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166-2-30927 to 30929 (2002 PSSRB 73)
Saindon, East and Aubertin v. Treasury Board (Solicitor General Canada – Correctional Service)
Before: L.-P. Guindon
Appearances: J. Mancini, for the Grievors; K. Chemsi, for the Employer
Decision rendered: August 12, 2002
Designated holiday that was moved – Employer used part-time employees to replace full-time employees when they were on a designated holiday that was moved – the grievors contested the decision of their employer (Treasury Board, Correctional Service) to use part-time employees to perform their duties when they were on a designated holiday that was moved – according to the grievors, the employer used part-time employees to replace them on a designated holiday that was moved for a period of about three months, from April to June 2000 – the grievors argued that Article 26 of the collective agreement relating to designated holidays was not amended in the last round of bargaining and that, in the past, the employer filled vacant posts on holidays that were moved by regular employees on a designated holiday or on a designated holiday that was moved, as the case may be – the adjudicator indicated that it was clear that the parties intended that overtime be allocated "on an equitable basis" among employees on holidays and/or on holidays that were moved and that the employer's assignment of part-time workers to vacant posts on holidays that were moved was not in keeping with the clear intent of equity – the adjudicator determined that he had to decide whether the expression "vacant posts on a designated holiday" applied only to a designated holiday identified in clause 26.01 or if it also applied to a designated holiday that was moved in keeping with clause 26.03 – the adjudicator found that since employees on leave on the day to which the holiday was moved are considered to be on a holiday and not on a day of leave according to clause 26.03, they must be included among "employees on leave with pay" to whom the employer must offer overtime – the adjudicator concluded that once the employer admits that it must offer the overtime to employees on holiday, the employer must do so in compliance with the provisions of the collective agreement and it was required to allocate the hours among the employees on a holiday that was moved within the intended meaning of this collective agreement – the adjudicator allowed the grievances and ordered the employer to pay the grievors, in accordance with clause 26.05, for the work that they would have performed on the designated holidays in question that were moved.
Cases cited: Hudgins (166-2-21517); Canada (Attorney General) v. Hudgins (A-1086-91 F.C.A.); Harnish (166-2-22121, 22167, 22280 and 23813 to 23820).