Once employee volunteered, she was required to work shift, which warranted OT pay under collective agreement
A Saskatchewan employer must pay overtime pay to an employee who volunteered to work on her day off, an arbitrator has ruled.
Susanne Kraus was a permanent full-time server at The Bentley, a retirement living community in Moose Jaw, Sask., operated by RRR Sas Capital Facilities. Kraus was hired in November 2008 and worked on a three-week shift rotation – 40 hours in week one, 32 hours in week two, and 40 hours in week three.
The collective agreement between Sas Capital Facilities and Kraus’ union stipulated that employees who were “required to work on their scheduled days off shall be paid overtime at the rate of two (2) times their regular pay for all hours worked.” For hours worked in excess of the employee’s regular hours, the rate of pay was one-and-one half times the regular rate. Normal hours of work were set at eight hours per day and 40 hours per week.
During the week of June 23, 2013, Kraus was scheduled to work 32 hours as she was on the second week of a three-week shift schedule. She worked four eight-hour days. On one of the days she didn’t work, she was called in to attend a three-hour staff development meeting and was paid for three hours.
On the fourth and final workday of the week, Kraus was asked by her supervisor to work a five-hour shift the following day, which was a scheduled off-day for her. Kraus had signed up for a list of people indicating they were available to be called in for additional shifts, a practice that was done twice per year. Kraus had indicated she was available to work “anything.” When shifts were available, the supervisor would call people on the list in order of seniority until someone accepted. Employees on the list were free to accept or refuse.
Kraus accepted and worked the shift, expecting to get paid double time. However, when she received her paycheque the next week, she discovered she was paid her regular rate for the extra shift. Sas Capital considered the five hours she worked on her day off, along with the three-hour meeting earlier in the week, to be regular hours because she was originally scheduled for only 32 hours that week. The extra five-hour shift put her at 40 hours for the week, which didn’t warrant overtime pay under the collective agreement, said the employer.
The union filed a grievance, arguing the collective agreement stipulated Kraus was owed double time for working on a scheduled day off. Sas Capital said double time was only owed if the employee was required to work on her day off. Kraus was asked to do it and she accepted – she wasn’t required to work and had the right to refuse. In addition, the collective agreement allowed for overtime pay when more than 40 hours per week was worked, which wasn’t the case here, the company said.
Sas Capital argued if double time was paid for an extra shift when less than 40 hours per week was worked, it amounted to a shift premium, not overtime pay, which was not provided for in the collective agreement.
The arbitrator found that while “there may well be a distinction between work that attracts overtime pay and work that attracts a shift premium, the parties in this collective agreement have not made any such distinction.” The collective agreement stipulated that both work in excess of normal hours and work on scheduled days off attracted overtime pay, though at different rates, said the arbitrator.
The arbitrator also found that excluding an employee who was offered and accepted a shift on a day off – technically not required to work – would be too narrow an interpretation of the plain language meaning of the collective agreement provision. In addition, there was no change to the schedule, Kraus was just asked to work on her scheduled day off.
“In my view, ‘required to work’ is not limited to work that is against one’s wishes, but in this collective agreement is work that is offered and accepted, not against the employee’s wishes,” said the arbitrator. “Another way to look at this is when the work is offered, as it was in this case by the employer and was accepted by (Kraus), the employee was then required to work that (day).”
The arbitrator noted that the collective agreement gave two overtime rates for two different circumstances and Sas Capital controlled whether or not it offered overtime work. If it didn’t want to pay someone double time, it could ask another employee already working to work extra hours, in which case the rate would be one-and-one-half times the normal rate.
