Date:
20130607
Docket:
T-761-12
Citation: 2013
FC 605
Ottawa, Ontario, June 7, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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JOSH HORNER
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Overview
[1]
In
2009, Mr Josh Horner worked in Halifax at the Department of National Defence as
a Master of the harbour tugboat the Listerville. He usually worked Monday to
Friday from 07:30 to 15:30. He is a member of a union, the Canadian Merchant
Service Guild.
[2]
On
August 11, 2009, Mr Horner worked his regular shift, plus two hours’ overtime.
That morning, he was asked to report for further duty on another vessel, the
Glenbrook, at 20:00 that evening. According to the collective agreement (Agreement
between the Treasury Board and the Canadian Merchant Service Guild,
Appendix K, article 30(d); see Annex for enactments cited), Mr Horner
was entitled to receive 48 hours’ notice of any shift change. Obviously, he did
not receive that amount of notice on August 11, 2009.
[3]
Mr
Horner reported for duty before 20:00 on August 11, 2009 and stood watch from
04:00 to 08:00, and again from 18:00 to 24:00, on August 12, 2009. He stood
watch again from 04:00 to 08:00 on August 13, 2009. In total, he performed 14
hours’ work on the Glenbrook.
[4]
Mr
Horner presented a request for overtime pay relating to his extra duties on the
Glenbrook. His request was turned down. He then filed a grievance seeking
compensation and a declaration that his employer had violated the collective
agreement.
[5]
An
adjudicator of the Public Service Labour Relations Board allowed Mr Horner’s
grievance and ordered the employer to pay him overtime for the 14 hours he
worked outside his usual shift. The applicant argues that the adjudicator’s
decision was unreasonable because it amounted to the imposition of a penalty
for failure to provide adequate notice of a shift change for which the
collective agreement made no provision. The applicant asks me to quash the
decision and order another adjudicator to reconsider the issue.
[6]
I
can find no basis for overturning the adjudicator’s decision and must,
therefore, dismiss this application for judicial review.
[7]
The
sole issue is whether the adjudicator’s decision was unreasonable.
II. The Adjudicator’s
Decision
[8]
Clearly,
Mr Horner worked outside his regularly designated hours, and did not receive
the amount of notice required by the collective agreement. The question before
the adjudicator was what the appropriate remedy should be, if any.
[9]
In
an earlier case dealing with similar facts, the Federal Court concluded that an
adjudicator had erred in granting an employee compensation because the
collective agreement did not provide a specific remedy for breach of the notice
requirement (Canada (Attorney General) v McKindsey, 2008 FC 73).
However, the adjudicator in Mr Horner’s case did not feel bound by McKindsey
because that case arose under the Public Service Staff Relations Act,
RSC 1985, c P-35 which contained a limited set of specified remedies, whereas
Mr Horner’s case had to be decided under the Public Service Labour Relations
Act, SC 2003, c 22, s 2 which gives adjudicators the discretion to make any
order they consider to be “appropriate in the circumstances” (s 228(2)).
[10]
Given
that the collective agreement required 48 hours’ notice of a shift change, and
provided no express penalty for violation of that requirement, the adjudicator
concluded that Mr Horner had, in effect, worked overtime. Under the collective agreement,
“overtime” is defined as the amount time a person worked “in excess of” his or
her “designated hours of work” (Article 30.06 (a)). Mr Horner had worked
outside his designated hours of work and was, therefore, entitled to overtime
pay for the 14 hours he was on watch aboard the Glenbrook.
III. Was the adjudicator’s
decision unreasonable?
[11]
The
applicant argues that the adjudicator’s decision is unreasonable because it
granted Mr Horner overtime pay in circumstances where it was not warranted. In
particular, Mr Horner was entitled to overtime only for time he worked in
excess of his designated hours. Accordingly, Mr Horner should have been
entitled to overtime for the two hours he worked in excess of his regular
eight-hour shift on August 11, 2009. Similarly, he worked ten hours on August
12, 2009, so he was owed another two hours’ overtime. However, on the next day,
Mr Horner only worked four hours, so he did not work in excess of his
designated 8-hour shift. Still, the adjudicator awarded Mr Horner a total of 14
hours of overtime, finding that all of his responsibilities on the Glenbrook
fell outside his designated duties because he had not received proper notice of
a shift change.
[12]
If
the requirement of 48 hours’ notice of a shift change were strictly enforced,
it is clear that Mr Horner had performed duties, amounting to a total of 14
hours, that did not fall within his regular assignment. The collective
agreement left it to the adjudicator to decide what an appropriate remedy would
be in the circumstances.
[13]
Unlike
in McKindsey, where only a limited range of remedies was available, the
adjudicator here had authority to fashion an appropriate remedy. The award of
overtime neither went beyond the collective agreement nor amounted to a
punitive remedy. Further, the adjudicator provided a reasonable interpretation
of the definition of “overtime” and a reasonable explanation for distinguishing
McKindsey. Therefore, I see no basis for the applicant’s submission that
the adjudicator’s decision to award Mr Horner overtime pay was unreasonable. In
my view, the adjudicator devised an appropriate remedy in the circumstances,
and her decision falls within the range of defensible outcomes based on the
facts and the law.
IV. Conclusion and
Disposition
[14]
The
adjudicator’s conclusion that Mr Horner had performed work outside his
designated hours and, thus, should be compensated was not unreasonable in the
circumstances. Therefore, I must dismiss this application for judicial review.
As Mr Horner did not appear or participate in this proceeding, there is no
order as to costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“James
W. O’Reilly”
Annex “A”
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Agreement between the Treasury
Board and the Canadian Merchant Service Guild, (Ottawa, 2008)
Article 30: Hours of Work and
Overtime
Overtime
30.06 In this Article:
(a) “overtime” means time
worked by an officer in excess of his/her designated hours of work…
…
Appendix ‘K’: 40 Hour Work Week
System
Article 30 – Hours of Work and
Overtime
…
(d) For officers who regularly
work five (5) consecutive days per week on “non-watchkeeping” vessels the
hours of work shall be consecutive, except for meal periods,
and
The normal daily hours of work
shall be between 0600 and 1800 hours.
and
Officers shall be given
forty-eight (48) hours notice of any change in scheduled starting time.
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Public
Service Staff Relations Act,
RSC, 1985, c P-35
[Repealed,
2003, c 22, s 285]
Decision
requiring amendment
96 (2) No
adjudicator shall, in respect of any grievance, render any decision thereon
the effect of which would be to require the amendment of a collective
agreement or an arbitral award.
Powers
of adjudicator
96.1 An adjudicator has, in
relation to the adjudication, all the powers, rights and privileges of the
Board, other than the power to make regulations under section 22.
Public
Service Labour Relations Act,
SC 2003, c 22, s 2
Hearing
of grievance
228
(1) If a grievance is referred to adjudication, the adjudicator must give
both parties to the grievance an opportunity to be heard.
Decision
on grievance
(2)
After considering the grievance, the adjudicator must render a decision and
make the order that he or she considers appropriate in the circumstances. The
adjudicator must then
(a)
send a copy of the order and, if there are written reasons for the decision,
a copy of the reasons, to each party, to the representative of each party and
to the bargaining agent, if any, for the bargaining unit to which the
employee whose grievance it is belongs; and
(b)
deposit a copy of the order and, if there are written reasons for the
decision, a copy of the reasons, with the Executive Director of the Board.
…
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Loi sur les relations de
travail dans la fonction publique, LRC (1985), ch P-35
[Abrogée, 2003, ch 22, art 285]
Décision entraînant une
modification
96 (2) En jugeant un grief,
l’arbitre ne peut rendre une décision qui aurait pour effet d’exiger la
modification d’une convention collective ou d’une décision arbitrale.
Pouvoirs
96.1 L’arbitre de grief a, dans le
cadre de l’affaire dont il est saisi, tous les droits et pouvoirs de la
Commission, sauf le pouvoir réglementaire prévu à l’article 22.
Loi sur les relations de
travail dans la fonction publique, LC 2003, ch 22, art 2
Audition du grief
228. (1) L’arbitre de grief donne à
chaque partie au grief l’occasion de se faire entendre.
Décision au sujet du grief
(2) Après étude du grief, il
tranche celui-ci par l’ordonnance qu’il juge indiquée. Il transmet copie de
l’ordonnance et, le cas échéant, des motifs de sa décision :
a) à chaque partie et à son
représentant ainsi que, s’il y a lieu, à l’agent négociateur de l’unité de
négociation à laquelle appartient le fonctionnaire qui a présenté le grief;
b) au directeur général de la
Commission.
[…]
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