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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. , .’ .’ -2- 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. -3- 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 -5- 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. -8- 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: -9- 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 - 10 - 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 11 - .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 - 12 - 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 - 14 - 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? - 15 - 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: - 16 - "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 . - 18 - 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* - 19 - .. 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. - 20 - 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