Employer had argued National Day of Truth and Reconciliation wasn't a provincial one
An Ontario provincial organization must add the National Day of Truth and Reconciliation to its list of paid holidays after a binding settlement and due to its collective agreement’s wording, an arbitrator has ruled.
The Ontario Workplace Safety and Insurance Board (WSIB) provides workplace injury insurance for employees in Ontario, along with wage-loss benefits, medical coverage, and support for people who suffer work-related injuries or illnesses.
The collective agreement between the WSIB and its union listed a number of days to be recognized as paid holidays. At the end of the list, the holiday provision included the statement “and any special holidays as proclaimed by the Governor General or Lieutenant Governor.”
In 2021, the federal government passed a bill amending three federal statutes, including the Canada Labour Code, to add a new holiday to the list of holidays to be recognized federally. The new holiday, the National Day for Truth and Reconcilation (NDTR), was to be recognized on Sept. 30 each year.
The National Day for Truth and Reconciliation involves a mixed bag of observance across Canada.
Holiday recognized in 2021
The WSIB recognized the NDTR and provided it as a paid holiday on Sept. 30, 2021, in accordance with the collective agreement. The union sought to have the NDTR added to the list of holidays in the collective agreement during collective bargaining, but it didn’t happen.
In February 2022, the WSIB notified the union that it had not yet decided whether to grant the day as a paid holiday that year.
The union filed a grievance, arguing that the NDTR had been proclaimed as a holiday by the Governor General and, as a result, the WSIB breached the collective agreement by failing to recognize the new holiday as a “fixed paid holiday.”
In June 2022, the WSIB agreed to recognize Sept. 30 as a paid holiday under the collective agreement. In response, the union agreed to withdraw the grievance.
A short time later, the WSIB’s internal website was updated with instructions that all of its offices would be closed on Sept. 30, 2022, in observance of the NDTR. The offices would also be closed on the date in 2023. The website also said that it was an “additional paid statutory holiday.”
An Alberta employer did not have to recognize the NDTR as a paid holiday because it isn’t a legal holiday in the province, an arbitrator ruled.
About-face on holiday
However, about three months later, on Sept. 13, the WSIB emailed all staff and posted on its intranet that since the NDTR was not a statutory holiday in Ontario and most businesses and provincial government services would be open, its offices would remain open and it would treat Sept. 30 as a “regular working day for WSIB employees.”
The union filed another grievance, arguing that not only had the NDTR been proclaimed as a holiday – making it fall under the collective agreement’s holiday provision - but it had reached a binding agreement with the WSIB that the day would be a paid holiday for the purposes of the collective agreement.
The WSIB took the position that it was entitled to decide not to recognize the NDTR as a paid holiday because it wasn’t a public holiday under the Ontario Employment Standards Act, 2000 – which jurisdiction the WSIB was under – and the stakeholders that the WSIB served would be open for business on the federal holiday because they were also under provincial jurisdiction.
The WSIB also argued that the collective agreement used the term “special holiday” that could be added, which inferred a special, one-time event. The collective agreement didn’t use the terms “legal holiday,” “general holiday,” or “public holiday” that could be used to describe a new federal holiday such as the NDTR, the WSIB said.
In addition, the WSIB argued that the union should not be awarded something through arbitration that it couldn’t achieve in the last round of bargaining.
The NDTR should be included under a collective agreement that allowed the addition of any holiday proclaimed by the federal, provincial, or municipal governments, an Ontario arbitrator ruled.
Agreement with union binding
The arbitrator found that the WSIB “expressly and unequivocally” confirmed in June 2022 that the NDTR would be recognized as a paid holiday under the collective agreement, with the intention of resolving the grievance. The union advised that it would withdraw its grievance in response.
“Any reasonable analysis with respect to the exchange of correspondence in question can only lead to the conclusion that the withdrawal of the grievance was directly tied to the employer’s confirmation that the NDTR was being recognized as a paid holiday for the employees in the bargaining unit,” said the arbitrator.
The arbitrator noted that there was nothing prohibiting the WSIB from changing its mind on whether the NDTR should be a paid holiday under the collective agreement. However, that could not affect the binding settlement reached with the union, the arbitrator said.
The arbitrator also found that, even without the binding settlement, the NDTR should be treated as a paid holiday by the WSIB. The holiday was proclaimed by the Governor General, which satisfied the language of the collective agreement for adding a new holiday, said the arbitrator, adding that the WSIB’s argument that the term “special holiday” was intended to relate to one-time events. There was nothing in the collective agreement or within the plain meaning of “special” that indicated such an intention by the parties to make such a distinction, the arbitrator said.
The arbitrator determined that the WSIB breached the collective agreement by not recognized the NDTR as a paid holiday. The WSIB was ordered to compensate employees who worked on Sept. 30, 2022, accordingly. See Canadian Union of Public Employees, Local 1750 (Policy) v. Ontario (Workplace Safety and Insurance Board), 2023 CanLII 8788.
