Court upholds co-op time-record breach but narrows back-pay remedy

A Saskatchewan court has upheld a finding that Discovery Co-operative improperly reduced employees’ recorded work time, while substantially narrowing how far back the resulting compensation process can reach.

In Discovery Co-Operative Ltd. v Saskatchewan Joint Board Retail Wholesale & Department Store Union, Local 544, 2026 SKKB 178, Justice S.M. Sinclair of the Court of King’s Bench for Saskatchewan ruled on October 6, 2026, that an arbitration board reasonably found a breach of the collective agreement. But the board’s remedy, which reached back to August 2019, failed to account for the agreement’s grievance time limit.

The revised process begins ten days before the union filed its July 10, 2024 grievance. The court did not set a dollar amount owing to employees, and the ruling does not limit compensation to ten days’ pay. It changes the starting point for the records review and retrospective remedy.

Scheduled hours were substituted for recorded time

Discovery introduced an electronic timekeeping system in 2019. Employees could see their schedules and clock in and out through the system. Some clocked in before their scheduled shifts or clocked out after them.

The union’s policy grievance alleged that Discovery regularly adjusted those entries to match scheduled hours rather than paying for the time actually worked. Following an April 2025 hearing, a three-person arbitration board issued its decision on June 2, 2025.

The board found a practice of reducing recorded time without checking whether employees had worked beyond their scheduled hours. It held that the practice breached the collective agreement’s requirement to pay for all hours worked, directed Discovery to stop improper reductions and required affected employees to be made whole. Its original remedy extended to the introduction of the electronic system in August 2019.

Discovery sought judicial review. It argued, among other things, that the board had shifted the burden of proof onto the employer, interfered with management’s right to correct time records and reached an unsupported conclusion about a broader workplace practice.

A time clock is evidence, not an unchangeable pay entitlement

Sinclair reviewed the arbitration decision for reasonableness. That required deference to the board’s factual findings, while examining whether its conclusions were justified by the evidence and the legal limits governing its work.

The judge rejected Discovery’s argument that the board had reversed the burden of proof. The union still had to establish its case on a balance of probabilities. The board had evaluated the evidence and found that it did so.

One employee described instances in which she was not paid for time worked. The home centre manager acknowledged misunderstanding the collective agreement, which for a period led to employees being paid only for scheduled shifts rather than additional hours they worked. The employer’s human resources evidence confirmed that managers adjusted entries, although the expectation was that they would act in good faith when employees were present but not working.

The problem was the absence of evidence that managers actually checked whether work had been performed before making the reductions. The board had found assumptions rather than verification. It was entitled to consider both the union’s evidence and the employer’s own witnesses when deciding whether there was a broader practice.

This was a policy grievance, not a collection of individual grievances. The union therefore did not have to prove at that stage that every specific employee had been underpaid. It had to establish the challenged workplace policy or practice.

That did not make the electronic record infallible. The judge expressly recognized that an employee might forget to clock out, arrive early without working or remain after a shift to socialize. All parties agreed that employees were entitled to pay only for time actually worked.

The board treated clock entries as an initial record that the employer could rebut through a specific inquiry. If an investigation showed that an entry was inaccurate, Discovery could correct it. What it could not do under the upheld ruling was reduce recorded time on the assumption that no work occurred outside the scheduled shift.

The agreement limited the remedy’s reach

Discovery succeeded on the separate question of how far back the remedy should go.

Article 16.3 of the collective agreement required grievances to be presented within ten days of the event giving rise to them. For a payroll grievance, the provision tied the ten-day period to receipt of the final paycheque statement for the accounting period.

The court distinguished between allowing a grievance about a continuing breach to proceed and deciding how far back compensation can extend. An ongoing practice can remain open to challenge even if its first occurrence was much earlier. That does not necessarily remove a contractual restriction on retrospective recovery.

The union argued that Discovery had not raised the time-limit issue before the board and should not be allowed to introduce it on judicial review. Sinclair listened to portions of the arbitration hearing’s audio recording and found that the employer had raised contractual timelines sufficiently. The union’s counsel had also acknowledged that timing could affect the remedy.

The judge also distinguished authorities involving agreements without grievance time limits and a case concerning statutory wage obligations. Here, the grievance and arbitration decision alleged a breach of the collective agreement, not a statutory breach. The result was therefore tied to this agreement and this grievance, not a universal ten-day limit on wage claims.

The board had not addressed Article 16 or the legal principles governing the remedy’s retrospective reach. That omission made the remedy unreasonable. Because the agreement supplied the relevant time limit, Sinclair substituted a revised order instead of sending that issue back for a new decision.

Records first, compensation still to be determined

The revised order requires Discovery to give the union the relevant time records and adjustment records needed to determine amounts owing, beginning ten days before the grievance. The records must be in an accessible electronic format, organized by employee and pay period, and include original clock-in and clock-out times, scheduled shifts, adjusted payroll times and any available explanations for adjustments.

Disclosure is required within 60 calendar days of the order. Within 30 days thereafter, the employer and union must meet to review the records and try to agree on the amounts owing and how they will be paid. If they cannot agree within that period, the matter may return to the arbitration board for directions or determination.

The board is also to resolve disputes about interpreting or implementing the order. The reasons do not establish what any employee will receive or whether the disclosure and payment process has since been completed.

With each side succeeding on part of the judicial review, Sinclair made no order as to costs. The agreement-breach finding remains in place, but compensation must be worked out through the narrower process ordered by the court.