[1994] 2 F.C. 233
A-1036-92
Josephine White, Gerald Orchowski, Stanley Wylie, Nelson Struk, James Morrison, Gregory Madry and John Rapso (Applicants)
v.
Her Majesty the Queen (Respondent)
A-1037-92
Antonio Gamboa (Applicant)
v.
Her Majesty the Queen (Respondent)
A-1039-92
Janie Harding (Applicant)
v.
Her Majesty the Queen (Respondent)
Indexed as: White v. Canada (C.A.)
Court of Appeal, Isaac C.J., Heald and Linden JJ.A.—Edmonton, December 14, 1993; Ottawa, January 14, 1994.
Unemployment insurance — In anticipation of strike, employer distributing work to others, laying off employees just before commencement of strike — Applicants not disentitled to U.I. benefits under s. 31(1) — Umpire erred in finding no loss of employment because of historic pattern of layoffs and recalls — No recall date specified — No right to recall — Mere expectation of recall insufficient — Cannot lose what did not have — Also erred in asking whether applicants lost employment due to labour dispute — Sequential approach to s. 31(1) correct — Question whether work stoppage caused by labour dispute — Conclusion consistent with purposes of s. 31(1) — Recent S.C.C., F.C.A. cases to be followed rather than earlier, conflicting decisions of Umpires.
These were applications for judicial review of the Umpire’s decisions that the applicants were disentitled to unemployment insurance benefits for the duration of a strike. Unemployment Insurance Act, subsection 31(1) disentitles a claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute from benefits. During contract negotiations, and in anticipation of a strike, the employer reduced the amount of work being done at the plant where the applicants were employed, and issued lay-off notices effective July 27, 1990. A strike began on July 30 and lasted until September 21. But for the reduction of work, there would have been sufficient work for the applicants to do. The issues were (1) whether the Umpire erred when he held that there was no loss of employment because of the historic pattern of lay-offs and recalls, even though there was no definite recall date; (2) whether the Umpire erred when he found “as a fact” that the loss of employment resulted from a stoppage of work attributable to a labour dispute; (3) whether subsection 31(1) disentitled the claimants to receive unemployment insurance benefits during the strike.
Held, the applications should be allowed.
(1) The Umpire erred in finding that there was no loss of employment because of the historic pattern of layoffs and recalls even though there was no recall date. The applicants did not have continuing employment following their layoff. A mere expectation of recall is not enough. They had no right to be recalled. Thus they could not lose what they did not have (their employment).
(2) The finding that the loss of employment resulted from a stoppage of work attributable to a labour dispute was a conclusion of law, inextricably intertwined with the third issue.
(3) The Supreme Court of Canada has urged courts to support the claims to benefits where the language permits a choice.
The three disentitling events set out in subsection 31(1), labour dispute, work stoppage, and loss of employment, are sequential in that order. It has been held that a person who resigns before a strike is not disentitled to benefits. A fortiori a person who is laid off prior to a strike or lock-out is also not disentitled to benefits. The employer’s action in anticipation of the strike (i.e. laying off employees) must be treated the same way as the resignation of an employee who foresees a strike. The result is the same—termination of the employment relationship. The applicants did not lose their employment by reason of a work stoppage attributable to a labour dispute, but by the actions of the employer. The Umpire erred in asking whether the applicants lost their employment by reason of a labour dispute; he should have asked whether they lost it by reason of a stoppage of work attributable to a labour dispute. Furthermore, if employees can start receiving benefits as soon as a strike is settled, but before they all actually return to work, employees who are laid off in anticipation of a strike cannot be denied them.
This conclusion is consistent with the purposes of section 31: the preservation of Government neutrality during labour disputes, and avoidance of the inequity of using an employer’s contribution to the unemployment insurance fund to finance a strike against himself. There was no interference with Government neutrality since the employees did not participate in the strike action. There was no forced employer subsidy for striking employees because the workers were not on strike, but were laid off prior to the commencement of the strike.
Certain older decisions of Umpires which conflict with more recent Supreme Court and Federal Court of Appeal decisions ought no longer to be followed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Unemployment Insurance Act, R.S.C., 1985, c. U-1, ss. 2(1), 31(1),(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Morissette v. Canada (Employment and Immigration Commission), A-692-90, Pratte J.A., judgment dated 21/3/91, F.C.A., not reported; Gionest v. Unemployment Insurance Commission, [1983] 1 F.C. 832; (1982), 5 D.L.R. (4th) 686; 84 CLLC 14,019; 52 N.R. 49 (C.A.); Attorney General of Canada v. Aubin (1991), CUB 17664; Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2; (1983), 142 D.L.R. (3d) 1; 83 CLLC 14,010; 46 N.R. 185; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; (1988), 48 D.L.R. (4th) 193; 88 CLLC 14,011; 84 N.R. 185; Létourneau v. Canada Employment and Immigration Commission, [1986] 2 F.C. 82; (1985), 24 D.L.R. (4th) 688; 86 CLLC 14,010 (C.A.); Canada Employment and Immigration Commission v. Bilodeau (1985), CUB 9830-A; Caron v. Canada (Canada Employment and Immigration Commission), [1989] 1 F.C. 628; (1988), 55 D.L.R. (4th) 274; 89 CLLC 14,027; 91 N.R. 1 (C.A.); affd [1991] 1 S.C.R. 48; (1991), 77 D.L.R. (4th) 172; 47 Admin. L.R. 161; 35 C.C.E.L. 1; 91 CLLC 14,007; 123 N.R. 302.
DISTINGUISHED:
Albright v. Canada Employment and Immigration Commission (1989), CUB 16604; Morrison v. Canada (Employment & Immigration Commission) (1990), 70 D.L.R. (4th) 559; 114 N.R. 272 (F.C.A.).
OVERRULED:
International Longshoremen’s Association (1978), CUB 4769; Peters (1979), CUB 5410; Coull (1984), CUB 8498; Baronette et al. (1991), CUB 19771 (affd on issue of s. 31(2) Canada (Attorney General) v. Baronette, A-594-91, Mahoney J.A., judgment dated 3/9/92, F.C.A., not yet reported).
CONSIDERED:
Canada (Attorney General) v. Valois, [1986] 2 S.C.R. 439; (1986), 32 D.L.R. (4th) 381; 22 Admin. L.R. 94; 86 CLLC 14,057; 70 N.R. 319.
REFERRED TO:
Carpentier et al. (1983), CUB 7464; International Longshoremen’s Association (1978), CUB 4769.
AUTHORS CITED
Hickling, M. A. “Labour Disputes and Disentitlement to Benefits” in Unemployment Insurance. Course co-ordinator Allan H. MacLean. Vancouver: Continuing Legal Education Society of British Columbia, 1983.
Hickling, M. A. Labour Disputes and Unemployment Insurance Benefits in Canada and England. Don Mills, Ontario: CCH Canadian, 1975.
APPLICATIONS for judicial review of Umpire’s decisions that the applicants, who had been laid off shortly before a strike began, were not entitled to benefits pursuant to Unemployment Insurance Act, subsection 31(1) because the loss of employment resulted from a stoppage of work attributable to a labour dispute. Applications allowed.
COUNSEL:
Lyle S. R. Kanee and David T. Williams for applicants.
W. L. Softley for respondent.
SOLICITORS:
Chivers, Greckol & Kanee, Edmonton, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Linden J.A.: These three applications, heard together, raise the same main issue—whether subsection 31(1) of the Unemployment Insurance Act , R.S.C., 1985, c. U-1 disentitles the claimants, who were laid off just before a strike, to receive unemployment insurance benefits during the period of the strike. The section, with the relevant part underlined, reads as follows:
31. (1) A claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which he was employed is not entitled to receive benefit until
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupation that he usually follows, or
(c) he has become regularly engaged in some other occupation,
whichever event first occurs.
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interested in the labour dispute that caused the stoppage of work; and
(b) he does not belong to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage is taking place and are participating in, financing or directly interested in the dispute. [Underlining added.]
Subsection 2(1) of the Act defines “labour dispute” and reads as follows:
2. (1) In this Act,
…
“labour dispute” means any dispute between employers and employees, or between employees and employees, that is connected with the employment or non-employment, or the terms or conditions of employment, of any persons.
The three applicants were labourers at the Shaw Pipe Protection Ltd. plant during the summer of 1990 and belonged to the Construction and General Workers Union Local 92. The collective agreement expired on May 31, 1990 and negotiations for a new contract were commenced. On July 18, 1990, because the employer began distributing work to other plants, a notice of layoff was communicated to the claimants to be effective July 27, 1990. In the meantime, a strike vote was taken by the Union on July 24 and 25, 1990 which authorized a strike beginning on July 30, 1990. The applicants were laid off, pursuant to the notice they received, on July 27, 1990. The strike began on July 30, 1990.
The applicants received unemployment insurance benefits at first, but they were later said by the Unemployment Insurance Commission (the Commission) to be disentitled to them for the period of the strike, July 30 to September 21, 1990, on the basis of subsection 31(1). The applicants appealed and three different boards of referees dismissed their appeals, upholding the decisions of the Commission. The applicants appealed further to the Umpire and each appeal was again dismissed. Hence, this application for judicial review. I am of the view that the application should succeed.
THE ISSUES
There were three issues argued on this application. The first is this—was the Umpire correct when he held that there was no loss of employment in this case because of the historic pattern of layoffs and recalls? The Umpire held that there was not a definite recall date set, but he, nevertheless, relied on the case of Albright v. Canada Employment and Immigration Commission (1989), CUB 16604, a case in which it was held [at page 3] that “[a]n actual date of recall had been established and there [was] no doubt that [the applicant], a full-time worker, would have been recalled.” The language used by Mr. Justice Walsh, therefore, referring [at page 5] to a “pattern of regular recalls” by which “casual workers” were “considered part of the work-force”, was only obiter. In any event, even if the analysis were correct, it would be available only in the rare cases described by the Court. The actual holding in Albright is consistent with Morrison v. Canada (Employment & Immigration Commission) (1990), 70 D.L.R. (4th) 559 (F.C.A.) where this Court held that benefits were not allowed in a case where a recall notice had been issued to the applicant, even though he was not yet actually working.
In my view, the applicants did not have continuing employment following their layoff. They lost their employment by layoff. They were at the complete mercy of their employer as to whether there would be a recall or not. The past was little guide to their future. There was no recall date and no evidence that they would be recalled, though they may have had some hope in that regard. It has been held that a mere expectation of recall is not enough. (Morissette v. Canada (Employment and Immigration Commission), A-692-90, Pratte J.A., judgment dated 21/3/91, not reported.) They had no right to be recalled, although, if recalls did occur, the collective agreement required a certain order to be followed in the process. Thus, as Mr. Justice Pratte so clearly explained in Gionest v. Unemployment Insurance Commission, [1983] 1 F.C. 832 (C.A.), at page 835:
One cannot lose what one does not have. A person cannot lose his employment if he does not first have employment which he subsequently loses. It is true that someone who is unemployed and who misses a chance, an opportunity to be employed, in a sense loses that employment; but he does not lose his employment, since the employment never was his. In the case at bar, applicants were already unemployed when the employer delayed opening the plant because of the negotiations in progress. At that time, they had no employment and they accordingly could not lose their employment. Perhaps they had the right, under the expired collective agreement, to be called back to work when the plant opened; but that right was not employment. Moreover, they never lost it; the right was conditional on the plant being opened and it only existed after such reopening.
Following Gionest is Attorney General of Canada v. Aubin (1991), CUB 17664, (affirmed Federal Court of Appeal (1991), CUB 17664) where, because an employer reserved the right to terminate the applicant’s employment at any time by giving notice, it was held that the applicant was “not entitled to any employment and never enjoyed any.” (See also Carpentier et al. (1983), CUB 7464.) The Umpire, therefore, erred on this issue.
The second issue was said to be a factual one. It was argued that the Umpire erred when he found “as a fact” that the loss of employment resulted from a stoppage of work attributable to a labour dispute. In my view, however, this is not a factual matter at all; rather it is a conclusion of law based on certain facts found by the Umpire. There is really no dispute with regard to the facts. They are, that the employer, in anticipation of the strike, reduced the amount of work being done in the plant and laid off these applicants because of that. In addition, there was evidence before the Umpire that, but for the reduction of work by the employer, there would have been sufficient work for the applicants to do. This issue, therefore, is inextricably intertwined with the third issue, to which I now turn.
The third issue is the proper interpretation and application of subsection 31(1) in this case. The twin purposes of section 31 were said to be the preservation of Government neutrality during labour disputes and the avoidance of the inequity of using an employer’s contribution to the unemployment insurance fund to finance a strike against himself. (See Hills, infra, at page 538). As contended by Hickling, Labour Disputes and Unemployment Insurance Benefits in Canada and England (1975), at page 1:
The neutrality of the state is to be preserved, and funds to which employers are compelled to contribute are not to be used against them.
This rationale has been criticized by some, but, since there have been no legislative amendments, it remains nevertheless the policy basis for section 31. (See Hills, infra, at page 538; see also Hugessen J.A. in Caron, infra, at page 641.)
In approaching the interpretation of the Unemployment Insurance Act, generally one must keep in mind the advice of Madam Justice Wilson of the Supreme Court of Canada in Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at page 10:
Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant.
A similar point of view was articulated by Madam Justice L’Heureux-Dubé in Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at page 537:
Since the purpose of the Act is to make benefits available to the unemployed, a liberal interpretation of the re-entitlement provisions is warranted, given that the Act was not designed to deprive innocent victims of a labour dispute of the benefits of the Act and also given that employees do contribute to the unemployment insurance fund.
Further, Madam Justice L’Heureux-Dubé at page 559 extended the reach of this principle beyond re-entitlement to the disentitlement of employees under the old section 44 [Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48] (now section 31):
… the purpose of the section [44, now 31] (to disentitle strikers from benefits) as well as the purpose of the Act as a whole (to provide benefits to involuntarily unemployed persons) dictate that a narrow interpretation be given to the disentitlement provisions of that section. Any doubt, as Wilson J. pointed out in Abrahams … should be resolved in favour of the claimant ….
Thus, courts are urged by the Supreme Court of Canada to support the claims of workers to benefits where the language permits a choice.
Focusing more on the narrow issue in this case, in Canada (Attorney General) v. Valois, [1986] 2 S.C.R. 439, the Supreme Court of Canada allowed certain employees to receive unemployment insurance benefits when they did not work because they refused to cross a picket line of another union on account of threats made to them by picketers. At pages 444-445 of the decision, Mr. Justice Chouinard quoted with approval the article of Professor Hickling, entitled “Labour Disputes and Disentitlement to Benefits”, published in Unemployment Insurance, B.C. Continuing Legal Education Society, 1983. Professor Hickling explained section 44 (now section 31) as follows:
Before the claimant is disentitled the onus is on the U.I.C. to establish
(1) That there was a labour dispute at the premises in question;
(2) That the labour dispute caused a stoppage of work there; and
(3) That the claimant lost his employment by reason of that stoppage.
If those points are established then the claimant is disentitled to benefit until one of the following events occurs:
(4) The stoppage of work due to the labour dispute has come to an end; or
(5) he becomes bona fide employed elsewhere in the occupation he usually follows; or
(6) he has become regularly engaged in some other occupation.
Further, a claimant who is thrown out of work as a result of a labour dispute at his place of employment has another avenue of escape if he can bring himself within the protection of s. 44(2). To do this he must show that neither he nor any member of his grade or class employed at the site of the dispute immediately prior to the stoppage are participating in, financing, or have any direct interest in the dispute.
It was submitted, however, by counsel for the respondent that neither the Valois decision nor the passage from the article by Professor Hickling suggests that a specific sequence of events is mandated by section 31. On counsel’s view, a proper interpretation of subsection 31(1) does not require that the first three events, identified by Professor Hickling as elements of disentitlement, occur in the order in which he has stated them. It is only necessary, in counsel’s view, that all three elements be present without reference to their sequence.
I am unable to agree with this view of the matter. The Caron decision infra, supports Professor Hickling’s “sequential” approach. At pages 638-639 thereof, Hugessen and Desjardins JJ.A. said:
In other words, subsection 44(1) does not deal only with one cause, the labour dispute, and one effect, the work stoppage, but with a chain of causation: the first cause, the labour dispute, is followed by an intial effect, the work stoppage, which in turn becomes the cause of a second effect, the claimant’s loss of employment. [Emphasis added.]
In harmony with the Supreme Court decisions, this Court held, in Létourneau v. Canada Employment and Immigration Commission, [1986] 2 F.C. 82, that a person who resigns two days before a strike began, because he foresaw such a strike, is not disentitled from collecting unemployment insurance benefits by subsection 31(1). Mr. Justice Pratte explained at page 86:
Subsection 44(1) [now subsection 31(1)] states that a claimant “who has lost his employment by reason of a stoppage of work attributable to a labour dispute” is not entitled to benefits. For this provision to apply, therefore, the loss of employment must have been caused by the work stoppage itself. That is not the case here. It is logically impossible for one event to have caused another if the other event would have occurred even if the first had not done so. As the applicant had left his employment before the strike began, it was still possible for the strike not to take place, and the applicant would then not have recovered his employment. In actual fact, therefore, the applicant did not lose his employment “by reason” of the strike: he actually lost it because he foresaw that the strike would occur.
Mr. Justice Marceau agreed at pages 88-89:
A person who resigns before the strike begins has not “lost his employment” as the striker has done: the loss of employment is individual in his case, makes him unemployed and is final. There is no longer any reason for the disentitlement of the striker to apply to him: it is only fair that he should have access to the funds intended to aid workers who have lost their employment and are seeking new employment, since he is in precisely this position; and there is no reason to fear that the benefits he may receive will influence his conduct in relation to the labour dispute, since he is not on strike and his loss of employment is final. A person who resigns before the strike and so avoids the disentitlement imposed on the striker is not circumventing the intent of the legislator: s. 44 [now section 31] is not a punitive provision. He avoids the disentitlement because, by completely altering his status, he never becomes a striker—unless his resignation is only a subterfuge ….
Mr. Justice MacGuigan concurred at page 90 stating that an “employee who resigns abandons completely his right to return to work”, while “a striker retains his ties with the employer.”
If a person who resigns his position before a strike is not disentitled to benefits, then a fortiori a person who is laid off prior to a strike or lock-out is also not disentitled to those benefits. Here the employer, like the employee in Létourneau, foresaw that a strike was coming and took steps to minimize its impact on his business by distributing work to others and laying off employees. This action, because of the foresight of the employer, cannot be treated differently than similar action taken because of the foresight of an employee. In each case the result was the same—termination of the employment relationship. As a consequence the applicants did not lose their employment “by reason of a stoppage of work attributable to a labour dispute”. Rather, they lost it by the actions of the employer who took steps, which, from his perspective, were calculated to minimize the disruption resulting from the impending stoppage of work. In other words, the Umpire erred when he asked whether the applicants lost their employment by reason of a labour dispute—they, of course, did; he should have asked whether they lost it by reason of a stoppage of work attributable to a labour dispute—they did not. They lost their employment because they were laid off in anticipation of a work stoppage, not because of a stoppage of work attributable to a labour dispute.
A case that is directly on all fours with this one is Canada Employment and Immigration Commission v. Bilodeau (1985), CUB 9830-A, where Mr. Justice Joyal, acting as umpire stated (at page 4):
On April 7, 1982, when the claimant was laid off, work had not stopped at the plant. It stopped only the next day, April 8, 1982. Although the claimant’s dismissal and the work stoppage are not far removed from one another, a work stoppage cannot be claimed for the purpose of Section 44 [now 31]. It would matter little if it were established that the claimant was dismissed in anticipation of a work stoppage which was to begin the following day as the result of a lockout. The text of Section 44 [now 31] makes no reference to loss of employment in anticipation of a work stoppage. A work stoppage is essential to the loss of employment provided for under Section 44 [now 31]. Under the circumstances, the reason the employer dismissed the claimant is not relevant to this matter.
This was exactly the situation in this case. I accept the analysis of Mr. Justice Joyal, which is in complete accord with the more recent Supreme Court of Canada decisions as well as those in this Court.
Consistent with this analysis is that of this Court, dealing with the situation at the end of a strike. In Caron v. Canada (Canada Employment and Immigration Commission), [1989] 1 F.C. 628 (affirmed [1991] 1 S.C.R. 48), this Court held that a work stoppage ended once it was agreed to settle a strike, and before all employees returned to work. Mr. Justice Hugessen explained at pages 638-640:
In our opinion it is clear that the work stoppage mentioned in paragraph 44(1)(a) [now subsection 31(1)] is the same as that mentioned in the introductory words of the subsection, that is, a work stoppage attributable to a labour dispute. However, it is not the same thing as the loss of employment caused to a claimant. In other words, subsection 44(1) [now subsection 31(1)] does not deal only with one cause, the labour dispute, and one effect, the work stoppage, but with a chain of causation: the first cause, the labour dispute, is followed by an initial effect, the work stoppage, which in turn becomes the cause of a second effect, the claimant’s loss of employment. The first cause by definition involves a group. The first effect, the work stoppage, also involves a group: it affects several employees, usually nowadays all members of the same bargaining unit. The loss of employment, by comparison, is always individual, peculiar to each claimant who as a consequence of the work stoppage no longer has “his” employment. Even though the general stoppage has ended, it often happens that some or indeed several employees continue to suffer its consequences: they still do not have their jobs back.
However, what essentially characterizes the section 44 [now section 31] work stoppage and distinguishes it from the claimant’s loss of employment is the aspect of “intent”: a work stoppage due to a labour dispute always results from the fact that one or other of the parties to a contract of service does not wish to perform it. If it is the employer who feels this way, the stoppage is called a lockout; if it is the employees who refuse to provide their services, it is called a strike. In either case it is the lack of intent which is the essence of the work stoppage. The loss of employment, on the other hand, is a phenomenon completely independent of intent, which is capable of affecting both those directly involved in the work stoppage, the strikers or employees who are locked out, and those who are not in any way concerned but who have lost their employment as a result nevertheless.
In light of this analysis, we feel it cannot be said that a work stoppage attributable to a labour dispute can continue in being after the point at which the parties to the dispute have indicated a desire to resume performance of their contracts of service and have in fact resumed such performance. If, as in the case at bar, the resumption of work takes place gradually and in stages, the last ones recalled to work will continue to be without their employment because of a work stoppage attributable to a labour dispute until the time they are recalled; however, paragraph 44(1)(a) [now subsection 31(1)] provides that their disqualification for unemployment insurance benefits ceases as soon as the work stoppage which is the cause of their being unemployed terminates, even if its effects continue to exist.
We feel that this approach is also consistent with the recent decisions of the Supreme Court of Canada [Hills and Valois, supra.]
Consequently, if employees can start receiving benefits as soon as a strike is settled, but before they all actually return to work, employees who are laid off in anticipation of a strike cannot be denied them.
All of this is consistent with the purpose of section 31 and its underlying philosophy. In this case, there is no interference with the neutrality of Government during a strike, since the employees in question did not participate in the strike action. They were not even a part of the striking bargaining unit at the time the strike began, having been laid off. Nor were they entitled to strike pay. Further, there is no forced employer subsidy for striking employees here, because these workers were not on strike, but were laid off prior to the commencement of the strike.
There are some older decisions of umpires that are in conflict with this jurisprudence, but, with respect, they are not in harmony with the new Supreme Court decisions and the cases in this Court and ought no longer to be followed. (See International Longshoremen’s Association (1978), CUB 4769; Peters (1979), CUB 5410; Coull (1984), CUB 8498; Baronette et al. (1991), CUB 19771 (affirmed Federal Court of Appeal September 3, 1992, A-594-91, only on the issue of subsection 31(2)).)
These applications will, therefore, be allowed, the decisions of the umpire dated May 13, 1992 will be set aside and the matters will be remitted to an umpire to be dealt with in accordance with these reasons.
Isaac C.J.: I agree.
Heald J.A.: I agree.