Insufficient notice given after work hours changed
After he was unexpectedly sent to St. John’s to repair a Cormorant rescue aircraft, an aviation technician tried to get paid time-and-one-half for his irregular work.
Terry West had worked at IMP Group since 2002, when on Aug. 10, 2015, he was scheduled to work from 3:30 p.m. to midnight. During his shift, he was deployed to St. John’s — from his regular base in Gander, N.L. — to service an aircraft.
IMP technicians were regularly sent on emergency shifts for the crucial task of maintaining rescue aircraft, which could be called out to service at any time.
West flew to St. John’s and arrived at 11:30 p.m. He slept at a local hotel that night, and went to work at 8 a.m. the following day. After the aircraft was fixed around 1 p.m., West left for Gander and returned by 4 p.m.
The next day, he resumed his regular shift.
West claimed four hours of pay at $28.57 per hour as a shift-change premium. He testified that before he left for the shift, West had to arrange for care of his senior parents and his dog in his absence, due to the short notice of shift change.
West was paid $25 for each leg of the flight to St. John’s, but he wasn’t paid for any overtime.
His request for the premium was denied, because IMP said West did not work any hours outside his regular eight-hour shift and that the following day his regular night shift was converted to a day shift.
Barry Wadman, site manager, testified that the employer does not pay a premium when workers are deployed, which is what happened to West that night.
Because of the nature of the work, said Wadman, employees are required to be flexible and are often deployed on different shifts to service emergency aircraft.
The union, the Public Service Alliance of Canada, UNDE Local 90120, filed a grievance dated Aug. 24, 2015, citing the collective agreement:
“If an employee is given less than seven days’ advance notice, the employee shall receive a premium rate of time and one half for work performed on the first changed shift,” read article 17.02, on which the union made its claim for overtime pay.
Arbitrator James Oakley denied the grievance but said “the union is estopped by the fact it did not object to the employer’s consistent practice over 12 years to not pay the shift-change premium on deployment.
The employer was not previously put on notice of the union’s interpretation and did not seek to address the issue in prior rounds of collective bargaining.”
But IMP did breach the collective agreement, said Oakley.
“The employer sent the grievor, Terry West, on deployment on Aug. 11, 2015, and gave him less than seven days’ notice of the shift change. Under the correct interpretation of article 17.02, the employer would be obligated to pay the shift-change premium to (West).”
If the union wanted to raise the issue of premiums pay for shift changes, it must wait, said the arbitrator.
“The parties may address the issue in the next round of collective bargaining. In the meantime, the effect of the application of estoppel is that the employer’s current practice may continue until the expiry of the collective agreement," said Oakley.
"The union is estopped from grieving the practice.”
Reference: IMP Group Limited Aerospace Division and Public Service Alliance of Canada, UNDE Local 90120. James Oakley — arbitrator. Kate Hopfner for the employer. Leslie Robertson for the employee. Nov. 29, 2017. 2017 CarswellNfld 529
