No Overtime Due for Unauthorized, Excess Hours

When the additional mail route she had taken on continued to add hours to her workday beyond what was expected, a mail carrier grieved, seeking overtime.

Hired in 1995, V.H. took over a rural mail route in 1996. It was rated at 6.32 hours per day. Two years later the employer offered V.H. an additional route adjacent to her regular route. V.H. was told that the new deliveries would add about one hour to her day. Once adjusted, her new, combined route was rated at 7.23 hours per day, and her compensation was bumped up by 23 per cent.

However, in V.H.’s experience, the new route was more than she bargained for. It was taking 10, 11 and even 12 hours per day to complete. Her log sheets showed that V.H. was averaging 10.1 hours per day.

Christmas rush

In response to concerns she expressed about the excess hours, her supervisor assured her the hours would ease off after the Christmas rush and once she had become more familiar with the route.

The hours did decrease slightly in the new year but, as she logged a 9.22-hour average in January and a 8.32 -hour average in February, V.H. was still working in excess of 40 hours per week.

When V.H. put in for overtime at the end of February, her claim was rejected. The union grieved on her behalf.

V.H. was assured that the new route would add only one hour to her day, the union said. That was not the case and V.H.’s logs proved it. That the logs were signed by her supervisor proved that management was aware of the excess hours that she was working. She also expressed her concerns directly to her supervisor. The employer was obviously aware of the extra hours that V.H. was working and it should not be permitted to avoid paying wages for work done, the union said.

No overtime authorized

The signature on V.H.’s logs amounted to an acknowledgement of receipt only and in no way represented approval of overtime, tacit or otherwise, according to the standards outlined in the collective agreement, the employer said.

Before paying overtime, which is proscribed in the collective agreement except where specifically authorized, the Hours of Work provisions in the contract strive to make routes conform to 40-hour-per-week maximums by providing different options for dealing with excess hours.

Where average route times log in excess of 40 hours per week over four months, interim measures in the collective agreement specify that a helper must be hired to assist with the excess workload while the Transition Committee develops measures to reduce the workweek.

The onus was on V.H. to ensure that her workweek conformed to the 40-hour per week maximum and to engage a helper and notify the Transition Committee if it was not. She did not do that, the employer said, nor did she provide an adequate explanation as to why a modest workload increase was adding up to five hours per day.

The Arbitrator accepted that the employer had not expressly authorized V.H. to work in excess of 40 hours per week. Nevertheless, it was also clear that while her new route was rated at 7.23 hours per day, her supervisors knew she was working in excess of those hours and acquiesced.

De facto overtime requirement

While the Arbitrator also accepted that V.H. had failed to refer her concerns to the Transition Committee and take advantage of potential remedies available under the contract, the question remained as to whether or not the employer had de facto required her to work excess hours when she was assigned the additional route.

The employer was aware of the hours V.H. was working and she was never told to stop. In fact, the Arbitrator said, she was encouraged to continue and told that the excess hours were temporary.

However, the Arbitrator said, “[G]iven the onus of proof, I am unable to find that the Employer was fixed with specific knowledge to such an extent that overtime could be deemed to have been required or authorized. I accept the Corporation’s argument that normally overtime must be authorized or required in advance of the hours worked. This is consistent with the purpose of the clause and the entire scheme of hours and wages — overtime is to be limited under this collective agreement.”

There might be exceptional situations where advance notice with respect to overtime could be dispensed with but this wasn’t one of them. V.H. did not submit her claim for overtime until after almost three months.

“This was not a routine case of an employee staying late on a shift to complete a job or otherwise deal with unforeseen circumstances. Rather this represented nearly three months of excess hours and a significant overtime wage bill. In Article 13.04 [of the collective agreement], the Corporation negotiated immunity from overtime costs except where it has specifically authorized or required the excess working hours. To allow the grievor’s claim in this case would be to override the bargain reached between the parties.”

The grievance was dismissed.

Reference: Canada Post Corporation and Canadian Union of Postal Workers. Arne Peltz — Sole Arbitrator. David Jones for the Employer and Cheryl Shannon for the Union. November 20, 2009. 21 pp.

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