A recent decision of the British Columbia Labour Relations Board revisits the issue of whether an estoppel can be established through the existence of a longstanding practice.
The Board reviewed a grievance arbitration initiated after an employer unilaterally cancelled its practice of paying one half hour of overtime (“grease time”) to backhoe operators to service their machines. The union grieved, claiming the employer was estopped from making this change. The arbitrator found that it was understandable that the longstanding practice of providing grease time had created an expectation among employees that it would continue. However, relying on a previous Board decision (“West Fraser Mills“), the arbitrator concluded he required “something more” than a longstanding practice to establish an estoppel. The union applied to the Board for review of the arbitrator’s decision on this point.
The Board held that while a longstanding practice alone is not necessarily sufficient to establish an unequivocal representation that the practice will continue, West Fraser Mills does not stand for the principle that a longstanding practice can never be sufficient in and of itself to establish such a representation.
The Board remitted the matter back to the arbitrator to reassess the estoppel issue, stating that the arbitrator could consider factors such as the nature, magnitude, and surrounding circumstances of the practice in determining if the practice alone was sufficient to create an estoppel.