Mountie is granted overtime

Originally denied payment for overtime claims because he didn’t seek pre-approval, RCMP employee who worked extra hours as a regular part of his job deserved the pay, court says
By Jeffrey R. Smith
|Canadian Compensation & Benefits Reporter|Last Updated: 07/31/2009

An RCMP employee should get overtime pay for work that was a legitimate part of his job, even if he didn’t get specific approval to work the extra hours, a Federal Court has ruled.

Gregory Robert Smith was an occupational safety officer with the RCMP in Edmonton, where he ensured personnel complied with the Canada Occupational Health and Safety Regulations under the Canada Labour Code.

His job was very busy and often required long hours. Because of this, he said there was a “standing authorization” for him to work overtime necessary to perform his job. His overtime claims were paid and he was never asked to obtain specific authorization.

New supervisor wanted pre-approval for overtime

In May 2003, Smith began reporting to a new director located in Winnipeg. In March 2004, Smith submitted overtime claims from May 2003 to March 2004 and the new director asked him if the claims had been authorized before he worked the overtime. Smith said he hadn’t previously needed preauthorization since his job required long hours. The director said the finance department had an issue with the lack of pre-approval and he would try to avoid dealing with them.

In August 2004, Smith still hadn’t received the overtime pay and asked the director for an update, saying it was a new budget year and there should be money available. However, Smith didn’t receive anything and told the director in October 2004 he needed to submit more claims for the time since his previous one.

The director told Smith to “go ahead and proces any claims you have, now that funds have been finalized.” So Smith resubmitted all his overtime hours from May 2003 to January 2004. This was followed by claims for the remainder of 2004 in February 2005.

Overtime without approval was voluntary: Supervisor

By March 2005, Smith hadn’t seen any payment for his overtime claims from May 2003 forward and made another inquiry. His supervisor told him his overtime claims were being denied because it was his own decision to work the overtime and he was “foolish” to have worked them without approval.

Smith got his lawyer involved and on April 4, 2005, the director wrote to the lawyer that the overtime was not approved prior to Smith working it, as required by federal law. The director also wrote Smith didn’t submit the claims during the same budget year in which the overtime was worked, which was necessary to pay it out of the proper budget.

Smith filed a grievance, arguing there had been a “general recognition” that overtime was necessary for him to do the job that was expected of him and it wasn’t always practical to obtain approval because sometimes he travelled outside of normal work hours.

The adjudicator ruled Smith worked overtime without authorization, which was against RCMP policy, and even the blanket authorization under which he incurred overtime under his old supervisor was against policy. However, the adjudicator found the claims that were associated with travel expenses that were accepted should be approved, since the approval of the travel expenses showed acceptance of overtime in those circumstances.

Performing regular job duties during extra hours not voluntary: Court

The Federal Court, however, found that employees are normally paid for their work and the RCMP policy would have to expressly stipulate that an employee performing his regular duties outside of normal hours would be volunteering if he was working without approval. Since Smith’s superiors knew he had a heavy workload and Smith had made it clear he expected to be paid for overtime, the court found it wasn’t reasonable to assume Smith was volunteering his services when he worked overtime.

The court also found there was no requirement to submit overtime claims at any particular time and Smith should have been informed of any change in that policy. Though it agreed Smith should have tried to obtain pre-approval when possible and submitted his overtime claims in a more timely manner, the court found he had never been told he wouldn’t be paid.

The court ordered the grievance to be remitted to another adjudicator.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian Compensation & Benefits Reporter. For more information visit

www.employmentlawtoday.com

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