Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats. Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving.
166-2-26588 to 26592
Murray and Shaver and Treasury Board (Transport Canada)
Before: MM. Galipeau
Appearances: JP. Duclos, for the Grievors; R. Lafrenière, for the Employer
Decision rendered: March 1, 1996
Payment for designated paid holiday - Shift cycles - Past practice - Estoppel - Public Sector Compensation Act - Operating employees working 8 hour days entitled to 7.5 hours regular pay for designated paid holidays - the grievors, flight service specialists, were operating employees - while nonoperating employees work 7.5 hour days 5 times per week, for a total of 37.5 hours per week, operating employees work 8 hour shifts which amount to an average of 37.5 hours per week, on a 112day cycle - on one of the designated paid holidays in question, one of the grievors worked his 8hour shift while on the other designated paid holidays, the grievors were told to "enjoy" their holidays - the collective agreement provided that the employees were paid premium pay for having worked on designated paid holidays "in addition to the pay that (they) would have been granted had (they) not worked on the holiday" - there was no specific provision of the collective agreement that indicated what the regular pay was for having worked or "enjoyed" a designated paid holiday - on the days in question the grievors were paid for 8 hours for having worked or enjoyed the designated paid holiday but were later told that they had to make up for .5 hours overpayment, lest pay recovery action be instituted - the grievors refused to make up for the .5 hours as they claimed that they were entitled to regular pay for 8 hours on the holidays in question - the employer recovered .5 hours for every designated paid holiday in question - the grievors attempted to introduce evidence to show that in the past the employer's practice was to pay 8 hours regular pay in similar circumstances - the employer objected to the introduction of such evidence - the adjudicator reserved on the employer's objection and allowed the introduction of the evidence only to rule ultimately that the evidence was relevant in some respects but inconclusive - the evidence established that during the life of the former collective agreement the provision in question read "in addition to the 8 hours pay that (they) would have been granted had (they) not worked on the holiday" - the adjudicator concluded that the evidence of negotiating history of these provisions could, at best, show that the parties misunderstood each other's position as to the change in language, and thus could not ground an argument that estoppel applied in the circumstances - with regard to past practice as an aid to interpretation of the collective agreement in the event of ambiguity, the adjudicator determined that the applicable provisions of the collective agreement were not ambiguous in their application to the grievances - the intent of the collective agreement was that operating and nonoperating employees receive the same yearly salary - there was no evidence to show that if the operating employees were paid 7.5 hours regular pay for designated paid holidays as opposed to 8 hours, they would earn less in a year than their non operating colleagues - the adjudicator added that the evidence of past practice failed to establish a consistent long standing practice on the part of the employer in any event - the grievors also argued that in recovering payment of .5 hours on the days in question, the employer had contravened the provisions of the Public Sector Compensation Act - the adjudicator disagreed in that the employer's actions were consistent with provisions of the collective agreement and thus did not constitute a change in the compensation plan that could contravene that Act - the adjudicator did suggest, however, that the employer might do well not to pay the employees amounts they are not entitled to only to institute pay recovery action at a later point in time as such is understandably frustrating for the employees.
Case cited: Canadian Association of Professional Radio Operators and Treasury Board (148-2-227 and 169-2-581).