HomeMy WebLinkAboutCurrie 18-10-091
IN THE MATTER OF AN ARBITRATION
BETWEEN:
COMMUNITY LIVING MEAFORD
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,LOCAL 235
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF ASHLEIGH CURRIE
Louisa M. Davie Sole Arbitrator
Appearances
For the Union: Val Patrick
For the Employer: Bonnea Channe
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Award
This award deals with the 2017 vacation entitlement of Ashle igh Currie ("the grievor").
The grievor asserts that Community Living Meaford ("the Employer") violated article 17
of the collective agreement to which it is bound together with Ontario Public Service
Employees Union, Local 235 ("the Union"). The settlement desired in the grievance is
"full redress". At the hearing the Union indicated that full redress in this case was either
10.25 hours pay or 10.25 hours of paid vacation to be taken prior to April 1, 2019. The
Union stated that either option was acceptable to the Union and the grievor, and that it
would leave it to the Employer as to which option the Employer preferred.
The relevant article of the collective agreement provides:
ARTICLE 17 – VACATIONS
17.01 Full time employees will be entitled to annual vacation and vacation pay
based on length of continuous service as follows:
[provision then sets out weeks of entitlement following service milestones]
Vacation entitlements, according to the above schedule will be credited on
April 1st of every year. All prorated adjustments to vacation entitlement will
be made on the anniversary date for the remainder of the fiscal year.
Employees will be required to take their vacation entitlements within the
fiscal year and time taken will be subtracted when taken.
Employees affected by a shutdown shall be offered additional hours
created by vacationing employees as one block of time. Such hours,
however, shall not exceed the regularly scheduled hours of the employees
affected by the shutdown.
17.02 Part-time employees shall be entitled to the same amount of vacation
leave as their full-time counterparts except that the leave shall be without
pay. In lieu of paid vacation, part-time employees shall be entitled to a
percentage payment(s) on the following scale:
[provision then sets out a percentage scale entitlement following service
milestones]
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The vacation percent-in-lieu shall be paid at the time of the employee ’s
unpaid vacation leave, with any balance owing for the fiscal year being
paid at March 31st.
17.03 Vacations are to be taken in the vacation year in which they are earned
but, with the approval of the Executive Director, vacation credits of up to
one (1) week may be carried over to the next vacation year in special
circumstances. Such requests shall be made in writing and the Executive
Director will consider each case on its merits.
17.04 A vacation entitlement schedule will be prepared and posted at each work
site on January 15 of each year. Two weeks of vacation entitlement for
each employee in each year must be taken in two (2) one-week (1-week)
periods or in one (1) two-week (2-week) period. The employee is entitled
to take the vacation time in excess of two (2) weeks in single days or in
groups of less than one (1) week blocks. Each employee will submit
his/her initial vacation request for a minimum of two (2) weeks by March
31st of each year. All vacation request must be scheduled with and
approved by the Team Manager. Vacation schedules will be approved on
or before April 30th of each year, based on the impact on the people being
supported and other employee schedules, seniority, and date of
submission. All vacation requests after the initial request shall be dealt
with on a "first-come, first-serve" basis and must be submitted to the Team
Manager no later than January 15th of each year. Vacation time not
scheduled by January 15 of each year may be scheduled by the
Employer.
17.05 (a) Should an employee be absent on sick leave prior to a scheduled
vacation period and the illness extends into the vacation period,
then that part of the vacation period not used as vacation time may
be deferred to be taken at a later date mutually agreed upon,
provided that the employee can produce a medical report from a
duly recognized medical doctor.
I heard the evidence of two witnesses – the grievor and her Supervisor, Lee-Anne
Reuber. There is little dispute in the evidence and the respective credibility of the
witnesses has not been a factor in my determination. The following are my findings of
fact:
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General Facts
The vacation year for employees in the bargaining unit commences on April 1 st and
ends March 31st. Employees are credited with their vacation entitlement for the
upcoming vacation year on April 1st of each year.
It is the Employer's policy not to pay out unused vacation. In addition, vac ation time is
generally not permitted to be carried over into the next vacation year unless approved
by the Executive Director. Throughout the hearing this was colloquially referred to as
"use it or lose it." For example, in December 2014 the Employer emailed all employees
stating:
"Sending out a reminder to those staff who have holiday time to use up – BOOK
IT NOW!…Holidays will not be carried over or paid out so be sure to put in your
time off requests now."
Employees are kept apprised of their vacation entitlement and what remains available to
be used through two sources. First, the paystub which each employee receives every
two (2) weeks records the vacation entitlement which remains outstanding. That
paystub is two (2) weeks in arrears. Nevertheless, looking only at their pay stub, at the
very latest, employees know by mid-March if they have vacation left in their bank to be
taken before the first day of April. The second source through which employees are
kept apprised of their vacation entitlement is the Personal Attendance Record ("PAR")
distributed to each employee on a quarterly basis. That PAR records not only the
vacation used but also provides a balance of vacation which remains.
It is the Employer's policy to ensure that every employee takes the two (2) weeks of
vacation to which an employee is statutorily entitled under the Employment Standards
Act ("ESA") . Thus, if a Supervisor notices from the PAR that an employee has not yet
taken their two (2) weeks of vacation a reminder will be given to the employee. The
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Employer may also schedule the vacation for an employee who has not yet taken the
two (2) weeks of vacation to which they are statutorily entitled.
An employee who is entitled to more than two (2) weeks of vacation and who has taken
the two (2) weeks of vacation required by the ESA is not specifically reminded of the
balance in their vacation account and is not specifically reminded to schedule that
vacation. From the Employer's perspective it is the employee's responsibility to ensure
that they use up any vacation credits in excess of the two (2) weeks required under the
ESA. The Employer maintains its only obligation is to notify the employee of their
outstanding vacation entitlement. The Employer does that through the biweekly pay
stubs and the PAR.
Facts Specific to the Grievor
The grievor's length of service with the Employer entitled her to four (4) weeks of
vacation in the April 1, 2016 to March 31, 2017 vacation year.
The grievor suffered an injury and broke her wrist in the summer of 2016 causing her to
be on sick leave for some time. Pursuant to article 17.05, the vacation she had
requested during the summer of 2016 was deferred.
The grievor's PAR indicates she was absent and on sick leave from in or about June 27,
2016 to in or about August 19, 2016. For the several weeks following her return to work
it appears she worked modified hours as her PAR reflects she worked four (4) hours per
day and not the regular eight (8) hours per day. She returned to full hours on or about
September 20, 2017.
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At the time of her return to full time hours the grievor had 116 hours of paid vacation left
in her bank to be used before April 1, 2017. The grievor used a few hours of vacation
over the next two months and, by the end of November 2016, she had 99 hours
remaining in her vacation bank. This prompted her to state in an email to her Supervisor
dated November 30, 2016:
"I have two weeks of holidays that I need to use up before the fiscal year is
completed. Could you please provide me with month(s) and dates as to when I
could utilize this accumulated time."
The grievor used some more vacation time in December 2016, but in an email to her
Supervisor dated January 6, 2017 she states:
“As of January 14, 2017, I will have 56 hours of holiday time to use. I scheduled
time off in the summer however I broke my wrist which in turn caused me to be
off. I went back in and scheduled time off in February (as I would prefer not to be
paid out) and those got denied. I would appreciate it if you could gi ve me a week
off somewhere if possible. Please let me know."
The grievor's reference to scheduling time off in February "and those got denied" refers
to the Employer's computerized web-based program called "When To W ork." This
program permits employees to request vacation (or other leaves). The grievor had
requested to take vacation February 6 – 11. That request was denied by the Employer.
In this regard I note that vacation requests are automatically forwarded to the grievor’s
Supervisor who testified that she either grants or declines the request depending on
staffing levels and whether there is adequate coverage. If a vacation request is denied
the Supervisor would generally offer alternative dates.
On January 17, 2017 the grievor sent a follow-up email to her Supervisor asking:
"if [she had] come up with some dates/months as to when I can take my
holidays? Please let me know if this is possible."
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On January 18, 2017 her Supervisor responded:
"I'm not sure how many hours you have of holiday time but if you would like to
take January 24, 25, 26, 27 off next week I could approve that at this point.
Please let me know as soon as possible."
The grievor's PAR indicates she did take 4 days of paid vacation on January 24, 25, 26
and 27, 2017.
Thereafter the grievor was offered further vacation time by her Supervisor to be taken in
February. In a February 2, 2017 email the grievor replied and declined the proposed
February vacation dates offered stating:
"I do not need February 13, 14, 15th off as my holid ay time has been used up."
The grievor was mistaken in her belief that her vacation had been used up. As at
February 2, 2017 she still had approximately 12.75 paid vacation hours in her bank. The
pay stub she received on January 21, 2017 indicates she had 45.75 remaining vacation
hours. The vacation time taken after January 21, 2017 did not equal 45.75 hours.
I find that when the grievor received her pay stub approximately two weeks after this
February 2, 2017 email (on or about February 18, 2017) she wou ld have seen that she
still had 12.75 hours of vacation entitlement at the time she wrote her February 2, 2017
email.
Between the time of her February 2, 2017 email and March 31, 2017 the grievor took
another 2.5 paid vacation hours. Although the evidence lacks some clarity on this point
it would appear those hours were used to accommodate the grievor's request to leave
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work early on some days. On those occasions she would ask to leave early using either
her vacation or lieu time bank.
I find that the grievor was monitoring her vacation usage. More specifically I find that no
later than February 18, 2017 she would have known that she had 12.75 hours of
vacation left in her bank. No later than March 18, 2017 she would have known (from
her pay stub for the pay period ending March 4, 2017) that she had 10.25 hours left in
her bank. From the evidence tendered I find that the grievor knew, or should have
known by the end of February 2017, or at the very latest March 4, 2017, that she had
10.25 hours of paid vacation left in her bank. Following her February 2, 2017 email the
grievor did not actively seek to schedule those vacation hours (beyond using them to
leave work early) through "When To W ork." The grievor also did not contact her
Supervisor again to schedule the remaining vacation hours.
Following receipt of the February 2, 2017 email the grievor’s Supervisor did not actively
seek to schedule the grievor's remaining hours of vacation, nor did she advise the
grievor that she had vacation remaining to be used before March 31, 2017. It would
appear that Supervisor relied on the grievor's email that "my holiday time is used up"
although with a bit of sleuthing (the Supervisor submits the information to payroll and
the information on the PAR) the Supervisor could have ascertained that the grievor had
vacation remaining. As indicated earlier however it is the Employer's position that the
responsibility of using vacation entitlements within the vacation year rests with the
employee. The Employer's only obligation is to ensure that employees take the vacation
required by the ESA. The Employer maintains its obligation to advise or remind
employees does not extend beyond that.
The grievor testified she was not aware of the "use it or lose it" p olicy. More specifically
she was not aware that she was required to request to carry over vacation in writing and
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that such carry over had to be approved by the Executive Director. She testified "I didn't
ask for it to be carried over. I also don't recall having an issue like this and/or staff
having to ask to have vacation time carried over."
I accept the grievor's evidence that she did not know that she would have to make a
written request to the Executive Director to carry over unused vacation. This is
consistent with the grievor's email dated January 6, 2017 in which he advised that she
wanted to take "time off in February (as I would prefer not to be paid out)." From this it
is evident that the grievor thought she would be paid out any unused vacation. From
her testimony it is apparent that the grievor had general knowledge of the vacation
provisions of the collective agreement (i.e. she knew that she had to take her vacation
within the fiscal year) but I accept her evidence that she had not looked closely at the
collective agreement language and was not aware of the process to be followed if she
wanted to carry over unused vacation.
Within this factual context the parties made their submissions.
Submissions
It was the Union's position that the “use it or lose it" rule implemented by the Employer
was unreasonable, contrary to the Management Rights clause, and a violation of article
17 of the collective agreement.
It was argued that article 17.01 provided for two things – vacation leave (time) and
vacation pay. This was evident from the use of the word "and" in the first sentence of
article 17.01.
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It was the Union’s submission that with respect to vacation time the Employer retained
the right to schedule employees, not only in the Management Rights clause of the
collective agreement, but also in article 17.04. The Employer had the right to schedule
employees who were not using their vacation time. However, where the Employer does
not exercise its right to schedule employees to take their vacation time, the Employer
can't withhold the vacation pay to which the employee is entitled.
It was asserted that vacation pay is an earned benefit which forms part of the total
compensation of the employee. It would require clear language in the collective
agreement for the Employer to take away that earned benefit. There is nothing in the
language of this collective agreement which entitles the Employer to deny vacation pay
to the grievor. The Employer can't withhold the earned vacation pay benefit simply
because it has not exercised its right to schedule the employee's vacation time.
Here the grievor was not aware of the requirement to make a written request to the
Executive Director if she wished to carry over her unused vacation. That however did
not mean that she lost her vacation pay and that the Employer was entitled to keep it.
In reply to the Employer’s submissions it was argued that in this case the grievor sought
to schedule her vacation and it was the Employer which denied her the vacation time
she wanted in February 2017. The fact that the grievor was not able to use all of her
vacation was therefore not solely her fault. The grievor cannot schedule her own
vacation. The obligation was on the Employer to schedule her vacation following the
grievor's November 30, 2016 and January 6 and 17, 2017 email requests. The onus to
enforce the "will be required" language of article 17.01 rests with the Employer.
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It was the Employer’s submission that the language of this collective agreement was
clear. Article 17.01 clearly states employees "will be required" to take their vacation
entitlement within the fiscal year, while article 17.03 provides that vacations "are to be
taken in the vacation year in which they are earned." It is equally clear that request s to
carry over vacation "should" be made in writing to the Executive Director. In this case
the grievor neither took her vacation in the year it was earned, nor did she make a
written request to carry over any unused vacation.
The evidence indicated that the Employer has systems in place through which
employees are able to monitor their vacation entitlements. The griever was well aware
of those systems. Her evidence demonstrated that she was aware of her vacation
entitlement, was able to schedule her vacation in full or partial days, was tracking her
vacation entitlement, submitted vacation requests and followed up with her Supervisor
with respect to outstanding vacation. The grievor agreed that it was an "oversight" on
her part not to have requested vacation to use up her remaining 10.25 hours, just as it
was an "oversight" not to have made a written request to carry over the vacation. The
Employer maintained however that the grievor could not use that oversight to claim
either payment or more paid vacation than the collective agreement provided.
There is nothing in the language of this collective agreement which requires the
Employer to pay out unused vacation. Indeed, the only inference to be drawn from
article 17.03 is that if an employee does not use all of their vacation and fa ils to make
the written request to carry it over, the vacation credit is lost.
In response to the Union's position that it was the Employer's right and obligation to
schedule an employee’s vacation it was argued that nothing in article 17.04 required the
Employer to constantly audit employees’ vacation entitlement and schedule the
employee who was not using all of their vacation entitlement. Nothing in article 17.04
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requires or mandates the Employer to notify or remind employees of unused vacation.
Although the Employer is required to ensure that employees take the vacation to which
they are statutorily entitled under the ESA, there was nothing in the collective
agreement which obliged the Employer to make sure that employees took all of their
vacation in the fiscal year, and nothing in the collective agreement which required the
employer to schedule vacation in excess of the statutorily required vacation. Counsel
relied on Messier – Dowty Inc. and IAM, Local 905 72 C.L.A.S. 174 (Beck).
Decision
I agree that vacation is an earned benefit . I also agree that earned benefits can't be
withheld merely by reason of an Employer policy. In this case the real issue to be
determined is the nature of the "benefit." Having regard to the language of this
collective agreement I have concluded that the benefit is paid vacation time away from
work and that the parties have negotiated specific provisions or parameters with respect
to the circumstances under which that benefit is extended and utilized.
I do not accept the Union's submissions that the collective agreement makes a
distinction between vacation leave, or vacation time, and vacation pay and that, in
effect, one is not dependent on the other. Read in its entirety it is clear that the benefit
to which an employee is entitled under article 17 is paid vacation, which is credited on
April 1st of each year, and which must be used by March 31st of the following year.
The collective agreement grants a "vacation" benefit which encompasses both time
away from work and pay during that time away from work. In my view, for full-time
employees, the collective agreement does not distinguish between vacation time and
vacation pay. That is evident from the language used. First, I note that after the first
sentence the remainder of article 17 uses either the term "vacation" or "vacation
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entitlements" to describe the benefit granted to full-time employees. This is in contrast
to "vacation leave" used to describe the benefit extended to part-time employees. That
suggests that the vacation benefit to which full-time employees are entitled is not merely
"leave" but consists of both time and pay. Similarly, it is noteworthy that article 17.01 (a)
to (e) (which correlates the vacation entitlement to service milestones) refers only to
"weeks". There is no reference to pay or a percentage of pay as there is in the vacation
article applicable to part-time employees. Again, this suggests that the vacation benefit
is comprised of two inseparable components, time and pay, for it would make little
sense to provide full-time employees only with "weeks" of vacation leave or time away
from work without the corresponding pay. The "vacation entitlement" benefit therefore is
a single benefit consisting of both time and pay.
That vacation benefit is further refined by the other provisions of the collective
agreement which indicate that employees must use their vacation entitlement within the
fiscal year. Article 17.01 specifically notes, in mandatory language, "employees will be
required to take their vacation entitlement within the fiscal year…" Similarly, in
mandatory language, article 17.03 states that "vacations are to be taken in the vacation
year in which they are earned." There is nothing in the language of article 17 to suggest
that vacation is cumulative or that unused vacation will be paid out. The benefit
therefore is paid vacation time, which must be used during the fiscal year, which is not
cumulative and which is not paid out.
In the article dealing with vacation for part-time employees the parties specifically
provided for the balance of unused vacation pay to be paid to part-time employees on
March 31st. The parties clearly knew how to draft language in their collective agreement
for the payout of unused vacation entitlements. That they did not negotiate similar
language permitting unused vacation to be paid out on March 31 st to full-time
employees is significant.
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Finally, I agree with Employer counsel that the fact that article 17.03 of the collective
agreement contemplates that employees can apply in writing to carry over any unused
vacation is inconsistent with the notion of a payout (particularly in the absence of any
language requiring the Employer to pay out unused vacation.) The language of 17.03
indicates only that employees may be able to carry over some unused vacation . They
may do so if they follow the procedures set out in that article. An employee who does
not make a written request to carry over vacation entitlement loses the entitlement.
There are also no provisions in this collective agreement which require the Employer to
audit or monitor every employee's vacation entitlement and notify those employees who
appear to be at risk of losing a portion of their vacation entitlement. I do not accept the
Union's position that the concluding sentence of article 17.04 requires the Employer to
schedule vacation for employees who are at risk of losing a portion of their vacation
entitlement. The permissive "may" in that sentence does not place an onus on the
Employer to schedule such vacation. In my view the initial onus to request vacation and
ensure that it is scheduled remains with the employee. Moreover, given the facts of this
case, it is inappropriate to place a burden on the grievor's Supervisor to monitor the
grievor's vacation usage and schedule vacation for the grievor when, in her email of
February 2, 2017, the grievor herself advised that she didn't need to schedule more
vacation "as my holiday time has been used up." The Supervisor was entitled to rely on
that statement and was not required to double check its accuracy given the various
processes in place which notify employees of their remaining vacation entitlement.
In this case the grievor agreed it was an oversight on her part not to have made a
request in writing to carry over the 10.25 hours. It is unfortunate that her oversight has
resulted in a loss of some vacation entitlement. Her oversight however does not mean
that the Employer has violated the collective agreement. The Employer is not required
to pay out unused vacation and a written request to carryover unused vacation was not
made.
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For all of these reasons the grievance is dismissed.
Dated at Mississauga this 9th day of October, 2018.
Louisa Davie
Louisa M. Davie sole arbitrator