A-865-76
Gaétan Lapointe (Applicant)
v.
Public Service Staff Relations Board and Edward
B. Jolliffe (Respondents)
and
The Queen for the Treasury Board represented by
the Attorney General of Canada (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 20 and 21, 1977.
Judicial review — Post Office labour contract — Denial of
overtime work — Alleged breach of contract — Proof required
— Federal Court Act, s. 28.
During the Christmas period, the applicant, a postal worker,
worked three hours overtime in addition to his regular day and
wanted to work for yet another hour. The Post Office denied
him this work, and gave it to part-time workers or special
Christmas help. The applicant alleges this to be a breach of
article 39.05 of the collective agreement.
Held, the application is dismissed. In order to prove that
article 39.05 had been breached, a regular employee must not
only show that during the Christmas period the employer had a
part-time employee or a Christmas helper do work which the
regular employee was willing and able to do, he must also show
the existence of circumstances from which one could conclude
that it was not reasonable for the employer to impose such
limits on his regular employee's right to work.
APPLICATION for judicial review.
COUNSEL:
Paul Lesage for applicant.
Yvon Brisson for respondents and mis -en-
cause.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for applicant.
Deputy - Attorney General of Canada for
respondents and mis -en-cause.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Applicant is asking the Court to set
aside, under section 28 of the Federal Court Act, a
decision rendered on December 17, 1976 by Mr.
Edward B. Jolliffe while he was Deputy Chairman
of the Public Service Staff Relations Board. By
this decision the Board dismissed a grievance
which had been submitted by applicant.
Applicant is a regular employee of the Post
Office Department at Thetford Mines, Quebec.
On December 12, 1975 he worked three hours
overtime in addition to his regular working day.
He contends—and this was the grievance dis
missed by the decision at issue—that, pursuant to
article 39.05 of the collective agreement governing
conditions of work, he was entitled to work a
further hour's overtime.
Article 39.05 of the collective agreement reads
as follows:
**39.05 Staffing During the Christmas Period
In the case of necessary additional hours, staff recruited to
handle the Christmas period shall be recruited in the following
order:
(a) The days of rest for the employees will be cancelled and
the hours of daily work increased, subject to the willingness
of the regular employees to accept extra work.
(b) The hours of the part-time employees will be extended
beyond thirty (30) hours a week for the Christmas period as
defined at the local level, if necessary, subject to the willing
ness of the part-time employees to accept extra work.
(c) Christmas helpers will be hired according to the needs of
each section.
Applicant formulated his grievance as follows:
[TRANSLATION] STATEMENT: During the Christmas period,
on December 12, 1975, the employer failed to comply with the
provisions of article 39 of the collective agreement, by using the
services of a Christmas helper for work required from 11:35 am
to 12:35 pm, and limiting me to three (3) hours overtime after
my daily work schedule on December 12, 1975. I consider that
I was wronged and that the employer failed to comply with the
terms of articles 15, 17 and 39 of the present collective
agreement.
COMPENSATION: I am asking to receive in money the equiva
lent of one hour at time and one-half ( 1 / 2 ), that is an amount
equal to what I would have earned if I had worked the overtime
that I did not have the opportunity to work from 11:35 am to
12:35 pm on December 12, 1975, in accordance with articles
15, 17 and 39 of the present collective agreement.
At the first stage of the investigation proceed
ings, applicant's grievance was dismissed in the
following terms:
[TRANSLATION] We have considered your grievance.
Since you worked overtime between 8:30 am and 11:30 am you
had an opportunity on December 12, 1975.
Consequently, we complied with clause 39-05 of the agreement.
Your grievance is dismissed.
At the second stage of the investigation proceed
ings, the employer stated his refusal in the follow
ing terms:
[TRANSLATION] We heard your Union's representations on
February 24, 1976.
We have examined the facts on which your grievance is based.
We note that your hours of work were increased on the day
indicated in accordance with clause 39.05.
We do not think that the employer was required to offer you
the extra hour claimed, for he is responsible for fixing the
number of hours overtime to be worked.
Your grievance is denied.
The decision rendered by the employer, at the
third stage of the investigation proceedings, was
worded as follows:
[TRANSLATION] We have heard the representations of your
Union regarding your grievance.
Having examined all the circumstances, we consider that the
limit imposed on overtime during the Christmas period was
reasonable. In view of the amount of overtime you worked, you
were not wronged.
Consequently, your grievance is dismissed.
At arbitration, the parties submitted no evi
dence. They simply agreed on the truth of the facts
contained in the following statement.
1. The grievor, Mr. G. Lapointe, is employed by the Post
Office Department at Thetford Mines, P.Q., as a P0-4.
2. Friday, December 12, 1975, was considered as being within
the Christmas period at Thetford Mines and was a regular
working day for the grievor.
3. On Friday, December 12, 1975, the grievor worked his
regularly scheduled hours (8) from 0001 to 0830 hrs.
4. On Friday, December 12, 1975, the grievor worked three (3)
hours overtime from 0830 to 1130 hrs and received pay for 3/
hrs at time and one-half. He was willing and able to work from
1130 to • 1230 hrs.
5. On Friday, December 12, 1975, a Christmas helper (Marc
Leblond) worked from 0600 to 1100 and from 1200 to 1500
hrs.
6. On Friday, December 12, 1975, a casual (Marc Poulin)
worked from 0600 to 1100 and from 1135 to 1235.
Applicant therefore worked eleven hours (three
hours of which were overtime) on December 12,
1975. He contends that he wanted to work one
additional hour and claims that his employer
breached article 39.05 of the collective agreement
by not allowing him to do so.
In order to decide on this matter, it is not
necessary to analyze in depth the lengthy decision
of the Board, nor rule on the accuracy of all the
statements contained therein.
Applicant contended that his employer had not
fulfilled all the obligations imposed on him by the
collective agreement. Such a contention had to be
proven. Applicant had the burden of proof. With
out wishing to define what proof he had to provide
in order to satisfy this requirement, we can cer
tainly say that, in order to win his case, he had at
least to establish facts the existence of which
would reasonably allow one to conclude that
article 39.05 of the agreement had not been
respected. We consider that the facts established
before the Board, namely the facts on which the
parties had agreed in the statement cited above,
were not sufficient to support such a conclusion.
It is certain that article 39.05 provides that
when there is excess work during the Christmas
period, regular employees are entitled to require
that such work be given to them rather than to
part-time employees or Christmas helpers. How
ever, it is also certain that this preferential right
enjoyed by regular employees is not and cannot be
absolute. For example, a regular employee would
not be entitled to require that his employer give
him work twenty-four hours a day. Modifications
and limits must be imposed, therefore, on this
preferential right enjoyed by employees under
article 39.05. Furthermore, we feel that it is im
possible to define these limits in any other way
than by saying that they are those which seem
reasonable in the circumstances of each case.
In order to prove that article 39.05 had been
breached, a regular employee must not only show
that during the Christmas period the employer had
a part-time employee or a Christmas helper do
work which the regular employee was able and
willing to do; he must also show the existence of
circumstances from which one could conclude that
it was not reasonable for the employer to impose
such limits on his regular employee's right to work.
In the case at bar, all that the evidence showed
was that applicant, who had worked from 1:00 am
to 11:30 am on the morning of December 12, had
not been able to work until 12:30 pm, as he would
have liked to do, since the employer preferred to
give that additional hour of work to a part-time
employee who had only begun his work at 6:00
o'clock that morning.
In our view, these facts alone are not sufficient
to base a conclusion that the rights enjoyed by
applicant under article 39.05 of the agreement
were not respected. As this is substantially what
the Board decided, applicant's application is
dismissed.
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.