ERB Transport Limited is in the highway transportation business. The company had reached an agreement with the Department of Labour in 1985 which provided that if an employee was not available for work immediately before or after general holidays, in particular those of Dec. 25 and 26, the employee was not entitled to be paid for the holidays unless the employee had obtained leave to be absent. Such an agreement was signed because of the company’s need for staff at holiday times. This policy was posted in the offices of ERB Transport.
Jean-Marc Vermette was employed as a long-distance driver with ERB Transport. He was not available for work on Dec. 24, 1998, and received no leave from his employer. Based on the agreement between the company and the Department of Labour, ERB Transport determined that Mr. Vermette did not qualify for payment for the general holidays of Dec. 25 and 26.
On Feb. 18, 1999, Mr. Vermette filed a complaint with Human Resources Development Canada pursuant to the Canada Labour Code alleging that he had not been paid for the general holidays of Dec. 25 and 26. The complaint was investigated by an HRDC officer who rendered a decision confirming that the complaint was valid. ERB Transport was asked to pay Mr. Vermette the sum of $447.13 less deductions.
ERB Transport appealed this decision to the adjudication tribunal. The matter was heard by the tribunal on Jan. 18, 2000. The tribunal dismissed the appeal at that time. ERB Transport then brought an application before the Federal Court of Canada, seeking judicial review of the decision.
The basis for the review was that Mr. Vermette did not hold continuous employment within the meaning of the Code. The main issue before the Court was whether the tribunal erred in concluding that Mr. Vermette’s employment was not “continuous” within the meaning of the Code. Section 191 defines “continuous employment” in a number of ways including: any industrial establishment in which, in each seven-day period, operations once begun normally continue without cessation until the completion of the regularly scheduled operations for that period; and any operations or services concerned with the running of trains, planes, ships, trucks and other vehicles, whether in scheduled or non-scheduled operations.
The Court considered the provision dealing with continuous employment. It held that as Mr. Vermette was a truck driver with ERB Transport and as the statutory definition provides that it does not matter whether the work was done as part of a regularly scheduled operation, Mr. Vermette was “employed in a continuous operation” within the meaning of the Code. Consequently, since Mr. Vermette was not available for work on Dec. 24 in accordance with company policy, he should not be entitled for compensation for the general holidays of Dec. 25 and 26. The finding otherwise by the tribunal was incorrect and unreasonable.
The tribunal’s decision was quashed and the matter referred back to another adjudicator for reconsideration.
For more information:
• ERB Transport Ltd. c. Vermette, 2001 CFPI 512.
Jean-Marc Vermette was employed as a long-distance driver with ERB Transport. He was not available for work on Dec. 24, 1998, and received no leave from his employer. Based on the agreement between the company and the Department of Labour, ERB Transport determined that Mr. Vermette did not qualify for payment for the general holidays of Dec. 25 and 26.
On Feb. 18, 1999, Mr. Vermette filed a complaint with Human Resources Development Canada pursuant to the Canada Labour Code alleging that he had not been paid for the general holidays of Dec. 25 and 26. The complaint was investigated by an HRDC officer who rendered a decision confirming that the complaint was valid. ERB Transport was asked to pay Mr. Vermette the sum of $447.13 less deductions.
ERB Transport appealed this decision to the adjudication tribunal. The matter was heard by the tribunal on Jan. 18, 2000. The tribunal dismissed the appeal at that time. ERB Transport then brought an application before the Federal Court of Canada, seeking judicial review of the decision.
The basis for the review was that Mr. Vermette did not hold continuous employment within the meaning of the Code. The main issue before the Court was whether the tribunal erred in concluding that Mr. Vermette’s employment was not “continuous” within the meaning of the Code. Section 191 defines “continuous employment” in a number of ways including: any industrial establishment in which, in each seven-day period, operations once begun normally continue without cessation until the completion of the regularly scheduled operations for that period; and any operations or services concerned with the running of trains, planes, ships, trucks and other vehicles, whether in scheduled or non-scheduled operations.
The Court considered the provision dealing with continuous employment. It held that as Mr. Vermette was a truck driver with ERB Transport and as the statutory definition provides that it does not matter whether the work was done as part of a regularly scheduled operation, Mr. Vermette was “employed in a continuous operation” within the meaning of the Code. Consequently, since Mr. Vermette was not available for work on Dec. 24 in accordance with company policy, he should not be entitled for compensation for the general holidays of Dec. 25 and 26. The finding otherwise by the tribunal was incorrect and unreasonable.
The tribunal’s decision was quashed and the matter referred back to another adjudicator for reconsideration.
For more information:
• ERB Transport Ltd. c. Vermette, 2001 CFPI 512.
