August 03, 2016
Employee entitled to overtime pay despite reclassification which removed employee from bargaining unit that paid overtime
Plumadore v. Canada (Attorney General)
267 A.C.W.S. (3d) 348
EMPLOYMENT — Public service — General
Entitlement to overtime pay — Employee had been working in federal public service since 1996 — In January 2008, employee started his current position with employer, which was Department of National Defence — Employee received confirmation twice in 2009 that position had been properly classified and was not excluded from bargaining unit — Employer reclassified position in April 2010 to exclude it from bargaining unit — Reclassification resulted in loss of entitlement to overtime pay — Employee was apparently not made aware of reclassification — Over next several years, employee worked and was paid for significant amount of overtime at request of his supervisor — Employee was apparently not informed that he was not entitled to overtime pay until November 2013, though union dues had not been deducted since June 2010 — Employer demanded repayment of $145,447.88 — Employee unsuccessfully grieved — Employee brought application for judicial review — Application granted; matter remitted for redetermination — Regardless of standard of review, decision was not reasonable — Decision-maker’s reasons did not indicate what facts were accepted and what determinations were made about legal arguments and jurisprudence — Reasons were very brief, reciting basic facts and stating applicable legislation — There was no analysis or discussion of submissions made by parties — Legal arguments made on behalf of employee with respect to estoppel and contractual change were not even mentioned — It was not possible to say decision fell within range of possible, acceptable outcomes defensible on facts and law — In that respect, decision was neither transparent nor intelligible and was therefore unreasonable — Totality of circumstances suggested employee had not known his position had been reclassified — Employee had been asked to work overtime, and he did so — Change in employee’s status was not effective until it was communicated to him — Defence of estoppel was available to employee, and all elements were established — Six-year limitation period in s. 32 of Crown Liability and Proceedings Act (Can.) applied since contract was made and amended in Ontario but breached in Quebec
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