IN THE MATTER OF AN ARBITRATION
B E T W E E N:
The Employer
-and-
The Union
Grievance re:Kevin Wallace - Lieu Leave Deduction
BEFORE: Tom
Jolliffe
FOR THE EMPLOYER: George
Rontiris
FOR THE UNION: Abe
Rosner
HEARING LOCATION: Winnipeg,
Manitoba
HEARING DATE: February
3, 2003
Date Award Issued:
June 30, 2003
This matter raises the issue of whether
the Employer has properly deducted credits from an operating employee’s lieu
leave bank in a situation where the fact of his being on approved parental
leave without pay meant that he was not working on the day immediately
preceding, or on the day immediately following a designated holiday. The Union asserts in a situation where a
holiday falls somewhere inside a period of unpaid leave that the affected
operating employee is still entitled to his fully credited 93.17 hours of lieu
leave for the year without deduction.
The Employer contends that the link between lieu leave and the
designated holidays is such that the limiting language contained in the
collective agreement relative to one having to work one or other side of the
holiday in order to be paid for it should apply so as to allow a lieu time
deduction where this has not occurred.
The legitimacy of the grievor’s unpaid approved leave under art. 26 is
not at issue. The pertinent art. 28
provisions of the collective agreement read as follows:
28.01 Designated Holidays
The following days shall be designated holidays for
employees:
(a) New Year’s Day;
(b) Good Friday;
(c) Easter Monday;
(d) The day fixed by proclamation of the Governor in Council for
celebration of the Sovereign’s Birthday;
(e) Canada Day;
(f) Labour Day;
(g) The day fixed by proclamation of the Governor in Council as a
general day of Thanksgiving;
(h) Remembrance Day;
(i) Christmas Day;
(j) Boxing Day;
(k) One additional day in each year that, in
the opinion of NAV CANADA, is recognized to be a provincial or civic holiday in
the area in which the employee is employed, or in any area where no such day is
so recognized, the first Monday in August;
(l) Any other day that is proclaimed by law
as a national holiday.
28.02 Holiday on Day of Rest
For non-operating employees, when a day designated as
a holiday under 28.01 coincides with an employee’s day of rest, the holiday
shall be moved to the employee’s first scheduled working day following his or
her day of rest.
28.03 Work on Holiday (Non-Operating Employees)
When a non-operating employee works on a holiday the
employee shall be paid in addition to the pay he or she would have received had
he or she not worked on the holiday, one and one-half (1 ½) times his or her
straight-time hourly rate for all regularly scheduled hours worked by him or
her on the holiday.
An employee at his or her request, shall be granted
time off in lieu of cash payment at that rate.
The employee and his or her supervisor shall attempt to reach mutual
agreement with respect to the time at which the employee shall take such lieu
time off. However, failing such
agreement, such lieu time will be accumulated.
Where an employee requests time off in lieu of cash
payment he or she must indicate this to his or her supervisor prior to the end
of the month in which he or she worked on the holiday.
Where an employee has not utilized this accumulated
time off by the end of the fiscal year, the unused portion will be paid off at
the straight time rate in effect at that time.
28.04 Work on Holiday (Operating Employees)
Where an operating employee works on a holiday the
employee shall be paid at one and one-half (1 ½) times his or her straight-time
hourly rate for all regularly scheduled hours worked by the employee on the
holiday.
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 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 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.
28.06 Absence on Qualifying Days
(a) An employee who is absent without pay on
both the working day immediately preceding and the working day following the
holiday shall not be paid for the holiday.
(b) An employee who is absent without
permission and who is not on sick or special leave on a designated holiday, on
which he or she is scheduled to work, shall not be entitled to be paid for the
holiday.
At commencement of
hearing the parties tabled an agreed statement of facts together with the
exhibited grievance and reply documents, relevant work schedule, and the
holidays provisions contract language through several collective agreements
dating back to 1969. The old language
was entered for comparison purposes and as background information in that
neither counsel asserted there was an ambiguity requiring extrinsic evidence as
an aid to interpretation; nor has either side asserted there to be an estoppel
which somehow applies. Both counsel
submitted in their arguments that properly it is a matter of giving reasonable
effect to the current contractual language.
The agreed facts of the
matter are set out below as follows:
1. Mr. Kevin Wallace, 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 in accordance with article
28.05(a)(ii) of the collective agreement.
3. The grievor properly applied for and
was granted Parental Leave Without Pay in accordance with article 26.10 of the
collective agreement for the period commencing July 23, 2001 and ending August
15, 2001.
4. During the period of the grievor’s
absence the provincial civic holiday was recognized on August 6, 2001.
5. The Employer deducted from the
grievor’s lieu leave bank 8.47 hours, taking the position that the grievor was
absent without pay on both the working day immediately preceding and the
working day following the holiday.
6. The Union filed a grievance, numbered
2001254 and dated October 16, 2001, on behalf of the grievor alleging that the
Employer had improperly deducted the hours from the grievor’s lieu bank.
7. The Employer’s past practice, in
situations similar to the instant one where a holiday falls within a period of
Leave Without Pay, has been to deduct the value of that holiday from the
employee’s lieu leave bank. Prior to
the filing of the instant grievance, however, the Union was not aware of this
practice.
Simply put, in denying
the grievance, the Employer has held to the view that article 28.05(a)(ii)
should be interpreted as recognizing that the 93.17 hours of “lieu leave”
credited to operating employees on April 1 of each year are in lieu of
something, meaning the collection of twelve designated holidays which they can
anticipate having to work in the course of fulfilling their normal scheduling
associated with the Employer’s continuous 24 hours, seven days a week,
operation. There being such a link
between lieu leave and the designated holidays it replaces, then article 28.06
(a) should be seen to apply to the situation at hand to allow the deduction of
credits to represent not being paid for a holiday occurring within a period of
unpaid leave.
Mr. Rosner, on behalf of the Union,
submitted that the current language in dealing with operating employees is
clear and unambiguous. Nevertheless,
having tabled the developed line of caselaw dating back to a series of Public
Service Staff Relations Board decisions and Federal Court of Appeal judgments,
he reviewed the previous contractual obligations under the differently worded
expired provisions on banking lieu time.
Through successive collective agreements from the 1970s to the contract
expiring December 31, 1990, the earlier language provided for operating
employees working a holiday to be paid at time and one-half and to be provided
with a day of leave with pay in lieu of the holiday, to be taken at a later
time, whether worded as “be granted” which was the language through to the
contract expiring at the end of 1986, or “be scheduled” which was the language
from then through to the end of December 1990.
The language in these earlier contracts also eventually provided for
establishing anticipatory lieu day credits to replace designated holidays for
the fiscal year, by 1989 being set at 7.5 hours for each designated
holiday. There was always a requirement
for employees to work either the day immediately preceding or immediately
following the holiday in order to be paid for it. The language contained in the contract running January 1, 1989
through December 31, 1990 provided the last example of the negotiated holiday
benefits scheme which the parties litigated during the 1980s. For comparison purposes, I note the
pertinent language at that time read as follows:
16.01 Subject to 16.02 the following days shall be
designated holidays for employees:
(a) New Year’s Day;
(b) Good Friday;
(c) Easter Monday;
(d) The day fixed by proclamation of the Governor in Council for
celebration of the Sovereign’s Birthday;
(e) Canada Day;
(f) Labour Day;
(g) The day fixed by proclamation of the Governor in Council as a
general day of Thanksgiving;
(h) Remembrance Day;
(i)
Christmas Day;
(j) Boxing Day;
(k) One additional day in each year that, in
the opinion of the Employer, is recognized to be a provincial or civic holiday
in the area in which the employee is employed, or in any area where no such day
is so recognized, the first Monday in August;
(l) Any other day that is proclaimed by law
as a national holiday.
16.02 When a day designated as a holiday under 1601
coincides with an employee’s day of rest, the holiday shall be moved to the
employee’s first scheduled working day following the employee’s day of rest.
16.04 Where an operating employee works on a holiday
the employee shall:
(a) be paid at one and one-half (1 ½) times
his or her straight-time hourly rate for all hours worked by the employee on
the holiday,
and
(b) be scheduled a day of leave with pay at a
later date in lieu of the holiday.
16.05 For operating employees,
(a) The designated holidays in a fiscal year
shall be anticipated to the end of the year and lieu day credits established on
the basis of seven decimal five (7.5) hours for each designated holiday.
(b) For the purpose of paragraph (a) above
only, in those years wherein Good Friday and/or Easter Monday fall in the month
of March they shall be deemed to fall in the month of April, except in any case
where the application of this paragraph would cause an employee to lose credit
for the holiday(s).
(c) Lieu days may be scheduled as an
extension to vacation leave or as occasional days and shall be charged against
the lieu day credits on a hour-for-hour basis.
(d) Consistent with operational requirements
of the service and subject to adequate notice, the Employer shall make every
reasonable effort to schedule lieu days at times desired by the employee.
(e) Where in any fiscal year an employee has
not been granted all of the lieu days credited to him or her, the employee may
elect to carry forward into the next fiscal year the unused portion of his or
her lieu days.
(f) Lieu days earned in the fiscal year will
be utilized before lieu days carried forward from the previous fiscal year.
(g) At the employee’s option, any lieu days
which cannot be liquidated by the end of the fiscal year in which they are
earned will be paid off at the employee’s straight-time rate of pay in effect
at that time.
(h) In cases where lieu days from the
previous fiscal year have not been fully utilized by the end of the current
fiscal year, any outstanding carry-over lieu day credits will be paid off at
the employee’s straight-time rate of pay in effect at that time. This provision does not apply to lieu days
accumulated prior to June 1, 1982.
(i) Any leave granted under the provisions
of this clause in advance of holidays occurring after the date of an employee’s
separation or commencement of retiring leave or after he or she becomes subject
to clause 13.09 shall be subject to recovery of pay.
16.06
(a) An employee who is absent without pay on
both the working day immediately preceding and the working day following the
holiday shall not be paid for the holiday.
(b) An employee who is absent without
permission and who is not on sick or special leave on a designated holiday, or
the day to which the holiday is moved by reason of clause 16.02 on which he or
she is scheduled to work, shall not be entitled to be paid for the holiday.
Mr. Rosner, on behalf of the Union, in his
explanation of the various distinctions between non-operating and operating
employees applicable to their negotiated holiday benefit schemes, said
that the current language of art. 28.05 employs a different concept altogether
of “lieu leave” to the extent that 93.17 hours are now credited on April 1st
of each year, presumably to compensate one for being without the ability to
take the bundle of normal holidays, each holiday being just another day in
one’s usual scheduling. This entitlement has replaced the old program of
accumulating lieu day credits representing specific missed holidays
“anticipated to the end of the year”.
There is no longer any mention as there was under art. 16.04(b) of the
old language that where an operating employee has worked a holiday, he gets “a
day of leave with pay at a later date in lieu of the holiday”. The old system was changed without there
being any continuing reference to
anticipated or accumulated lieu date credits able to be lost or, for
that matter, any continuing concept of an operating employee being paid
anything extra for specific worked holidays outside of time and one-half for
the day itself. The only “recovery of
pay concept” currently contemplated relative to lieu leave comes under art.
28.05(h). It relates to leave having
been granted in advance of holidays occurring after the date of an employee’s
actual separation or after becoming subject to a non-operating employee’s hours
under the current art. 16.08, which is to say leaving the ranks of the
operating employees in those situations.
The Union, he said, holds to the view that article 28.06(a) can only be
seen to apply to employees who are being paid for all the designated holidays,
in the usual sense of not normally working a holiday but being paid for it. Operating employees currently work in a
scheme where every day of the year is subject to their regular hours
scheduling. They are not actually
“paid” for any holiday, whether or not absent on either side of it. They are only paid for a regular day of
work. While it might well be said that
the evolution of contract language has been tied to the caselaw decisions, the
current language can be given its regular meaning and should be seen to have
created 93.17 hours of lieu leave for the year commencing April 1st
without any concept of deduction therefrom except as expressly provided by art.
28.05 (h).
Mr. Rosner illustrated his argument on the
significance of the changed contract language as conveying the parties’
negotiated intention of abandoning the earlier concept of lieu days replacing
“anticipated” upcoming designated holidays to be taken at a later time, by
reference to case law. In so doing, he
submitted that the current language, providing as it does for 93.17 lieu leave
hours as credited on April 1st under art. 28.05(a)(ii), should not
be diminished unless on very clear wording set out in the collective
agreement. The Union views the lieu
leave as constituting an earned entitlement as of that moment able to be taken
as thereafter delineated in the rest of art. 28.05. This principle, he said, is confirmed by such cases as Re
Galco Food Products Ltd. and Allied Food Workers, (1978), 18 L.A.C. (2nd)
220 (Beck), where the express wording provided for entitlement to payment for a
plant holiday on the basis of one having to work the full working day
immediately preceding and the full working day immediately following the
holiday, unless absent with management permission or for reasons beyond his
control. The language was found not to
disentitle someone on layoff, obviously away from work for reasons beyond his
control, and accordingly seen not to be holiday stretching which lies at the
heart of this kind of provision. In
applying the clause as he did, the arbitrator indicated that if the parties had
intended for layoffs to limit the described earn benefit, they should have
specifically stated as much. In the
current circumstances, Mr. Rosner said, art. 28.06(a) does not provide for
reducing an operating employee’s lieu leave entitlement, which no longer has
any stated connection with any specified or anticipated holiday. There can never be any issue of holiday
stretching for operating employees inasmuch as their normal scheduling ignores
holidays altogether, which, for them, is just another normal work day, albeit
at time and one half pursuant to art. 28.04. It is quite unlike non-operating
employees who pursuant to art. 28.02 could still have a holiday coinciding with
their day of rest and thereby requiring it to be moved, and normally are not
expected to be working on a holiday. Non-operating
employees are paid for each designated holiday, and can accumulate days off in
lieu of cash for any holidays actually worked.
For operating employees there is no concept of being paid for holidays
not worked, as they would simply be their normal days off.
By way of distinguishing the present
situation from the old, Mr. Rosner tabled the caselaw between the parties
dealing with the predecessor contractual language prior to the parties moving
to the currently worded art. 28. The
accepted view of the old art. 16.05 which allowed designated holidays to be
anticipated to the end of the year and lieu day credits established on that
basis is set out by the Public Service Staff Relations Board decision in Anderson
and Treasury Board (Transport Canada), [1987] C.P.S.S.R.B. no. 339 where
adjudicator Young in a sick leave situation ruled that by application of the
language of the day (1985/86 collective agreement), an operating employee’s
failure to work a designated holiday due to being on sick leave disentitled him
to the lieu day credit and allowed the employer to reduce his lieu day
entitlements. The adjudicator remarked
that the system of anticipated holidays and lieu day credits had been created
because it was “presumed” that an operating employee would be working on a
holiday, which would lead to his “normally always earn(ing) his lieu
days”. Hence, the possibility of having
to recover unearned lieu days was not needed to be contemplated except for art.
16.05(i) situations, as it was then numbered.
However, with respect to employees ultimately having to earn their lieu
day credits, he quoted from Mr. Justice Mahoney’s Federal Court of Appeal
decision in Justinein and Neilsen [1986] F.C.J. No. 674:
The entitlement to be paid at an overtime rate and to
a lieu day of holiday arises under that provision only if the employee actually
works on a holiday.
One can see the tie to having to work the
holiday under the old language as art. 16.04 had expressly stipulated that an
operating employee working the holiday would receive time and one half, and a
lieu day to be taken at a later time.
Indeed, the adjudicator accepted that the situation had been fully
decided by the Federal Court of Appeal in Canada (Treasury Board) v. Doheny
(F.C.A.), [1987] F.C.J. No. 154 where the Court stated its disagreement
with the position taken by the chief adjudicator E.B. Jolliffe in 1970 in Wood
et al v. Treasury Board, P.S.S.R.B. No. 166-2-257 that lieu days were
“neither earned nor unearned” based on the language of many years’ duration
which allowed for the establishing of a bank of lieu day credits in advance of
“anticipated” holidays under the old art. 16.05 which could be drawn upon or
liquidated in several ways. MacGuigan
J., having observed that this provision provided for the anticipation of lieu
days with the establishing of a bank of credits for the year, was of the
opinion that the credits at the point of being established were not yet actual
and would only become so when they were earned. With reference to the old art.
16 language, he stated “...they are in truth potential rather than actual
credits, and will become actual only when ‘earned’, as the use of that verb in
art. 16.05(f) and (g) should serve to remind us. What gives them the appearance of actuality is only the device of
anticipation”, and hence one’s ultimately possessing the entitlement was still
only a possibility at the moment of establishing these anticipatory credits.
By Mr. Rosner’s argument, the 1980's
decisions, ultimately rested on the now deleted/defunct language of the old
art. 16.05 indicating that the designated holidays were to be anticipated to
the end of the year, with the lieu date credits being established on that
basis, thereby leaving the operating employee open to the same limiting
provisos as with other employees including that in order to turn the
anticipatory situation into an earned entitlement he must actually have worked
the holiday, and be subject to a clawback in the event of holiday
stretching. Mr. Rosner points out that
parties have previously not litigated any case on this issue of earning the
entitlement under the current language, and whether it is still subject to any
clawback other than under art. 28.05(h).
Mr. Rosner also presented an alternative
argument on behalf of the Union. He
said that even if there was some vestigial concept of operating employees being
paid for holidays, despite the clear contract language of their simply being
credited with 93.17 lieu leave hours once per year in recognition of their
existence but having no access to taking them by reason of their regular
scheduling, then one would still be left with the difficulty of determining
what the parties could have meant by an employee being “absent without pay on
both the working day immediately preceding and the working day following the
holiday.” The Union sees the phrase as
only having meaning for a non-operator in that any and every day of the year
qualifies as a working day for operators.
For example, had the grievor not been on unpaid leave, he would have
normally worked on the holiday, August 6 at time and one half. Had it been his usual day off, he would have
received no -pay for the day and would have claimed nothing. Neither of these possibilities affected his
lieu leave credits. It is quite unlike
non-operating employees who normally get the holiday off and are paid for
it. There is no applicable concept of holiday
stretching for operating employees in that taking named days off, as designated
holidays, do not apply to their workplace situation. A person’s regularly scheduled time off could include or be
contiguous to a holiday, once one looks at an individual operating employee’s
scheduling which has no regard to the spacing of holidays. In the grievor’s case, it could be said that
pursuant to his schedule, which included some unpaid leave, he actually was at
work on the qualifier work days stipulated by art. 28.06(a), his last
individualized work day. Mr. Rosner
referred to such cases as Steeves and Lee v. Treasury Board (Transport
Canada), P.S.S.R.B. file no. 166-2-17529, 17530, unreported September 20,
1988 (Lowden), where the adjudicator dealt with a situation where a designated
holiday fell on the two grievors’ scheduled day of rest. The union in that case argued that it should
have been moved in such a fashion to recognize that one of them was on approved
lieu days at the time and the other on annual leave. The adjudicator considered that the issue to be determined was
when did the grievors’ first scheduled working day occur following the holiday
which fell on their day of rest noting the language of art. 16.02 at that
time. In considering the issue, the
adjudicator was mindful of the fact that granting such leave (annual or lieu
time) automatically changed the shift schedule resulting in the period of leave
not being considered a scheduled working day.
Having observed the difference existing between shift cycle and shift
schedule, the former meaning the recurring sequence of an employee’s days of
work and rest, and the latter meaning the advance posting of shifts worked by
employees within their shift cycle, the adjudicator concluded “that where a day
of work (shift) is not scheduled it cannot be considered as one”. Hence the first scheduled working day
following a day of rest could only occur after the leave period was over. Similarly, Mr. Rosner said, in the event
that art. 28.06(a) can operate to diminish an operating employee’s credited
lieu leave, then it would not apply to the instant situation in any event in
that according to the work schedule which accommodated the unpaid leave, the
Employer would have to show that the grievor did not report for work on the
first day following its conclusion.
This was the “working day” immediately following the holiday. Simply put, he should not be considered as
having missed a working day on which he was not scheduled to work in the first
place.
Mr. Rontiris on behalf of the Employer said
that if one were to accept the Union’s argument based on its principal
contention that operating employees are somehow not being paid for their
designated holidays, then why would they not have been specifically excepted
from 28.01 which creates designated holidays.
What would art. 28.05(a)(ii) mean in terms of crediting them with 93.17
hours of lieu leave? It must be in lieu
of something contemplated as existing within the employment relationship, ie:
taking their designated holidays. He
said that the Union’s argument can be seen as based on further weakening the
link between these designated holidays and lieu time, but the link has been
preserved and is still there, otherwise why allow them to bank any lieu leave
credits at all. They, obviously, are
being made available in anticipation that the operating employees’ scheduling
will have them working the various designated holidays with the 93.17 currently
listed hours of lieu time representing eleven days at 8.47 average hours in
recognition of the holidays they are expected to work during the upcoming
fiscal year. Art. 28.05(h), indeed,
supports the proposition that the banked lieu leave is still an anticipatory
concept given that this provision specifically allows for a clawback of pay in
situations where by separation or transfer, individuals cease to be operating
employees during the year. In the event
that the Union’s position is successful and the yearly crediting of lieu leave
occurs for all purposes on April 1st, not to be affected by anything
happening thereafter except as delineated under 28.05(h), then one must ask
what would occur in the event of an employee being hired later in that
month. While the Employer takes the
view that the yearly crediting of lieu leave hours should be pro-rated based on
the number of designated holidays still left in the year, by the Union’s view
of the language, it may well be that with the person not yet employed on April
1, he misses that year’s lieu leave credits which would seem an inequitable
application of the language. Along
those same lines, said to centre on providing reasonable meaning, Mr. Rontiris
posed the question of what would occur in a situation of an employee having
taken five years unpaid nurturing leave, while maintaining employee
status. By the Union’s view of the
language, would it mean that the person should receive his full lieu leave’s
bank for each year of 93.17 hours in recognition of the designated
holidays? Striving to apply the
language fairly, he said, art. 28.06 does not require that one read the
language any differently for operating and non-operating employees. In art. 28, where a particular provision is
meant to apply to one or other group, but not both, the language is written in
that fashion. For example, art. 28.02
specifically refers to moving designated holidays for non-operating employees
following their day of rest. Art. 28.03
specifically refers to non-operating employees working on the holiday. Art. 28.04 specifically refers to operating employees working on
a holiday. Art. 28.05 specifically
refers to lieu leave for operating employees.
Notably, art. 28.06 in referring to absences occurring on qualifying
days does not state any distinction existing as between operating and
no-operating employees, certainly does not express any intention to be limited
to non-operating employees only. Also
notable, he said, the art. 28.06 (a) language has been maintained by the
parties virtually unchanged from contract to contract, being included at
16.06(a) of the old language, despite the parties choosing to turn to a lieu
leave system for operating employees consisting of banked hours established on
April 1st of each year.
Mr. Rontiris said in his review of the
jurisprudence tabled at hearing, granted, it deals with the predecessor
language existent in the 1970s and 1980s.
Nevertheless, there was never any indication from the PSSRB decisions or
the Federal Court of Appeal judgments that art. 16.06(a) as it was then
numbered, and being identical to the current wording of art. 28.06(a), could
somehow exclude operating employees altogether from its application. If the parties had meant it not to apply to
operating employees who found it necessary to be absence without pay both
before the working day immediately preceding and the working day immediately
following the holiday, they could have stated as much. There being no issue of ambiguity and no
stated exclusion for operating employees from the provisions coverage, a
reasonable inclusionary meaning must be given to its words. In the circumstances of operating employees
having been credited with their 93.17 hours of lieu leave representing all
those named holidays being subject to their usual schedule, it means that a
deduction can occur in order that one “not be paid for the holiday” in
circumstances covered by that provision.
He pointed out that it is immaterial whether one considers it a harsh or
difficult exercise to apply the language to operating employees pointing to
such cases as Canadian Union of Operating Engineers and General Workers v.
Baffin Inc. (Vujic grievance), [2000] O.L.A.A. No. 302 (Novick). In that case the limiting language relative
to being paid for the named statutory holidays expressly required employees to
work the full regularly scheduled day both immediately preceding and
immediately following the holiday, which the aggrieved employee was unable to
accomplish by reason of a valid illness.
The plant was closed over Christmas and New Years with the employee not
returning to work as scheduled due to her illness occurring on January 3 and
hence she was not paid for any of the three statutory holidays falling within
the period when the plant was closed.
Counsel for the union, while acknowledging that the language was clear
and contained no exceptions to the requirements, nevertheless, said that as
applied in the aggrieved employee’s case, it led to a harsh result and unfairly
penalized her by denying three days pay, which the parties could not have
intended. The arbitrator nevertheless
found the language clear and straight forward, containing no exceptions to the
eligibility requirements, nor mentioning that they did not apply in cases of
illness or circumstances beyond an employee’s control, being phrases which have
appeared in other agreements. As Mr.
Rontiris would have me note, the arbitrator considered that he was constrained
the clear language of the provision, whatever the unfairness perceived to exist
by reason of her particular circumstances, leading to him finding no
entitlement to the holiday pay for the three days. In that case, employer counsel made reference to the usual
provision contained in the collective agreement that the arbitrator was not
authorized to make any decision inconsistent with its provisions, nor add to,
alter, modify or amend any part of it, being the kind of language contained at
art.11.17(a) of the current collective agreement between these parties, which
provides:
...but in no event shall the arbitrator/board of
arbitration have the power to change the collective agreement or to alter,
modify or amend any of its provisions.
Mr. Rontiris cited other cases on the
significance of giving reasonable and ordinary meaning to qualifying or
exclusionary language contained in collective agreements, or as stated in Re
Frank Heller and Co. Ltd. and UFCW, Local 0116, [1987] C.L.A.S.J. 4614448
(Jolliffe) to the effect that the guiding principle in such matters “is that
the words of the collective agreement, as written by the parties, must be
interpreted and applied, however unfortunate the result may seem to be. If the language is clear and unambiguous,
the necessary result becomes clear.” He
said that considering the language of art. 28.06(a) it is a flawed approach to
suggest that somehow operating employees are not being paid for the designated
holidays, unlike other employees. By
reason of their being credited with lieu leave, which can only be interpreted
as amounting to being paid for the holidays.
Just as art. 28.05 (h) subjects them to “recovery of pay for purposes
set out therein”, which the union acknowledges can affect their lieu leave bank
credits, they are also subject to “not be(ing) paid for the holiday” when
absent from work on both qualifying days, which should also naturally lead to a
deduction from the lieu leave bank as operating employees are not excluded from
the general operation of art. 28.06(a) unlike some other provisions of the
collective agreement which apply either to operating employees or non-operating
employees by specific reference.
In his reply to the Union’s alternative
argument dealing with one’s unpaid absence on a working day, Mr. Rontiris
referred to it as a “cop out”. He
tabled Nanimo Shipyard Ltd. v. Nanimo Shipyard Employees Assn., [2002]
B.C.C.A.A.A. No. 59 (Glass), where the limiting language, barring some
exceptions, required that employees worked “their” regular shift both before
and following the holiday. Hence, there
was discussion of the caselaw distinguishing the qualifying possessive pronoun
“his” as meaning one’s own last shift before the holiday, from the word “the”
meaning any shift being worked at the work site. Such distinguishing in the current circumstances would then mean
that the reference in 28.06(a) to “the working day” preceding and following the
holiday was supposedly any working day for air traffic controllers. The concept presents some difficulties in
the case at hand given that the Employer’s facilities are open 365 days per
year, suggesting that “the working day” is closely identified with one’s own
individualized scheduling. Otherwise,
every day of the year is a work day for operators when taken as a group of
employees.
Decision:
I am satisfied that this matter can be
decided on the Union’s principal argument dealing with the critical language
change from the art. 16 language of the 1980s. Art. 28.05 under subparagraph (a) requires the Employer to set
aside 93.17 hours of lieu leave on April 1st for operating
employees. The remainder of art. 28.05
sets out the manner in which the lieu leave can be taken, for example as an
extension of one’s vacation leave; or at least on the basis that every effort
should be given to schedule it at times desired by the employee within
operational requirements; or possibly electing to carry forward the unused
portion to the next vacation year; or possibly eventually having to be paid off
at straight time. Under subparagraph
(h) it is subject to “recovery of pay” for leave taken in the specific
situations of them having left one’s employment or going into a non-operator
unit. There is no longer any mention of
operating employees being granted or scheduled a day of leave with pay at a
later date in lieu of the holiday; or that the various designated holidays in
the fiscal year are somehow being anticipated to the end of the year by the
lieu day credits. In the context of the
current wording, it might well be said that the lieu leave system is now tied
to the simple reality of the operating employees having no real access to the
bundle of holidays stipulated by art. 28.01 as being designated for
employees. Their ongoing, day-to-day
normal scheduling prevents them from being able to take these days off as
holidays, unlike their non-operating employee co-workers. They are, as a matter of usual course,
denied these days as times of special celebration, or rest and relaxation, as
days off. It is significant that the
concept of anticipating these designated holidays to the end of the year and
the concept of being granted a day with pay to be taken at a later date in lieu
of each specifically designated day, has been removed from the collective
agreement. These employees are left
with the entitlement to 93.17 lieu leave without the kind of restrictions on
which the P.S.S.R.B. decisions and the Federal Court of Appeal Judgments
remarked upon as stemming from the specific language of the old art. 16.
I accept that while art. 28.06(a) requires
that an employee absent on both the day preceding, and following the holiday,
“shall not be paid for the holiday”, its application is entirely doubtful to
the circumstances of the instant situation where the grievor, as an operating
employee is not being paid for any designated holiday in the usual accepted
sense of one receiving holiday pay for a day not worked. This situation can be contrasted with non-operating
employees who are either paid for the unworked holiday at their usual rate, or
on the chance of having worked it are paid for the holiday plus an extra time
and one half or time off in lieu of the cash payment at that rate as set out
under art. 28.03. I do not see how the lieu leave, credited on April 1st
of each year, can be said to be any more connected to the anticipated loss of
individual upcoming holidays, arguably unearned under the old defunct language
unless those days were actually worked, as opposed to currently constituting a
lieu leave system which simply recognizes and accepts that on an ongoing basis
the usual negotiated bundle of designated holidays are not able to be taken by
operating employees. In any event, I
cannot find that art. 28.06(a) applies to the grievor’s circumstance of having
been on unpaid leave over a normal holiday period so as to reduce his leave
credits. The current language does not
contemplate any such deduction, clawback, from the lieu leave credits occurring. One would expect to see it addressed in art.
28.05(h), which it is not. Art.
28.06(a) addresses “paid” holidays, not the system of established lieu leave
credits under which the grievor works.
I will refrain from saying much about the
union’s alternative argument, except that it again illustrates the difficulty
in the Employer attempting to apply the concept of “paid” holidays in a
situation where a component of its employees works all the designated holidays
by operation of their individualized normal scheduling based on there being 365
scheduled work days each year. Under
the new system created by the language of the collective agreement under
review, unlike the situation facing the non-operators, it can well be said that
operating employees are not being “paid” for their unworked holidays in the
first place. For the grievor, given his
scheduling which altogether ignores the existence of specific holidays, one
would expect that any reference to “the working day” would have to mean a day
on which he was actually scheduled to work, even if art. 28.06(a) had some
application to an operator’s scheduling.
Accordingly, the grievance succeeds and I
leave it up to the parties at this point to fashion the appropriate remedy,
which I expect should include reinstating any diminution of the grievor’s lieu
leave bank resulting from the described leave of absence. I remained seized pending implementation and
in the event that the parties are unable to completely resolve the remedy issue
as it pertains to the grievor.
DATED this 30th day of June,
2003.
Tom Jolliffe