FPSLREB Decisions

Heard at Abbottsford, British Columbia,
October 7 and 8, 2014.

REASONS FOR DECISION

 I. Individual grievance referred to adjudication

1         On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

2        The grievor, Gordon Denboer, filed a grievance with the Correctional Service of Canada (“the employer”) dated March 8, 2010, for the payment of shift premiums as per article 25 of the collective agreement that he alleges was wrongly denied. The employer had denied him the shift premiums on the basis that it considered him a dayworker who occupied what it referred to as a 250-day post, which position was not funded for shift premium. The bargaining agent representing him, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN), referred the grievance to the former Board on June 30, 2010.

II. Summary of the evidence

3        The grievor testified that he is a correctional officer (classified CX-2) at Mountain Institution (“the institution”), a medium-security institution in Agassiz, British Columbia, which accommodates about 450 inmates in a living-unit environment.

4        The grievor, depending on the time of year, was assigned to a mix of duties. From about May to early October, he was assigned to a “work-release program”, which involved escorting a work gang of inmates to a local community where they cut grass in a local cemetery and generally tidied up around the headstones. This work was performed two to three days a week beginning at 06:30 and ended at 14:30, Monday to Friday, with Saturdays and Sundays as days of rest.

5         In 2008, the grievor was also assigned to an Admissions and Discharge (A&D) position. During the time that the work-release program operated, the grievor worked in A&D from 08:00 to 16:00 or 17:00 and during the time that the work release program did not operate, he worked solely in A&D from 12:00 to 20:00, also on a Monday to Friday basis.

6        The grievor testified that Correctional Manager of Operations (CMO) Mark Bussey approached him with that offer of duties, which he acknowledged involved hours of work that were different hours from the hours typically worked in the institution by CX’s.  It was acknowledged that this work would attract additional compensation because a portion of the working hours meant that a shift premium was payable for hours worked after 15:00 each day. CMO Bussey proposed that the grievor work from 13:00 to 21:00. The grievor countered with 12:00 to 20:00, which they agreed to. The work accommodated late admissions to the institution as well as returning court attendees and temporary detainees.

7        According to the grievor, the change in hours to the ones he proposed was not related to any work-based accommodation that he might need and was simply an agreement to which they came.

8        The grievor commented on the different shifts at the institution. Twelve-hour shifts begin at staggered times in the morning and again in the evening and are scheduled such that employees work seven days on then four days off followed by seven days on then three days off (“7/3 - 7/4”) or six days on then four days off followed by six days on then five days off (“6/4 - 6/5”). There is also a “5/2” shift, which is an eight-hour day, Monday to Friday (06:30 to 15:30), with Saturday and Sundays off.

9        The work-release program operates from May to October, two or three days per week between the hours of 08:00 and 16:00, with the inmates having breakfast at 07:00, leaving for their work-gang assignment, and returning to the institution by 14:30. The work is not designed to incur overtime, although the return time sometimes fluctuates.

10        When he was asked to consider the A&D position, the grievor testified that one of the most important issues for him was the premium for part of the shift. It would have amounted to about $120 per month and would have helped with the extra costs associated with making alternate arrangements for family obligations.

11        The grievor initially received the shift premium while working 12:00 to 20:00  in A&D, but the employer discontinued it without notice. When he realized that he was no longer receiving it, he approached Jody Martin, the correctional manager, scheduling, and was informed that he was no longer entitled to it. The grievor had not been informed in advance of the decision to cease paying the premium and was advised to grieve to have it reinstated.

12        The grievor testified that he was again paid a shift premium from early 2009 until November 2009, when it stopped. When he began receiving it again a couple of months later, it confused him, and he then pointed it out. He was told not to worry about it. In early 2010, the payments stopped once again, and the grievor filed the grievance presently before me, asking to have the premiums paid once again as of November 2009.

13         In accordance with the former Board’s Regulations and Rules of Procedure, the employer advised the former Board in July of 2010 that no formal response to his grievance had been provided.

14        Despite this, an email dated January 15, 2013, was tendered in evidence as Exhibit 6, which email from CaraLynn Morris, A/Correctional Manager Operations, states “Find below a snippet of my initial response wording from March 17 2010”. The “snippet” then states as follows:

In accordance with the Collective Agreement article 25.01 you are to receive a shift premium of $2.00 per hour “For all hours worked, including overtime, between 3:00 Pm and 7:00 Am.”

Your present shifts are typically from 12:00-20:00 hours.

The shift premium is designed to compensate officers who work outside of the normal work day.

Your grievance is therefore upheld and your pay will be adjusted retroactively to when your shift premiums were ceased.

Exhibit 7 is an email from Ms. Morris to the grievor also dated January 15, 2013 stating the following:

          Dated Tuesday January 15, 2013

          Subject: Grievance Response

          On April 29, 2010 I received an email indicating that a referral to second and third level had been received for this grievance. Meanwhile since March 17 2010 when my response was initially drafted, I had forwarded my draft to K. Wilson, T Nichol, Sue Langer for comments and approval by RHQ. Still waiting for a response from them – I had been directed forward my response for their approval before presenting.

[The attachment to the email reads as follows:]

          FirstLevelGrievanceReport

DenBoer- File# 41363(2010) Mountain Institution

DetailsofGrievance:

You have been assigned to A&D as urinalysis collection/A&D officer since October 2008. In approximately November 2008 you commenced a schedule on a rotating or irregular basis, in which during winter months typically requires you to work outside of regular working hours, specifically 12:00 - 20:00 hours, and day shift during months of good weather for work release projects. On 2010/03/08 you became aware that you ceased being compensated for shift premiums in accordance with the collective agreement.

          Corrective Action Requested

The corrective action requested is as follows:

Re-imbursement of shift premiums retroactively from November 2009.

Management’s Position

In accordance with the Collective Agreement 25.01 officers are entitled to receive a shift premium of $2.00 per hour, “For all hours worked, including overtime hours, between 3:00 Pm and 7 AM.”

Analysis and Recommendation

You have previously received shift premiums for your present shifts, which are typically scheduled from 12:00-20:00 hours. You do vary your hours to daytime hours in order to facilitate work releases and other assignments as they arise from time to time.

The shift premium is designed to compensate officers who working hours outside of the normal work day. Since November 2009 you ceased receiving your shift premiums, contrary to the collective agreement.

Your grievance is therefore upheld and your pay will be adjusted retroactively to when your shift premiums were ceased.

[Sic throughout]

15        Exhibit 10 purports to be a first level grievance response dated March 29, 2010 and contains a handwritten indication that a copy of the response was provided to the grievor on June 29, 2010. At first, the grievance response mirrors the first level grievance report attached to Exhibit 7. However, the conclusion is different from that set out in Exhibit 7. This grievance response concludes that since November of 2009 the grievor had ceased receiving premiums because he was not working with the work-release program and therefore was working hours that were neither rotating nor irregular. It indicated that a return to shift work hours which rotated or were irregular would result in a return to payment of the shift premium.

16        It should be noted at this stage that article 25 of the collective agreement is entitled “Shift Premiums” but is divided into two parts: clause 25.01 sets out the conditions for the payment of a shift premium while clause 25.02 sets out the conditions for the payment of a weekend premium. Although the focus of the present case was on clause 25.01, given that the grievor worked Monday to Friday, I find that both the employer and the grievor, in the grievance and the replies to the grievance, used the word “premiums”.  I therefore find that the grievor’s entitlement to the premiums enumerated in article 25 of the collective agreement is in issue, even if no evidence was lead regarding any weekend work performed by the grievor during the period in question. 

17        The grievor ceased working 12:00-to-20:00 in A&D at the end of 2012.

18        The next witness, Shawn Rispin, a CX-1 at the institution since 2002, has worked with the grievor in A&D since 2008. Mr. Rispin corroborated that in the summer, the grievor’s hours of work were from 08:00 to 16:00 or 17:00; otherwise, he worked from 12:00 to 20:00. Mr. Rispin was not aware of whether the grievor asked to be accommodated in an 08:00-16:00 position. Mr. Rispin’s hours in A&D are from 06:30 to 14:30, and they do not change.

19        Jason Denham is currently a CX-4 and is the regional senior projects officer at Kent Institution, also in Agassiz. From 2007 until 2012, he was a correctional manager (CM), scheduling and deployment, at the institution. The responsibilities of the position included supervising a living unit and its employees.

20        The grievor was an employee in an A&D/Urinalysis position. He worked 250 days a year (261-11 = 250) on a Monday-to-Friday shift, which was considered working a “250-day post”. Funding for a 250-day post does not include shift premiums. The employer’s national headquarters approved the shift. No other employee worked a 12:00 to 20:00 shift at the institution.

21        In A&D, all shifts are Monday to Friday and involved 250-day posts, based on funding from National Headquarters.

22        The grievor’s shift was from 12:00 to 20:00.

23        Mr. Bussey is currently an acting warden at the institution and was a correctional manager there from 2003 until December 2009. He was the supervisor responsible for the work the grievor performed in A&D as well as in the work-release position.

24        He testified that he became aware of a personal situation that the grievor was involved in. He then discussed the work-release position with the grievor and approved the 12:00 to 20:00 shift.

25        His recollection of his conversation with the grievor about his offer of the A&D position and of paying a shift premium were vague, but he stated that he did think that someone working to 20:00 would receive a shift premium and said as much to the grievor.

26        Later on, C.M. Scheduling Trudy Nichol, contacted Mr. Bussey and questioned him about the grievor’s status. Specifically, he was asked whether the grievor was a day worker or a shift worker. After that, Mr. Bussey spoke with a labour relations officer, who determined that the grievor was a day worker and that Mr. Bussey had erred when he assured him that he would receive a shift premium.

27        Jody Martin has been a CM since 2010 and a CX-4 since 2009. In 2009, the witness was a CM of scheduling and knew the grievor. The witness was notified that the grievor was not entitled to receive a shift premium and so had a conversation with him in February or March of 2009. CM Martin told the grievor that he occupied a 250-day post, which was not funded for a shift premium.

III. Relevant provisions of the collective agreement

28        The issue is whether the grievor was entitled to a shift premium. For that to be true, two conditions had to be met: he had to work shifts, and he had to work before 08:00 or after 15:00.

29        The collective agreement between the Treasury Board and the Union of Canadian Correctional Officers with an expiry date of 31 May 2010, (“the collective agreement”) defines “hours of work” at clause 21.02 and “shift premium” at clause 25.01 as follows:

Hours of Work

Day Work

          21.01  When hours of work are scheduled for employees on a regular basis, they shall be scheduled so that employees:

(a) on a weekly basis, work forty (40) hours and five (5) days per week, and obtain two consecutive days of rest,

(b) on a daily basis, work an average of eight (8) hours per day.

Shift Work

21.02  When hours of work are scheduled for employees on a rotating or regular [sic] basis:

(a) they shall be scheduled so that employees:

(i) on a weekly basis, work an average of forty (40) hours,

and

(ii) on a daily basis, work eight decimal 5 (8.5) hours per day.

...

25.01 Shift Premium

An employee working on shifts will receive a shift premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, between 3:00 p.m. and 7:00 a.m. The shift premium will not be paid for hours worked between 7:00 a.m. and 3:00 p.m.

30        The employer noted that the copy of the collective agreement tendered in evidence contained an error at clause 21.02, in which the word “regular” appears rather than the correct word, which is “irregular”. The French version uses the word “irrégulier”, which translates to “irregular”. The online version of the collective agreement has been amended to read “irregular”, and copies of it in booklet form have been amended as well. This was pointed out at the hearing, and it was understood that the documents tabled as exhibits had conflicting language.

IV. Summary of the arguments

A. For the grievor

31        According to the bargaining agent, there are two issues: either the grievor was entitled to a shift premium in accordance with the terms of his collective agreement, or, in the alternative, the doctrine of promissory estoppel applied and entitled him to this same premium.

32        For the duration of the grievor’s assignment involving A&D work from 12:00 to 20:00, he met the first criterion of the shift definition. A rotation was involved since his hours of work changed from 08:00 to 16:00 to 12:00 to 20:00 both seasonally and, in the summer months, within the same week.

33        The second criterion was also met. The employer, as only it can do, imposed the new schedule. It required the grievor to work into the evening; as a result, he was entitled to be paid a shift premium for hours worked beyond 15:00.

34        In addition, the bargaining agent argued that the doctrine of promissory estoppel applied. The employer told the grievor that he would receive a shift premium, which it paid for a time and then stopped paying but then reinstated before finally stopping permanently.

35        The grievor acted on the promise of a shift premium being paid.

36        The grievor’s representative referred me to the following cases: Barnes & Solowich v. Treasury Board (Ministry of Transport), PSSRB File Nos. 166-2-1828-9 (19750602), Samborsky v. Treasury Board (Solicitor General Canada- Correctional Service), PSSRB File No. 166-2-19803 to 19805 (19900827), Samborsky v. Smiley et al., PSSRB File No. 161-2-585 (19910328), Cooper v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 38, Kullar v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 3. The bargaining agent also referred me to the definition of “day work” contained in Gérard Dion’s Dictionnaire canadien des relations de travail, 2^nd edition, Les Presses de l’Université de Laval, 1986 and to the following chapters from Brown & Beatty, Labour Arbitration: 2:3128, 4:2100, 4:2110, 4:2120,4:2130, 4:2200, 4:2210 and 4:2300.

B. For the employer

37        The employer stated that the grievor had the burden of establishing that he was entitled to receive the shift premium.

38        The employer asked me to examine the language of the collective agreement and to give it its normal interpretation.

39        The employer referred me to several cases and encouraged me to follow the collective agreement’s wording and find in its favour. The cases included Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 at para. 27, which states as follows: “... a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement ...”. Communications, Energy and Paperworkers Union of Canada v. Irving Pulp & Paper Ltd., 2002 NBCA 30, states as follows at paragraph 10: “... arbitrators have generally assumed that the provision in question should be construed in its normal or ordinary sense unless the interpretation would lead to an absurdity or inconsistency with other provisions of the collective agreement ...”. Finally, it referred to Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at para. 51, which states as follows: “... I am obligated to determine the true intent of the parties when they entered into the collective agreement. To do that I must use the ordinary meaning of the words used by the parties.”

40        Clauses 21.01 and 21.02 of the collective agreement deal with day work and shift work and identify that only two types of work are covered by the collective agreement. One is five days per week (day work), and the other is rotational work (shift work).

41        The employer referred me to Gardiner v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 128 at para. 37, which states the following: “... the words ‘working on shifts’ have to be given some meaning” and Appleton et al. v. Treasury Board (Department of National Defence), 2006 PSLRB 83 at para. 20, states as follows:

... I am persuaded that the focus should not be on the word “shift” but on the phrase “working on shifts” ... Surely all employees are not “working on shifts” within the context of the collective agreement such as to warrant a shift premium for all who happen to work half an hour to an hour before 8:00 a.m. What is the additional substantial burden on an employee’s life, in these situations, such as to warrant extra pay by way of a shift premium?

42        The grievor’s work schedule did not meet the requirements of the “shift” definition and therefore could not entitle him to a shift premium.

43        The employer pointed out that the approved schedule was for a 250-day post and that its funding did not include a shift premium because it was day work.

44        On estoppel, the employer argued that it can apply only to the parties to the collective agreement and not between individual managers and employees.

45        The employer also referred me to Johnston et al. v. Canadian Food Inspection Agency, 2010 PSLRB 47, Canada (Attorney General) v. Lamothe, 2008 FC 411, Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (QL), DHL Express (Canada) Ltd. v. C.A.W.-Canada, Locs. 4215, 144 & 4278, [2004] C.L.A.D. No. 613 (QL), Katchin and Piotrowski v. Canadian Food Inspection Agency, 2011 PSLRB 70, Palmer v. Treasury Board (Department of National Defence), 2005 PSLRB 34, Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93, Rook v. Canada (Treasury Board), 2004 PSSRB 146, Singleton and Duplessis v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 97 and Stevens et al. v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 34.

46        The employer also argued that in the event that I allowed the grievance, the Federal Court of Appeal’s decision in Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 applied to limit the grievor’s remedy.

C. The grievor’s reply

47        The grievor reiterated that an irregular shift occurred that the employer imposed, and therefore, he should have been paid a shift premium.

48        Employees can work a normal workday, approximately between 08:00 and 16:00. If they work regularly outside those hours, the collective agreement provides compensation. That reasoning should be applied in this case.

49        The issue of a position being funded as a 250-day post with no shift premium included in that funding is an employer exercise and is not governed by the collective agreement.

50        On estoppel, the grievor stated that the employer’s representative, Mr. Bussey, approved the shift and that he had the required authority.

51        On the issue of remedy and the impact of the doctrine in Coallier, the grievor referred me to Brown & Beatty, Canadian Labour Arbitration, Canada Law Book, Fourth Edition, 2:3128 on Time Limits and to the former Board’s decision in Kullar v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 3.

V. Reasons

52        Parties to a collective agreement, when they negotiate its terms, attempt to define certain benefits, rights, and working conditions and in so doing try to avoid disagreements. However, agreement is not always possible and in this case, the parties disagree over whether or not the work performed by the grievor for a finite period in A&D should involve the payment of a shift premium.

53        It is trite law, as argued by the employer and embodied in Wamboldt, that a benefit involving a monetary cost to the employer must be clearly and expressly granted under the collective agreement. The collective agreement in issue clearly includes the right to a shift premium for shift workers whose hours of work are between 3:00 p.m. and 7:00 a.m. While it may not be clear in this particular case whether the grievor is a shift worker or not, the fact that he would be entitled to the shift premium in the event that he is a shift worker is not at issue. As the employer pointed out in its argument, there are only two kinds of work covered by the collective agreement, day work and shift work.

54        The starting point of my determination must therefore begin with the collective agreement and any definitions of these terms. Clause 21.02 does not define what a day worker is but rather states that “when hours of work are scheduled...on a regular basis” the employer must schedule that employee so that they work 40 hours over a 5-day workweek and 8.5 hours per day.  Aside from the weekly and daily totals regarding hours, it appears that the day worker is defined, at least for the purposes of clause 21.02, as an employee whose hours of work have some regularity.

55        Clause 21.02 is entitled “Shift Work” and, similarly to clause 21.01, provides that “when hours of work are scheduled...on a rotating or irregular basis”, the employer must schedule that employee so that their hours of work average 40 hours per week and 8.5 hours per day.     As for a day worker, it appears that the collective agreement distinguishes a shift worker by the fact that he or she works irregular or rotating hours.

56        While the jurisprudence is clear to the effect that a collective agreement provision should be construed in its normal or ordinary sense unless the interpretation would lead to an absurdity or inconsistency, I find that given the language of the collective agreement and its paucity of precision on the meaning of the words regular, irregular and rotating, this is not possible in this case.  I find that there is an ambiguity in the collective agreement with respect to whether to classify the work at issue as day or shift work.

57        If I were to accept that the distinction between a day worker and a shift worker is based exclusively on the regularity of their hours alone such as that word is normally understood, such a distinction would lead to an absurdity. For example, an employee who works from Monday to Friday but works only from 10:00 p.m. to 6:30 a.m. works with regularity but cannot, in the normal sense of the word, be referred to as a dayworker.

58        The collective agreement definitions provided for day and shift work can each be applied in some measure to the grievor’s case:  the A&D work takes place over the standard five day workweek for eight hours per day (clause 21.01) but it also can be said to be irregular in that it changes from day to day during the summer months and seasonally as well to suit the employer’s needs (clause 21.02). In addition, the hours worked are not those that normally attach to day work given the grievor’s start and finish times for his A&D work. Although clause 21 does not set out any period of hours that attaches to daywork (ie between the hours of 7:00 a.m. and 6:00 p.m.) as per Treasury Board’s policy entitled “Additions to Basic Pay”, the hours of the A&D work do not fit within the hours normally worked by employees who work what can be referred to as a typical workweek ie. the usual 9-5 workday. It appears that even the employer was confused as to how to define the grievor and that on an ordinary reading of the collective agreement, the grievor is betwixt and between.  I therefore find that I must look elsewhere than the collective agreement itself in order to assist in classifying the grievor as either a day worker or shift worker.

59        Exhibit 4 is a Treasury Board policy entitled “Additions to Basic Pay” which indicates that it was last modified in November 1993.  Its stated purpose is to provide more detailed information on some of the allowances and other factors that result in additions to basic pay.  Part 4 of the document is entitled “Extra duty pay input codes” and 4.2 provides several definitions, one of which is the definition of “Schedule or shift change premium”. The definition of “Schedule or shift change premium” indicates that this is compensation payable to “an employee on day work (Monday to Friday incl. and between the hours of 7:00 a.m. and 6:00 p.m.)” when a change to their scheduled hours of work is made without providing sufficient advance notice. The definition goes on to say that the compensation is payable “for the first day or shift worked on the new schedule”, clearly indicating that this definition applies to both shift workers and day workers.  It implicitly recognizes that shift workers can and do work shifts that roughly coincide with hours worked by day workers. What is notable about this definition is the indication that day work is work performed on a Monday to Friday basis between the hours of 7 a.m. and 6 p.m.  

60        Exhibit 5 contains a document entitled “Shift Premium-Information Notice” and published by the Treasury Board Secretariat in November of 2002. The purpose of the notice is to “provide details regarding the eligibility of shift premium to be paid in accordance with the four (4) collective agreements between the Public Service Alliance of Canada and the Treasury Board signed on November 19, 2001”. It is to be noted that the PSAC had, at the time that Exhibit 5 was published, lost its certification of the CX bargaining unit, meaning that this notice does not refer directly to the CX collective agreement. That being said, the notice states that the shift premium article (which applied to hours worked between 4:00 p.m. and 8:00 a.m in the collective agreements that are the subject of the notice) “applies to all non-day workers whether the shift schedule is regular, rotational or variable. It is the time-frame of the regularly-scheduled period of work that determines whether or not a premium is payable”. It goes on to say that an employee covered by the PA collective agreement who works Monday to Friday from 3:00 p.m. to 11:00 p.m. would be paid the premium for the hours worked between 4:00 p.m. and 11:00 p.m.

61        While Exhibits 4 and 5 are not determinative of the issue before me, they nonetheless provide support for the bargaining agent’s position in this case as they indicate that for the employer, a dayworker is generally defined in the manner that is normally understood ie. the typical Monday to Friday schedule where work is performed during normal daytime hours.  In reviewing the jurisprudence submitted by the parties, I find further support for this position.

62        In Appleton, a group of employees claimed entitlement to the payment of a shift premium for hours they worked between 4:00 p.m. and 8:00 a.m. While the collective agreement before me provides for the payment of the premium for all hours between 3:00 p.m. and 7:00 a.m., the collective agreement at issue in Appleton provided for payment of the premium for all hours between 4:00 p.m. and 8:00 a.m.

63        The employer denied them the premium on the basis that it only applied to shift workers and the grievors were day workers as they had “normal hours of work”. The grievors did not contest their status as day workers but argued that nothing in the collective agreement excluded day workers from eligibility to the premium.  In that sense, the decision is of no application to the case before me.

64        However, there are other portions of the decision which are of interest in this case. First, and as the employer argued at paragraph 11, Appleton states that the purpose of the shift premium is to compensate employees who work during hours which fall outside of normal or regular working hours or, in other words, who fall outside of “straight days”. In argument, the employer quoted Appleton and its reference to the shift premium being payable as compensation for the “additional substantial burden” that shift work places on an employee’s life. I can but agree. I also find that in the case before me, the grievor is far closer to a shift worker than to a day worker.  In the normal course, day workers do not regularly work into the evening nor do they begin their days at an hour that would, for the stereotypical day worker, be considered to be half of a day since most day workers consider noon to be the lunch hour.

65        This approach to shift work was also espoused by the Board in Barnes & Solowich, a decision cited to me by the grievor. In Barnes & Solowich, the Board decided that a shift premium is intended to compensate an employee for working a period of time that is considered to be abnormal and inconvenient. I find that working until 20:00 imposes an “additional substantial burden” on an employee and can be considered to be abnormal and inconvenient.  Such an employee would be unable to attend a movie, join friends for dinner, attend a sporting event or music concert, take an evening class or just eat with their family and spend the evening with loved ones.

66        Second, as in the collective agreement before me, the collective agreement at issue in Appleton did not contain a definition of “day work”. However, the employer argued that this was not an impediment to its position and it filed an interpretation bulletin on the entitlement to shift premium and an employer policy on flexible hours of work which, as with Exhibit 4 in this case, defined day work hours as being between 7:00 a.m. and 6:00 p.m. The hours worked by the grievor in A&D are, in accordance with the employer’s own published policy, outside the hours of what the employer considers constitutes day work.

67        Thirdly, the adjudicator in Appleton referred to the Board’s earlier decision in Samborsky, which decision was also cited by the grievor. In Samborsky, the grievor, a CX-03, filed grievances alleging a breach of the shift premium article. He worked at the Regional Psychiatric Centre (Pacific) and his hours of work from Monday to Friday were from 13:00 to 21:00. At the time, the shift premium article required an employee to work more than half of their hours between 4:00 p.m. and 8:00 a.m., but this difference has no impact on this decision.

68        The grievor argued that his hours of work were unusual and could not be considered to be day work as day could not extend into night hours.  While I find that the reasons for decision in Samborsky appear to be a bit confused, I do note that the adjudicator found that the grievor was working a shift and was entitled to the shift premium for all hours worked after 4:00 p.m.

69        The former Board’s decision in Chafe provides additional and more recent support for the grievor’s position.  In that case, five grievors who worked a regular 7.5 hour day starting in the morning and ending in the afternoon from Monday to Friday, claimed entitlement to the shift and weekend premiums contained in their collective agreement. Prior to the hearing, the employer conceded the grievance of one of the employees but continued to contest the other four grievances. The employer had denied the premiums on the basis that an employee whose regular hours fell between 06:00 and 18:00 was a day worker and not a shift worker.  At paragraph 47 of the decision, counsel for the employer submitted that the four grievors had a “normal work week” that had been scheduled within the time frame set out in the collective agreement and so were day workers in accordance with clause 25.04.

70        Unlike the clause at issue before me, the day work clause in Chafe set a window of 6:00 a.m. to 6:00 p.m. for dayworkers.  While the collective agreement in issue here does not contain such a window, I find that given the documentary evidence submitted and the jurisprudence, such a defined window is not necessary in this case. In this case, my interpretation of the evidence in conjunction with the jurisprudence on the matter leads me to the inescapable conclusion that the grievor is in fact a shift worker. 

71        I find that while the decision in Gardiner seems to support the view of the employer, the facts of that case make it very different from the one before me and it is therefore of little assistance. In that case, a CX who worked a “typical” Monday to Friday workweek between the hours of 7:00 a.m. and 3:00 p.m. or 8:00 a.m and 4:00 p.m. was found by the adjudicator to be a dayworker. In Gardiner, the grievor fell squarely within the parameters of a day worker whereas this is not the case here. In the present case, I am required to deal with a grievor who works hours that do not fit easily into either category.

72        I also find the decision in Palmer to be of little assistance as in that case, the adjudicator had to determine whether an employee who was admittedly a dayworker becomes a shift worker when he is assigned to work a 12-hour shift on the weekend.  I do note however that at paragraph 19 of the decision, the employer argued that a shift premium is a “reward for employees who, on a regular basis, work irregular hours.” This is the basis on which I have determined that the grievor did, based on the particular facts before me, work irregular hours and is therefore entitled to payment of the premium.

73        The collective agreement provisions indicate that a shift worker is an employee who works irregular or rotating hours. The grievor works rotating hours during the summer months and the employer seems to have admitted this in Exhibit 10. During the remainder of the year, I find that the grievor works irregular hours in the sense that he does not work a “standard” or stereotypical day that would qualify him as a dayworker.  As he is not a day worker, he must then be a shift worker. This conclusion coincides with the grievor’s evidence to the effect that the institution has a 5/2 shift which involves an eight-hour day from Monday to Friday with hours between 06:30 and 15:30. While the grievor’s hours are outside the hours of the typical 5/2 shift, it is to be noted that the employer accepts that working a Monday to Friday pattern can involve shift work. It also means that despite the wording of clause 21.02 to the effect that shift workers are to be scheduled on the basis of an 8.5 hour workday, they also have a weekly total of 40 hours of work.  If the employer has scheduled a 5/2 shift, this means that the employer also accepts that shift workers can work an eight-hour day.

74        Given my finding on the interpretation of the collective agreement, I need not decide the issue on the basis of estoppel.  However, I have in any event concluded that promissory estoppel does not apply here as the grievor has failed to prove on the balance of probabilities that an unequivocal promise was made by the employer: Lamothe. The evidence in this case fell short of the type of unequivocal promise needed to found a claim in promissory estoppel and indeed demonstrated that the employer had spoken in error rather than given a promise.

75        Lastly, I come to the issue of remedy. I find that the only decision cited to me by the grievor is inapplicable in this case.  In Kullar, the adjudicator did not apply the doctrine in that case first because the employer had raised the issue for the first time at adjudication and because the ongoing discussions between the bargaining agent and the employer constituted a type of waiver. I was not presented with any evidence that would render the doctrine in Coallier inapplicable in this case and I find that it limits the grievor’s retroactive remedy to 25 days preceding the filing of the grievance.

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

VI. Order

77        The grievance is allowed.

78        I order the employer to pay the grievor the shift premiums for the hours worked during the period at issue beginning 25 days prior to the filing of the grievance.

June 29, 2016.