Request for 15 years of back overtime pay rejected

Schenkman v. Canada (Treasury Board - Public Works & Government Services), 2004 PSSRB 1, 2004 CRTFP 1 (Can. P.S.S.R.B.)

Isac Schenkman worked as a marine engineer for the federal government. In November 1997 he filed a grievance in which he argued he had been denied overtime pay for the past 15 years after having relied on the word of supervisors who told him that, as part of management, he was not entitled to overtime. He discovered the falseness of that assertion in 1997 when he saw, for the first time, a copy of the collective agreement between his union and the government.

Schenkman was an immigrant to Canada from Romania and his language deficiency and cultural background was such, his attorney argued, that he did not entertain the possibility that he had been misled on the overtime issue by colleagues.

In dismissing Schenkman’s appeal, Ian Mackenzie of the Public Service Relations Board ruled there was no clear and compelling reason to relax the requirement, under the collective agreement, that any grievance related to his employment be filed within 25 days. Even if Schenkman had been given incorrect information, it was incumbent on him to check the accuracy of what he was told, ruled Mackenzie: “In a unionized environment, the expectation is that employees are responsible for being aware of their rights… either by consulting their bargaining agents or the collective agreement.”

Schenkman’s English-language skills and familiarity with the government may not have been optimal but “this disadvantage was likely gone within the first few years of employment,” Mackenzie said. Schenkman did receive overtime in May 1996 (albeit not at the prescribed rate and in the form of lieu time) and as such he ought then to have questioned what he had been formerly told.

“If I had accepted (his) argument that being misled justified a failure to file a timely grievance, then this is the point at which the time limit should have started to run,” Mackenzie said. Having been told incorrect information did not mean Schenkman had been a victim of actual fraud; and that a claim for back overtime going back so long is prejudicial to an employer as relevant documents are likely to no longer exist.

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