A-731-79
Attorney General of Canada (Applicant)
v.
Roger Leblanc (Respondent)
Court of Appeal, Thurlow C.J., Urie and Ryan
JJ.—Ottawa, April 16 and 18, 1980.
Judicial review — Labour relations — Review of decision of
Adjudicator pursuant to Public Service Staff Relations Act —
Collective agreement between Postal Employees and Treasury
Board — Requirement for overtime work perceived near end of
shift and request to employees to work overtime made less
than one hour from end of shift — Employees refused to work
overtime but asked for payment of that overtime, each alleging
that he was bypassed in the administering of equal opportunity
to overtime and that he was given insufficient notice of need to
work overtime — Adjudicator's decision that the employees
were "bypassed in the administering of equal opportunity"
overturned — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35 — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10,
s. 28.
APPLICATION for judicial review.
COUNSEL:
Walter L. Nisbet, Q.C. for applicant.
Thomas McDougall, Q. C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The issue that arises on this
application is whether the respondent was
"bypassed in administering equal opportunity" to
work overtime, within the meaning of Article
15.18 of the collective agreement between the
Treasury Board and The Canadian Union of
Postal Workers, identified as Code 608/75. The
issue is the same and the facts are precisely similar
in each of four other applications by the Attorney
General of Canada against Paul Langis, A-732-
79; John Horn, A-733-79; Jean-Guy Caissie,
A-734-79, and Edouard Williams, A-735-79 seek
ing relief from the same decision of an Adjudicator
under the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35. All five applications were
heard together, the same submissions of counsel
being applicable to all of them.
The Article in question reads as follows:
15.18 Penalty for Bypassing
If an employee alleges that he has been bypassed in administer
ing equal opportunity and such allegation is substantiated, he
shall be paid an amount equal to the amount he would have
earned had he worked overtime on the missed opportunity.
The material facts are few. On October 31,
1977 the respondent, along with Langis, Horn,
Caissie and Williams were working on a shift that
would end at midnight. Toward the end of the shift
their supervisor decided that there was a need for
one of them to work four hours overtime in the
next shift commencing at midnight. At about
11:30 p.m. the supervisor asked each of them, in
the order of their seniority, to work the required
overtime but each, in turn, refused. As a result the
overtime was not worked by anyone. Thereafter
each of them grieved, alleging a violation of
Article 15.03 and insufficient notice to work over
time and asking payment in respect of four hours
overtime on the basis that he was bypassed under
Article 15.18.
Article 15.03 provides:
15.03 Overtime Notice and Guarantee
An employee shall, wherever possible, be notified at least three
(3) hours in advance of coming overtime and in every case at
least one (1) hour in advance.
The learned Adjudicator held, largely on the
reasoning, with which he agreed, of another
Adjudicator in an earlier case, that the offers to
work overtime were defective (Article 15.03) and
that the respondent and Langis, Horn, Caissie and
Williams were all bypassed "in the sense that they
were not notified of the overtime at least one hour
in advance." He concluded by ordering that each
be paid an amount equal to what he would have
earned had he worked overtime on the missed
opportunity: the sum for four hours pay at the rate
of time and one-half.
Article 15 contains, in all, nineteen sub-Articles,
all concerned with overtime. They provide, inter
alia, for rates of pay for overtime when worked,
for conditions for meal and rest periods and for a
system to govern the rights of employees, inter se,
to opportunities to work overtime. The language of
these provisions is not technical and it is noticeable
that the provisions do not amount to a complete
code of rules on the subject of equal opportunity to
do overtime work. Further, Article 15.03 precedes
and does not form part of the group of sub-Articles
running from 15.05 to 15.18, inclusive, which deal
with the subject of equal opportunity. Article
15.03 may well have a bearing and effect in par
ticular situations that can arise under the Articles
dealing with equal opportunity but, in my view, it
does not bear on the question whether the present
respondent was bypassed within the meaning of
Article 15.18.
That Article, as it seems to me, poses simply the
question whether the respondent was bypassed in
administering equal opportunity. What is involved
in administering equal opportunity in the variety
of situations in which the problem may arise is
governed by Articles 15.05 to 15.17 inclusive. The
provisions are concerned with assuring that the
administration of the system will afford to each
employee, as between himself and the other
employees, an appropriate share of the opportuni
ties to work overtime. That, I think, becomes
apparent from reading the Articles and particular
ly Article 15.07'. It is only if the employer errs in
administering such equal opportunity according to
the rules that he incurs the penalty provided by
Article 15.18.
' 15.07 Definition of Equal Opportunity
Equal opportunity for overtime work shall mean that once an
appropriate list is established, overtime assignments will be
offered to persons on the list who have had a fewer number
of overtime opportunities until sufficient employees have
been obtained to fulfil the requirements. When there is more
than one employee who has had a fewer number of overtime
opportunities (as mentioned above), overtime assignments
will be offered to such employees in the descending order of
the appropriate list. Equal opportunity entails no obligation
on the part of the Employer for equal distribution of over
time hours worked.
Here there is no complaint that the employer
failed to follow the equal opportunity provisions
and on the facts and the ordinary meaning of the
language used in Article 15.18 the question wheth
er the respondent was bypassed in administering
equal opportunity admits only of a negative
answer.
It was submitted on behalf of the respondent
that on the facts he was bypassed because he lost
an opportunity to work overtime which he would
have had if he had had an hour's notice but, in my
opinion, the loss of such an opportunity in these
circumstances is not a loss of "equal opportunity"
since the opportunity, such as it was, was offered
Ito him in his proper turn and, as no one to whom it
was afterwards offered accepted it, he was no more
bypassed or prejudiced than he would have been
had the opportunity not been offered to anyone.
Whatever may be the effect of a failure to give
at least an hour's notice under Article 15.03 it does
not by itself amount to a bypassing in administer
ing equal opportunity within the meaning of
Article 15.18.
I would set aside the decision and refer the
matter back to the Adjudicator to be dealt with on
the basis that the respondent was not "bypassed in
the administering of equal opportunity" within the
meaning of Article 15.18 of the collective agree
ment. I would deal with the other applications in
the same way.
* * *
URIE J.: I concur.
* * *
RYAN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.