COVID outbreak ruled as true emergency allowing regular overtime pay for day of rest

A British Columbia employer’s need for employees to work on a Saturday qualified for an emergency exemption from paying the employees double time, an arbitrator has ruled.

Salade Etcetera is a provider of fresh produce to food retailers. Its two facilities in Sherrington, Que., and Coldstream, B.C., processed a constant stream of orders that had to be delivered within a short window. Each facility supported the other by serving customers across Canada.

On Jan. 11, 2021, about 40 per cent of employees at Sherrington either tested positive for COVID-19 or were under quarantine. This coincided with a sudden surge in orders for Coldstream.

On Jan. 13, the company scheduled all available staff at Coldstream to work on Jan. 14 and 15 to fill orders. It also sent an email asking employees to work overtime on Sat., Jan. 16, if necessary.

The collective agreement’s overtime provision stipulated that “all hours worked in excess of 12 in a day or on a regularly scheduled day of rest shall be paid at double (2x) the basic rate.” Another provision allowed for an exception to the double-time rule by stating: “An employee’s work shift may be changed without notice in the event of absence of other staff due to sickness or accident or in the event of emergencies and/or act of God, and breakdown of machinery or other instances of force majeure.”

Jan. 16 was a regular day of rest for all 30 Coldstream employees who worked that day. The company told the union that the reason for the overtime was “a company-wide decrease of staff due to COVID-19 (illness and quarantine)” and asked it to consider this an emergency that would allow time-and-a-half pay instead of double time.

The union disagreed, arguing that the Saturday overtime was “a business decision made by Coldstream to assist Quebec; it was not force majeure.” It noted that the company knew three days earlier that it would need overtime on Jan. 16, so it was foreseeable. It also argued that the outbreak at Sherrington was reasonably foreseeable because the pandemic had been ongoing for nearly a year.

The company countered that it didn’t know the extent of its overtime needs until the day before, when it knew for sure how many people were sick. It had also initially hoped to fill outstanding orders on Jan. 14 and 15. The company also pointed out that Coldstream had a poor attendance rate and it might have been able to fill its orders without Saturday overtime if attendance had been better on the previous Thursday and Friday.

The arbitrator noted that the purpose of the double-time premium was to “deter the employer from scheduling employees to work on a day of rest in the ordinary course of its business.” The emergency exception provided the company with “partial insurance” in case it couldn’t avoid scheduling employees on a day of rest to meet unforeseeable operational needs.

The arbitrator found that the demand for labour at Coldstream on Jan. 16 was due to a legitimate need to meet unfilled orders and the company didn’t know how much it would need until the day before — it asked for volunteers three days earlier and took reasonable steps to avoid it. The combination of the surge in orders from the outbreak, the inability to meet the demand on the previous two days, and the poor attendance the previous week created an emergency that fell within the realm of the collective agreement’s exception, the arbitrator said.

The arbitrator noted that the fact that the pandemic had been ongoing did not mean the company could have foreseen the surge in orders. Due to the nature of the product, orders had to be filled quickly and both facilities coordinated with each other to meet customer demands. The grievance was dismissed.