ARBITRATION

BETWEEN:

NAV CANADA

(the “Employer”)

- and -

CANADIAN AIR TRAFFIC CONTROL ASSOCIATION

—CAW LOCAL 5454

(“CATCA” or the “Union”)

With respect to a grievance by the Union on behalf of Gary Ross about whether his absence on March 17 and March 21 through 26, 2002, should be characterized as lieu leave or sick leave.

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AWARD

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BOARD OF ARBITRATION
D. P. Jones, Q.C.......................................................	Sole Arbitrator
REPRESENTATIVES OF THE UNION
Abe Rosner............................................................ Greg Myles............................................................	National Representative National Secretary-Treasurer
REPRESENTATIVES OF THE EMPLOYER
George Rontiris....................................................... Steve Cooper.......................................................... Marc André Croteau................................................	Counsel Manager, Labour Relations Labour Relations Officer

HEARD at Ottawa, Ontario on 11 July 2003.

AWARD ISSUED at Edmonton, Alberta on 27 October 2003.

I. BACKGROUND

The Employer runs the civil aviation navigation system in Canadian airspace. Its facilities operate on a continuous 24-hour-per-day basis year round. Operating employees rotate through every shift; shifts are not assigned by seniority. Because of the continuous nature of the operation, operating employees are required to work on statutory holidays. To compensate for the inability to take statutory holidays off, operating employees are entitled to a credit of 93.17 hours of “lieu leave” in each vacation year, which can be scheduled either as an extension to vacation leave or as occasional leave. At the employee’s option, lieu leave can be paid out at straight time at the end of the vacation year, or it can be carried forward for one vacation year. The Employer is obliged to “... make every reasonable effort to schedule lieu leave at times desired by the employee ... consistent with operational requirements and subject to adequate notice”.

Operating employees are also entitled to the equivalent of 15 days per year of sick leave, which is bankable, but which is not generally able to be paid out on retirement.

The Grievor, Gary Ross, had made arrangements to take lieu leave on March 17 and March 21 through 26, 2002 (inclusive). However, prior to that day, he became sick. He asked to use sick leave for the days in question, rather than lieu leave. The Employer denied the request.

The issue in this arbitration is whether the Grievor is entitled to have the days in question characterized as sick leave rather than lieu leave.

II. AGREED STATEMENT OF FACTS

At the hearing, the parties submitted the following Agreed Statement of Facts:

1. Mr. Gary Ross, the grievor, is a full-time air traffic controller and classified as an AI-OPR-05 working at the Employer’s Winnipeg Area Control Centre, a facility which operates on a continuous 24-hour-per-day, year-round basis.

2. As an operating employee, the grievor’s lieu leave bank was credited with 93.17 hours on April 1, 2001 in accordance with article 28.05(a)(ii) of the collective agreement.

3. The grievor properly applied for and was granted lieu leave in accordance with article 28.05(c) of the collective agreement for March 17, 2002 and the period of March 21, 2002 to March 26, 2002, (inclusive). The grievor’s scheduled rest days were March 18, 2002 to March 20, 2002 (inclusive), but prior to booking sick he had been scheduled to work overtime shifts on March 18 and 20. The lieu leave to be utilized dated from the current year.

4. On March 13, 2002, the grievor contacted the appropriate individual in accordance with the normal procedure and advised that he was sick and that his attending physician had issued an official disability certificate which stated a return to work date of April 1, 2002.

5. Also on March 13, 2002, the grievor requested that his lieu leave bank be credited with the leave previously granted and that his sick leave bank be deducted for the period of his sick leave.

6. The Employer denied this request on April 22, 2002, taking the position that the employee could not displace lieu leave with sick leave.

7. The Employer did not take issue with the validity of the grievor’s sick leave.

In addition, at the hearing, the parties made the following oral stipulations:

8. The parties are aware of four other instances of employees in 2000 and 2001 who had scheduled lieu leave, who had fallen sick prior to the beginning of that lieu leave, whose lieu leave was not converted to sick leave. The Union is not aware of any grievances arising from these cases. The Employer is not aware of whether any of these employees had requested lieu leave to be converted to sick leave.

9. There are at least two other similar grievances across the country, at various levels.

10. The Union was not aware of any problem with respect to the administration of lieu leave prior to the filing of the present grievance and the other two grievances elsewhere. The Union is not aware of any discussions with the Employer about this issue.

III. RELEVANT PROVISIONS

The relevant provisions of the collective agreement are the following:

[Article 28–Holidays]

28.05 Lieu Leave (Operating Employees)

For operating employees,

(a) (i) On September 1st, 1999 an employee shall be credited with an additional one point three (1.3) hours of lieu leave. (This is in addition to the hours that have been granted as of April 1, 1999.)

(ii) On April 1st of each year thereafter, an employee shall be credited with ninety three point one seven (93.17) hours of lieu leave.

(b) Lieu leave may be scheduled as an extension to vacation leave or as occasional leave and shall be charged against the lieu leave credits on an hour-for-hour basis.

(c) Consistent with operational requirements and subject to adequate notice, NAV CANADA shall make every reasonable effort to schedule lieu leave at times desired by the employee.

(d) Where in any vacation year an employee has not utilized all of the lieu leave credited to him or her, the employee may elect to carry forward into the next vacation year the unused portion of his or her lieu leave.

(e) Lieu leave earned in the vacation year will be utilized before lieu leave carried forward from the previous vacation year.

(f) At the employee’s option, any lieu leave which cannot be liquidated by the end of the vacation year in which it is earned will be paid off at the employee’s straight-time rate of pay in effect at that time.

(g) In cases where lieu leave from the previous vacation year has not been fully utilized by the end of the current vacation year, any outstanding carry-over lieu leave credits will be paid off at the employee’s straight-time rate of pay in effect at that time.

(h) Any leave granted under the provisions of this clause in advance of holidays occurring after the date of an employee’s separation or after he or she becomes subject to clause 16.08 shall be subject to recovery of pay.

[Article 24—Sick Leave]

24.02 An employee is eligible for sick leave with pay when the employee is unable to perform his or her duties because of illness or injury provided that:

(a) the employee has the necessary sick leave credits,

and

(b) the employee satisfies NAV CANADA of this condition in such manner and at such time as may be determined by NAV CANADA.

IV. SUBMISSIONS FOR THE UNION

In starting his submissions for the Union, Mr. Rosner submitted that lieu leave is an earned benefit.

There are four reasons for granting this grievance.

First, this issue has already been addressed in previous grievances:

· In Richard and Treasury Board (Transport Canada), [1994] C.P.S.S.R.B. No. 153, the Public Service Staff Relations Board (M.-M. Galipeau) held that the employer was wrong to refuse an employee to use sick leave instead of vacation leave where the employee became ill prior to the commencement of the vacation leave. Richard was decided under a previous version of the collective agreement, which involved the same bargaining unit, although at the time the employer was the federal government (Treasury Board) which was the predecessor to NAV CANADA. Although Richard dealt with the substitution of sick leave for vacation leave (as opposed to lieu leave in our case), the relevant provision contained very similar language:

Consistent with efficient operating requirements the Employer shall make every reasonable effort to schedule vacations in a manner acceptable to employees.

Member Galipeault, hearing the matter for the P.S.S.R.B., decided as follows in Richard:

It seems to me that sick leave should have been granted for February 18 and 19, 1993 for the following reasons:

First, I believe that the grievor met the conditions set down in clause 9.02 [dealing with sick leave, which are now contained in Article 24.02]. Neither the genuineness of his illness nor the validity of the medical certificate (Exhibit A‑2) were contested. First, he had “the necessary sick leave credits” (paragraph 9.02(a)) and, second, he satisfied his employer of his illness (paragraph 9.02(b)). Had February 18 and 19, 1993 been scheduled as working days instead of vacation leave, it is clear that the grievor would have been entitled to sick leave for these two days because he met the conditions set down in clause 9.02 for the granting of sick leave.

Does the fact that he was scheduled to be on vacation leave instead of at work preclude his being entitled to sick leave?

The employer argues that since, following a request from the grievor, he was originally scheduled to be absent for two days on vacation leave, he could not subsequently require that he be granted these two days as sick leave because there was no clause in the collective agreement that authorized substitution.

Were I to accept this argument, then it would also follow that where an employee is scheduled to work on a given day, and is absent from work owing to illness, he is not entitled to sick leave, even if he meets the sick leave requirements of clause 9.02, unless a clause authorizes the substitution of a sick leave day for a workday.

It is implicit that where an employee meets the requirements of clause 9.02 and establishes his entitlement to sick leave, the employer may substitute sick leave for the workday without there being any need for a provision expressly authorizing the employer to make the substitution. The substitution is implicit and follows naturally from the right to sick leave.

This being the case, I note that, in the present case, the grievor became ill before the vacation leave that he had originally requested began.

Before the vacation leave that he had been granted began, the employee notified his employer that he was ill and would be away for the next few days “on sick leave”.

In my opinion, as soon as the grievor notified the employer that he was ill and would be absent “on sick leave” for the next few days, he served notice on his employer that his situation had changed.

Upon his return to work, the grievor made an application for sick leave.

The employer itself acknowledged that the grievor’s situation had changed because it granted him sick leave for February 15, 16 and 17. The illness continued on February 18 and 19. However, for these two days, the employer did not take this fact into account.

In the case of these two days, it seems to me that the employer should have taken a number of factors into consideration. First, when the grievor first requested vacation leave, he could not know that a few days before he was to go on vacation leave, he would fall ill. This new circumstance (i.e. illness), which arose prior to the vacation leave, changed the reason for the grievor’s scheduled absence on February 18 and 19, 1993 and the grievor’s wishes to take vacation leave. Since the primary reason for his absence was now illness, it seems to me that the leave granted should have reflected this reality, especially since the grievor met the sick leave requirements of clause 9.02. Moreover, since “efficient operating requirements” were not a bar to the grievor’s absence, the employer should have “made every reasonable effort” to reinstate the vacation leave in accordance with the wishes” of the grievor (clause 17.06), in order to enable him to take sick leave, which more accurately reflected the factual situation. It should be noted that the circumstance (i.e. illness) that changed the grievor’s wish to take vacation leave arose before the vacation leave began and was brought to the employer’s attention before this leave could begin.

Finally, it should be noted, as counsel for the grievor pointed out, that clause 17.07 deals with a very different situation, i.e. the granting of bereavement leave during vacation leave.[^[1]]

Moreover, the collective agreement is silent regarding the situation that arose here, namely, where the employee becomes ill before vacation leave that has already been authorized begins. Under clause 17.06, once vacation leave is granted, the employee does not have an absolute right to postponement of this leave. Operational requirements limit this right and, furthermore, the employer has an obligation only to “make every reasonable effort” to schedule vacation leave in a manner acceptable to the employee. However, as I stated above, there is no evidence that operational requirements were a bar to the grievor’s absence.