A-690-76
Gilles Marchand and Stéphane Larocque
(Applicants)
v.
Public Service Staff Relations Board and Patrice
Garant (Respondents)
and
The Queen for the Treasury Board as 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, 1977.
Judicial review — Public Service — Interpretation of col
lective agreement — Whether adjudicator erred in law in
holding employees not entitled to reimbursement for meals —
Adjudicator's decision set aside — Federal Court Act, s. 28.
A collective agreement between the applicant postal workers
and their employer provided for reimbursement for meals when
an employee was required to work more than two hours'
overtime on a regular work day. The adjudicator rejected the
applicants' claim for such payment on the ground that the
overtime did not follow immediately on the regular day's work.
It was also contended that the agreement only provided for
payment where the sum had actually been disbursed.
Held, the decision of the adjudicator is set aside. The
adjudicator erred in law in holding that the overtime must be
continuous with the regular work day. He amended the terms
of the agreement rather than interpreting it. And, the agree
ment should be interpreted to mean that the employee has the
right to be reimbursed whether or not he has actually disbursed
the amount.
APPLICATION for judicial review.
COUNSEL:
Paul Lesage for applicants.
W. Nisbet and A. Bluteau for respondents and
mis -en-cause.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for applicants.
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.: Applicants are two employees of the
Post Office Department at Beauharnois. They are
asking the Court to set aside, pursuant to section
28 of the Federal Court Act, a decision by Mr.
Patrice Garant on August 4, 1976, in his capacity
of adjudicator and member of the Public Service
Staff Relations Board. By this decision, the
adjudicator dismissed the grievances submitted by
applicants, who complained that on certain days
when they had been required to work overtime
they were not paid the meal allowance provided
for under article 15.02(a) of the collective agree
ment governing their working conditions.
Article 15.02(a) of the agreement reads as
follows:
**15.02 Meal and Rest Periods
(a) Full-time employees required to work more than two (2)
hours overtime in excess of his daily schedule or shift, shall
be reimbursed for a meal allowance in the amount of two
dollars and fifty cents ($2.50).
It is established that on each of the days
referred to in their grievances, applicants were
required to work more than two hours overtime in
excess of their daily schedule. It is also established
that more than one hour elapsed between the time
applicants finished their regular daily schedule and
the time they began the overtime in question.
The adjudicator dismissed the grievances solely
because, in his view, the allowance provided under
article 15.02(a) is due only if the overtime
immediately follows the regular shift.
In our view, the adjudicator erred in law by
interpreting the agreement thus. Article 15.02(a)
does not stipulate that overtime must immediately
follow the regular shift in order for the meal
allowance to be payable. The Court considers that,
by adding this requirement, the adjudicator
amended the terms of the agreement rather than
interpreting the agreement. Various benefits are
provided under article 15.02 for employees work
ing overtime. Some of these benefits, such as those
mentioned under paragraphs (b),(c) and (d), are
payable only on the express condition that the
overtime has taken place immediately prior to or
immediately after the regularly scheduled shift'.
This is not the case with the meal allowance
provided under paragraph (a), and consequently,
this allowance is due even if the overtime was not
worked immediately after the regular work.
It was contended that the fact that the word
"reimbursed" was used in article 15.02(a) indi
cates that the meal allowance is due only if the
employee has in fact spent such an amount on a
meal. We find this argument groundless. The
words "... employees ... shall be reimbursed for a
meal allowance in the amount of two dollars and
fifty cents ($2.50)", in article 15.02(a), signify in
our view "employees ... are entitled to a meal
allowance in the amount of two dollars and fifty
cents ($2.50)".
For these reasons, the decision challenged shall
be set aside and the matter referred back to the
adjudicator, who in his decision shall take into
account that during the days mentioned in their
grievances applicants were entitled to the allow
ance provided under article 15.02(a) of the
agreement.
' These three paragraphs of article 15.02 read as follows:
**15.02 Meal and Rest Periods
(a) . . .
(b) Full-time employees required to work overtime for a
period of two (2) hours or more immediately prior to his
regular shift will be given a ten (10) minute rest period
before commencing his regular shift. If the overtime period is
three (3) hours or more and he becomes entitled to meal
breaks under 15.02(d), the rest period will not be given.
(c) Full-time employees required to work overtime for a
known period of two (2) hours or more immediately follow
ing his regular shift will be given a ten (10) minute rest
period prior to termination of his regular shift.
(d) Full-time employees required to work overtime for a
period of three (3) hours or more, immediately prior to, or
immediately after, his regularly scheduled shift will be pro
vided a meal period of one-half ('h) hour to be paid for at the
rate of time and one-half (11/2).
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.