FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Joy Hopkins (“the grievor”) filed a grievance alleging that the Correctional Service of Canada (“the employer”) violated clause 26.10 of the collective agreement signed by the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN for the Correctional Services Group bargaining unit (CX) on June 26, 2006 (“the collective agreement”). At the time of her grievance, the grievor was a correctional officer at Mountain Institution in Agassiz, British Columbia (“the institution”).

2 According to the grievor, the employer should have called her to work the night shift of March 25, 2008, while she was off work on an alternate statutory holiday. The grievor alleged that, by not calling her to offer her that shift, the employer violated clause 26.10 of the collective agreement, which reads as follows:

26.10 When the Employer requires the services of employees who are not required to report to work on a designated paid holiday, the Employer shall offer the work to those among them who are qualified and readily available, starting with the employee who, since the 1^st of April of each fiscal year, has worked the least number of hours on designated paid holidays.

For the purpose of clause 26.10, an employee who has refused to work hours offered to him or her will be deemed to have worked these hours.

II. Summary of the evidence

3 The parties produced nine documents in evidence. The grievor testified. She also called Mike Laycock as a witness. Mr. Laycock is a correctional officer at the institution. He is also the local union president at the institution. At the time of the grievance, he was a local union representative at the institution. The employer called Caralynn Morris and Aaron Billesberger as witnesses. Both were correctional managers at the institution at the time of the grievance.

4 As per clause 26.10 of the collective agreement, when the employer requires the services of additional correctional officers on a designated paid holiday, it offers the work to those officers not scheduled to work, being off work on the statutory holiday, and who are qualified and readily available to work. All witnesses agreed on that point. They also agreed that there is no difference for the purposes of this case between an officer off work on a statutory holiday or on an alternate statutory holiday.

5 On March 25, 26, 27 and 28, 2008, Ms. Hopkins was scheduled to work the night shift starting at 18:30 and ending at 07:15. However, on March 25, 2008, she was off work on a statutory holiday. As per the procedure in place at the institution, she had indicated ahead of time that she was available to work that day if the employer required the services of extra employees. According to that procedure, there is no indication of the shifts for which an employee is available to work on his or her statutory holiday.

6 On March 24, 2008, Ms. Morris was working the night shift. She was the correctional manager responsible for ensuring that a sufficient number of correctional officers would be present at work on the day shift the next day. After 17:40 that evening, she called Ms. Hopkins to offer her the day shift from 06:30 to 19:15 on March 25, 2008. Ms. Hopkins admitted that Ms. Morris left her a message, but by the time she received it later on the same day, she felt that there was no point calling back since Ms. Morris would have already found somebody. Ms. Morris noted that she had left a message for Ms. Hopkins.

7 On March 25, 2008, Mr. Billesberger was working the day shift. He was the correctional manager responsible for ensuring that a sufficient number of correctional officers would be present at work on the night shift, commencing at 18:30 that day. He saw Ms. Morris’ note that she had left a message for Ms. Hopkins on March 24, 2008 offering her work on the day shift. He believes that he spoke to Ms. Morris about that note, but he is no longer sure since it happened four years ago. At 14:30 on March 25, 2008, he received a phone call from an officer who booked sick for the night shift, then at 15:31 a phone call from another officer, who also booked sick for the same shift. Mr. Billesberger called an officer who was off work on his statutory holiday to replace the first officer who had called in sick. He called an officer on overtime to replace the second officer who had called in sick. He did not call Ms. Hopkins, who testified that she was available to work that 12.75-hour night shift. Mr. Billesberger assumed that Ms. Hopkins was not available to work that shift. Ms. Hopkins was qualified to work that shift.

III. Summary of the arguments

A. For the grievor

8 The collective agreement obliges the employer to first offer work to employees who are off work on their statutory holidays. On March 25, 2008, it violated the collective agreement by hiring an officer on overtime on the night shift rather than offering that shift to the grievor.

9 The grievor was off work on a statutory holiday on March 25, 2008. According to the procedure in place, she had indicated that she was available to work on that day. On March 24, 2008, she received a message from Ms. Morris offering her to work the day shift of March 25. However, by the time she received the message, it was too late, and she did not call back. The employer wrongly assumed that she was not available to work the night shift. The night shift needed to be staffed, and the grievor should have been offered that shift.

10 The grievor requested 12.75 hours at time and one-half for the missed night shift of March 25, 2008. She also requested reimbursement for the 4.75 hours that she had to work to pay back the difference between the 8-hour value of her statutory holiday and her 12.75-hour scheduled shift.

11 The grievor referred me to the following decisions: Saindon et al. v. Treasury Board (Solicitor General Canada – Correctional Service), 2002 PSSRB 73; and Purchase v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 66.

B. For the employer

12 The evidence shows that Ms. Morris left a message for the grievor offering her the day shift of March 25, 2008. The grievor did not call back. Based on that fact, the employer concluded that she was not available for the night shift. The employer has no obligation to continue to check if employees are available. One call is sufficient, and there is no obligation in the collective agreement to call more than once. If the employee does not call back, it is reasonable for the employer to conclude that he or she is not available.

13 The collective agreement does not guarantee specific shifts to employees but rather work offers on a priority basis. The grievor did not indicate her preference for the night shift over the day shift. By offering her a shift, the employer respected the collective agreement.

14 The grievor did not meet her burden of proving that the employer violated the collective agreement. Consequently, the grievance should be dismissed.

IV. Reasons

15 The facts of this case are quite simple. On March 25, 2008, the grievor was off work on a statutory holiday. She had indicated that she was available to work on that day. The employer called her on March 24 to work on the March 25 day shift. The grievor got the message a few hours later. She did not return the employer’s call since she believed it was too late. The employer assumed from her lack of response that the grievor was not available for the next shift either, namely, the May 25 night shift. The grievor testified that she was available for the night shift.

16 The employer does not question that work must be offered in priority to employees who are off work on their statutory holiday. On that point, clause 26.10 of the collective agreement is fairly clear, and it has been interpreted in Saindon et al. and in Purchase. Instead, the employer argued that it fulfilled its obligation by offering work to the grievor for the day shift and that it did not have to call her again for the night shift since she did not return its first call.

17 I do not agree that the employer fulfilled its obligation under clause 26.10 of the collective agreement. It could not have concluded that, since the grievor did not return Ms. Morris’ call of March 24 offering her the March 25 day shift, she was not available to work overtime on the night shift of March 25. Ms. Morris’ call was for the day shift and not for the night shift. Mr. Billesberger, who did the roll call for the night shift, should have called the grievor and offered her that shift. Ms. Morris left a message for the grievor in the evening of March 24, 2008 after 17:40. Mr. Billesberger learned at 14:30 and at 15:31 on March 25 that he would need replacements for officers who had called in sick. He had plenty of time to call the grievor to offer her the night shift starting at 18:30 on March 25. By choosing not to and by wrongly assuming that the grievor was not available for that shift, Mr. Billesberger violated the collective agreement.

18 There were no arguments made by the parties on the interaction between the two paragraphs of clause 26.10 of the collective agreement, but those might need to be looked at. Even if the second paragraph of clause 26.10 states that an employee who refuses work is deemed to have worked those hours, I believe that the employer ought to have treated each shift separately for the purpose of those work offers. It was not reasonable for the employer to assume that Ms. Hopkins was not available to work the night shift based on the fact that she did not return Ms. Morris’ call for the day shift offer. The second paragraph of clause 26.10 is there for the purpose of compiling hours worked since, in the first paragraph, it states that the work offer is done on the basis of the hours worked on designated paid holidays during the fiscal year.

19 According to the procedure in place, the grievor was not required to indicate the shifts for which she was available to work on March 25, 2008. Given that fact, the employer had to accept that she was available to work on any of the two shifts. It could not have concluded that she was not available for the night shift based on her lack of availability for the day shift.

20 The employer stated that one phone call to offer work is sufficient. I agree, but that single phone call must be applied for each shift to be worked. I do not find it reasonable for the employer to assume that an employee is not available for a subsequent shift because he or she did not return its call for a previous shift.

21 The grievor requested payment for her lost shift. I agree with her claim since the employer violated the collective agreement. The grievor also requested reimbursement for the 4.75 hours that she had to work or to pay back for the difference between the 8-hour value of her statutory holiday and her 12.75-hour scheduled shift. I do not agree with that claim. Those 4.75 hours represent the difference between the value of a designated paid holiday and the number of hours of her scheduled shift. That reimbursement must occur whether or not an employee works on a designated paid holiday. The grievor did not present anything to convince me of the correctness of her claim.

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

V. Order

23 The grievance is allowed.

24 I order the employer to pay the grievor the March 25, 2008 night shift as if she had worked it, including any premiums that she would have earned for doing so.

25 I remain seized of this matter for 30 days, should the parties be unable to agree on the amounts owed to the grievor.

April 24, 2012.

Renaud Paquet,
adjudicator