FPSLREB Decisions

Individual grievance referred to adjudication

1 On July 10, 2007, Terry Casper (“the grievor”) filed a grievance about a denied overtime opportunity. He alleged a breach of clause 28.05(a) of the collective agreement between the Treasury Board and the Public Service Alliance of Canada (PSAC) for the Program and Administrative Services Group (expiry date June 20, 2007; “the collective agreement”). The Department of Citizenship and Immigration (“the employer”) stated that he was not eligible for the overtime in question.

2 The two questions before me are as follows:

1. Did the employer breach clause 28.05(a) of the collective agreement and deny the grievor the opportunity to work overtime?
2. If so, what is the appropriate remedy?

3 I find that the grievor was eligible for the overtime and that the employer breached clause 28.05(a) of the collective agreement when it denied him that overtime. My reasons follow, along with my order.

The collective agreement provision

4 Clause 28.05(a) of the collective agreement reads as follows:

28.05 Assignment of Overtime Work

(a) Subject to the operational requirements, the Employer shall make every reasonable effort to avoid excessive overtime and to offer overtime work on an equitable basis among readily available qualified employees.

5 The dispute between the parties is about the words, “qualified employees.”

Positions of the parties

6 The grievor’s grievance and requested corrective action, dated July 10, 2007, read as follows:

I grieve management’s failure to comply with clause 28.05(a) of the collective agreement by denying my right to work overtime.

Corrective action:

That I be compensated financially for all overtime that I was not afforded an opportunity to work.

That I be given a written apology for not allowing me to have overtime opportunities.

That I be made whole.

7 The PSAC and the grievor assert that the employer is attempting, by policy or practice, to add additional qualifications to overtime eligibility so as to restrict the right of employees to work overtime. They rely on MacAdams v. Treasury Board (National Defence), PSSRB File No. 166-02-26601 (19951127), for the proposition that clause 28.05(a) of the collective agreement applies to all employees in the bargaining unit. The employer cannot arbitrarily restrict overtime to a small group of employees.

8 The employer disputes the grievance, arguing that the grievor was not an employee of the specific group that was offered the overtime. The employer’s letter of July 6, 2009, denying the grievance, gives the following reasons for denying the overtime:

In reviewing the information presented in your grievance presentation form, I find that management has the right to determine if overtime hours are required in order to meet operational requirements. Management offered overtime only to Team J members for the sole purpose of processing the inventory of white mail. It is my understanding that you are a Service Delivery Specialist and were a member of Team I at the time and the offer to work overtime was restricted to members of Team J. As Team J members are the only employees dedicated to the processing of white mail at the Case Processing Centre, I find it was reasonable for management to restrict the offering of overtime to members of Team J.

The events

9 From the evidence, I conclude the following about the factual events. The grievor is a service delivery specialist (classified PM-03) at the Case Processing Centre (“the Centre”) in Vegreville, Alberta. The Centre deals with applications for permanent and temporary residency. The employer organizes the workplace into teams.

10 The grievor has over 10 years of service and has progressed from the PM-02 group and level to the PM-03 group and level. He has done the work (either during regular hours or on overtime) of the clerical and regulatory group (CR-03 and CR-05 groups and levels) and the program administration group (PM‑02, PM-03 and PM-04 groups and levels). He is a member of “Team I.” He has processed “white mail” (incoming mail) and felt comfortable that he was able to handle the overtime work.

11 Normally, employees are made aware of overtime opportunities at the Centre when management circulates an email or a memo and team leaders post an overtime signup sheet outside their offices. On June 19, 2007, the grievor became aware of an overtime opportunity originating from another work team, “Team J,” and posted only to that team. He went to see the Team J team leader, Shelley Thostenson. The signup sheets were in her office, not posted outside. He signed up for the overtime. Later, after not hearing anything about the overtime, he spoke to Ms. Thostenson. She told him she felt she had been unable to authorize the overtime for him because he was not a member of Team J and because she was not aware of his production standards (another employer policy in effect at that time that affected the eligibility to work overtime). She referred him to his own team leader. By the end of that day, he did not have an answer and did not work the overtime. He took the employer’s silence as a refusal for the overtime for which he felt he was qualified.

12 Employees on Team J are classified at the CR-03 group and level. Someone from that team worked the overtime. This was the only time Team J was exclusively offered overtime. Team J typically does clerical work to provide support to seven operations teams. They process all “bring-forward” (BF) lists, white mail and return mail and follow up on security requests. The overtime was for work typically done by Team J members and was offered only to Team J employees. White mail was significantly backlogged, and management determined Team J employees should be offered the opportunity to work overtime to clear it.

13 Team J employees receive five days of training, covering mailroom processes, filing systems, BF lists, white mail processes and communications with security offices. They also receive training on specific Team J duties. After the training, Team J employees receive one week of mentoring.

14 The Centre has changed its handling of white mail over the years. The grievor, Louise Hicks and Carol Yates are all members of operations teams who have never been on Team J and have never received the five days of training specific to Team J. However, each has processed white mail from time to time as part of their duties and on overtime.

Reasons

15 Clause 28.05(a) of the collective agreement states the employer must offer overtime work to readily available qualified employees. The difference between the parties centres on whether the grievor was qualified to do the work in question.

16 I find the evidence confirms that, on a balance of probabilities, the grievor was qualified to do the overtime work of processing white mail. He had done the work before. I did not find any special or unique aspects of the overtime work or required skills that would preclude other employees from outside Team J from doing the work. Similarly, the evidence about the training program did not demonstrate a requirement for special or unique skills or knowledge about processing white mail that could be acquired only by taking the training. I find it more likely that an employee with long service and varied work experience like the grievor’s would know how the employer processes white mail.

17 When the grievor signed up to work the overtime, he demonstrated he was readily available. Before rejecting his offer to work, the employer had an obligation to determine whether he was qualified to perform the overtime work. The employer did not make that determination. Instead, it rejected him because he was not a member of the team being offered the overtime. It acted arbitrarily by assuming that the grievor, since he was not a member of Team J, could not be qualified to work the overtime. In doing so, the employer breached clause 28.05(a) of the collective agreement.

Remedy

18 Turning to the appropriate remedy, I find the grievor is entitled to the payment he would have received had he worked the overtime for the one shift in July 2007. This is not an appropriate case for an apology or other remedy. Nothing in the evidence suggests that the employer’s actions were more than a misinterpretation or misapplication of the collective agreement.

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

Order

20 The grievance is granted.

21 I declare the employer breached clause 28.05(a) of the collective agreement by refusing to allow the grievor to work the overtime. The grievor is entitled to payment for the one overtime shift he was not allowed to work.

February 25, 2011.

Deborah M. Howes,
adjudicator