December 2019 Union News
By now, in most regions of Canada, the leaves have fallen and it is likely there is this dreaded white stuff on the ground. In Canada, December through March brings a wide variety of weather conditions to virtually all regions. This includes both fierce winter storms with high winds and large amounts of snow and treacherous ice storms which make travel both by vehicle or walking extremely dangerous.
In your collective agreement you will find Article 53, “Leave With or Without Pay For Other Reasons”. Of particular importance is Article 53.01 which states as follows:
At its discretion, the employer may grant:
a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld.
In the opinion of the union, supported by many adjudication decisions, it basically means if you were unable to report to work for reasons outside of your control the employer cannot be unreasonable in denying these leave requests.
There are three recent and significant adjudication decisions that all support this position. What is quite disheartening is the fact in all three cases, the employer was the Canada Revenue Agency (CRA). Two are from 2009 and the most recent one was from September 2018. In this case an adjudicator representing the Federal Public Service Labour Relations and Employment Board ruled in favour of an employee of the Canada Revenue Agency who was unable to attend work as a result of a fierce snowstorm which occurred in 2015 on Prince Edward Island. As previously published in our newsletter on many occasions, our collective agreement contains a clause (53 .01) which provides for leave with pay to employees who were unable to report to work in situations such as those in this incident. The provision is that certain criteria must have been met which has been reiterated on many occasions by adjudicators.
Still the CRA time and time again ignores this and denies leave to members who have clearly met the requirement. Unfortunately, many members accept these decisions and do not fight for their rights by challenging the employer. Those that do, more times than not, are successful in receiving leave with pay for the time missed rather than having to take vacation or in this instance, unbelievably, the employer allowed the employee to take sick leave.
In the adjudicator’s ruling the Agency was ordered to reinstate the employee’s sick leave and provide them with 3.5 hours of leave with pay. The pay in this case was worth approximately $100. While it is understood that in certain situations where no precedent exists, an employer may be reluctant to grant leave that they perceive may establish an adverse precedent. However, where precedents do exist, and the facts in the case are similar and meet established criteria, the employer should do the right thing and grant the leave.
Magali Picard, National Executive Vice-President of the Public Service Alliance of Canada said, “We have won these cases in the past. It is hard for me to understand … Why they would penalize an employee when it is something completely out of their control”. By taking this rigid and somewhat ill-informed position the employer, and ultimately Canadian taxpayers, incur substantial and unnecessary costs. When will they ever learn?
While being unable to report to work as a result of severe weather conditions is the main reason for leave requests under this article, it is not the only reason leave might be granted. Other reasons might include:
- in extreme cold conditions and an employee’s furnace breaks down, they may need to stay at home awaiting the arrival of a repair man. During this time, they would also try to do what they could to maintain heat in the home to prevent pipes from freezing or other significant damage.
- An employee on the way to work encounters significant traffic backup related to a traffic accident. In this case the employee may not have any opportunity to leave the road they are on and find an alternative route.
- An employee on the way to work has a flat tire. Unfortunately, they are not able to remove the tire and replace it for any number of reasons and have to wait for assistance from a family member or a tow truck.
These are just a few examples where leave could be requested under this clause. It is important for members to realize they have rights under this clause. Should you be denied the granting of leave with pay under Article 53.01, please consult a local union representative.
Gary Esslinger
Chair of the Communications Committee