Overtime provision does not equal shift premium, arbitrator says
A server at a retirement community in Saskatchewan was paid outstanding overtime wages owed to her by her employer after an arbitrator said it had violated the collective agreement.
Susanne Kraus, a full-time permanent server at the Bentley in Moose Jaw, Sask., since 2008, filed a grievance when she said she was not paid at the appropriate compensation rate for coming in on her day off.
Because Kraus was scheduled to work 14 days in a three-week shift rotation (40 hours in the first week, 32 in the second and 40 in the final week), when she was called in for an additional shift on a Saturday (typically her day off) she accepted, expecting to get paid double time.
However, the employer paid her at her regular rate as she was called in during the 32-hour week, leaving the final number of hours worked for that week at 40 — and no overtime.
Further, the employer said the collective agreement should be interpreted to limit overtime pay to situations where an employee has worked more than 40 hours in one week or eight hours in a day. In this case and for that particular week, Kraus had technically worked only to fulfill the requirement.
As well, the clause should be read as an overtime provision and not as a shift premium.
The Service Employees International Union (SEIU) disagreed that there was any ambiguity in the contract.
Instead, it prescribed a premium rate for employees for giving up their regularly scheduled day off — which is a day to recharge and attend to personal lives.
The collective agreement addresses overtime on a day off and explicitly says double time will be paid for any such hours worked.
Therefore, arbitrator William Hood sided with the SEIU.
“The plain, literal and ordinary meaning of the word overtime chosen by the parties is that it is not restricted to hours worked in excess of normal hours, but also includes work on scheduled days off,” Hood said in his decision.
He added that the interpretation submitted by William Osler Health System would render superfluous the words for pay at double time and work on scheduled days off.
Going forward, Hood said an employee who works in excess of normal hours on a scheduled day of work should be paid time and one-half, per the collective agreement.
Overtime rates would depend on whether the employee works beyond her normal schedule or on a designated day off.
As such, the employer was found in breach of the agreement and ordered to pay any lost wages back to Kraus.
Reference: RRR SAS Capital Facilities (The Bentley at Moose Jaw) and the Service Employees International Union West (SEIU). William Hood — arbitrator. Meghan McCreary for the employer, Larry Dawson for the union. June 30, 2015.