Sittig and Treasury Board (Transport Canada)

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166-2-24117
Sittig and Treasury Board (Transport Canada)

Before: Y. Tarte
Appearances: S. McGee, for the Grievor; R. Lafrenière and J. Climie, for the Employer
Decision rendered: May 24, 1996

Shift schedule - Timeliness - collective agreement provided that, except in an emergency, no operating employee shall work more than nine consecutive days - grievor had been scheduled to work ten consecutive days - it was agreed that there was no emergency - he did not in fact work the tenth day as he was sick on that day and it was covered by his sick leave credits - evidence established that a practice had developed between the parties whereby on the tenth day, if an employee was scheduled to work, he was permitted not to show up for this shift but he was paid nonetheless - grievor alleged that he should have been paid in accordance with this practice regardless of the fact that he was sick - he alleged that the provision of the collective agreement was ambiguous in that it did not deal with what would happen if an employee was scheduled to work more than nine consecutive days - accordingly, he argued that the evidence of past practice should be used to resolve the ambiguity - he also relied on the past practice to establish an estoppel situation - furthermore, since the grievance arose in the province of Quebec, grievor indicated that he was relying as well on estoppel or "fin de nonrecevoir" - adjudicator found that since grievor had not in fact worked on the tenth day as scheduled there had been no violation of the collective agreement - furthermore the relevant provision of the collective agreement was not ambiguous - finally, the grievor had failed to satisfy the adjudicator that the civil law concept of fin de nonrecevoir was applicable in this case - the past practice relied upon by the grievor appeared to have evolved on its own irrespective of any article in the collective agreement - as such, adjudicator concluded that she had no jurisdiction to enforce it - adjudicator dismissed grievance (1994) 25 PSSRB Decisions 28 - on application by grievor under section 18.1 of the Federal Court Act, Federal Court, Trial Division set aside adjudicator's decision and remitted the matter to a different adjudicator for a new hearing - the adjudicator heard evidence only on the issue of timeliness, an issue raised at the first adjudication but not dealt with - the evidence established that at the very latest, the grievor was apprised of the employer's decision on June 5, 1992, only to file a grievance on August 4, 1992 - the collective agreement provided for a period of 25 days in which a grievance could be presented - the grievor provided no reason to enable the adjudicator to relieve him of the limitations of the collective agreement and in any event, the grievor had not requested an extension of time.

Grievance denied.