Employer Generosity Remains Unbinding29-Apr-11
By Hugh McPhail, Partner
Employers often do things that are, either accidentally or deliberately, more generous than what a collective agreement requires them to do. That could include granting liberties, making overpayments, and forbearing on enforcement of certain rules. When employers decide to stop being so generous, they have frequently been met with the argument from their union that they cannot change the past practice – that they are estopped from doing so. Some arbitrators, especially some in Ontario, have swallowed that argument.
But in Alberta in 1985, the Alberta Court of Appeal clearly said that estoppel cannot be used to create positive obligations. In a case decided only a few days ago, the Alberta Court of Appeal rejected a union’s request for the Court to reconsider that position. They slammed the door. The union’s attempt to stop the City of Calgary from changing some long-standing practices therefore failed.
It is not uncommon to hear a plea that employers cannot depart from past practices. There are some collective agreements that bind employers to continue past practices but these ill-advised provisions are rare. Consistent past practices are very relevant in interpreting a collective agreement if a collective agreement is ambiguous, and consistency is an important consideration in employee discipline, but past practices cannot be turned into binding positive obligations on their own through the use of estoppel. That undoubtedly remains the law in Alberta.