation where an employee is moving'from an hourly rated
classification to a weekly pay rated classification it is the employer's
policy to express the weekly pay rates in the salary range of the
classification to which the employee is being assigned in hour~ly amounts
or rates and, following this conversion, to then apply the promotional .'
rules with respect to salary treatment. It appears that Mr. Branston
. .
neglected to convert the weekly salary rates of the Rehabilitation
Officers 1 range into hourly orates before applying those rules. However
had he made the conversion in the sal~ary range for the Rehabilitation
Officer 1 position at the date.of the grievor's transfer it would
have appeared as follows:
I Weekly
Salary in
effect on June 21 $192.10 199.86 207.63 216.03
II Hourly rate
conversion 5.30 5:51 .5.73 5.96
-6-
And had the promotional rules been applied after making this calculation
it can be seen that the grievor should have been offered the first step
of the Rehabilitational Cfficer 1 salary range in that the Correctional
Officer 1 hourly rate at the time was $5.03 and an advancement to an
hourly rate of 55.30 is greater than a 3% increase.
The employer's letter of January 4, 1977 over the signature
of Mr. Branston thus reads:
Personnel Services
5th Floor
Hepburr, Elock
January 4, 1977
P!. David Ross
P. 0. BOX 294
L.indsay, Ontario
Dear Mr. Ross:
This is further to our conversation of
December 20, 1976 regarding the error made in
your salary treatment upon transfer to the position
of Rehabilitation Caseworker.
As I mentioned at that time, because you
were transferring from an hourly rated classification
of Correctional Officer 1 requiring a 40 hour work
week, to the weekly rated classification of Rehab-
ilitation Officer 1, Correctional Services requiring
a 36JI hour work week, we are required to convert
the salaries to a comn base of hourly rates. We
can then effect the normal 3% promotional rule utilizing
the hourly rates.
AS a result the offer of $207.63 per week (now
revised to $234.61 per week), which is the third step
in the salary range was erroneous. The offer should
have been at the first step, (192.10 per week or $5.30
per hour - now revised to $218.18 per week or $6.03
per hour) on a 36% hour week. As your salary upon
transfer from the Correctional Officer 1 position was
$220.60 per week or S5.55 per hour (revised rates),
this would have been in keeping wi*A the 3% promotional
rules.
To correct this error, we will not apply the
full January 1, 1977 salary~revision to your salary
rate. In this'way, we can move you back to the first
step of the salary range (assuming a 10% increase,
the first step will become approximately $239.99 per
week) without reducing your present saiary. YOU would
not, therefore, be penalized for our .&or &d at the
sane time, the error'would be rectified.
We regret any inconvenience caused by the
error in your salary tkeatment upon transfer to our
Minis&. If you have any further concerns regarding
your transfer please contact me at 965 0674.
YOU-S truly,
Phil Branston
Personnel Representative
ltowever another administrative error was made after
sending this letter and the grievor continued to be paid at the
third step of the sal~ary range.(now $261.03) until,aoproximately
March 1, 1977 when the employer,began,, in fact, to act as it said
it would in its letter of January 4, 1977. It then sent the
following letter to the grievor, dated March 11, 1977, seeking to
recoup the overpayments it had made to~the grievor for the period
October 1, 1976 to .February 20, 1977. The letter reads:
.~ .:
Personnel Services,
5th Floor,
Hepburn Block.
Ma&h 11, 1977.
Mr. David A. ROSS,
P. 0. Box 294,
Lindsay, Ontario.
Dear Mr. Ross,
Further to our conversation on March 8,
1977, I would like to clarify the trea.tment of
your‘salary and apologize for the errors made.
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Xs outlined ifi fir, Phil Branston's letter
to you, dated January 4, 1977, you will receive a
pcrtion of the retest salary revision, which was
effective October 1, 1,076, (not January 1, 1977
as Hr. Branston initially indicated). Therefore,
effective October 1, '976, your salary will be
revised from $234.61 to $243.45 per week, which
is the first step of the Rehabilitation Officer 1,
Correctional Services. You will be eligible for
any future revisions to the salary range as well
as amual merit increases, based on satisfactory
performance, on your anniversary date July 1.
A clerical error in applying our instruc-
tions has resulted in an overpayment to you of
$337.43 gross, which was calculated as follows:
October 1, 1976 - February 20, 1977:
was paid $522.06 biweekly
should be -486.90
overpayment = 35.16
NO. of WV
per&& x 10.1
overpayment = $355.11
Less : February 21, 1977 - March 6, 1977:
should be 486.90 355.11
"as paid -469.22 - 17.68
= 17.68 -337.43
We would like to proceed with the re-
covery of this amount by deducting $25.00 from
your pay each pay period. Please advise if
this is acceptable.
.
Should you have any questions, please do
not hesitate to contact me at 965-0674.
Again, I regret the errors made in the
treatment of your salary and would like to
apologzze on behalf of the Personnel Services
Branch for the inconvenience or hardship caused
to you as a result.
Yours truly,
(Signed)
Marilyn Burke
Personnel Representative.
2:
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The grievor filed this grievance on March 3, 1977 contesting
this position of the employer and no steps were taken' to collect.
the $337.43 pending a determination by ~this Board.' However from
February 21, 1977 onward the grievor was paid at the first step
of the-Rehabilitation Officer 1 salary range (243.45) and not at
the third steb (261.03). OnDecember 21, 1977 he appears to have
progressed to the second step which was $271.80 at the time
(the third step was then $281.03) and on January 1, 1978 the
grievor was promoted to the Rehabilitation Officer 2 classification
and properly paid at the first step of that salary range. Thus
the grievance only contests the salary treatment of the grievor .
up until January 1, ,1978.
At the outset of the hearing the employer challenged the
authority of the Board to entertain this case. It argued that the
collective agreement dealing with working conditions and 'fringe
benefits makes no refe~rence to wages. However the Board ruled that
the objection was integrally related to the merits of the case and
that it would reserve its decision on this objection. The union
submitted that the Board had jurisdiction to entertain the grievance
either under the wage agreement between the parties or by
characterizing the treatment of Mr. Ross as disciplinary. We find
that the Board does have jurisdiction to rule authoritati'vely in a
case such as ,this.
In arriving at this conclusion we rely upon the existence
of the wage agreement between these parties covering the period of
time in question. For example, the wage agreement for the period
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October 1, 1976 to September 3'2, 1977 provides, in part, for
the following wage adjustment:
2. Saiaries
(i) Effective October 1, 3976, an
increase of 7% based on the salary
rates in effect on September 30,
1976, plus an increase of $10.00
per week based on the salary rates
in effect on September 30, 1976,
with the exception that no salary
rate will be increased by an
amunt in excess of $2,400.00
(ii)
Rates of pay for all classifications,
resulting from the application of
the increases set and on (1) above,
are attached as Appendix A.
And in Appendix A under the heading "Administrative
Services Category" the following entries are found.
10216 Rehabilitation Officer 1 Old rate: 218.18 226.39 234.61 243.49
Correctional Services r11384 11813 12242 12705
. New Rate: 243.45 252.24 261.03 270.53
12703 13162 13620 14116
10218 Rehabilitation Officer 2, Old rate: 259.92 269.49 279.76 290.01 300.5
Correctional Services 13562 14062 14597 15132 15706
New rate: 288.11 298.35 309.34 320.31 332.!
15033 15567 16141 16713 1732:
From these provisions it is quite clear that the employer is
promising to pay its employees according to the rates of pay attached
to the various classifications. While this agreement is separate from
the agreement on working conditions and fringe benefits, it is an
agreement between the parties and enforceable before this Board. Were
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.we to hold otherwise employees either would have no enforceable right
to their wages. or would have to bring.an-a,ction on their contracts of,
employment in ~a court of law ~which is a costly and a particul,arly problematic
course of action to pursue where a collective agreement exists. We find that
it would take the clearest of language to demonstrate the parties intended ..'
such a result and even then there may be some doubt as to its propriety.
Our jurisdicti,on being clearly established, we can Snow turn our minds
to the merits of dispute before us. ,,
In this respect the Union took the position that, the employer
and the employee had'entered~into a~.legally binding agreement on the
terms contained 'inMr. ~Branston's letter of June 17, 1976 reproduced
above. It submitted that, on a promotion, direct negotiation between the
employer and an employee was permitted in order to establish an acceptable
salary within the .sal.ary wage~of~the classification that the employee was
interested in. . Having~entered into this agreement, the union submitted
that it was not possible for the employer subsequently-to repudiate it
on the basis that it was mistaken in offerings the employee.what it had
offered. In the union's opinion the agreement with the grievor and the
collective wage agreement were free from any ambiguity that might other-
wise allow the employer to'rely upon its own internal policies found in
the Manual of Administration. It was submitted that the mistake in
this instance was not similar to those situations, relied upon by the L
employer, where arbitrators have allowed employers to recover overpayments.
(See Re Maple Leaf Mills'Ltd. (1967), 19 L.A.C. 37 (Wnrahan); Re H. 3.
Heinz Co. of Canada Ltd. (1967), 18 L.A.C. 362 (Thomas); Re Canadian A&niral
Corp. (1967), 19 L;d.C; 1 (Arrell)). In this case, the union submitted, the grievor
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ms not overpaid but rather paid in accord with the precise terms on
which he had taken the jcb. In the cases relied upon by the employer
the employee, through an administrative error, was paid more than
he was contractually entitled to.
Beyond relying on the above-mentioned cases, the employer
reviewed the facts and emphasized that it was not seeking to recover
any money from the grievor relating to that period of time following
his apbointment but preceding the discovery of the error. However
before any additional monies were paid to him under the October 1,
1976 to September 30. 1977 wage agreement, he was advised of the error
and thus he knew that the additional monies were a mistaken overpayment
from that time onward.
This case is a particularly interesting one in that arguably
there are two alternative approaches open to the Board. One approach
to it is very contractually oriented and another is more sensitive to the .
industrial relations considerations involved.
The contractual approach focusses exclusively upon what the parties
said before they acted upon their dealings with each other. In this sense
Mr. Branston's letter of June 16, 1976 was an offer to the grievor
that a Rehabilitation Officer 1, position was available to him and
that he would be paid "at a salary of $207.63 per week ($10,834
per annum), which is the third step of the salary range". The grievor
accepted this offer and in reliance upon it he gave up his job as a
Correctional Officer 1 which at the time paid $201.20 per week or
approximately 510,500.OO. NOW we are told that Mr. Branston should
43- '
have been offered the same position but, because of the reduction in
hours, at a weekly salary of.$192.10 or approximately $IO,OOO per annum.
However there~is no evidence before us suggesting that Mr. Ross knew of
this error atthe time he decided to change jobs. In contract law this
. kind of mlstake.made~by one party with respect to terms'of a contract
is not generally a sufficient.reason to vitiate the~contract entered into.
See Bell v Lever BTOS. Ltd. I1932) A.C. ,161; Hobbs v Esquimult Nanaimo
Railway company (2899) 29 S.C. R450. Rather a court of law examines what
! an offeror has said and ascertains its most reasonable interpretation.
Unless tha party relying on,this reasonable interpretation knew of the
offeror!s mistake,,the parties are bound by the objective meaning of the
words used and agreed to.
According to this view then Mr. Ross could argue that the
employer promised,to pay him, not only $207.63 per week which it of course
did, but also at step three of the salary range and, as-well, to continue
paying him at least at that level (and as modified by,.subsequent wage
increases) unless he proved unsuited to the requirements of the job.
On the other hand, a more industrial rela~tions~oriented
approach is muchsess influenced by a technical construction
of what was said as opposed to what is the fairest and most reasonable
~outcome in all the circumstances. From this viewpoint, we certainly
would not ignore the terms of Mr. Branston's letter but this view would
be sensitive to the industrial relations implications of enforcing the
strict wording of that document; By enforcing it we would spare Mr. Ross
of any financial inconvenience of having to.repay money for the
period October 1, I976 to February 20, 1977 that he has likely
expended by now., But its enforcement also allows him to claim
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monies from the employer for the period February 20, 1977 to January 1,
lC78 which he would not have received had the error not been made and
which, in similar circumstances, any other employee in the employ of
the Government is unlikely to have received. Thus it can be argued
that Mr. Ross is requesting the perpetuation of unequal treatement on
the basis of an administrative error. Additionally the Board would
note that no evidence was adduced on the grievor's behalf indicating
that he had detrimentally relied on an employer's promise that he
would continue to be paid at the third step of the salary range. At
the time he took the job it is unlikely that he foresaw the precise
details of the subsequent increases and relied accordingly. Nor was
there evidence that he would not have accepted the assignment had the
error not been made.
These then are the two approaches open to the Board. The
contractual model fully supports his grievance and would justify an order .
directing the employer to pay him at step three of the relevant salary
range for the period of time he was classified as a Rehabilitation Officer
1. The industrial relations view of this qrievance, on the other hand, would
not permit the employer to reclaim $337.43 which Mr. Ross is likely to
have expended in the quite proper belief he was contactually entitled to
it. But being sensitive to unequal treatment, this model would, we~think,
lean against perpetuating the effects of the error into the future without
any evidence that Mr. Ross had detrimentally relied on the assumption that
he would receive all future increases at the third step. How are we to
choose between these two approaches?
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Increasingly, boards such as this one are being criticized
for taking too legalist~ic an approach to labour relations matters under
collective agreements. Indeed this concern has got to the point where,
in British Columbia, it was thought necessary to amend the Labour Code
to insert a provision directing boards of arbitration to apply industrial
relations principles in cqntrast to.more-legally oriented ones. In
fact recently..:- reviewi‘ng co,urts have ~begun
to reco~gnize the unique nature of the colle'ctive
agreement and to question the appropriateness of a strict application
of the rules of contract, rules which evolved in dramatically different
contexts. One example is the observation of Mr. Justice Brooke in
ore Blouin Drywall Contra&or.s Ltd. anh United Brotherhood of Carpenters
and Joiners of America, Local- 2486 (1976) 57 D.C,R. (3d) 199 at page
206 where, in commenting on the significance of the Supreme court of
Canada's decision i'n McGavin Toastmaster Ltd. v Ainscouyh et al (1976),
54 D.L.R. (3d) 1, he wrote:~ "
It is my respectful opinion that the Divisional Court erred in
holding that the normal laws of contract were applicable. A col-
lective agreement is fundamentally different from an ordinary com-
mercial contract or contract of employment. This difference has
been recognized in a number 'of cases , and most recently in McGavin
'Toastmaster Ltd. v. Ainscough et al., a judgment of the Supreme
~Court of Canada delivered April 22,,. 1975, and as yet unreported
{since reported 54 D.L.R. /3d):l, 4 N.R. 618). That case concerned
the question whether or not 93 employees were disentitled to severance
pay under a collective agreement on the grounds that they were no
longer employees as they had breached a condition of their contract
of employment when they had failed to report for work, having gone
on strike. Dealing with the question of the effect o'f a collective
agreement, Chief Justice Idskin, delivering the majority judgment,
referred Cat p.6) to a judgment of the majority of that Court
delivered by Judson, J., in Syndicat Catholique des Employes de
Magasins de Quebec Inc. v. Compagnie Paquet Ltee, 11959) S.C.R.
206 at p. 212,'18 D.L.R. (2d) 346 at pp. 353-4, where he said:
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"There is no roan left for
private negotiation between
employer and employee. Cer-
tainly to the extent of the
rdtfers covered by the col-
iective aqreement, freedom
of contract between master
and individual servant is
abrogated. The collective
aqreement tells the employer
on what terms he must in the
future conduct his master
and servant relations...."
The Chief Justice then said:
The reality is, and has been for many
years now throughout Canada, that individual
relationships as between employer and em
ployee have meaning only at the hiring
stage and even then there are qualifications
which arise by reason of union security
clauses in collective aqreemnts. The
cosmwn law as it applies to individual
employment contracts is no longer
relevant to employer-employee relations
governed by a collective agreement which,
as the one involved here, deals with
discharge, termination of employment,
severance pay and 8 host of other metters
that have been negotiated between union
and company as the principal parties
thereto. To quote again from the reasons
of Judson, J., in the Paguet case, at
p. 355 D.L.R., p. 214 S.C.R.:
"If the relation between
employee and union were that
of snndator and mandatary, the
result would be that d collective
agreement would be the equivalent
of a bundle of individual con-
tracts between employer and
employee negotiated by the
union as agent for the employees.
This seems to m to be d
complete misapprehension of the
nature of the juridical relation
involved in the collective
agreement. The union contracts
not as agent or mandatary but as
an independent contracting party
and the contract it makes with
the employer binds the employer
to regulate his master and
servant relations according to
the agreed terms."
- 17 -
The collective agreement in the present case
makes the,foreqoinq-abundantly clear. Wages
and hours of work are, of course, dealt with,
ad, ~persons who come into the employ do so on
the terms of the collective agreement aS to
wages and hours. They also come under the
t'erms of the collective agreement as to
promotion, l,ay-offs,.rehiring and preference
of transfers t'o shifts, all of which are
regulated in this C.&SC? by art. XVI of the
collective agreement, headed "Seniority".
Article V deals with hiring procedure, and
gives the union the prior riqht to supply
,,staff subject to certain exceptions.
Discharge is, dealt with both in art. IV
end in art.VII. Central to all the benefits.
and obligations that. rest upon the union,
the employees and the company under the
collective agreement are the grievance and
arbitration provi~sions, about which nothing
~mre need be said here. Standing at the
forefront of the substantive terms of the.
collective agreement is art. I tider which
the union is recognized by the company as
"the sole collective bargainink agency for
all employe+s coming under the jurisd.ic,tion
of this agreement". There is in this
collective agreement ample support for. the
observations of Judson, J., in t@e Paquet
case.
And so~cormnon law-concepts give way to,the n,egotiated
agreement and the jurisdiction'of arbitrators to qive final
and binding decisions where differences arise between the
parties relating to the interpretation, application,
administration of the agreement, including questions as to
whether the matter is arbitrable, and the allegations that
the agreement has been violated.
We are inclined to agree with this view although we do ndt
understand Mr.-Justice Brooke to be saying thai all contractual principles
are incapable of providing appropriate solutions to industrial relations
problems. (see Sunrmers, Collective Agreements and the Law of CoAtract
(1969) 78 Yale L.J. 525). It cannot be denied that a collective agreement .
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is a document purporting to embrace the intention of the parties to it
and many contractural principles are of great assistance in isolating
and ascertaining intent of this kind. However, what cases like .??louin Drywall
Contractors Ltc'. end Mccavin Toastmaster Ltd. tell us is that contractual
rules~ ought not to be blindly adopted and applied in a labour-relations
context. Some rules like those dealing with the doctrine of fundamental .-
breach simply have no application to a collective bargaining relationship
whereas other rules, for example the parol evidence rule, if it can be
characterized as a contractual principle for the moment, may be quite
appropriate if applied sensftively (See Re Steinberg's Ltd. and Warehousemen's
& Disc. Drivers' Union, Lax1 419 119671, 64 D.L.R. (2d) 387: Farnsworth,
"Mean~ing" in the Law of Contracts (1967), 76 Yale L. J. 939; Past Practice
and the Administration of Collective Bargaining Agreements (1961), 59
i?ich. L. Rev. 1017).
In situations of this kind we are concerned about the rigid
application of the rules of offer and acceptance where no detrimental
reliance is established or relied upon and where, potentiall,v, unequal
salary Dayments could arise and create siqnificant WorkDlace problems. For
example what if Mr. Branston had made a much more egregious error. What
should the result be? Should the emplovee in such a situation be able to
hold the emplover to this error and require it to pay him far beyond what
others employees, performing similar duties and with similar experience, are
being paid? Subject to the establishment of significant detrimental
reliance we think the more cornnOn sense industrial relations response
= ” h*
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should be in the negative. These kind of administrative errors are
abound to.occur in the context of a large bureaucracy and thus it is not
a very realistice answer to'say that the employer should simply be more
careful. However in the same'situation the employer should not be
allowed to reclaim from the employee monies paid to him before this
kind of an error was discovered. More likely than not, these monies -
'. would have been expended in good faith and in reliance on the employer's
express offer. Should this then be the result in.the facts at hand?
fin our opinion it should. The fact that less monies are C~.
involved is no reason to deviate from the principle. We are therefore
of the view that the griever's claim for compensation from the employer
should be dismissed. However.we also rule that the employer is not en- c
titled to recover any monies from the grievor as it indicated in its
letter of March 11,>1977. While we have held that the.grievor is not
entitled to a strict application of contractual,.principles in this
case, having regard to all of the circumstances, we believe the fairest
approach~ in this case is to preserve the status quo. Both parties now
know the approach of the Board to this kind of case in the future.
Mr. Ross, however, did.not have the benefit of this decision and we
have decided that, notwithstanding the employer's letter of January
4, 1978, any recovery would be inappropriate at this time.
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Dated at Toronto this 24th day of April 1978.
G. W. Adams Chairman
. .
I concur
A. Y. Fortier Member
I concur
I. K. Levack Member