Question

Estoppel:

The doctrine of estoppel may prevent the union or the employer from relying
on and enforcing the terms of the collective agreement. Where a party makes a
representation to the other, by way of words or conduct, indicating that an issue will be
dealt with in a manner different from the provisions of the agreement, the party who
made the representation will not be able to later insist upon the collective agreement
being enforced.
Statements made by a party to the agreement could be the basis for an estoppel. In one
case, a collective agreement provided that layoffs would occur in reverse order of seniority.
The employer, a hospital, hired two laboratory technicians. The hiring manager assured
both technicians when they were hired that they would not be laid off because of funding
cuts or the return of other employees to the department. However, the hospital laid off the
technicians 14 months after they were hired when other employees returned to the bargaining
unit. When the employees objected, they were told that the collective agreement was
clear on the question of seniority on layoffs and there was nothing that could be done
because they had the least seniority. A grievance was filed, and the arbitrator held that the
doctrine of estoppel applied.20 Because of the representations made to the technicians
before they were hired, the employer could not rely on the collective agreement, and the
layoff of the technicians was nullified.
Estoppel is a legal concept providing
that if a party makes a representation
that an issue will be dealt with in a
manner different from the provisions of
the collective agreement, it will not be
able to later insist upon the collective
agreement being enforced as written.
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The union and the employer should be alert to the possibility of estoppel based on
conduct or past practice. In one case, the collective agreement provided that certain benefits
would be paid to employees after a three-day waiting period.21 Despite the terms of the
collective agreement, the employer had a long-established practice of paying employees
benefits during the three-day period. When the employer indicated it would enforce the
three-day waiting period in the future, the union filed a grievance relying on estoppel. The
arbitrator upheld the grievance and ordered the employer to continue to pay the benefits
according to its practice for the balance of the term of the agreement.
Similarly, a union might be caught by an estoppel argument based on prior past practice
if it failed to enforce all the terms of the agreement. For example, a collective agreement
will usually provide for a probationary period. If the employer made a habit of
extending the period, in breach of the agreement, and the union took no action, the union
may not be allowed to object to an extension of the period on the basis of estoppel.22
An estoppel will not be established by a single failure to comply with or enforce the
collective agreement; however, employers and unions should be aware of the risk of
repeated failures to enforce a term of the agreement. An employer who wanted to vary
from the collective agreement to deal with a short-term issue might consider consulting
with the union and attempting to reach an agreement that would prevent an estoppel
argument being raised when the employer wished to revert to the terms of the agreement.
If the agreement provided for a rate of remuneration for employees who drove their own
cars, and the price of gas increased significantly, an agreement might allow the employer to
increase the mileage allowance for a time and avoid any possible estoppel arguments later.
Estoppel does not mean that a party will be prevented from enforcing the terms of the
agreement indefinitely. An estoppel will cease at the next round of contract negotiations if
the union or the employer advises the other that it will rely on the strict terms of the agreement
in the future. The party that has previously relied on the variation from the collective
agreement will have to negotiate a change to the agreement. If it fails to do so, it will be
deemed to have agreed to the application of the agreement as written.

In your own words, describe the concept of "estoppel" and what significance it

has on the change process in a unionized work setting. (100 word target).

Answer 1

The “doctrine of estoppel” is a legal principle that prevents someone from asserting right contradicting an agreement that was previously made. It prevents the workforce from being unjustly wronged by inconsistencies of a person’s actions and words.

The significance of estoppels on the change process in a unionized work setting are as follows:

· If a party (employer) makes an agreement with an employee, which contradicts the collective agreement. The party (employer) will be forced to uphold the terms of individual employee agreement irrespective of the terms of the collective agreement.

· In case the Employer/ union follows a practice that is contradictory to the collective agreement and at a later date decides to stop current practice and implement the terms of the collective agreement. The doctrine of Estoppel allows employees/employers to protest that the earlier desired term be followed irrespective of the collective agreement. Estoppel is established by repeat violation and not based on a single incident.

· An estoppel argument can be avoided by discussing and mutually negotiating any short terms actions by either party i.e. employer towards the workforce or vice versa regarding actions that contradict the collective agreement.

· The estoppels will cease in the next round of negotiations of the collective agreement. When the union and employee rework the collective agreement all earlier individual negotiated agreements will cease except if the individuals renegotiate their terms separately. In case they are not renegotiated the collective agreement will be applicable to all the employees.