Date: 20040720
Docket: T-1140-03
Citation: 2004 FC 1017
Ottawa, Ontario, this 20th day of July, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
DOUG DWAIN WHITE
Applicant
- and -
TREASURY BOARD
(SOLICITOR GENERAL OF CANADA-CORRECTIONAL SERVICES)
Respondent
REASONS FOR ORDER AND ORDER
McKAY, J.
[1] These reasons concern an application for judicial review of a decision by an adjudicator under s. 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. That decision concerned the interpretation and application of the relevant collective agreement to the circumstances raised by the applicant's grievance, which was dismissed by the adjudicator.
[2] At all relevant times, the applicant was employed as a correctional service officer for the Correctional Service of Canada at the Atlantic institution in Renous, New Brunswick. He worked on a variable hours of work schedule, as provided for in the collective agreement, which schedule provided for twelve hour and eight hour shifts on a two week rotation. Over a twelve week period, the hours of work added up to 450 hours, an average of 37.5 hours per week, the same as the work schedule for those who were not on variable hours. Those working the twelve and eight hour shifts had three consecutive days of rest while those on the usual work schedule had two days of rest per week.
[3] The employees on a variable hours schedule were paid bi-weekly on the basis of 37.5 hours worked per week, no matter how many hours were actually worked. One of the requirements of the work schedule was to ensure that each employee working on a variable shift schedule was scheduled to work, and did work, 450 hours in the twelve week rotation period, the same hours as employees who were not on the variable hours schedule.
[4] In the week of April 16, 2001, Mr. White was scheduled to work a twelve hour shift on the 16th and 17th of April, then have days of rest and then to work three eight hour shifts for the balance of the week. April 16th, was Easter Monday, a designated paid holiday under the collective agreement, and as noted, Mr. White was scheduled to work twelve hours that day as part of his work schedule.
[5] Prior to the designated paid holiday, he informed his employer that he wished not to work on April 16, 2001. The employer took the position that the entitlement for designated paid holidays is the same under the collective agreement for variable shift workers as it is for day workers, that is, that the designated paid holiday constituted eight hours. In light of this, the employer notified the applicant that in addition to the eight hour entitlement for the designated paid holiday, he was required to work four hours to make up the twelve hour shift he was originally scheduled to work. Alternatively, he could opt to make up the four hours by some other form of leave, e.g., vacation. In the result, he was finally scheduled to work from 11:00 a.m. to 3:00 p.m. and was "statted off" from 7:00 a.m. to 11:00 a.m. and from 3:00 p.m. to 7:00 p.m. In fact, he arranged to exchange a portion of shifts with another worker and he did not work that day, but someone else worked in his place.
[6] The applicant grieved the fact that he was "statted off" for eight hours and was required to work, or to replace, four hours on the designated paid holiday. In his view, under the collective agreement, he was entitled on a designated paid holiday to have the whole of his shift, in this case twelve hours, off from work. The grievance was denied and the matter was referred to adjudication. The adjudicator's decision upholding the denial of the grievance is the subject of this judicial review.
[7] Under the collective agreement, article 34 provided for variable hours of work. That article provided that the agreement was modified by the provisions specified in the article and that implementation of any variation in hours would not result in additional expenditure or cost by reason only of such variation.
[8] The relevant terms of that article 34 include:
1. General Terms
The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by this agreement . . .
2. Conversion of Days to Hours
The provisions of this agreement which specify days shall be converted to hours. Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement.
5. Specific Application
Designated Paid Holidays
(a) A designated paid holiday shall account for the normal daily hours specified by this agreement.
(b) When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours of pay specified by this agreement, time and one-half (1 ½) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.
[9] Article 21 of the agreement, concerning Hours of Work and Overtime, provide in part:
Hours of Work
Day Work
21.01 When hours of work are scheduled for employees on a regular basis, they shall be scheduled so that employees:
(a) on a weekly basis, work thirty-seven and one-half (37 ½) hours and five (5) days per week, and obtain two (2) consecutive days of rest.
(b) on a daily basis, work seven and one-half (7 ½) hours per day.
Shift Work
21.02 When, because of the operational requirements of the service, hours of work are scheduled for employees on a rotating or irregular basis:
(a) they shall be scheduled so that employees:
(i) on a weekly basis, work an average of thirty-seven and one-half (37 ½) hours, and
(ii) on a daily basis, work eight (8) hours per day.
. . .
[10] In his decision, the adjudicator considered the arguments advanced by both of the parties and then turned to interpretation of the agreement. He noted that under Article 34, the provisions for variable hours of work modified other provisions of the agreement and it contained a specific provision relating to designated paid holidays. In that provision, s-s. 5(a) referred to "the normal daily hours specified by this agreement" and that phrase "normal daily hours" was not specifically defined in the agreement. In s-s. 5(b) of Article 34, reference is made to both "normal daily hours" and "regular scheduled hours worked". In his view, the latter phrase could only refer to the hours for each shift that each employee was scheduled to work and use of that phrase must be intended to be different from "normal daily hours". Though "normal daily hours" was not defined in the agreement, Article 21.01 provided that shift work on a rotating or irregular basis was to be scheduled so that employees on a weekly basis worked 37.5 hours, and on a daily basis worked eight hours per day. In the view of the adjudicator, that must have been intended to be the "normal daily hours specified by this agreement", since there are no other daily hours for shift workers specified.
[11] It is urged that the adjudicator's decision leads to an anomalous result which could not have been intended, i.e, that a worker could be required to work on a day that, under the collective agreement, was a designated paid holiday. If that interpretation prevailed, then the provisions under the agreement for increased pay for working on a holiday would result in anomalous differences between those on a regular schedule and those on a twelve hour shift.
[12] With respect, if those results were to follow, that in itself would not persuade me that the adjudicator's decision was patently unreasonable. That is the standard that has to be met if the decision is to be set aside (see Canada (Attorney General) v. King, [2003] 4 F.C. 543, [2003] F.C.J. No. 377 (QL) (T.D.) per Gibson J.; Barry v. Canada (Treasury Board), (1997), 221 N.R. 237 (F.C.A.) per Robertson J.A. at para. 4).
[13] In my opinion in this case, the adjudicator considered the appropriate provisions of the collective agreement and interpreted those in accord with normal principles of interpretation. That interpretation cannot be said to be without reason or patently unreasonable.
[14] In written argument, the applicant raised an issue concerning appropriate notice of the schedule change applicable on April 16, 2001. That issue was not a matter before the adjudicator and it cannot appropriately be dealt with on judicial review.
[15] For these reasons, the application for judicial review is dismissed. The respondent asked for costs in written submissions. Costs ordinarily follow the event. I order costs for the respondent in the amount of $750.
ORDER
IT IS ORDERED that the application for judicial review is dismissed with costs to the respondent, fixed in the amount of $750.
"W. Andrew MacKay"
D.J.
Ottawa, Ontario
July 20, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1140-03
STYLE OF CAUSE: DOUG DWAIN WHITE
- and -
TREASURY BOARD
(SOLICITOR GENERAL OF CANADA-
CORRECTIONAL SERVICES)
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 7, 2004
REASONS FOR ORDER AND ORDER OF MacKAY J.
APPEARANCES:
Burnley Jones
Colin Abbott
FOR APPLICANT
Richard Fader
FOR RESPONDENT
SOLICITORS OF RECORD:
B.A. "Rocky" Jones & Associates
Halifax, Nova Scotia
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT