Employee took day off but had used up her vacation and emergency leave days
This instalment of You Make the Call involves an employee who didn’t receive holiday pay over Christmas.
Cindy Moore worked for Siemens Milltronics Process Instruments (SMPI), a manufacturer of industrial instrumentation in Peterborough, Ont. The company’s collective agreement listed 13 holidays — including three “floater” days — for which employees would receive the day off with pay, as long as they worked “the regular scheduled work day immediately preceding and following the holiday or provided reasons satisfactory to the company.”
On Dec. 22, 2011, Moore’s disabled daughter was feeling sick at school. Later that night, it became evident she would have to stay home from school the next day.
Moore called her mother and a personal support worker who helped with care, but they were unavailable. Moore then called her manager to say her daughter was sick and she might not be able to work the next day. She left a voice message the next morning to confirm.
SMPI shut down over Christmas and Moore returned to work on Jan. 3, 2012. A few days later, her manager informed her that it had been decided that she wouldn’t be paid for the three statutory holidays — Dec. 25, Dec. 26 and Jan. 1 — because she hadn’t worked her regular shift before the holidays and caring for a sick child wasn’t a satisfactory reason for the absence.
Moore had used up her vacation and emergency leave to deal with her daughter’s health issues as well as a separation from her husband, and the company had also allowed her to take unpaid time off and adjusted her hours. However, since her absences accounted for 19 per cent of her shifts — five per cent higher than the company’s acceptable rate — SMPI felt it had to draw the line.
The union filed a grievance, claiming SMPI discriminated against Moore because of her family status.
You Make the Call
Did the company discriminate against Moore by not accepting her absence to care for her daughter?
OR
Was it a legitimate refusal to accept Moore’s absence?
If you said the company was within its rights to refuse to pay for the holidays, you’re correct. The arbitrator pointed out that even without the three holidays over Christmas, Moore received 10 paid holidays under the collective agreement, which was a greater benefit than the nine legislated holidays. Therefore, the Employment Standards Act didn’t apply.
The arbitrator found SMPI didn’t want to set a precedent by accepting the care of a sick family member as a reason for being absent, especially since it was already understaffed at that time of the year with many other employees already on approved vacation. This provided legitimate business reasons for the decision, said the arbitrator.
The arbitrator also found Moore wasn’t treated any differently than other employees with children. Though she was treated differently than employees absent due to illness who had a medical note, this wasn’t substantial because an absence due to illness wasn’t the same as an absence due to a family member’s illness, said the arbitrator.
The arbitrator found the company shouldn’t be disadvantaged because she couldn’t find care and she had exhausted her leave entitlements, said the arbitrator. Though she suffered a negative impact by the decision, it was no different than what any other employee would have suffered in the same situation, said the arbitrator.
“The difficult choice faced by (Moore) is not significantly different than the many situations faced by all parents where there is a conflict between work and family obligations. That is why parents must plan for such situations and why emergency leave provisions exist,” said the arbitrator.
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