FPSLREB Decisions

I. Grievances referred to adjudication

1 In late fall 2001, two groups of grievances were filed by Hanson Chan, a customs inspector, and the other customs inspectors identified in the appendix of this decision (“the grievors”). The grievors were employed in the Commercial Operations Division of the Canada Customs and Revenue Agency at Toronto’s Pearson International Airport and worked a variable shift schedule. The grievors are represented by the Public Service Alliance of Canada (“the bargaining agent”). The first group of grievances alleged that the employer had violated the grievors’ rights under clause 30.06 of the collective agreement signed by the Canada Customs and Revenue Agency and the bargaining agent on June 23, 2000 (“the collective agreement”) by scheduling them to work on both December 25, 2001 and January 1, 2002. The grievors requested that the employer change the schedule so that one of those two days would become a day of rest. They also requested payment for one shift change. The second group of grievances, in which grievor Thomas Mahon did not participate, alleged that the employer had violated clauses 1.01, 1.02, 18.22, 25.16, 25.20 and 30.06 of the collective agreement by advising the grievors not to report for work on December 25, 2001. The grievors requested that the employer change their scheduled shifts to a day of rest and that an existing day of rest be rescheduled as a workday.

2 The relevant clauses of the collective agreement are as follows:

ARTICLE 1

PURPOSE AND SCOPE OF AGREEMENT

1.01       The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Alliance, and the employees and to set forth herein certain terms and conditions of employment for all employees of the Employer described in the certificates issues by the Public Services Staff Relations Board on:

• June 7, 1999, for the Program and Administrative Services Group.
• June 10, 1999, for the Technical Services Group.
• June 16, 1999, for the Operational Services Group.
• June 7, 1999, for the Education and Library Science Group.

1.02       The parties to this Agreement share a desire to improve the quality of the Public Service of Canada and to promote the well-being and increased efficiency of its employees to the end that the people of Canada will be well and efficiently served. Accordingly, they are determined to establish, within the framework provided by law, an effective working relationship at all levels of the Public Service in which members of the bargaining units are employed.

ARTICLE 2

INTERPRETATION AND DEFINITIONS

2.01 For the purpose of this Agreement:

…

“day of rest” in relation to a full-time employee, means a day other than a holiday on which that employee is not ordinarily required to perform the duties of his or her position other than by reason of the employee being on leave or absent from duty without permission (jour de repos)

…

“holiday” (jour férié) means:

(i)   the twenty-four (24)-hour period commencing at 00:01 hours of a day designated as a paid holiday in this Agreement,

…

ARTICLE 18

GRIEVANCE PROCEDURE

18.22 No person who is employed in a managerial or confidential capacity shall seek by intimidation, by threat of dismissal, or by any other kind of threat to cause an employee to abandon his or her grievance or refrain from exercising his or her right to present a grievance as provided in this Agreement.

…

ARTICLE 25

HOURS OF WORK

…

25.16 The Employer shall set up a master shift schedule for a fifty-six (56) day period, posted fifteen (15) days in advance, which will cover the normal requirements of the work area.

…

Shift Work

…

25.20

Sub-clauses (a) and (b) apply to the employees in the Program and Administration Services Group only. See alternate provisions for other employees.

(a)      An employee who is required to change his or her scheduled shift without receiving at least seven (7) days’ notice in advance of the starting time of such change in his or her scheduled shift, shall be paid for the first shift worked on the revised schedule at the rata of the time and one-half (1 1/2) for the first seven and one-half (7 1/2) hours and double time thereafter. Subsequent shifts worked on the revised schedule shall be paid for at straight time, subject to Article 28, Overtime.

…

ARTICLE 30

DESIGNATED PAID HOLIDAY

…

30.02 Subject to clause 30.03, the following days shall be designated paid holidays for employees:

(a) New Years’ Day,

…

(i)   Christmas Day,

…

30.05 Designated Holiday Coinciding With a Day of Rest

(a)     When a day designated as a holiday under clause 30.02 coincides with an employee’s day of rest, the holiday shall be moved to the first scheduled working day following the employee’s day of rest. When a day that is designated holiday is so moved to a day on which the employee is on leave with pay, that day shall count as a holiday and not as a day of leave.

…

Work Performed on a Designated Holiday

30.06  Where operational requirements permit, the Employer shall not schedule an employee to work both on December 25 and January 1 in the same holiday season.

…

3 The parties agreed that this decision would apply to all the grievances as long as the facts were the same for each of them.

4 On December 12, 2003, portions of the Canada Customs and Revenue Agency were transferred to the Canada Border Services Agency.

5 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

6 The hearing originally scheduled was postponed at the grievors’ request. The parties were not available for a hearing before February 2009.

7 The parties informed me that other grievances were also filed by the same grievors alleging that the employer’s request that the grievors work additional hours or apply for leave as a result of the change in the scheduled shifts contravenes the collective agreement. Those grievances are not before me but the issue is addressed in the companion decision Clarkson v. Treasury Board (Canada Border Services Agency), 2009 PSLRB 87.

II. Summary of the evidence

8 The parties agreed on the following statement of facts (Exhibit U-3):

…

1. At all the material time the grievors were employed as Customs Inspectors (PM-02) in Commercial Operations at Pearson International Airport.
2. The relevant collective agreement is the Program and Administrative Services collective agreement between the Canada Customs and Revenue Agency and the Public Service Alliance of Canada, signed on June 23, 2000 and expiring on October 31, 2000.
3. At the material time, the grievors worked a variable shift schedule arrangement (VSSA) which was approved by both the union and management. Employees working under a VSSA work 300 hours in each 56 day schedule. The grievors’ standard shift was 8.57 hours.
4. On or about October 27, 2001, the 56 day schedule was posted. The grievors became aware on or about November 13, 2001, that they were schedule to work both December 25^th and January 1^st in the same holiday season.
5. The grievors brought article 30.06 to management’s attention, and asked that the schedule be amended so that everyone could have either Christmas or New Years Day as a day of rest, without compromising operation requirements.
6. In response to the grievor’s proposal, management asked each grievor to choose which of December 25 or January 1 they preferred to be “H’ed” on.
7. As the grievors declined to make an election, management “H’ed” half of the grievors on December 25, and “H’ed” the other half on January 1. The grievors received compensation for 7.5 hours for the DPH on which they were “H’ed,” and were required to account for the remaining 1.07 hours in their shifts.
8. “H’ing” is the term used to describe situations in which management informs employees that their services are not required on a DPH. As such, these employees are instructed not to report for work on their scheduled shift, and are compensated for 7.5 hours.
9. The grievors, but for Mahon, each filed two grievances.
   
   

   a) The first set of grievances read as follows:

   I grieve that management violated my rights under section 30.06 of the collective agreement when they scheduled me to work both December 25, 2001 and January 1, 2002 in the same holiday season.

   And requested the following redress:

   That management change the schedule so that either Dec. 25^th or January 1 is a day of rest for my line schedule and shift change one of my days of rest excluding Dec. 25 and Jan. 1 so that a the end of the 56 day schedule it will balance.

   b) The second set of grievances read as follows:

   I grieve that management violated the terms and conditions of my employment under sections 1.01, 1.02, 18.22, 25.20 and 30.06 of the collective agreement when I was informed not to report for my scheduled shift on December 25, 2001.

   And requested the following redress:

   I request that management change my scheduled shift on December 25, 2001 to a day of rest. I request that management change an existing day of rest to a scheduled working day.

   [Sic throughout]

 

9 One of the grievors, Dianne Christine Farkas, testified on behalf of the grievors. Counsel for the employer called Wilson Doan as a witness.

10 Ms. Farkas is, and was at the time of the grievances, a customs inspector assigned to the Flexible Response Team in the Commercial Operations Division at Pearson International Airport. The Flexible Response Team is responsible for examining commercial aircraft and cargo that are targeted for inspection as flights arrive from abroad.

11 The other grievors, also members of the Flexible Response Team, are covered by the Variable Shift Scheduling Agreement – Local Agreement for Customs Inspectors – P.I.A. Commercial District – Secondary Cell (“the variable shift scheduling agreement”) (Exhibit E-1). Under the variable shift scheduling agreement, they work 5 days and have 3 days of rest, for a total of 300 hours per 8-week schedule. Their workday is 8.57 hours long. There are two shifts: one from 06:00 to 15:04, and one from 15:00 to 00:04.

12 Ms. Farkas indicated that, if a designated paid holiday falls on a day of rest, the first day back to work becomes the designated paid holiday. Persons working on a designated paid holiday are compensated at time and one-half for all hours worked up to the “regularly” scheduled hours in addition to the regular pay for the designated paid holiday.

13 Ms. Farkas testified that, before the events that started in November 2001, she had never been told not to report for work when she had been scheduled to work on a designated paid holiday. She worked on every designated paid holiday or a moved designated paid holiday.

14 Ms. Farkas indicated that, in late October 2001, the schedule (Exhibit U-5) that gave rise to the grievances was posted, 15 days in advance of taking effect on November 12, 2001. The weekly schedule (Exhibit U-5) indicated that she would be working on December 25. She was upset as it was not the first time that she had been scheduled to work both designated paid holidays, Christmas and New Year’s Day. She reviewed clause 30.06 of the collective agreement and sent an email (Exhibit U-6) on behalf of the Flexible Response Team to its superintendent, Geoffrey L. Holwell. In her email, she proposed that three team members be given the day off on each designated paid holiday and that the grievors be rescheduled to work on days when the crews would be at a minimum. Employees not scheduled to work on those designated paid holidays would have their holiday moved to the next working day.

15 Mr. Holwell turned the proposal down and indicated in an email to the grievors that they should choose which of the two designated paid holidays they wanted off. If an agreement could not be reached, he would then have to “H” each grievor on one of the two days. “H’ing” an employee meant placing an “H” on the schedule and advising the employee not to report to work that day. In other words, it meant changing the scheduled shift of an employee to paid leave on one of the two designated paid holidays.

16 Ms. Farkas and her colleagues did not reply to Mr. Howell’s request to choose a designated paid holiday. She considered that the proposal was not the proper remedy to the situation. She believed that the schedule should have indicated a day of rest on one of the designated paid holidays in question. She did not prefer one designated paid holiday to the other.

17 As a result of the grievors’ refusal to choose a designated paid holiday, the employer changed the grievors’ scheduled shifts to paid leave on one of the two designated paid holidays, and a new weekly schedule was posted (Exhibit U-5). Ms. Farkas was no longer scheduled to work on December 25, 2001. The schedule identified the grievors whose scheduled shifts had been changed to paid leave. The general feeling among the grievors was that, because they had raised the issue, the employer would now start changing their scheduled shifts to paid leave on designated paid holidays. It was the first time the employer had decided to change the grievors’ scheduled shifts to paid leave.

18 Ms. Farkas testified that, a couple of weeks after she had submitted the proposal on behalf of the Flexible Response Team, another superintendent confirmed that he had reacted publicly to the proposal by saying the following: “Just ‘H’ the bastards.”

19 Ms. Farkas testified that she was paid for 7.5 hours on December 25, 2001 and that she was told in an email that the remaining 1.07 hours (her scheduled shift was 8.57 hours) would either have to be made up or have to be covered by annual leave. She refused, and 1.07 hours were taken off her paycheque. She filed a grievance against the decision to deduct that amount from her paycheque. However, that grievance is not before me.

20  In cross-examination, Ms. Farkas confirmed that her position was classified at the PM-02 group and level at the relevant time. She confirmed that changing the scheduled shifts to paid leave is a practice that occurs on designated paid holidays and that, when an employee asks for that change, the person stays home, gets paid for 7.5 hours and requests annual leave for the period in excess of 7.5 hours. She confirmed that she could have asked the employer to stay home. Before 2001, the employer never requested changing scheduled shifts to paid leave.

21 Ms. Farkas confirmed that she had been upset at having been scheduled to work on both designated paid holidays and that she wanted to be properly scheduled. She confirmed that she did not work on December 25, 2001.

22 Ms. Farkas also confirmed that the proposal that she emailed to the employer (Exhibit U-6) was for half the Flexible Response Team to work on Christmas and half to work on New Year’s Day. She confirmed that that actually happened.

23 Reviewing the weekly work schedule (Exhibit U-5, page 3), Ms. Farkas confirmed that, when an employee’s scheduled shift is changed to paid leave, the designated paid holiday is not moved, and the employee gets paid for 7.5 hours. That person loses the extra compensation for working on a designated paid holiday.

24 Ms. Farkas confirmed that she was familiar with the variable shift scheduling agreement. The schedule provided for 5 days of work followed by 3 days off for a total of 300 hours over a 56-day period. The variable shift schedule was posted 15 days in advance of the period for which it was to apply.

25 Ms. Farkas explained that her colleagues who are not scheduled to work on a designated paid holiday have the designated paid holiday moved to the next scheduled shift and obtain compensation at time and one-half for all hours worked on the designated paid holiday in addition to 7.5 hours of pay for the designated paid holiday itself. Since she was told to stay home on Christmas, she lost the extra compensation. She felt that the loss occurred because she had been improperly scheduled.

26 With respect to the superintendent who made a disparaging remark, Ms. Farkas indicated that, although employees report to all superintendents, he was not her direct supervisor; she reported to Mr. Holwell.

27 In re-examination, Ms. Farkas indicated that, when she wanted a day off, she would ask for one, and that when she did so for December 27, 2001, she put in a request for 8.57 hours’ leave. As for December 25, she was directed either to request 1.07 hours’ leave or to work 1.07 hours at another time. She declined both options, and the employer deducted 1.07 hours from her regular pay.

28 In 2001, Mr. Doan was the chief of the Commercial Operations Division at Pearson International Airport. The Commercial Operations Division is responsible for the flow of goods into Canada. The Flexible Response Team handles aircraft searches and is also called on to assist with other operations.

29 Mr. Doan knows the grievors personally and has no concerns about how they perform their work. The members of the Flexible Response Team are seasoned, experienced and self-motivated employees. They work a rotation of five days of work and three days off, with day and afternoon shifts.

30 Mr. Doan first became aware of the grievors’ issue when Mr. Holwell brought it to his attention in mid-November 2001. Mr. Doan indicated that the work schedule is prepared automatically; the data is replicated time after time because the “5 and 3” schedule is already built into a master schedule. He added that the dates are modified to meet the collective agreement’s obligations and that the schedule is posted 15 days in advance of the period to which it will apply. From the time it is posted, managers make adjustments to the schedule based on employees’ leave requests, training and absences for sickness. The schedule is a live document.

31 Mr. Doan testified that the employer was open to accommodating additional leave requests depending on employees’ vacations. Employees may ask their scheduled shift to be changed to paid leave or request vacation or other types of leave.

32 Mr. Doan testified that Mr. Holwell came to him with the grievors’ request. He contacted someone at Staff Relations. Staff Relations reviewed the request and was prepared to authorize it but not to change the scheduled shifts to days of rest. The grievors were asked to choose either Christmas or New Year’s Day on which to work. The employer would accommodate the request with paid leave. The grievors refused to choose. The employer chose for them, and it told three of them to work on Christmas and three to work on New Year’s Day.

33 Mr. Doan indicated that he did not change the grievors’ scheduled shifts to days of rest because that would not have been financially responsible, as they would have then received a premium. He did not believe that it was necessary since it was a designated paid holiday and he was able to ask them to stay home. They would still receive 7.5 hours of pay for the designated paid holiday.

34 Mr. Doan made the decision to change the grievors’ scheduled shifts to paid leave, and it was not done to punish them.

35 Mr. Doan indicated that he had not seen the actual email from Ms. Farkas (Exhibit U-6) but that it contained the request to change the scheduled shifts to days of rest. He reiterated that it would not have been financially responsible to agree to that request.

36 In cross-examination, Mr. Doan confirmed that the 56-day schedule (Exhibit U-5) is prepared 15 days in advance of the period to which it will apply. He confirmed that, had Ms. Farkas not brought the issue to the employer’s attention, she would have been paid 7.5 hours of regular pay plus 8.57 hours at time and one-half for all hours worked on the designated paid holidays and double time for time worked in excess of those 8.57 hours. He also confirmed that, had her scheduled shift been changed to a day of rest, the designated paid holiday would have been moved to her next scheduled shift, and she would have received the same amount. He confirmed that, by changing her scheduled shift to paid leave, he paid her less. He indicated that turning a designated paid holiday into a day of rest was not a viable option. It was not the preferred option because he could change the grievors’ scheduled shifts to paid leave.

37 Mr. Doan confirmed that Ms. Farkas was initially scheduled to work on three designated paid holidays. He was not aware of the superintendent’s disparaging remarks.

III. Summary of the arguments

A. For the grievors

38 Counsel for the grievors indicated that this is a straightforward case. It was clear in the schedule (Exhibit U-5) that the grievors were scheduled to work on both Christmas and New Year’s Day. That was contrary to clause 30.06 of the collective agreement, which provides that “…the Employer shall not schedule an employee to work both December 25and January 1 in the same holiday season.”

39 When the issue was raised, the employer reacted by not rescheduling the grievors and by not giving them a day of rest. In fact, the employer continued to insist on scheduling them to work on both holidays. Changing the grievors’ scheduled shifts to paid leave does not comply with clause 30.06 of the collective agreement. The requirement under clause 30.06 is not to schedule employees to work on both December 25 and January 1. The solution proposed by the grievors (Exhibit U-6) would have been compliant with clause 30.06. There has been no evidence of operational requirements other than the claim that it was not financially responsible to accept the grievors’ proposal.

40 Counsel for the grievors argued that the uncontradicted evidence was that, when the employer scheduled the grievors, it was prepared to pay them 7.5 hours plus 8.57 hours at time and one-half. He noted that the employer, when it initially scheduled the grievors, was prepared to pay them that amount for the three designated paid holidays. When the issue was brought to the employer’s attention, it should have changed the schedule. Instead, the employer did not alter the schedule; it maintained the schedule and then changed the grievors’ scheduled shifts to paid leave. Had they been treated in accordance with clause 30.06 of the collective agreement, the grievors would have been given a day of rest on one of those days, and the designated paid holiday would have been moved to the next scheduled shift under clause 30.05. The cost would then have been identical. At no time did the employer base its refusal on operational requirements, nor was there any evidence that operational requirements prevented the employer from granting the request. Counsel for the grievors noted that, by changing the grievors’ scheduled shifts to paid leave, the employer paid them for only 7.5 hours and that it clawed back 1.07 hours.

41 In support of his arguments, counsel for the grievors cited Ladouceur v. Treasury Board (Department of National Defence), 2006 PSLRB 89, in which an adjudicator found useful the following quotation from Power v. Treasury Board (Transport Canada), PSSRB File No. 166-02-17064 (19880225): “… policies established unilaterally by the employer solely for financial reasons cannot be accepted as valid operational requirements if they have the effect of denying employees their rights under a collective agreement.”

42 Counsel for the grievors argued that, in this case, the unchallenged evidence was that one superintendent said the following: “Just ‘H’ the bastards.” In other words, the message to the grievors was that, if they wanted to exercise their rights, management would get them back. In effect, the collective agreement was breached because the grievors were scheduled to work on both Christmas and New Year’s Day. When the grievors asked to be given a day of rest instead of one of those two scheduled shifts, the employer refused and adopted a schedule that did not place the grievors in the position in which they should have been placed.

43 Counsel for the grievors seeks a declaration that the employer contravened the collective agreement and requests that the grievors be paid, in addition to 7.5 hours at regular pay, 1.07 hours at time and one-half. Counsel for the grievors abandoned the allegation that the employer failed to comply with clause 18.22 of the collective agreement.

B. For the employer

44 Counsel for the employer acknowledged that the initial schedule had the grievors working on both Christmas and New Year’s Day. Counsel for the employer argued that, when the grievors approached management, expressed their preference and cited clause 30.06 of the collective agreement, management attempted to accommodate them and amended the schedule so that each grievor would work only one of those days. Each grievor stayed home for one of those designated paid holidays and was paid pursuant to the collective agreement.

45 Counsel for the employer added that management was not required to amend the schedule to change scheduled shifts to days of rest because it is not required by the collective agreement. Contrary to Ms. Farkas’ assertion, there is no entitlement to work on a designated paid holiday. In fact, the reverse is true; the entitlement is not to work on a designated paid holiday. If an employee must work, he or she will be paid 7.5 hours at straight time and 1.07 hours at time and one-half. The jurisprudence bears this out, and the case law clearly states that there are no vested rights to work on a designated paid holiday.

46 Counsel for the employer argued that there was a fundamental flaw in the arguments from the grievors’ counsel as there is no clause requiring that either December 25 or January 1 be scheduled as a day of rest. Without such a clause, the grievances must fail.

47 Counsel for the employer asked me to examine the weekly schedule (Exhibit U-5) and pointed out that Ms. Farkas, along with four other grievors, had no shifts scheduled on December 25, 2001 and that the other grievors had no shifts scheduled on January 1, 2002.

48 Turning to the jurisprudence, counsel for the employer referred me to Bernhardt et al. v. Treasury Board (Revenue Canada – Customs and Excise), PSSRB File Nos. 166-02-18971 to 18976 (19891107), and indicated that changing the scheduled shifts to paid leave has not been challenged and that it was accepted.

49 Counsel for the employer also directed me to Toomey and Bygott v. Treasury Board (Transport Canada), PSSRB File Nos. 166-02-21925 and 21926 (19920424), in which the employees argued that they had a vested right to work on a designated paid holiday. An adjudicator found that the employer had the right to change the work schedule for operational reasons. Counsel for the employer argued that the grievors’ proposal implies that the first schedule forever binds the employer. That is a flaw in the arguments of counsel for the grievors and points to the conclusion in Toomey and Bygott that “[t]he entitlement to be paid at an overtime rate and to a lieu day of holiday arises under [the collective agreement] only if the employee actually works on a holiday.” As the grievors were not entitled to work on a designated paid holiday, the employer was not required to give them a day of rest.

50 Counsel for the employer argued that counsel for the grievors tried to engage the notion of operational requirements. However, the grievors’ scheduled shifts were changed to paid leave because they requested not to work on both designated paid holidays. Again, the grievors do not have a vested right to work on a designated paid holiday, and there is no binding agreement flowing from the schedule when initially posted.

51 Counsel for the employer turned to Guérin et al. v. House of Commons, PSSRB File No. 466-H-224 (19940518), and indicated that, as in this case, counsel for the grievors had argued that the employer simply could not assign any work on a designated paid holiday. An adjudicator rejected that proposal and referred to Empson v. Treasury Board (Department of National Revenue), PSSRB File No. 166-02-319 (19701026), where the same conclusion was drawn. Counsel for the employer argued that the entitlement was to a day of rest, not to the payment of a premium.

52 Counsel for the employer concluded by saying that the decision must be based on the language of the collective agreement and that the language does not contain a clause requiring that one of the designated paid holidays must become a day of rest.

C. Grievors’ rebuttal

53 Counsel for the grievors indicated that the decisions quoted by counsel for the employer dealt with whether the practice of changing scheduled shifts to paid leave was unlawful under the collective agreement. Those decisions dealt with the question of whether a shift schedule is a contractual obligation and whether employees have an unfettered right to work. That is not the case here.

54 Counsel for the grievors argued that this case is about clause 30.06 of the collective agreement and that the employer could not schedule shifts on both designated paid holidays without claiming operational requirements. Counsel for the employer did not advance any operational requirements. The employer changing the grievors’ scheduled shifts to paid leave is evidence that there were no operational requirements.

55 Counsel for the grievors argued that the grievors’ proposal was simple. He submitted that an employee’s scheduled shift could not be changed to paid leave unless that employee was legitimately scheduled to work on a designated paid holiday. The employer is not permitted to schedule employees to work on both December 25 and January 1 of the same holiday season. If the employee is not scheduled to work and is not on annual leave or on another type of leave, the employer has to place the employee on a day of rest. It cannot change the employee’s scheduled shift to paid leave. If the employer had scheduled shifts in a manner consistent with clause 30.06 of the collective agreement, the grievors would have been placed on days of rest on either Christmas or New Year’s Day. As a consequence, the designated paid holiday would have been moved to the grievors’ next shifts.

IV.Reasons

56 To address the issues at hand, it is important to note that the variable shift scheduling agreement requires the employer, under clause 103.04 of that agreement, to post the 56-day schedule not less than 15 days in advance of the period to which it applies to cover the normal workplace requirements. Clause 30.06 of the collective agreement provides that, where operational requirements permit, grievors will not be scheduled to work on both December 25 and January 1 in the same holiday season.

57 Since counsel for the employer submitted no evidence of any operational requirements justifying or explaining the original schedule, the only possible conclusion is that the employer failed to meet its obligations under the collective agreement when it scheduled the grievors to work on both December 25, 2001 and January 1, 2002.

58 Once reminded by the grievors of its obligation under the collective agreement, the employer corrected the situation in mid-December by amending the schedule and by providing the grievors with the benefit of not working one of the designated paid holidays by changing their scheduled shifts to paid leave or, in other words, by placing them on holiday status.

59 Counsel for the grievors contends that the employer should have changed their scheduled shifts to days of rest. However, the collective agreement defines a “day of rest” as a day, other than a holiday, on which an employee is not ordinarily required to perform the duties of his or her position and a “holiday” as the 24 hours of a day designated as a paid holiday. Since December 25 and January 1 are defined as designated paid holidays in clause 30.02 of the collective agreement, they cannot be days of rest. Not scheduling an employee to work on a designated paid holiday does not transform that holiday into a day of rest.

60 If the parties to the collective agreement had intended to provide that a designated paid holiday is considered a day of rest, they would have expressly provided so. The fact that clause 30.05 of the collective agreement provides for moving a designated paid holiday when it coincides with a day of rest further supports the view that the two concepts are mutually exclusive. Furthermore, the fact that clause 30.05 specifies that a moved designated paid holiday shall take precedence over an employee’s day of leave with pay is another example of a specific outcome provided in the collective agreement.

61 Consequently, I am of the view that the employer contravened the collective agreement when it scheduled the grievors to work both December 25 and January 1 during the same holiday season. However, the employer corrected the situation by amending the shift schedule in mid-December 2001 and by providing the grievors with the required holiday by not asking them to work on either Christmas or New Year’s Day. While the correction limited its liability, it did not absolve the employer of its failure to apply the collective agreement. I am also of the view that the employer has no obligation to transform a designated paid holiday into a day of rest. A designated paid holiday is a form of paid leave; it is not a day of rest.

62 For all of the above reasons, I make the following order:

V. Order

63 The first group of grievances, alleging that the employer violated the grievors’ rights under clause 30.06 of the collective agreement, is allowed to the extent that I declare that the employer failed to abide by clause 30.06 when it initially scheduled the grievors to work on both December 25, 2001 and January 1, 2002.

64 The second group of grievances is dismissed.

July 15, 2009.

Georges Nadeau,
adjudicator

APPENDIX

PSLRB File No.                                    Grievor

166-02-37624                               Hanson Chan

166-02-37625                               Hanson Chan

166-02-37626                               Dianne Christine Farkas

166-02-37627                               Dianne Christine Farkas

166-02-37628                               David Charles Freeborn

166-02-37629                               David Charles Freeborn

166-02-37630                               Glen Kawaguchi

166-02-37631                               Glen Kawaguchi

166-02-37632                               Danial Maehara

166-02-37633                               Danial Maehara

166-02-37634                               Thomas Mahon

166-02-37635                               William-Gerald Martin

166-02-37636                               William-Gerald Martin

166-02-37637                               Michal Stefan Walnicki

166-02-37638                               Michal Stefan Walnicki