Date: 20140110
Docket:
T-2077-12
Citation: 2014 FC 27
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 10,
2014
PRESENT: The Honourable Mr. Justice Beaudry
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BETWEEN:
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ROCH BERNATCHEZ
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Applicant
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and
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TREASURY BOARD
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review filed
by the applicant under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, regarding a decision dated
October 17, 2012, by an adjudicator appointed pursuant to the Public
Service Labour Relations Act (SC 2003, c 22, s 2). The
application for judicial review seeks to quash a part of the adjudicator’s decision
that deals with the amount awarded to the applicant for his first overtime shift.
Factual
background
[2]
The applicant is a corrections officer at La
Macaza Penitentiary in Quebec.
[3]
On December 20, 2011, he escorted an inmate outside of the Headquarters area during a
non-contiguous overtime shift, that is, on a day of rest. This overtime shift
started at 7:00 a.m. and ended at 3:00 p.m. It was followed by a
second eight-hour overtime shift, from 3:00 p.m. to 11:00 p.m., for
which no advance notice was given.
[4]
The applicant was unable to take any meal breaks
at any time during his two overtime shirts because there was no one to cover
for him.
[5]
The applicant received 16 hours at double
time for his overtime hours, two overtime meal allowances of $10 each and two
paid 30-minute meal breaks at double time. However, following the final-level
grievance response, the employer withdrew the two $10 meal allowances and the
two meal breaks paid at the overtime rate.
[6]
The grievance was referred to the adjudicator to
determine what the applicant was entitled to receive.
Impugned decision
[7]
The adjudicator referred to articles 21.07 and
21.15 of the collective agreement for the Correctional Services Group signed on
June 26, 2006, by the Treasury Board and the Union of Canadian Correctional
Officers – Syndicat des agents correctionnels du Canada – CSN (the collective
agreement), appendices “C” and “D” to the collective agreement, and the Travel
Directive of the National Joint Council (NJC Directive). These
provisions are reproduced in Appendix “A”, at the end of these reasons for
judgment.
[8]
He found that article 21.15 and Appendix “C” cover
the payment of meals and meal breaks for contiguous overtime shifts and do not
apply to the applicant’s first overtime shift. Section 5 of Appendix “C”
expressly provides that neither that appendix nor article 21.15 applies if
the employee is scheduled to work overtime on a day of rest and has been given
prior notification to that effect, as in the present case. Article 21.15 and
Appendix “C” apply only to the applicant’s second shift, given that he did
not receive prior notification of it.
[9]
The adjudicator found that Appendix “D”
applies to both shifts, which under section 3(a) entitled the applicant to
be reimbursed for reasonable meal expenses incurred “as normally defined by the
Employer”. Considering that Mr. Kearney, who works for the employer in a
labour relations management position, testified that the employer uses the meal
rates in the NJC Directive to determine what reasonable expenses may be
reimbursed in accordance with Appendix “D”, the adjudicator awarded the
applicant a lunch allowance of $14.60 at the midpoint of his shift
(paragraph 40 of the decision).
[10]
The adjudicator therefore determined that for
his first overtime shift, the applicant was entitled to eight hours at double
time and one meal, lunch, at the midpoint of his shift.
[11]
For his second, unscheduled shift, the applicant
was entitled to eight hours at double time for the hours worked, one hour at
double time for the meal break that he was unable to take, $40.30 for dinner
and $15.35 for breakfast.
Issue
[12]
At issue is whether the adjudicator’s decision
is reasonable.
Standard of
review
[13]
The adjudicator’s decision concerns the
interpretation of the collective agreement and its appendices, as well as his
assessment of the evidence supporting the grievance. The standard of review in similar
cases is reasonableness (Chan v Canada (Attorney General), 2010 FC 708 at
para 17; Chan v Canada (Attorney General), 2011 FCA 150; Public
Service Alliance of Canada v Canada (Canadian Food Inspection Agency), 2005
FCA 366 at para 18). The Court must therefore consider whether the
findings are justified, transparent and intelligible, and fall “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
Applicant’s arguments
[14]
The applicant submits that the parties to the
collective agreement intended that corrections officers should have a half-hour
meal break or, failing that, a half hour’s pay at the applicable rate when an
overtime shift is worked on a day of rest, or when any full period of eight
hours is worked.
[15]
The adjudicator’s decision is therefore
unreasonable because it contradicts the parties’ intentions and the evidence.
In particular, he erred in ignoring the evidence showing that the applicant has
always been entitled to paid meal breaks on his overtime shifts, including
those worked on his days of rest. Moreover, in the present case, the employer
gave the applicant an allowance for the two half-hour meal breaks that he was
unable to take, and it was not until July 19, 2012, six years after the
parties signed the collective agreement, that the employer changed its position
and denied him a paid meal break, relying on a 2012 policy known as Bulletin
2012-11.
[16]
The adjudicator confused two concepts:
allowances on the one hand and meal breaks on the other.
[17]
The applicant suggests that the only reasonable
interpretation of articles 21.07 and 21.15 of the collective agreement and
of its Appendix “C” entitles corrections officers to a meal break for each full
period of eight hours worked, regardless of whether or not it is overtime work.
[18]
If for some absurd reason the parties to the
collective agreement had intended to deny an officer working 16 hours a
meal break on the first shift, they would have expressed this clearly in the
agreement, which they did not do.
Respondent’s arguments
[19]
The respondent submits that the provisions of
the collective agreement are clear and unequivocal and that they create a
distinction between pay for meal breaks during overtime hours worked just
before or just after scheduled working hours and with overtime hours worked
with prior notice.
[20]
The adjudicator’s interpretation of the
collective agreement is reasonable. He correctly stated that the more specific
provisions of appendices “C” and “D” take precedence over articles 21.07 and
21.15, which are more general provisions (Ferguson v Treasury Board (Statistics
Canada), 2009 PSLRB 21 at para 61).
[21]
Section 5 of Appendix “C” expressly states
that where an employee is scheduled to work overtime on a day of rest, the
provisions of article 21.15 and the benefits of Appendix “C” apply only with
respect to overtime hours worked without prior notification. Because the
applicant was given prior notification of his first shift on a day of rest, the
monetary benefit set out in article 21.15 of the collective agreement and
in section 6 of Appendix “C” does not apply to him.
[22]
Moreover, it was reasonable for the adjudicator
to find that the half hour of overtime pay in lieu of an untaken meal break, as
set out in article 21.07, does not apply to the applicant. Article 21.07
is found under the “General” heading, applies only to normal hours worked and
does not mention overtime hours. The collective agreement contains specific
provisions dealing with overtime situations.
[23]
The applicant criticizes the adjudicator for
having ignored evidence of the employer’s previous practices. However, evidence
of past practice is extrinsic evidence. It is well established that when an
adjudicator finds no ambiguity in how the document under consideration is to be
interpreted, it is open to the adjudicator to not consider other evidence, such
as extrinsic evidence (General Motors of Canada Ltd v Canada, 2008 FCA
142 at para 36; Doyon v Canada (Public Service Staff Relations Board),
[1978] 1 FC 31 (FCA) at para 11). In the present case, the
collective agreement is clear, and there was no need for the adjudicator to
consider the issue of extrinsic evidence.
[24]
The evidence shows that the employer did not have
the same interpretation of the collective agreement as the one alleged by the
applicant. Mr. Kearney testified that Bulletin No 2006-11 was drafted
and then disseminated across the country to ensure that the collective
agreement is applied uniformly with respect to the reimbursement of meals and
the payment of meal breaks.
Analysis
[25]
The Court is of the opinion that the reasons for
decision, at paragraphs 35 to 40, which aim to resolve the issue in this
case, that is, to what benefits was Mr. Bernatchez entitled on his first
overtime shift, are not unreasonable.
[26]
The Court’s job in such situations is not to
determine the best answer to be given to the questions submitted by the
parties. Given the specialized expertise that adjudicators are recognized as having,
the role of the Court must be limited to reviewing whether the adjudicator’s
decision meets the standard of reasonableness as set out in Dunsmuir.
[27]
In the case at bar, the adjudicator justified
his finding by applying a specific provision dealing with a particular
situation, rather than a general provision, to determine the rights and
responsibilities of the parties (paragraph 35 of the decision). This
approach is entirely logical.
[28]
The adjudicator’s interpretation of the
provisions of the collective agreement, its appendices and the
NJC Directive in Appendix “A” is justifiable, intelligible and based on
evidence. The Court’s intervention is unwarranted in the circumstances.
[29]
However, the Court acknowledges that another
interpretation could have been given, but the part of the decision in issue
here has sufficient reasons, and its conclusion falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir at para 47).
[30]
At the suggestion of this Court, the parties agreed
that the winning party would be awarded an amount of $1,500 for costs, plus GST
and disbursements.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review be dismissed. The applicant shall pay the respondent an amount
of $1,500 as costs, plus GST and disbursements.
“Michel Beaudry”
Certified
true translation
Michael
Palles
Appendix “A”
Collective agreement
for the Correctional Services Group, signed on June 26, 2006, by the Treasury
Board and the Union of Canadian Correctional Officers – Syndicat des agents
correctionnels du Canada – CSN
General
. . .
21.07 Except as may be required in a
penitentiary emergency, the Employer shall:
- grant a Correctional Officer a paid thirty (30)
minute period, away from his work post, to have a meal within the
institution, for every complete eight (8) hour period,
and
- notwithstanding paragraph (a) above, a
Correctional Officer may exceptionally be required to eat his or her meal
at their work post when the nature of the duties makes it necessary.
- In the event that the Employer is unable to
grant an employee a meal break, in lieu thereof the employee shall receive
an additional one half (1/2) hour of compensation at time and one half (1
1/2).
. . .
21.15 Overtime Meal Allowance
- An employee who works three (3) or more hours
of overtime immediately before or following the scheduled hours of work
shall be reimbursed expenses for one (1) meal in the amount of ten dollars
($10.00) except where a free meal is provided.
- When an employee works overtime continuously
beyond the period provided in (a) above, he or she shall be reimbursed for
one (1) additional meal in the amount of ten dollars ($10.00) for each
four (4) hour period of overtime worked thereafter, except where a free
meal is provided.
- Reasonable time with pay, to be determined by
management, shall be allowed the employee in order that the employee may
take a meal break either at or adjacent to his or her place of work.
- When an employee is on travel status, meal and
lodging allowances shall be those provided by Treasury Board policy.
APPENDIX “C”
OVERTIME MEAL ALLOWANCE
In view of the
unique requirements found in the Correctional Service of Canada, and for the
duration of the Correctional Services Group Collective Agreement, the Employer
agrees to the following interpretation and application of the Overtime Meal
Allowance.
- The
Overtime Meal Allowance will not be paid when an employee is provided with
a meal(s) at departmental expense.
- The “free
meal” to be provided in lieu of the Overtime Meal Allowance means a
regular full course meal as prepared in the institution where the employee
is employed.
- A
snack or sandwiches will not be considered by the Employer as a full
course meal.
- Notwithstanding
the provisions of clause 21.15, when there is a reasonable expectation
that an employee will work the full eight (8) hours’ overtime shift, the
first (1st) meal break will be allowed prior to the working of the first
three (3) hours of overtime, and the second (2nd) meal break will be
allowed after approximately four (4) hours of overtime have been worked.
- Where
an employee is scheduled to work overtime on a day of rest or on a
designated paid holiday, the provisions of clause 21.15, and this
appendix, shall be applicable to the employee only with respect to such
additional overtime hours which the employee may work in excess of the
employee’s prior scheduled hours of overtime on that day without prior
notification.
- In
the event that the Employer is unable to grant an employee reasonable time
off with pay for the purpose of taking an overtime meal break, in lieu
thereof the employee shall receive an additional one-half (1/2) hour of
overtime compensation at the same overtime rate of the shift completed.
APPENDIX “D”
INMATE ESCORTS
For the
duration of the Correctional Services Group Collective Agreement, the Employer
agrees to the following:
- To
the extent practicable, the Employer will endeavour to avoid assigning
Correctional Officers on inmate escorts on other than their regular
working days.
- When
an officer is required to escort an inmate outside of the Headquarters
area the employee will be compensated as follows:
- the
total period during which the officer is escorting the inmate or has the
inmate under visual surveillance will be considered as time worked and
the officer will be compensated at the applicable straight time and/or
overtime rate;
- an
officer who is required to escort inmates at a time which is outside the
officer’s normal regular scheduled hours of work will be compensated at
the applicable overtime rates;
- an
officer who escorts an inmate for a period of less than eight (8) hours
will receive his or her regular pay for the day, that is eight (8) hours.
However, on these occasions, where practicable, an officer may be
required to perform other correctional officer duties for the balance of
the eight (8) hour period;
- on
a statutory holiday or on a day of rest the employee will be compensated
at the applicable overtime rate for the actual hours worked but in any
event, no less than the equivalent of eight (8) hours at the
straight-time rate;
- all
hours included between the time of reporting to the institution until the
time of return shall be considered as hours worked when these hours are
consecutive without interruption by overnight stopover for a suitable
rest period;
- when
an officer’s journey is interrupted by an overnight stopover the officer
will be paid up to the time of the officer’s arrival at his or her
destination including normal travelling time to register at a hotel and
will be paid for normal travelling time from the hotel to the officers
point of departure. Thus, all hours between the normal time of
registration at the hotel until the time of departure from the hotel will
not be considered as hours worked;
- on
an inbound or outbound journey, without an inmate, the correctional
officer will be compensated for his regular hours of work as if he or she
had been working and the remaining time in travel to be compensated at
the applicable overtime rate to a maximum of eight (8) hours;
- on
the return journey after a stopover and when escorting an inmate, the
officer will be compensated as in paragraph (a) above;
- when
a Correctional Officer, who has been performing escort duty outside the
officer’s Headquarters area, does not have a reasonable rest period
between the completion of the officer’s escort duty and the start of his
or her next scheduled shift, the officer will not be required to perform
his or her duties for that day, however, the officer will receive a day’s
pay and the eight (8) hours will be deducted from the compensation earned
during the period of escort.
- When
an officer is required to escort an inmate outside of the officer’s
Headquarters area the officers will be subject to the following travelling
conditions:
- an
officer will be reimbursed for reasonable expenses incurred as normally
defined by the Employer;
- an
officer who is required to escort an inmate on a journey involving at
least nine (9) hours will be given an overnight stopover whenever it is
expected that the journey will exceed twelve (12) hours from the time of
departure from the institution to the time of return to the institution;
- whenever
it is expected that an officer may be required to drive more than eighty
(80) kilometers (fifty (50) miles) in any day beyond the number of
kilometers normally defined by the Employer the officer will be given an
overnight stopover.
. . .
Travel Directive of the
National Joint Council
3.2.9 Meals
A traveller shall be paid the applicable
meal allowance for each breakfast, lunch and dinner while on travel status.
Meal allowances shall be reimbursed in
accordance with the rates specified in Appendix C or D, as applicable.
. . .
Reimbursement of meals for shift workers
shall be based on the meal sequence of breakfast, lunch and dinner, in relation
to the commencement of the employee’s shift.
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