Date: 20250212
File: 566-02-38336
Citation: 2025 FPSLREB 16
Labour Relations Act
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Between
Matt Kay
Grievor
and
TREASURY BOARD
(Correctional Service of Canada)
Employer
Indexed as
Kay v. Treasury Board (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
Before: Chantal Homier-Nehmé, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Ioanna Egarhos, counsel
For the Employer: Peter Doherty, counsel
Decided on the basis of written submissions,
filed April 12 and 26 and May 10, 2024.
REASONS FOR DECISION |
I. Individual grievance before the Board
[1] Matt Kay (“the grievor”), a correctional officer classified at the CX2 group and level with the Correctional Service of Canada (“the employer”) at its Bath Institution in Bath, Ontario, filed a grievance on January 29, 2018, in which he grieved that he had not received his shift premium since October 1, 2017.
[2] The grievor worked an accommodated schedule of Monday to Friday, from 22:45 to 06:45 (“the accommodated work schedule”), for a total of 8 hours per day and 40 hours per week, with 2 consecutive days of rest. He claimed that he performed “Shift Work” as defined in clause 21.02 and that he was entitled to the shift premium under articles 25 and 37 of the collective agreement then in force between the Treasury Board of Canada and the Union of Canadian Correctional Officers - Syndicat des agent correctionnels du Canada - CSN (“the bargaining agent”) that expired on May 31, 2014 (“the collective agreement”).
[3] The employer maintained that the grievor worked a “Day Work” schedule as defined in clause 21.01 and that he did not work a “rotating or irregular” schedule as defined in clause 21.02. Therefore, he did not perform the “Shift Work” that would have entitled him to the shift premium.
[4] For the reasons that follow, I must deny the grievance. The grievor’s accommodated schedule fell squarely within the parameters described in clause 21.01, titled “Day Work”. It did not meet the requirements of clause 21.02, titled “Shift Work”, which would have entitled him to the shift premium under clause 25.01.
II. Summary of the evidence
[5] The parties agreed to proceed by written submissions and submitted an agreed statement of facts. Before summarizing the facts that I determine relevant to the grievor’s claim, I will provide context to the grievance.
A. Context
[6] In 2017, the grievor worked as a CX-2 at Bath Institution. He worked a 9-16-9-hour-type schedule (working days or evenings) on different posts. Based on his submissions, he received the shift premium at that time. This was confirmed in the employer’s submissions.
[7] Following a workplace incident with an inmate, the grievor filed a claim with the Workplace Safety and Insurance Board (WSIB) and began injury-on-duty leave in July 2017.
[8] Around September 26, 2017, the grievor presented the employer with a certificate attesting to his capacity to return to work with the following restrictions and for an undetermined period: “He will require night shifts”, and “He will return to work on a gradual schedule of 3 full days for the first 2 weeks before starting the regular 5 days per week”.
[9] The employer accepted the certificate and agreed to accommodate the grievor with the accommodated work schedule, for which it determined the workday’s beginning and end. As a condition of work, the grievor agreed to occasionally work during the day, to complete mandatory training.
[10] The grievor returned to work on a gradual basis on October 2, 2017. He began to work full-time on October 16, 2017.
[11] The grievor worked the accommodated work schedule until October 20, 2022, when he resumed injury-on-duty leave. He returned to work on October 31 and again resumed injury-on-duty leave on November 8, 2022. Finally, he transferred to the WSIB’s “Pay Direct” on April 27, 2023.
[12] From October 2, 2017, to October 22, 2022, the grievor did not receive the shift premium under article 25 of the collective agreement.
B. The affidavit evidence
[13] Although the parties agreed as to the facts that led to the filing of the grievance, they disputed the following facts and submitted affidavit evidence to support their respective positions.
1. The grievor’s affidavit evidence
[14] The grievor has been working as a correctional officer since September 6, 2003.
[15] A five-day-per-week night shift did not exist for correctional officers before the grievor began working the accommodated work schedule on October 2, 2017. There were no restrictions on his functions and tasks.
[16] Carole Desjardins, Correctional Manager, Scheduling and Deployment, asked him to start at 22:45 and work until 06:45 so that his shift ended at the same time as those of other correctional officers working night shifts.
[17] The employer did not inform him that this schedule was considered “Day Work” and that he would not be entitled to the shift premium. Before the accommodated work schedule, he claimed that he always worked “Shift Work”.
[18] He stated that he worked 12-, 12.50-, or 12.75-hour posts that were assigned to him for 8 hours. Another correctional officer would begin working at 18:00 or 18:15 in the given post that he was assigned to, and he would replace them at 22:45.
[19] Consistently, he worked unit-based posts, monitoring inmates in specific units. The grievor affirmed that even though he relieved correctional officers on those posts, very often, no change was made in the Scheduling and Deployment System (SDS), which could indicate that he was acting as a “spare”.
[20] They were all 12-, 12.5-, or 12.75-hour posts.
[21] Exceptionally, he claimed that he was assigned to extra-duty posts, for searching or escort emergency situations, sometimes for a few hours when he was on duty, which could extend on occasion past 06:45.
2. Ms. Desjardins’ affidavit evidence
[22] Ms. Desjardins affirmed that she was the manager in September 2017 and that she was responsible for creating and managing the work schedules of the CX Correctional Service Officers at Bath Institution in accordance with the requirements under the CSC’s Scheduling Bulletin and the collective agreement. She was responsible for handling WSIB claims, in terms of implementing and coordinating return-to-work arrangements and workplace accommodations.
[23] In her affidavit, she stated that she spoke with the grievor over the phone on September 14, 2017. He informed her that he wanted to return to work and that his doctor had recommended that he work only at night and only from Monday to Friday.
[24] She informed the grievor that he had to submit a medical note to confirm those return-to-work arrangements. She indicated to him that he would start at 22:45 and finish at 06:45. He agreed to those hours. The details of their phone call were confirmed in an email to the human resources advisor.
[25] On September 26, 2017, Ms. Desjardins received the medical note from the grievor’s treating psychologist that set out the return-to-work restrictions.
[26] The grievor began his gradual return to work on October 3, 2017, in accordance with the restrictions indicated in the medical note and the schedule that he had agreed to. He worked Wednesday to Friday from 22:45 to 06:45.
[27] On October 16, 2017, he began working Monday to Friday from 22:45 to 06:45. The grievor’s schedule in the SDS in 2017 was provided to support Ms. Desjardins’ statement.
III. Analysis and arguments
A. The relevant collective agreement provisions
[28] My authority as a panel of the Board assigned to hear this grievance is derived from the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365), which provides that I can only interpret and apply the collective agreement’s terms; it prohibits modifying terms that are clear and prohibits making new ones.
[29] The sole issue before me, is whether the grievor, an accommodated employee, was entitled to the shift premium under clause 25.01 of the collective agreement, which reads as follows:
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[Emphasis added]
[30] The parties agreed that to be entitled to the shift premium, the grievor must have met the following criteria: “working on shifts” and working “between 3:00 p.m. and 7:00 a.m.” His accommodated schedule met the second criteria; therefore, the only issue to be determined is whether he was “working on shifts” and met the requirements of “Shift Work” as defined in clause 21.02.
[31] The grievor asserted that the accommodated work schedule was “Shift Work”. The employer disagreed and maintained that in fact it was “Day Work”.
[32] The relevant collective agreement provisions under article 21, titled “Hours of Work and Overtime”, describe “Day Work” and “Shift Work” as follows:
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B. Collective agreement interpretation
[33] The parties agreed on the basic principles to apply when adjudicating collective-agreement disputes. They relied on the findings of the Board’s predecessor in Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at paras. 50 and 51, and in the Board’s decision in Cruceru v. Treasury Board (Department of Justice), 2021 FPSLREB 30 at para. 83. In those cases, the Board found that the parties’ true intent must be determined by considering the plain and ordinary meaning of the words used in the context of the collective agreement as a whole.
[34] Relying on Cruceru, at paras. 114 and 115, the employer reminded the Board of the basic collective-agreement-interpretation rule that all the words that the parties used must be given meaning, including headings and titles.
[35] The employer advanced that only if there is some ambiguity should the Board look to extrinsic evidence or surrounding circumstances and cited Nowlan v. Canada (Attorney General), 2022 FCA 83 at para. 41. It further added that there is no basis in this case for the Board to look at anything further than what is written in the collective agreement.
[36] Although I agree with the employer in part, I prefer the modern approach that the Supreme Court of Canada adopted in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, in which it stated that a decision maker can consider the surrounding circumstances to better understand the parties’ intentions when they reached an agreement on a written contract.
[37] In concluding that the grievor was not “working shifts”, I considered the plain and ordinary meanings of the terms “Day Worker”, “Shift Worker”, and “working shifts”, in the context of the entire collective agreement and Bath Institution, where he worked as a correctional officer.
C. Extrinsic evidence
[38] The bargaining agent argued that “Shift Work”, “Day Work”, “normal work week”, and “working on shifts” were not defined terms and that the relevant clauses were ambiguous. It argued that common sense and logic must guide me in my interpretation. In that respect, it referred me to “Bulletin#: 2013-01, a Human Resource Management Labour Relations Bulletin” (“the Bulletin”), in which the employer determined posts as either “Day Work” or “Shift Work”.
[39] The Bulletin deals with determining scheduled rotations within an institution. In its Annex A, the employer refers to “types of schedules” instead of “hours of work”, which is the terminology used in the collective agreement. In the next paragraph, the Bulletin refers to “shift schedules” instead of “Shift Work”, which is the terminology used in clause 21.02 of the collective agreement.
[40] The bargaining agent submitted that the Bulletin is relevant as it explains how posts are categorized as either “Day Work” or “Shift Work”. It enumerated several posts that fell under the category of “day worker” and stated that “schedules must be developed based on 8-hour days, Monday to Friday”, none of which the grievor was assigned to from 22:45 to 06:45. Day worker posts included those titled “Security Maintenance Officer”, “Admission and Discharge/Urianalysis [sic]”, “Work release”, “Visits and Correspondence (Sector Coordinator)”, and “Regional Transfer Teams”.
[41] The grievor claimed that he was entitled to the shift premium because he was assigned to “Shift Work” posts covered by 12-, 12.50-, or 12.75-hour-type schedules. He stated that he was often assigned to extra-duty posts that extended past 06:45. During the entire period, he worked on posts categorized as “shift worker” posts. The Bulletin also stated that posts could be placed in either a day-worker- or a shift-worker-type schedule. Following that logic, the bargaining agent argued that posts are either “Day Work” or “Shift Work”. The posts that the grievor covered were placed in a shift-worker-type schedule. Therefore, the bargaining agent claimed that he is entitled to the shift premium in article 25. I disagree.
[42] I agree with the employer that the grievor confused the duration of the posts with that of the shifts. Article 21 refers to the hours worked, not the duration of the posts or the schedule type. The employer was correct when it stated that the Bulletin specifically indicated that with the exception of specifically enumerated posts, posts can “be placed in either a day worker schedule or a shift worker type schedule” [emphasis added]. Just because a shift worker works a post on one day, it does not mean that a day worker cannot work that post on another day.
[43] Even were I to accept that the grievor was assigned to posts that were covered by 12-hour-type schedules and that he worked on posts that attracted the shift premium, it would not change the fact that he worked 8 hours per day, Monday to Friday, for a total of 40 hours per week, with 2 consecutive days off. The collective agreement mentions only hours of work; it does not mention posts. Furthermore, I have no information that the Bulletin was incorporated into the collective agreement. I find that the Bulletin is not helpful to determining whether the grievor was “working on shifts”, as worded in clause 25.01 of the collective agreement. The Bulletin is an employer document, ancillary to the collective agreement. The issue before me can be determined by interpreting the specific provisions of the collective agreement without resorting to the Bulletin.
D. The jurisprudence - the definition of working on shifts
[44] The bargaining agent submitted that “Shift Work” is not defined in the collective agreement but conceded that it enumerates a certain number of conditions and restrictions. Clause 25.01 refers to the requirement of “working on shifts” to receive the shift premium. It referred me to Bédard v. Treasury Board (Canadian Grain Commission), 2019 FPSLREB 76, in which the Board found that “shifts” refers to a workplace situation in which the work cycle requires splitting the hours of work into shifts, to complete the cycle.
[45] Referring to Denboer v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 58 at para. 64, the bargaining agent submitted that 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 half a day, since most day workers consider noon the lunch hour.
[46] Consistent with the reasoning in Bédard, the bargaining agent relied on the reasoning in Chafe, in which the adjudicator determined that the ordinary meaning of “working on shifts” describes a situation in which normal operations during a 24-hour cycle are broken into 2 or 3 work periods, each representing a full days’ work for an employee.
[47] It is not disputed that Bath Institution is a penitentiary at which normal operations run 24 hours per day, 7 days per week. Correctional officers are required around the clock. Since no one can routinely work 24 hours per day, the 24-hour cycle is split into two 12- or three 8-hour shifts. Whatever the cycle, it is long enough that it cannot ordinarily and routinely be filled by one employee; it must be split into shifts. Article 21, “Hours of Work”, specifically clauses 21.01, “Day Work”, and 21.02, “Shift Work”, determines whether an employee is “working shifts” under article 25.
[48] The bargaining agent urged me to adopt the reasoning in Denboer, which involved language identical to that disputed in this grievance. In Denboer, the adjudicator determined that “Day Work” and “Shift Work” were not defined and that there was ambiguity in the classification of day work or shift work. At paragraph 57, he found that an employee who works from Monday to Friday but only from 22:00 to 06:30 works with regularity but cannot in the normal sense of the word be referred to as a day worker.
[49] The bargaining agent submitted that similar to the correctional officer in Denboer, the grievor worked irregular hours in the sense that he did not work a standard or stereotypical day that would have qualified him as a day worker; therefore, he was “working shifts”.
[50] The employer responded that the bargaining agent’s argument that clauses 21.01 and 21.02 do not define “Shift Work” and “Day Work” empties those clauses and their headings of any meaning. It is trite law that every word that the parties agreed to in the collective agreement, including the headings “Hours of Work”, “Day Work”, and “Shift Work”, must be given meaning. I agree.
[51] I find that in the context of Bath Institution, and in keeping with the clear wording of the collective agreement, “Day Work” can include evening and overnight hours. Simply because an employee works evening and overnight hours does not automatically mean that they are in fact “working shifts”. The collective agreement provision on “Day Work” does not specify any hours. One would think that a “Day Work” clause would specify hours of work between 6:00 a.m. and 6:00 p.m. but it does not, it says nothing about hours.
[52] There is no dispute that the grievor’s hours of work were the same starting from when his medical accommodation was implemented in October 2017. They did not rotate or vary throughout the year. He worked on a “regular basis”, using the wording in clause 21.01, the same 8 hours per day, 40 hours per week, Monday to Friday, with the same 2 consecutive days of rest. I agree with the employer that the accommodated schedule unambiguously met the requirement of “Day Work” and that there is no basis for the Board to go beyond the language of clauses 21.01 and 21.02.
[53] I concur with the employer’s position that Denboer is distinguishable from this case. In that case, the adjudicator found that “Shift Work” and “Day Work” were ambiguous, because the terms did not easily apply to the grievor’s scheduled work hours. The adjudicator found that that grievor’s work hours did not fit easily into the “Day Work” or “Shift Work” categories. The grievor in that case held multiple positions and worked on a rotating basis during the winter months and on a regular basis during the summer months. In Denboer, it was the employer who solely determined grievor’s schedule, whereas in this case, the grievor’s schedule is an accommodated schedule requested by the grievor in accordance with his medical restrictions.
[54] In my view, in Denboer, the adjudicator wrongfully found there was an ambiguity in the application of the defined terms to the correctional officers’ hours of work, expanded the definition of “Shift Work”, and stated that “Day Work” should be completed during a specific window of time, the “usual 9-5 workday”; see Denboer, at paras. 70 and 73.
[55] In both Denboer and in this case, the grievors are correctional officers working in penitentiaries. A penitentiary operates 24 hours per day, 7 days per week. I cannot subscribe to the Board’s findings in Denboer that “Day Work” must be completed within the usual 9 to 5 workday. Had the parties intended for that to be so, they would have negotiated language to that effect into the collective agreement. Therefore, the adjudicator’s findings in Denboer are unhelpful and are not determinative of the grievor’s entitlement to the shift premium in the context of this case.
[56] Unlike in Denboer, the facts of this case are straightforward. On October 2, 2017, the grievor returned to work from an absence approved under a WSIB claim. In the return-to-work accommodation plan that his treating practitioner set out, he required hours beginning at 22:45 and finishing at 06:45 on a regular 5-day-per-week schedule. Thus, he was placed on another type of schedule, a “250 post”, Monday to Friday, for a regular 40 hours per week of no more than 8 hours per day.
[57] The bargaining agent seems to suggest that the accommodated work schedule imposed a burden on the grievor. Again, it relied on Denboer, in which the adjudicator found that working evening and overnight hours imposes an additional substantial burden on an employee and can be abnormal and inconvenient. The adjudicator found that the schedule of the grievor in that case was abnormal and inconvenient and that he was entitled to the shift premium, as it would serve the purpose of compensating him for the additional substantial burden. The grievor did not provide any explanation as to how he was inconvenienced by these hours of work. I find that the inconvenience on the grievor was the result of his request for accommodation and did not result from any scheduling action of the employer. It was not an employer imposed schedule.
[58] It appears to me that essentially, the grievor is arguing to be accommodated into a shift schedule. That cannot be the purpose of article 25. It cannot be what the parties had in mind when they negotiated the shift-premium language.
[59] Again, I must concur with the employer’s submission that the grievor’s schedule resulted from his medical restrictions that stated that he could work only at night and a “regular 5 days per week”. The grievor’s medical restrictions in the context of the collective agreement that employees work an average of 40 hours per week meant that he necessarily had to work 8 hours per day. The employer did not forcibly make him a day worker.
[60] I disagree with the bargaining agent’s submission that the employer’s accommodation of the grievor’s medical restrictions was imposed on him and that it constituted an inconvenience or additional substantial burden that warranted the shift premium as in Denboer. Working overtime on occasion did not render his schedule irregular. Furthermore, contrary to the bargaining agent’s position, the employer was not obligated to inform him that the accommodated work schedule constituted “Day Work”. It was on him to obtain that clarification at the outset of his accommodation request with his bargaining agent and the employer. Had the grievor worked an irregular or rotating schedule, with an average of 40 hours per week and no consecutive days of rest, my conclusion would have been different.
IV. Conclusion
[61] I find that the grievor was not working shifts. When he returned to work in October 2017, he worked Monday to Friday midnight-only posts, with the weekends off. His hours of work were 8 hours from 22:45 to 06:45, 40 hours per week, 5 days per week, with 2 consecutive days off. This was his request for an accommodated schedule, which he received.
[62] Furthermore, the grievor’s schedule was consistent from October 2017. He was not scheduled on a “rotating or irregular basis”, and he did not work 8.5 hours per day, as required by clause 21.02. His total weekly hours were 40, not an average of 40 hours. As an accommodated employee, he could have been eligible to receive the shift premium if his schedule had been on a rotating or irregular basis.
[63] Another indication that the grievor was not “working shifts” is the fact that the accommodated work schedule was in place longer than 52 weeks. Clause 21.02(e) states that the shift schedule shall be a maximum of 52 weeks.
[64] His schedule did not meet any of the requirements of “Shift Worker” under clause 21.02. Consequently, the grievor’s schedule fell squarely within the definition of “Day Work” under clause 21.01. Therefore, he was not “working shifts” that entitled him to the shift premium under article 25.
[65] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V. Order
[66] The grievance is denied.
February 12, 2025.
Chantal Homier-Nehmé,
a panel of the Federal Public Sector
Labour Relations and Employment Board