Worker claims overtime for rescheduled shift

Regular shift was rescheduled for immediately following previous shift, resulting in 16 straight hours of work but no extra weekly hours

This instalment of You Make the Call features an employee who demanded overtime after having his shift changed.

Gregory Cooper was a correctional officer at Fenbrook Institution near Gravenhurst, Ont. His position involved shift work made up of eight-and-a-half or nine-hour shifts, either in the evening or the morning. He would work seven consecutive days followed by either three or four consecutive days off.

For the week of June 18, 2007, Cooper was scheduled to work evening shifts during the entire week. However, due to operational issues it foresaw, on May 7 Corrections Canada (CSC) changed his June 24 evening shift to a morning shift, which directly followed is evening shift of the previous day. This resulted in 16 straight hours working, for which Cooper was paid regular pay because the shift was part of his regular shift load.

Cooper worked the changed shift and then filed a grievance, arguing he should be paid overtime for the second shift. He said CSC violated the collective agreement, which stipulated the employer must make “every reasonable effort” to allow eight hours of rest between shifts.

However, CSC argued the collective agreement gave it the authority to make shift changes with 48 hours notice without a financial penalty, and this was common though consecutive shifts were a rarity. The collective agreement stated employees with changed shifts would only get one-and-half their normal pay rate if given less than 48 hours’notice. Otherwise, the collective agreement allowed this type of change without overtime, the employer argued. CSC also noted Cooper didn’t raise any concerns about the shift change in the one-and-a-half months between the notification and the changed shift.

You Make the Call

Was the employee entitled to overtime pay for the second consecutive shift?
OR
Was the employer entitled to change the shift as part of the normal schedule?

If you said Cooper was entitled to overtime pay for the second shift, you’re right.

The adjudicator noted that the collective agreement made the employer responsible for not only giving an employee appropriate notice of shift change, but also to make every reasonable effort to avoid not giving at least eight hours between shifts. So, although CSC met its obligation for notice of the shift change, the adjudicator had to examine whether it had made enough of an effort to avoid consecutive shifts.

Since CSC was aware of the need to change Cooper’s shift in early May and made the change then, the adjudicator found it unlikely CSC investigated all its options before making the change. It didn’t consult the bargaining agent for availability of any other correctional officers, nor was there any evidence it took other measures. The fact that Cooper didn’t raise any concerns before working the shift was not a sufficient argument because he followed the “work now, grieve later” principle, which was his right, said the adjudicator.

The adjudicator found CSC violated the collective agreement by not making every reasonable effort to ensure Cooper had at least eight hours between his shifts on June 23 and 24, 2007. CSC was ordered to pay Cooper the overtime rate of one-and-a-half times regular pay for the seven-and-a-half hours of the second consecutive shift.

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