HomeMy WebLinkAboutBrohart 11-09-28
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IN THE MATTER OF AN ARBITRATION
BETWEEN
RENFREW COUNTY AND DISTRICT HEALTH UNIT
AND
ONTARIO PULIC SERVICE.EMPLOYEES UNION
GRIEVANCE OF BRIAN BROHART
Arbitrator:
For the Union:
For the Employer:
Richard Brown
Mary Mackinnon
Lynn Harnden
Hearing:
Sept. 28, 2010 and Feb. 2 and Aug. 29,2011
Pembroke, Ontario
Brian Brohart works as a health promoter at the Renfrew County and
District Health Unit. Mr. Brohart was scheduled to be on vacation during the
week of March 16 to 20, 2009, but he actually worked the first four days of
that week. The grievor contends he forgot 'about his scheduled vacation,
whereas the employer claims he worked in a deliberate attempt to preserve
the vacation days for later use. The grievor seeks to be credited with four
days vacation or to be paid for the same number of days. According to the
employer, he is entitled to no relief, even ifhe reported to work by mistake.
I
Vacation scheduling happens twice a year, once in May and again in
November. The process utilized for scheduling vacations in 2008 was
slightly different than before. In previous years~ some eJ;11ployees, including
the grievor, submitted a vacation planning schedule in Mayor November,
indicating when they proposed to take leave, but they did not submit a
signed leave report until shortly before the proposed vacation period. In
April of 2008, all employees in the health promotion and clinical services
division received a memo, about the May round of scheduling, asking them
to submit a leave report along with a vacation planning schedule. The memo
reminded employees that vacation requests should not be treated as
approved until a copy of the leave report had been countersigned by a
supervisor and returned to them. A similar memo was issued in October
relating to the November round of scheduling. '
The grievor submitted a vacation planning schedule on November 7,
2008 indicating his desire to take vacation during the week of March 16,
2009 which corresponded with the March break in area schools where he
does some of his work. Also on November 7, he submitted a signed leave
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report requesting leave for the same period. Liz McLaren, his supervisor,
approved the grievor's leave request on December 1.
The form used for leave reports states: "Leave will be recorded from
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this application unless amended in writing." There are three copies of this
form: one is forwarded to administration for payroll purposes, another is
retained by Ms. McLaren and the remaining copy is returned to the
employee.
The grievor testified he submitted a leave report in November with
the intention of "locking in" vacation during the March break, noting it was
a "popular" vacation period among fellow employees. Ms. McLaren
conceded there is no record of any other health promoter being denied
vacation during that week, but she suggested someone may have refrained
from asking for leave then because he or she knew the grievor had done so.
Due to the nature of the duties performed by a health promoter, the
employer did not arrange for another employee to "cover" for the grievor
during his planned vacation. Before taking leave, a health promoter is
expected to arrange for someone to pick up messages and to ensure urgent
ones are handled appropriately.
When the grievor asked for vacation in March, he planned to spend
the time outside the country with friends, something he had done during the
March break two years before. When that plan was aborted in late
December, the grievor decided to take a "local" vacation instead. He
,
testified that he subsequently forgot about his leave request.
The grievor kept his copy of the leave report in a file in his desk,
along with other leave requests that had been approved. He did not record
the planned vacation in his day book, but at some point he did add a notation
to this book indicating the week in question was the March break. As well as
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her copy of the grievor's leave request, Ms. McLaren had a copy of the
master vacation schedule, showing the approved leave for the twelve or so
employees whom she supervised.
On February 27, the grievor submitfedhis work schedule for March,
outlining what he would be doing on a daily basis. This schedule indicated
he would be at work from March 16 to 20. Ms. McLaren approved it on
March 2, without making any comment about the grievor's scheduled
vacation. Having said her practice was not to "cross-reference" work
schedules with leave reports, Ms. McLaren conceded in cross-examination
that she had amended the grievor's schedule for December of 2008 by
noting vacation days approved after the schedule had been submitted for her
review. The division manger, Carla Walters, testified the work schedule is
not intended to record vacation for payroll purposes. Rather, the schedule
. . , '
serves as a planning tool for employees as well as allowing a supervisor to
contact one of them in an emergency or to arrange coverage when he or she
is absent due to illness.
The grievor worked from Monday, March 16 to Thursday, March 19.
Not having his vacation schedule in mind, Ms. McLaren did not comment on
his presence at work when scheduled to be on vacation. She testified it was
not her practice to ensure employees actually took their scheduled vacation.
On Thursday, the grievor asked for a day's vacation on Friday and Ms.
McLaren granted his request. The grievor did not work on Friday.
While the grievor was absent on Friday, Liz McLaren received a
message from Maureen W oodtke in administration reminding her the grievor
had previously booked vacation for the entire week. Ms. McLaren relayed
this message to the grievor on the following Monday
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The grievor met with Liz McLaren and Carla Walters on March 26.
Ms. McLaren and Ms. Walters each testified the grievor said he had realized
his mistake on Saturday, March 21. During examination in chief, Ms.
McLaren testified she thought it was odd that he would realize his mistake
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after the vacation period but not before, but she apparently did not invite him
to explain how this had occurred. Nor was the grievor asked at the hearing
how the alleged mistake came to light on Saturday. In cross-examination,
Ms. McLaren was asked if she "trusted" the grievor when he claimed to
have made a mistake. She replied that she was "very surprised" and in a state
of "disbelief' as no employee had ever forgotten to take vacation before.
In a memo dated March 27, the grievor asked to amend his leave
report to reflect the one day of vacation actually taken, thereby preserving
the other four days for later use. His request was denied.
Carla Walters testified that vacation~ ohce approved, is "rarely
amended." Noting there is a provision in the collective agreement about
employees who are ill during a scheduled vacation, article 14.05, she said
that vacation would be amended in those circumstances. She testified a
pandemic was "the other exception" where vacation would be amended. She
went on to say vacation would not be amended apart from those two
situations. The employer respects the commitments it makes to employees
about vacations and expects them to respond in kind. Ms. Walters noted that
allowing employees to amend vacation would require the employer to cancel
any "coverage" already arranged.
During cross-examination of the grievor, employer counsel suggested
he had deliberately refrained before March 16 from asking to amend his
vacation because he knew such a request would probably be denied. The
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grievor admitted knowing a rejection was likely but denied making a
deliberate decision based on this knowledge.
II
The central factual dispute is about how the grievor ended up working on
four days when he was scheduled to be on vacation. The employer bears the
burden of proving its allegation that he reported to work in a deliberate
attempt to force it to reschedule his vacation and subsequently lied about
doing so.
Most people who schedule a week of vacation a few months hence do
not forget having done so before the vacation period rolls around. However,
experience teaches that some people do make the types of mistakes that
others manage to avoid. In the instant case, an oversight by the grievor might
be partly explained by the fact he had not completed leave reports months in
advance of scheduled vacation in previous years. In my view. the mistake
that he claims to have made is not likely to have occurred, but it is not so
improbable as to indicate he is not telling the truth.
As Ms. McLaren noted, it does seem a bit odd that the grievor would
remember his vacation schedule at the end of the week in question and not
before the week started. Yet neither she nor anyone else asked him if he
could explain how his memory was refreshed when he says it was.
The grievor admitted knowing the employer rarely amended vacation
after it had been approved. This knowledge gave him a motivation to try to
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force management's hand, but such knowledge alone offers no evidence he
acted on that motive. Moreover, there was no guarantee for the grievor that
working during the March break would result in his vacation being
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rescheduled. Indeed, he did work then and his leave was not amended as a
result.
Bearing all of the circumstances in mind, I can understand why the
employer is suspicious. Nonetheless, I conclude it has failed to prove, on the
balance of probabilities, that the grievor engaged in an under-handed scheme
and then lied to cover his tracks.
III
The union advanced a three-fold argument in support of its claim that the
grievor is entitled to have four days added to his vacation bank or to be paid
for the same number of days: the first argument relies on the collective
agreement; the second is based on the equitable notion of unjust enrichment;
and the third draws upon the Employment Standards Act.
The grievor was entitled to twenty days vacation under article 14.01
'. .
of the 2005-2008 collective agreement. Vacation scheduling is governed by
article 14.04 which states:
All periods of vacation shall be taken at a time mutually agreeable
between the employer and the employee.
Requests for vacation shall be forwarded to the immediate supervisor
by May 1 sl for summer vacation and by November 1 sl each year for
winter vacation. Confirmation of approved vacation periods shall be
provided within a two-week period. In the event that all requests for
vacation cannot be granted at a given time, vacation shall be granted
on the basis of seniority.
All requests for vacation outside theforn;al requ~st procedure will be
answered on an individual basis. (emphasis added)
As the grievor was initially granted the number of vacation days he
requested, I see no violation of article 14.01. The real dispute is about
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whether he was entitled to reschedule his vacation pursuant to article 14.04.
The union contends his request to take vacation at a later date should have
been considered "on an individual basis" and granted.
The union relies upon United Parcel Service Canada Ltd. and
Teamsters Union (1981),29 L.A.C. (3d) 202 (Burkett) where a company
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rule about vacation scheduling was sustained because it enhanced
operational efficiency. Counsel for the union contends the employer here
had no operational reason for denying the grievor's request to reschedule his
vacation.
Citing British Columbia Nurses' Union and Communication, Energy
and Paperworkers Union (2005), 80 C.L.A.S. 214 (Hope), employer counsel
argues the employer's decision should be upheld because it was not
"arbitrary, discriminatory or made in bad faith."
Vacation scheduling is a complex exercise that entails a balancing of
conflicting interests in two senses. The interests of the employer and
employees at large must be reconciled in determining how many of them are
allowed to be on vacation at any given time. Where the number of
employees wanting vacation at the same time exceeds the number allowed to
be away, not everyone can get leave when they would like it and some
requests must be denied. After the initial allotment of vacation periods has
been made, managers may rely on it by arranging coverage for people
scheduled to be away and employees may rely on it by making travel plans.
Rescheduling itself entails some degree of administrative burden for the
employer. For all of these reasons, once the initial schedule has been set,
'. .
there are operational reasons not to grant an employee's request to
reschedule vacation.
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I need not decide whether those operational concerns might be
outweighed by a compelling employee claim in some circumstances. Given
the facts at hand, I conclude the grievor is not entitled to have his vacation
rescheduled under article 14.04. Even though coverage had not been
arranged and no-one was denied leave because of the grievor's plans,
someone may have refrained from requesting the same week as him and
rescheduling would not have been cost free. Moreover, his careless mistake
does not present a compelling case for amending his vacation schedule.
IV
The union's argument based on unjust enrichment arises from an unusual
feature of this case: the grievor worked four days during the week when he
was scheduled to be on vacation. The employer received the benefit of his
labour, but he was paid no more than he would have been ifhe had taken
those four days off.
Claiming relief based on the concept of unjust enrichment, the union
cited the decision of the Supreme Court in Deglman v. Guarantee Trust of
Canada, [1954] S.C.R. 725. Speaking for the majority in that case,
Cartwright 1. quoted the following passage from a decision of the House of
Lords:
It is clear that any civilized system of law is bound to provide
remedies for cases of what might be called unjust enrichment or
unjust benefit, that is to prevent a man from retaining money or some
benefit derived from another which it is against conscience that he
should keep. (Fibrosa Spolka Akcjna v. Fairbairn Lawson Combe
Barbour Ltd., [1943] A.C. 32, at page 61)
The elements of unjust enrichment were restated by the Supreme
Court in Garland v. Consumers' Gas. Co., [2004] 1 S.C.R. 629: (1) an
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enrichment of the defendant; (2) a corresponding deprivation of the plaintiff;
and (3) the absence of any juristic reason for the enrichment.
The facts at hand satisfy the first two elements of this test: the
grievor's labour represented a burden to him and a benefit to the employer.
The parties joined issue over whether there was a juristic reason for the
enrichment.
The concept of juristic reason was addressed at length by Iacobucci 1.
speaking for the Court in Garland:
First, the plaintiff must show that no juristic reason from an
established category exists to deny recovery. ... The established
categories that can constitute juristic reasons include a contract
(Pettkus, supra), a disposition of law (Pettkus, supra), a donative
intent (Peter, supra), and other valid common law, equitable or
statutory obligations (Peter, supra). If there is no juristic reason from
an established category, then the plaintiff has made out a prima facie
case under the juristic reason component of the analysis.
The prima facie case is rebuttable, however, where the
defendant can show that there is another reason to deny recovery. As a
result, there is a de facto burden of proof. placed on the defendant to
show the reason why the enrichment should be retained. This stage of
the analysis thus provides for a category of residual defence in which
courts can look to all of the circumstances of the transaction in order
to determine whether there is another reason to deny recovery.
As part of the defendant's attempt to rebut, courts should have
regard to two factors: the reasonable expectations of the parties, and
public policy considerations. (page 651)
Union counsel argues there was no juristic reason for enrichment in
the case at hand. The grievor was not obliged to work and there was no
reasonable expectation that he would work without remuneration beyond
what he would have received if absent.
The employer relies upon Sifto Canada Corp. and Communications,
Energy and Paperworkers (2010),103 C.L.A.S. 275 (Surdykowski).
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Dealing with the third element of the test in Garland, Arbitrator
Surdykowski wrote:
The equitable doctrine of unjust enrichment does not apply where as a
separate basis for recovery where there is a contract binding on the
parties. (para 40)
Mr. Surdykowski went on to consider the terms of the collective agreement
and dismissed the grievance.
As union counsel suggested, the facts at hand are markedly different
than those in Sifto Canada. In that case, the employer conceded the grievors
had been paid too little by way of disability benefits over a period of years.
The employer also conceded they were entitled to a remedy for the period
commencing three weeks before they grieved-three weeks being the time
limit for filing a grievance under the collective agreement. The union sought
a remedy covering the entire period of underpayment. Arbitrator
Surdykowski rejected this claim. He decided there were no reasonable
grounds for extending the contractual time limit. It was in this context that
he concluded the existence of the collectiv'e agreement ~eant there was a
juristic basis for any enrichment of the employer relating to the period for
which relief was denied. Arbitrator Surdykowski properly refused to allow
the union to evade the time limit in the collective agreement via a claim of
unjust enrichment.
The mere existence of a contract does not bar all claims of unjust
enrichment between the contracting parties, not even all claims relating to
the subject matter of the contract. A contract precludes only those claims
that are inconsistent with its terms. This point can be illustrated by
considering two scenarios involving a contract for the sale of goods with
delivery at some future date. In the first scenario, the market price per unitr
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on the date of delivery is higher than the contract price, and the seller
demands the higher amount, arguing anything less would result in the buyer
being unjustly enriched. This argument obviously cannot succeed because it
is a blatant attempt to alter the agreed price. Here the contract provides a
valid juristic reason for the buyer's enrichment. In the second scenario, the
seller mistakenly delivers a larger quantity of goods than the contract
stipulates. The buyer insists on keeping all of tl).e merchandise but refuses to
pay more than the total amount specified by the contract. A claim by the
seller based on unjust enrichment would succeed. There is no juristic reason
for denying it, because the contract did not contemplate the buyer receiving
more goods than had been agreed.
The facts presented to Arbitrator Surdykowski in Sifto are analogous
to the first sale-of-goods scenario. Just as the union in Sifto was trying to
circumvent the time limit in the collective agreement, the buyer is trying to
evade the contract price.
In contrast, the grievor's claim to be compensated for the four days he
worked, time that he was not obliged to be on duty, is analogous to the
seller's claim in the second scenario to be paid for goods in excess of the
amount contractually required. There is no juristic basis for allowing the
employer to retain the benefit of the grievor's labour without compensating
him in some way. He is entitled to some form of compensation.
The most obvious form of compensation would be four days' pay.
Another possible form of compensation would be four days of paid leave. As
either of these remedies would prevent unjust enrichment, I conclude the
employer is free to choose between them.
If the employer elects to grant paid leav~, it may determine when such
leave will be taken. The law relating to unjust enrichment provides no basis
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for allowing the grievor to reschedule his vacation to a "mutually agreeable"
time. Granting him four days' leave with pay would be sufficient to ensure
the employer is not enriched by his mistake, regardless of when the leave is
taken. Moreover, a claim based on unjust enrichment cannot over-ride the
collective agreement. A right to take vacation when mutually agreed is
found in article 14.04 of the collective agreement, but I have already
decided the grievor is not entitled to change his annual leave under that
, .
article.
Having concluded the law relating to unjust enrichment entitles the
grievor to payor paid leave, I need not consider whether these same
remedies are available under the Employment Standards Act.
Richard M. Brown
Ottawa, Ontario
Sept. 28, 2011
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