Having considered all of the evidence and argument, I am of the view, first of all,
that the extrinsic evidence regarding collective bargaining does not provide much
assistance in deciding whether there has been a duplicate payment in this case or not.
Collective bargaining had much to do with the accrual of annual vacation and statutory
holiday benefits and whether that accrual should be permitted to continue beyond a
certain period of time such as 60 days. The parties agree that it should not be permitted
to continue beyond 60 days in the case of non-occupational sickness and injury, but did
not agree to impose the same restriction in circumstances where the absence was based
on an occupational sickness or injury. In these circumstances, the parties decided to
leave the situation as it was, basically unrestricted, with employees absent on WCB leave
free to continue to accrue annual vacation and statutory entitlements as long as the
absence continued. However, in my view, collective bargaining did not touch on the
Employer’s contention that an employee was not entitled to a double recovery of his
annual vacation and statutory holiday benefits.
With respect to the past practice evidence, the evidence did disclose that the
Employer had paid out some employees on the theory that they had some unused annual
vacation and statutory holiday days. This was particularly the case in respect of
employees who were absent on leave for under a year. With respect to employees who
were absent on WCB leave for over a year, it appears that the Employer initially paid out
claims made by Messrs Mahil and Henderson in respect of annual vacation benefits, but
not statutory holiday benefits. In making these payments, the Employer must have
believed at the time that Article 5.1, in particular Article 5.1 (f) and (g), required it to do
so. Then, after a year or two, similar claims made by these employees were denied with
the assertion that to do so would result in an employee receiving a duplicate payment for
his annual vacation credits and his statutory holiday benefit.
I am of the view that the mutual intentions of these parties are that employees
absent from work on WCB leave are to receive their “normal net salary” during their
absences as if they were continuing to actively work for the Employer. I am of the
further view that consistent with the Pay Advices issued to employees by the Employer
that over a period of 52 weeks of receiving her “normal net salary” an employee absent
from work on WCB leave would have received the annual vacation and statutory holiday
pay she was entitled to receive for that calendar year. To then permit her to claim her full
annual vacation pay and her statutory holiday pay again, pursuant to Article 5.1 (f) and
(g), on the theory that she had not been able to use them because she was absent from
work on WCB leave, would result in a duplicate payment and a case of double recovery.
Such a result would, in my view, be inequitable and unfair and, accordingly, could not
have been what these parties had mutually intended. The few occasions on which these
double payments appear to have been made are not sufficiently persuasive and
unequivocal to cause me to conclude that they reflect the mutual intentions of the parties.
Instead, in my view, they are based on a misapprehension that Article 5.1 (f) and (g)
applied to the situation of employees absent from work on WCB leave for in excess of a
year receiving their “normal net salary” pursuant to Article 6.8.