FPSLREB Decisions

[1]    Messrs. Stevens, Froese and Jackson grieved in January 2003 that the employer refused to pay them for the time they attended the adjudication hearing in Dosanjh v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 16. They explained in their grievances that they had received summonses to appear at the hearing and that, contrary to the provisions of the collective agreement at clause 23.01 and paragraph 30.17(c)(v), the employer was refusing to pay them.

[2]    The employer denied the grievances of Messrs. Stevens and Froese, as it explained that in order to be granted court leave under clause 30.17, an employee must be scheduled to work and the grievors were not scheduled to work on the days for which they are grieving. The employer explained as well that court duty under clause 23.01 of the collective agreement is applicable only when the matter being dealt with arises "as a result of the employee's actions in the performance of his or her authorized duties".

[3]    The employer also denied the grievance of Mr. Jackson, as it explained that Mr. Jackson had been granted court leave for the days he had attended the hearing, as he was scheduled to work on those days from 8:00 a.m. to 4:00 p.m. The employer declined the request for overtime compensation for those days, as Mr. Jackson was not a party to the hearing and the summons was not initiated by the employer.

Evidence

[4]    At the outset of the hearing, both counsel produced an "Agreed Statement of Facts", which reads as follows:

AGREED STATEMENT OF FACTS
PSSRB FILE # 166-2-32368, 32369, 32362
Rene Froese, Clinton R. Jackson
& Basil Dunlop Stevens

1. The grievors are employed by CSC as Correctional Officers working at the Regional Health Centre and were covered by the Agreement between the Treasury Board and the Union of Canadian Correctional Officers, expiry date May 31, 2002.



2. The grievors were served with a summons to attend at an adjudication hearing PSSRB file No. 166-2-31021. Attached as Annex "A" are the Summons referred to herein for Messrs Jackson, Froese and Stevens.



3. The grievors attended at the hearing in response to the summons during the following times:
   
   Froese - January 7, 2003



4. On January 7, 2003 Messrs Froese and Stevens were on a scheduled day of rest. Attached as Annex "D" are the rosters for January 7, 8 and 9^th, 2003.



5. Messrs Gordon Robertson, Arnie Vis and Kellie Rhyness, Correctional Officers working at the same work location as the grievors attended the same hearing by summons issued by the employer. They were paid on the basis that they were on duty and received pay and applicable overtime on September 24, 2002 for the time attending the hearing as well as travel time. Kellie Rhyness had been scheduled for a rest days
(sic) on September 24, 2002 but was paid the applicable overtime rate for travelling to and attending the hearing at the request of the Employer. The above employees were reimbursed for applicable travel expenses. The Employer reserves the right to object to the relevance of this paragraph. Attached as Annex "B" are the overtime reports for Rhyness, Vis and Robertson. Attached as Annex "C" the roster for September 24, 2002.


6. The Union reserves the right to call as witnesses Messrs, Jackson, Froese and Stevens.

[5]    The three grievors were called to testify. Mr. Froese pointed out that the hearing was scheduled to proceed originally in May 2002, but was later rescheduled for September 2002. He was summoned by both the employer and the union to appear for the hearing dates scheduled in May and September. Unfortunately, he had to twice postpone a vacation that he had planned for May 2002, and had rescheduled for September 2002. He was not called to testify at the September hearing. However, he was summoned by the union to appear at the continuation of the hearing from January 7 to 9, 2003. He attended the January 7 hearing, which fell on his second day of rest. He advised the employer that he had received a subpoena, as it related to his employment, and he later filed a claim for overtime compensation.

[6]    Mr. Stevens testified that he was summoned by the union to attend the hearing from January 7 to 9, 2003. He did attend on January 7 and appeared as a witness on the morning of January 8. On January 7, Mr. Stevens was on a second scheduled day of rest and was scheduled to work on January 8. After attending on the morning of January 8, he telephoned the employer to inquire if it wanted him to come in for the rest of his shift. He requested overtime pay for his attendance on his second day of rest on January 7, 2003, which was denied by the employer. Mr. Stevens did receive pay for his scheduled day of work on January 8, 2003.

[7]    Mr. Stevens explained in cross-examination that he had been advised by the union and management to attend a hearing if he received a subpoena. He recalled that the Coordinator for Correctional Operations had warned that employees could be arrested if they did not attend a hearing after receiving a summons.

[8]    Mr. Jackson indicated that he was scheduled to work on January 7 and 8, and his regular hours were from 8:00 a.m. to 4:00 p.m. As he attended the hearing in Vancouver on those dates, he left Abbotsford at 7:00 a.m. and returned at 5:30 p.m. He filed a claim for overtime pay above his regular scheduled hours of work, which included his travelling time to Vancouver and back to Abbotsford. He did attend the hearing on January 9, but did not claim any overtime for that date.

Arguments

For the Grievors

[9]    Ms. Blanchette submitted that Article 23 of the collective agreement applies when clauses 30.17 and 14.06 are not applicable. Ms. Blanchette explained that Article 23 covers a situation where an employee is not scheduled for work and receives a subpoena to attend a hearing. Article 23 does not require the employee to be summoned by the employer. These clauses of the collective agreement read as follows:

Adjudication

14.06 When operational requirements permit, the Employer will grant leave with pay to an employee who is:

[…]

(c) a witness called by an employee who is a party to an adjudication.

Court Leave 30.17 The Employer shall grant leave with pay to an employee for the period of time he or she is required:

[…]

(c) by subpoena or summons to attend as a witness in any proceeding held:

(i)   in or under the authority of a court of justice or before a grand jury,

(ii)   before a court, judge, justice, magistrate or coroner,

(iii)   before the Senate or House of Commons of Canada or a committee of the Senate or House of Commons otherwise than in the performance of the duties of the employee's position,

(iv)   before a legislative council, legislative assembly or house of assembly, or any committee thereof that is authorized by law to compel the attendance of witnesses before it,

or

(v)   before an arbitrator or umpire or a person or body of persons authorized by law to make an inquiry and to compel the attendance of witnesses before it.

***

ARTICLE 23

COURT DUTY

23.01 An employee, who is required by subpoena or summons to attend as a witness, or a defendant, or a plaintiff in an action against an inmate or any other person, in any of the proceedings specified in Clause "30.17", sub-clause "C" of this Agreement, as a result of the employee's actions in the performance of his or her authorized duties, shall be considered on duty and shall be paid at the applicable rate of pay and shall be reimbursed for reasonable expenses incurred for transportation, meals and lodging as normally defined by the Employer.

[10]    The conditions set out in Article 23 were met by the grievors, as evidence has shown, and therefore the grievors should be considered on duty and be paid at the applicable rate of pay.

[11]    Ms. Blanchette pointed out that in paragraph 5 of the "Agreed Statement of Facts", the employer recognized that it had paid its witnesses for that hearing. Ms. Blanchette argued that there is no justification for this double standard and that who is calling a witness is not relevant. The employer should pay for the witnesses who are summoned by the bargaining agent.

[12]    Ms. Blanchette indicated that, while the grievances did not specifically refer to Article 37, the text just above the signature of the employee indicates "And all other rights that I have under the Collective Agreement", which would cover Article 37 of the collective agreement.

For the Employer

[13]    Mr. Newman submitted that the only relevant clause to the facts of these grievances is paragraph 30.17(c)(v) of the collective agreement. It was the intention of the parties that if the bargaining agent summons an employee on his day of rest, it would not be at the expense of the employer. This has long been recognized by the jurisprudence of the Board, according to Mr. Newman. Specifically, in Lacasse v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-2-21411 (1991), Board Member Thomas W. Brown found that an employee is not entitled to be granted leave with pay when the employee is not scheduled to work and is summoned to attend a hearing on days of rest. Also, in Leswick v. Treasury Board (Transport Canada), PSSRB File No. 166-2-22857 (1993) (QL), Board Member J.B. Turner found that an employee cannot be granted leave for the period he is off duty when he is serving on a jury.

[14]    Mr. Newman pointed out that there is no case law dealing with court duty as found in clause 23.01. According to Mr. Newman, it was the intention of the parties in designing this clause of the collective agreement to protect an employee if he or she is charged "as a result of the employee's actions in the performance of his or her authorized duties." Mr. Newman explained that it is not a general clause and it should be read in the context of the general clause. He gave several examples of situations where an employee having used force with an inmate could be involved in a hearing as a result of his or her actions.

[15]    Mr. Newman submitted that Article 37 is not arguable at this time, as it was not raised in the grievance process and to admit it now would change the nature of the grievances. He relied on this point in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109.

Reasons for Decision

[16]    The bargaining agent's submission is that Article 23 of the collective agreement applies when clauses 30.17 and 14.06 are not applicable. The employer is in agreement with the bargaining agent that clauses 30.17 and 14.06 would not be applicable since the grievors were off duty for the period covered by their grievances. I agree with them, as leave is defined in the collective agreement at subclause 2.01(l) as:

(l)   "leave" means authorized absence from duty by an employee during his or her regular or normal hours of work (congé);

[17]    Therefore, in order for an employee to be granted leave by the employer under clauses 30.17 and 14.06, the employee must be summoned to appear for a hearing in a period of time that falls within the employee's normal working hours. Consequently, an employee who is off duty during the period in which he is summoned to appear for a hearing is not entitled to leave from duty. This interpretation is consistent with the jurisprudence of the Board such as Leswick v. Treasury Board (Transport Canada) (supra) and Lacasse v. Treasury Board (Solicitor General Canada) (supra) that were quoted by Mr. Newman.

[18]    Ms. Blanchette submitted that Article 23 would apply in the instant grievances, as it covers employees that are not scheduled for work and are summoned to attend a hearing. Mr. Newman replied that Article 23 would apply only to hearings where an employee is charged in the performance of his or her duties.

[19]    Like Mr. Newman, I could not find any jurisprudence of the Board that dealt specifically with the type of hearings covered by Article 23 or similar clauses in the collective agreements of the federal public sector. I found it useful to look at both the French and the English texts of Article 23 to understand clearly the distinction between the proceedings referred to in Article 23 and in subclause 30.17(c). The English and French versions of Article 23 read as follows:

ARTICLE 23
COURT DUTY

23.01 An employee, who is required by subpoena or summons to attend as a witness, or a defendant, or a plaintiff in an action against an inmate or any other person, in any of the proceedings specified in Clause "30.17", sub-clause "C" of this Agreement, as a result of the employee's actions in the performance of his or her authorized duties, shall be considered on duty and shall be paid at the applicable rate of pay and shall be reimbursed for reasonable expenses incurred for transportation, meals and lodging as normally defined by the Employer.

ARTICLE 23
DEVOIR DE COMPARUTION

23.01 L'employé-e qui est tenu d'assister, sur assignation ou citation, comme témoin, défendeur ou plaignant à un procès contre un détenu ou toute autre personne dans quelconque procédure précisée au paragraphe 30.17, sous-alinéa " C " de la présente convention, en raison des actions de l'employé-e au cours de l'exercice de ses fonctions autorisées, doit être considéré comme étant en fonction et être rémunéré au taux de traitement applicable, et doit être remboursé de ses dépenses raisonnables de transport, de repas et de logement, déterminées habituellement par l'Employeur.

[20]    As can be seen by the text of Article 23, to qualify under Article 23 and be considered on duty, an employee has to be required by subpoena to attend in an action against an inmate or any other person in any of the proceedings specified in subclause 30.17(c) of the agreement. Can it be that an arbitration hearing such as in the Dosanjh v. Treasury Board (Solicitor General Canada - Correctional Service) (supra) hearing is an action as described in Article 23?

[21]    It is a standard rule of interpretation of a collective agreement that each word should be given some meaning to avoid redundancy. It follows that it cannot be all the proceedings specified in subclause 30.17(c) of the agreement, as it is clearly specified in Article 23 that it has to be "an action against an inmate or any other person". In the French text it states: « un procès contre un détenu ou toute autre personne. » By adding the condition that it has to be an action . (« un procès .»), the parties clearly wanted to make a distinction so that employees would be considered on duty and would be paid for the time that they attended such proceedings even if they were off duty for that period.

[22]    I agree with Mr. Newman that the proceedings described in Article 23 would be of the nature of an inquiry after an inmate or a guard has been charged. An action against ., (un procès contre .) is a different procedure than an adjudication hearing where a former employee is grieving his termination. I do find with the evidence before me, that the adjudication hearing Dosanjh v. Treasury Board (Solicitor General Canada - Correctional Service) (supra) is a proceeding before a person described in paragraph 30.17(c)(v) but is not an action (« un procès ») against an inmate or any person, as in Article 23.

[23]    As an additional submission, Ms. Blanchette explained that the employer was applying a double standard to the witnesses of the bargaining agent. The employer considered its witnesses on duty and paid them for their days of attendance at the hearing. One of those witnesses, Mr. Rhyness, was scheduled for a rest day but was paid at the overtime rate for that period. As well, all the witnesses were reimbursed for applicable travel expenses and were paid applicable overtime for the time during which they attended the hearing, as well as travel time. Ms. Blanchette argued that Article 37 of the collective agreement bans any form of discrimination, restriction and/or interference, based on different factors, including membership or activity of the bargaining agent, and the conduct of the employer in the instant grievances is such a form of discrimination.

[24]    Mr. Newman, on behalf of the employer, submitted that Article 37 was not arguable at this time, as it had been raised neither in the grievances nor in the grievance process and this would be changing the nature of the grievances, as was found in Burchill v. Canada (Attorney General) (supra) by the Federal Court.

[25]    I do not need to get into the merits of this last argument, as I agree with counsel for the employer that this is a well-settled matter of law and that accepting this argument at this stage in the adjudication would be changing the nature in itself of the grievances.

[26]    I understand that the grievors feel that their situation is unjust and that it is unfair that the employer's witnesses were paid for attending a hearing on a day of rest, while they were not. As well, their travel time and travel expenses were not paid. I do sympathize with Mr. Froese, who had to twice cancel a planned trip. However, the collective agreement between the bargaining agent and the employer does not entitle an employee to such reimbursement of travel expenses or payment of overtime pay.

[27]    For all these reasons, these grievances are denied.

Guy Giguère,
Deputy Chairperson

OTTAWA, April 30, 2004.