Worker took half-day off, claimed entitlement to full day's sick pay plus hours worked
A British Columbia worker is not entitled to a full day’s sick pay on top of pay for a partial day’s work he did before going home sick, an arbitrator has ruled.
Teck Highland Valley Copper Partnership is a copper and molybdeunum operation near Logan Lake, BC.
In 2021, the BC legislature drafted and passed amendments to the province’s Employment Standards Act (ESA), adding a provision for five days of paid leave for personal illness or injury in each calendar year. The employer is required to pay an employee who takes such a leave at least an amount calculated by multiplying the period of the leave and the average day’s pay. The average day’s pay is calculated by dividing the wages paid within the 30 days preceding the leave minus overtime by the days the employee worked during that period.
The worker in question typically worked four, 12-hour shifts followed by four days off. On July 1, 2022, the worker reported for work and worked the first six hours of his 12-hour shift. However, he felt sick and was unable to continue, so he went home.
Teck paid the worker six hours of regular pay for the time he worked and six hours for the remainder of the day. It also paid him for an additional 12 hours because it was a statutory holiday.
When people are allowed to take paid sick days, they come to work refreshed and don’t get others sick, according to an expert.
No partial paid sick days
The worker filed a grievance claiming that he was improperly paid for taking a sick day. He argued that the ESA does not allow for partial sick days and any time taken off on any day qualifies as one day under the section. As a result, he was entitled to an average day’s pay for the sick time he took on July 1, plus the six hours he actually worked and the statutory holiday pay. Instead, he incurred a financial loss for taking a sick day, as paid sick leave, pay for hours worked, and statutory pay were all separate entitlements that don’t work in tandem, he said.
The union referred to the policy interpretation section of the BC Ministry of Labour’s Guide to the ESA and Regulation, which stated that “any time taken of on any day (even one hour) qualifies as one day” and “there are no provisions for prorating or subdividing the entitlement.” The guide also said that the ESA does not stipulate any arrangement where employees can take partial sick days and be paid a part of an average day’s wages.
Teck countered that the union’s interpretation of the ESA did not meet the statutory purpose of fair treatment of employees and employers alike, as it would create a windfall for an employee taking sick leave. It also argued that the ministry’s guide to the ESA was not a binding document or a legal authority.
The arbitrator noted that the Supreme Court of Canada had established that the words of an act must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.
The federal government brought in 10 days of paid sick leave for federally regulated employers in late 2022.
New legislation
The arbitrator found that the new section of the ESA allowing paid sick leave came against the backdrop of the COVID-19 pandemic that saw many employees faced with difficult decisions on whether to go to work or not when they were feeling ill. The intention of the ESA amendment was to provide employees with wage replacement so they didn’t take a financial loss by going to work while ill and risking transmission of the virus. There was clearly no intent by the BC legislature to provide employees with a financial windfall when using the paid sick leave entitlement, said the arbitrator.
The arbitrator also found that this particular scenario was not fully contemplated by the legislature when it drafted and debated the paid sick leave amendments, and the legislation “may require amendments over time as these types of issues come to light.”
The arbitrator looked at the ministry’s guide to the ESA, which didn’t define the word “partial.” However, she said that the use of that word indicated that taking any sick leave on a particular day would result in a full day of the five-day annual allotment being used. For example, in the current situation, the worker taking a half-day of paid sick leave would be considered one full day of the ESA entitlement, the arbitrator said.
The arbitrator noted that the guide stated that employees are entitled to an average day’s pay while on sick leave, regardless of the number of hours worked. In the worker’s case, an average day’s pay was 12 hours and he was paid for 12 hours “through a combination of time worked and paid sick leave for a combined result equalling his average day’s pay,” which was reasonable and in line with the intention of the legislature.
The BC legislature clarified the new sick leave rules with further amendments in 2022.
Intention of legislature
The arbitrator determined that Teck’s interpretation of the paid sick leave entitlement was consistent with the intention of the ESA in that it ensured that the worker was not financially harmed by an absence for illness. This interpretation was also fair to employers, which was consistent with the ESA’s stated purpose “to promote the fair treatment of employees and employers.”
Although this was contrary to the ministry’s guide, the arbitrator agreed with Teck that the guide was neither binding nor arbitrary. In addition, the guide’s (and the union’s) interpretation would provide greater compensation to an employee who works only a portion of their scheduled shift compared to an employee who works their full shift, which would be an unintended result of the act.
As the worker received an average day’s pay for the day on which he went home sick, he had no further entitlement, said the arbitrator in dismissing the grievance. See Teck Highland Valley Copper Partnership and USW, Local 7619 (Anderson), Re, 2023 CarswellBC 613.
