Environment and Climate Change Canada (ECCC) has been incorrectly processing Designated Paid Holiday pay for MT Shift Workers by failing to deduct 7.5 hours from the premiums paid for holiday work.
PIPSC flagged concerns with ECCC and with the Pay Centre, but the employer failed to fix its payroll system in a timely fashion.
By now you have likely received an email from your employer advising that they will be recovering DPH overpayments.
Here’s what you need to know:
Overpayment recoveries
Thanks to the tireless advocacy by the PIPSC ECCC Consultation Team, the employer has agreed that actual overpayment recoveries should not be taking place until the following 3 conditions have all been met:
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All of your outstanding pay transactions have been addressed
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You have received 3 consecutive correct pay cheques
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You have confirmed a recovery agreement, with reasonable repayment amounts and timeframes for repayment
It is therefore very important to carefully review the email and any other information you have received from your employer, and to follow up with ECCC Pay Liaison Office if you have concerns about how they calculated the amounts or the recovery process.
The employer requests that you include “DPH Overpayment Recovery” in the email subject line and send to Pay-Liaison-Paye@ec.gc.ca.
We have requested that the department give you 5 weeks to respond. However, it is better to respond before the deadline. If you can’t respond by the deadline, please respond and let them know why you need additional time.
Filing a grievance
PIPSC can also assist you with filing a grievance to challenge an overpayment recovery in certain circumstances.
In general, employees cannot refuse to repay properly documented overpayments. However, in some cases, the employer’s communications may have been neither clear nor timely. For instance, as the employer continued to make DPH overpayments, it may have failed to provide some members with any notification that DPH payments were calculated incorrectly or that those members would need to repay amounts overpaid. It is also possible, if you sought clarification on DPH payments, that ECCC or the Pay Centre provided you with erroneous or unclear information.
Such circumstances make a grievance case possible by leveraging a specific legal concept called “estoppel.” This doctrine, based on fairness and equity rather than legal rights, requires specific proof from a grievor looking to stop an overpayment recovery. In short, we may be able to successfully argue a grievance case based on estoppel if you can prove that:
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ECCC or the Pay Centre failed to notify you of the DPH error in a consistent and timely fashion (or if ECCC or the Pay Centre told you that your payments were not in error and would not need to be repaid)
and -
You specifically relied upon erroneous information about Designated Paid Holiday payments from ECCC or the Pay Centre
and -
Your reliance on this erroneous information caused you specific detriment or harm (for example, if you made specific spending decisions based on ECCC or the Pay Centre’s statements about your DPH)
Estoppel grievances are driven by their individual facts, and the evidence from each grievor would therefore be crucial to each grievance. The passage of time alone is insufficient; concrete evidence of specific representations by the employer to an employee would be required.
PIPSC has already helped a number of members in the Atlantic Region file grievances based on their individual circumstances.
PIPSC stands ready to help you, too.
What you need to do to file a grievance
If you wish to file a grievance, please reach out to Elissa McCarron at emccarron@pipsc.ca, or your Regional Employment Relations Officer.
You will need to gather documentation to support your case, including emails, notes, or recollections of conversations with management and/or the Pay Centre, which would help us prove:
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that ECCC and/or the Pay Centre represented to you that the DPH payments you received (and/or the methodology for receiving payment) were correct; and,
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that you specifically relied on these representations to your detriment (e.g. by making spending decisions as a result of ECCC or the Pay Centre's statements).
In addition, PIPSC would ask that you prepare a brief timeline of your case. You should include important facts and dates including:
- Your position and title
- When you started working as an MT shift worker with ECCC
- When (if ever) you were told that DPH was being paid correctly
- When you were first made aware that there was an error with DPH calculations
- When you were first told you would need to repay DPH overpayments
PIPSC can then review your evidence and follow up with you to advise on the next steps.
It’s our hope that with excellent preparation and a methodical approach, we can successfully convince the employer to do the right thing and, out of fairness and equity, abandon its right to proceed with recovery.