[2016] 4 F.C.R. D-15
Public Service
Practice
Judicial review of decision by Public Service Labour Relations Board adjudicator (Adjudicator) dismissing applicant’s grievance on ground applicant entitled to compensation solely under clause 17.03(d) of collective agreement between Treasury Board, Federal Government Dockyard Trades and Labour Council (East) for ship repair group to which applicant belonging — Applicant required to travel from Halifax to Sweden to carry out systems repairs on ship; flying overnight from Halifax on weekend, spending day in London at hotel upon arrival, leaving for Stockholm next morning — Spending total of 11 hours travelling — Paid by employer under clause 17.03(a) of collective agreement for hours travelled on weekend at double time rate for total pay equivalent to 22 hours straight time — Issue before Adjudicator was applicant’s total pay entitlement for portion of trip from Halifax to London as June 5 and 6 were days of rest — Adjudicator ignoring common interpretation of clause 17.03(a) of collective agreement accepted by all parties according to which applicant entitled to compensation thereunder; ignoring issue as to whether applicant could receive additional compensation under clause 17.03(d) — Clause 17.03(d) providing for travel pay when employee traveling overnight for minimum 4 hours between 10 pm, 6 am with no sleeping accommodation provided — Adjudicator deciding that clause 17.03(d) meant to cover exact situation applicant falling in; that applicant not to be compensated under combination of clauses 17.03(a), 17.03(d) — Whether Adjudicator committing breach of procedural fairness, violating applicant’s legitimate expectations by failing to provide notice that considering interpretation of collective agreement not raised at hearing, not contemplated by either party; whether adjudicator’s decision reasonable — In present case, both parties agreeing to applicability of clause 17.03(a); having no indication that common, accepted interpretation thereof could be questioned — On facts of case, procedural fairness dictating that parties should, as minimal requirement, be notified of issue, afforded opportunity to address issue, adduce evidence to counter adjudicator’s interpretation of clause 17.03(d) of collective agreement — Since collective agreement contract governing relationships between parties, critical that parties be afforded opportunity to be heard since required to live by terms of contract — Both parties having vital interest in Adjudicator’s interpretation of collective agreement — In present case, Adjudicator coming to different interpretation of clause 17.03(d) without any input from parties on how interpretation could possibly impact on application of clause 17.03 generally — Failure of Adjudicator to notify parties that contemplating interpretation of clause 17.03(d) negating joint understanding of clause 17.03(a) constituting breach of procedural fairness — Dispute herein clearly restricted to interpretation of clause 17.03(d) of collective agreement to determine what additional amount applicant entitled to receive thereunder since dispute revolving around total number of hours payable — Adjudicator’s failure to alert parties depriving parties of opportunity to make representations, adduce evidence to support common understanding that payments under clause 17.03(d) were additional to payments under clause 17.03(a) — Application allowed.
Arsenault v. Canada (Attorney General) (A-436-15, 2016 FCA 179, Scott J.A., judgment dated June 14, 2016, 13 pp.)