HomeMy WebLinkAboutPontes 05-06-24IN THE MATTER OF AN ARBIT~TION ~ JU~ ',~ '7 ,~u.~:~.
BETWEEN: ~ (;~';~:~" -''~ ........... '~"~ ''' ' .... ~
Cambrian College of Applied Arts and Technology,
Employer,
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Ontario Public Service Employees Union,
Union
BEFORE: Michael Bendel, Chair
Marc Piquette, Employer nominee
Edward Seymour, Union nominee
APPEARANCES: For the Union:
Mary Anne Kuntz, Grievance Officer
Katherine Hillyer, President.., Local 656
Barbara Pontes, Gdevor
For the Employer:
Timothy P. Liznick, Counsel
Andre Durette, Staff Relations Officer
Susan Alcorn MacKay, Director, Disability Services
Heard in Sudbury, Ontario, on May '11, 2005,
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ARBITRAL AWARD
In her grievance, Barbara Pontes, a Support Services Officer in Special Needs Services,
challenges the employer's refusal to grant her three days of bereavement leave on the death of her sister-
in-law in the summer of 2004. The employer replies that the grievor, being on vacation leave at the time', did
not qualify for bereavement leave.
The facts are not in dispute. The grievor was granted vacation leave from June 28 to
August 20, 2004. On July 21, she received word that her sister-in-law was gravely ill. The grievor and her
family immediately went to Barrie, where her sister-in-law lived. By the time they arrived in Barrie, her sister-
in-law had passed away. They remained in Barrie for a few days, until July 26, when they retumed home.
The grie,~or informed the employer by e-mail of her sister-in-law's death. Upon her return to work on August
23, she asked to be granted bereavement leave for two days, a request the employer denied. She then filed
a grievance seeking three days of bereavement leave and the "return" to her of three days of vacation
leave.
The relevant provisions of the collective agreement are these:
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tl. VACATION
11.5 Scheduling Vacation
Vacation shall be as scheduled by the. College. Employees shall be entitled to at least three (3)
consecutive weeks of vacation, unless otherwise agreed. Employees shall indicate their preference,
if any, as to vacation dates no later than Mamh 1 of the current vacation year for the next vacation
year (July 1 to June 30). The College shall confirm or deny, in writing, such vacation requests by
Mamh 15.
The College may, however, schedule vacations at any time and will consider requests by employ-
ees, including requests for vacation in the months of May through August, consistent with the
College staffing requirements.
Employee requests for vacation will not be unreasonably denied.
Where in scheduling vacations in accordance with the foregoing, conflicts arise amongst employees
as to their choice of vacation times, consideration shall be given to the respective length of service
of such employees and staffing requirements in the final determination of vacation schedules,
providing they have indicated a vacation preference prior to Mamh 1 in the current vacation year.
Vacation requests received after March 1 will be confirmed or denied, in writing, within two (2)
weeks of receipt of same.
If an employee is given in-patient treatment in a hospital during one (1) or more full days of the
employee's vacation, those days may, at the request of the employee, be rescheduled during the
vacation year, at a time convenient to the College.
11.6 Carry-Over
Recognizing the needs of the College and the desires of employees, an employee may carry over
up to three (3) weeks of vacation to the immediately subsequent vacation year consistent with effi-
cient staffing requirements and subject to agreement on scheduling of the carry-over week(s) in the
following vacation year at a time satisfactory to the College.
If an employee requests that vacation days be rescheduled as a result of in-patient treatment in a
hospital and the College is unable to reschedule in that vacation year, then upon written request to
the College, the employee may carry over those days in excess of the maximum.
12. LEAVES
12.5 Bereavement Leave
On the death of an employee's parent, spouse (or common law spouse), child, stepchild, brother,
sister, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grand-
parent, spouse's grandparent, grandchild or guardian, an employee shall be granted leave of
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absence of three (3) or more days without loss of pay in order to attend at or make arrangements
for the funeral, the duration of the leave to be at the discretion of the College.
18, COMPLAINTS/GRIEVANCES
18,7,5 Limitations
The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of this
Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a
proper matter for grievance under this Agreement.
On behalf of the union, Ms. Kuntz argued that, under Article 12.5 of the collective agree-
ment, the death of a designated family member triggered a right to bereavement leave. This leave could not
be denied to an employee in the event of such a death. Vacation leave, on the other hand, was an earned
benefit, intended for the employee's personal leisure and enjoyment. It was reasonable for an employee to
use bereavement leave, rather than vacation leave, when faced with the personal tragedy of the death of a
close family member. Earlier awards had recognized that employees in this situation qualified for bereave-
ment leave. Ms. Kuntz referred to the following awards: Re Sklar Furniture Ltd. and Uoholsterers' Interna-
tional Union, Local 50 (1977), 16 L.A.C. (2d) 273 (H. D. Brown), Re Alcan Smelters and Chemicals Ltd. and
Canadian Association of Smelter and Allied Workers, Local 1 (1982), 5 L.A.C. (3d) 83 (Hope), Re Whitbv
Hydro Electric Commission and Power Workers' Union (1997), 67 L.A.C. (4th) 20 (Stewart), Re Ontario
Hydro and Power Workers' Union, [1999] O.L.A.A. No. 143 (Kaplan), and Re Celanese Canada Inc. and
Communications, Enemy and Paperworkers Union of Canada Local 777 (2003), 116 L.A.C. (4th) 334
(Hornung).
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Mr. Liznick, counsel for the employer, argued that the employer should not be put in the
position of guaranteeing that an employee on vacation leave will be able to devote all the leave to leisure
pursuits. What an employee did with his or her vacation leave was for the employee to decide. In any event,
Article 12.5 provides for bereavement leave to be granted so as to enable an employee "to attend at or
make arrangements for the funeral". Since the gdevor.was free to attend at or make arrangements for her
sister-in-law's funeral without the need for bereavement leave, there was no entitlement to the leave. Article
12.5 also provides merely for leave "without loss of pay", rather than for "paid leave". Mr. Liznick also drew
attention to the final paragraph of Article 11.5, which specifically provides for the re-scheduling of vacation
leave if an employee is hospitalized while on vacation. On the basis of the principle of interpretation
expressio unius exclusio alterius, counsel argued that the board of arbitration should not conclude that
circumstances other than hospitalization had the effect of displacing vacation leave. He suggested that.to
grant the grievor's claim would be to endorse the pyramiding of benefits. He referred to the following
awards: Re Chinook Health Region and Canadian Union of Public Employees, Local 408, [2004] A.G.A.A.
49 (Tettensor), Re Colleqe Printers Ltd. and Communications, Enemy and Paperworkers Union of Canada,
Local 226 (1998), 73 L.A.C. (4~) 384 (Longpre), Re Great Atlantic & Pacific Co. of Canada Ltd. and United
Steelworkers of America, Local 414 (1995), 48 L.A.C. (4th) 129 (Solomatenko), Re Rio Alqom Ltd. and
United Steelworkers of America (1986), 24 L.A.C. (3d) 194 (Tacon), Re Comoration of the City of Toronto
and Canadian Union of Public Employees, Local 43 (1981), 2 L.A.C. (3d) 61 (Beatty), Re Regional Munici-
pality of Sudbury and Canadian Union of Public Employees, Local 6 (1979), 23 L.A.C. (2d) 46 (Hinnegan),
and Re Gray Forqin(~s & Stampings Ltd. and International Union of Electrical, Radio and Machine Workers,
Local 557 (1980), 27 L.A.C. (2d) 61 (Shime).
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The bereavement leave clause in the collective agreement contains two features that have
led other arbitration boards to conclude that bereavement leave was not available to employees who were
on paid vacation.
Firstly, Article 12.5 provides, not for "leave with pay'', but for "leave...without loss of pay". It
has been held that since the use of this term is manifestly designed to ensure that emPloyees do not lose
pay, an employee who is on vacation leave and in receipt of pay does not qualify for bereavement leave:
see, e.g., Re Chinook Health Region, supra.
Secondly, the agreement states that the purpose of granting bereavement leave is to
enable a bereaved employee "to attend at or make arrangements for the funeral". It has been held that,
where an agreement articulates the purpose of granting bereavement leave, an employee who is able to
accomplish this purpose by reason of being on vacation leave at the time, does not need, and thus does not
qualify for, bereavement leave: see, e.g., Re Colle.cle Printers'Ltd., supra.
In addition to these persuasive indications in the language of Article 12.5 that the grievor
was not entitled to bereavement leave, Article 11 of the agreement, dealing with vacation leave, has to be
considered. The relevance of Article 11 is obvious. What grievors are seeking in cases like this is that the
vacation leave that had been scheduled be replaced by bereavement leave for the number of days stipu-
lated in the agreement, with the retum to the grievor's vacation leave account of the number of days so
displaced. In the present grievance, the request for relief was explicitly framed in these terms. These griev-
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ances therefore require an examination, not only of the bereavement leave provisions, but also of the vaca-
tion leave provisions.
Some of the awards on the subject have considered whether it is consistent with the vaca-
tion leave provisions of the collective agreement to reschedule vacation leave upon the granting of
bereavement leave. The most prominent award in this regard is Re Corporation of the City of Toronto,
supra, where arbitrator Beatty wrote the following on this aspect of the case (at pages 63-4):
Nor can it be argued, as Mr. Goldblatt endeavoured to do, that the effect of Mr. McLennan's apply-
ing for bereavement leave at a time just before he actually began his vacation, was to actually
negate or annul his scheduled vacation. Such an argument carded with it the necessary implication
that someone like the grievor has a right to change his prearranged vacation schedule in the event
of the death of one of his relatives who are named in art. 45(a). But that provision says nothing of
the sort. There are simply no words to that effect in the terms of that clause. Article 45(a) talks of
compensation at regular rates of pay in cimumstances when a death of one's family relations would
otherwise cause one to lose time frem their regular schedule. It says nothing whatsoever about the
dghts of an employee to arrange his vacation schedule free from the risk of such unfortunate and
tragic cimumstances.
In fact there is nothing in the entire collective agreement about the rights of employees to participate
in the scheduling of their annual vacations. Article 21, dealing with vacations, is silent on the point.
And, as we know, in the absence of any specific language in the agreement dealing with the rights
of employees on such incidents of employment, this remains a matter within the exclusive prerega-
tire of management. In the absence of some specific language dealing with the subject, an
employee simply has no right to require any specific vacation schedule. Indeed, according to the
latest pronouncement by our Courts on this question, it may even be that an employee does not
even have the right to insist that whatever vacation schedule or policy is adopted by an employer, is
administered fairly and without discrimination: see Re Metrol~olitan Toronto Board of Com'rs of
Police and Uetrol3olitan Toronto Police Assoc. (an as yet unreported, unanimous judgment of
Ontario Court of Appeal dated June 9, 1981 [reported 124 D.LR. (3d) 684, 33 O.R. (2d) 476]).
Certainly, and whether or not that judgment really intended to go that far, there can be no question
that, in the absence of some specitic language recognizing such an entitlement, that decision
precludes us from inferring, from whole cloth as it were, a right in the grievor to require the employer
to change his vacation schedule in the event of the death of one of the named family relations.
Most of the awards that have allowed grievances of this nature, however, have failed to
examine whether it is consistent with the vacation leave provisions of 'the agreement to allow an employee
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to recover scheduled vacation leave. With respect, this is an important omission. Preparation of vacation
schedules is a complex exercise, requiring a consideration of the employer's operational requirements and,
often, the resolution of the competing claims of employees. Contract provisions regulating this process in
detail are common, perhaps because of the nature of this exercise, the general understanding in the work
world is that once vacation leave is granted the employee has to take it. (Or, at least, the employee has no
dght or expectation to recoup vacation leave credits for any days he or she does not take.) Like arbitrator
Beatty in the passage just cited, we would have difficulty accepting, as a general proposition, that an
employee has the unilateral right to rescind his or her vacation leave and recover the credits. Like him, we
would also have difficulty accepting, as a general proposition, that a necessary consequence of an
employee qualifying for bereavement leave is that the employer has to revoke the vacation leave (to the
extent of the available bereavement leave) and either reinstate vacation leave credits or change the vaca-
tion schedule to accommodate the employee.
In the present case, we are of the view that Article 11.5 of the collective agreement is a
formidable obstacle to the gdevor's claim to a return of her vacation leave credits. The final paragraph of
Article 11.5 reads as follows:
If an employee is given in-patient treatment in a hospital during one (1) or more full days of the
employee's vacation, those days may, at the request of the employee, be rescheduled during the
vacation year, at a time convenient to the College.
We agree with Mr. Liznick's submission that, by specifying in this clause that hospitalization during a period
of vacation leave can give an employee the right to have his or her vacation leave rescheduled, the parties
have implicitly excluded the possibility of a death in the family having the same effect. On the basis of the
principle of interpretation expressio unius exclusio alterius, we have every reason to doubt that the parties
ever intended bereavement leave to replace vacation leave in the cimumstances revealed in this case. Why,
one must ask, did they spell out that vacation leave is to be rescheduled in the event of hospitalization, yet
remain silent on the consequences of a death in the family dudng vacation leave? The only satisfactory
answer to this question is that they did not intend that bereaved employees should have the right to
reschedule their vacation leave.
The parties also made special provision, in the final paragraph of Article 11.6, for the carry-
over of vacation days rescheduled as a result of hospitalization. They did not deal with the carry-over of
vacation days rescheduled as a result of bereavement, which supports the conclusion that they did not
contemplate that such a situation might arise.
It is also pertinent to note that, even in the case of the hospitalized employee, the parties
did not allow for the unfettered reinstatement of his or her vacation leave credits, merely that the days would
be rescheduled during the vacation year at a time chosen by the employer. It is implausible, in our view, that
the parties could have envisaged that the bereaved employee would be entitled to an unrestricted return of
his or her vacation credits, as the union is seeking in the present case.
In our view, to order the reinstatement of three days of the gdevor's vacation leave credits
would therefore be inconsistent with Article 11 (even if she could be considered as having satisfied the
conditions in Article 12.5). Under Article 18.7.5, we are precluded from issuing any award that is inconsis-
tent with the terms of the agreement.
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For all the above reasons, the grievance is hereby dismissed,
DATED at Thornhill, Ontario, this 24t~ day of June 2005.
Chair
I concur/I dissent //,'q, ~((~c~- Z*~* ~ ,~,/"~.
Marc Piquette,
Employer Nominee
Edward Seymour
Union Nominee