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Labour Arbitration - Appeals and judicial review - Natural justice - Procedural fairness

Thursday, August 11, 2016 @ 8:00 PM  

Application by Arsenault and the Federal Government Dockyards Trades and Labour Council for judicial review of a Public Service Labour Relations Board decision dismissing a grievance. The grievor traveled from Halifax to Sweden to conduct system repairs aboard a ship. He took an overnight flight on a Saturday, spent Sunday in a hotel in London, and left for Stockholm the following morning. The employer paid the grievor double time for the 3.5 hours traveled on the Saturday and the 7.5 hours traveled on the Sunday, totaling 22 hours at straight time. The grievor and the union argued that he was entitled to an additional 15 hours of pay under the terms of the overnight travel pay provision of the collective agreement. The employer acknowledged that the grievor was entitled to an additional seven hours of pay. The adjudicator found that no further compensation was due, notwithstanding the parties’ submissions. The applicants sought judicial review.

HELD: Application allowed. The adjudicator had a duty to apprise the parties he was considering an interpretation of the collective agreement neither party had contemplated. The parties had no indication their common and accepted interpretation would be questioned. The rules of procedural fairness required notice from the adjudicator, with an opportunity to address the issue and adduce evidence to counter the adjudicator’s interpretation. The breach of the rules of procedural fairness warranted judicial intervention. The adjudicator’s decision was quashed and the matter was referred for redetermination.