To: MT classification members of PIPSC:
As you may know, for many years PIPSC and the employer engaged in extensive discussions regarding the correct interpretation of article 12 of the SP Group Collective Agreement (Designated Paid Holidays, or “DPH”) for MT Shift Workers. These discussions led to a determination effective May 18, 2015, as to how holiday payments would be made. Unfortunately, since then the employer incorrectly processed DPH pay by failing to deduct 7.5 hours from the premiums paid for holiday work. (This amount would account for “lieu day” leave credits MTs receive, on top of the base 7.5 hours of pay deposited as part of the normal biweekly pay cycle in Phoenix). PIPSC tried to flag concerns with ECCC and with the Pay Centre, but the employer failed to fix its payroll system in a timely fashion.
Now, you may have, or will soon receive an email from the employer advising you about the amount of DPH overpayment that the employer will be recovering from you, if you have DPH overpayments.
Thanks to the tireless advocacy by PIPSC ECCC Consultation Team President Waheed Khan, the employer has agreed that actual overpayment recoveries ought not to be taking place until the following three conditions have been met:
1. All of your outstanding pay transactions have been addressed;
2. You have received 3 consecutive correct pay cheques; and,
3. 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 received from the employer, and to follow up with ECCC Pay Liaison Office if you have concerns about the how they calculated the amounts or the recovery process. Per the employer’s instructions:
Please include “DPH Overpayment Recovery” in the email subject line and send to Pay-Liaison-Paye@ec.gc.ca
We have requested the Department to provide you 5 weeks to respond. However, it is better to respond before the deadline, and if you cannot 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. In some cases, however, 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 later repay amounts overpaid. It is also possible, if you sought clarifications on DPH payments, that ECCC or the Pay Centre provided you with erroneous or unclear information.
In such circumstances, you could be able to make a grievance case 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 estoppel if you can prove that:
(1) 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);
(2) You specifically relied upon erroneous information about Designated Paid Holiday payments from ECCC or the Pay Centre;
(3) 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
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:
(a) 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,
(b) 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 such as:
(a) your position and title;
(b) when you started working as an MT shift worker with ECCC;
(c) when (if ever) you were told that DPH was being paid correctly;
(d) when you were first made aware that there was an error with DPH calculations; and,
(e) when you were first told you would need to repay DPH overpayments.
PIPSC can then review your evidence, and can follow up with you to advise regarding next steps on your particular file.
Thank you all for your time and attention, especially during busy summer months. It is our hope that with excellent preparatory work 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.
Employment Relations Officer