Denied special leave to provide palliative care for her ailing 90-year-old mother because her employer said the situation was not catastrophic, a worker grieved.
Employed as a community health representative in the far north, A.P. applied to use the 29 days of special leave she had accumulated under the terms of the collective agreement to help care for her mother who was gravely ill and living in a remote community.
According to normal practice, A.P.’s request for leave longer than five days went from her immediate supervisor to the next supervisor up the chain, who initially approved the request. However, A.P.’s application was later rejected by the health authority’s Chief Executive Officer (CEO), who referenced the organization’s human resources (HR) policies and approved only 10 days of leave.
The CEO said her information was that support for homecare was available in the community and that A.P.’s sister was also available to help out. Moreover, the HR manual specified that while Deputy Heads could double special leave applications up to a maximum of 10 days where circumstances warrant, the maximum entitlement to 30 days was to be restricted to catastrophic circumstances characterized as “events that cannot be necessarily predicted.”
Serious but not catastrophic
The CEO accepted the seriousness of A.P.’s circumstances but implied they lacked the surprise element required by the HR manual’s definition of catastrophic because “most of us have serious illness and death in the family.” Staffing issues and operational costs were also of particular concern, the CEO said, stating that the organization was not in a position to let everyone go home when a family member becomes ill.
The union took the position that special leave credits are entitlements earned under the collective agreement, which specifies that requests for leave “shall not be unreasonably denied.” The employer’s reference to the “10-day” rule in its HR manual was not relevant because the HR manual was an employer-promulgated document that was not part of the collective agreement, the union said.
Before the Arbitrator, the employer stressed that in taking the position that A.P.’s circumstances were not catastrophic it was in no way trying to minimize the seriousness of her circumstances. The question was not whether A.P.’s situation was a difficult one but whether or not management had acted unreasonably in denying her application for 29 days of special leave.
The employer had acted unreasonably, the Arbitrator said.
There was no question that A.P.’s circumstances met the criteria for special leave, the Arbitrator said: her mother was at home on palliative care, bedridden and in need of round-the-clock care. The question was whether or not the request for 29 days was reasonable.
Evidently, A.P.’s request for all of her accumulated leave set off some alarms. However, instead of asking her directly about why she was requesting all that time or making inquiries with a view to coming to an arrangement, the employer did neither and was not in a good position to judge the reasonableness of the request.
Staffing concerns
While the Arbitrator was not unsympathetic to the CEO’s “floodgates” argument with respect to the potential for creating unsustainable demands for leave, the appropriate venue to address such staffing concerns is in collective bargaining and “not by refusing to approve an otherwise valid individual request that meets the criteria for special leave,” the Arbitrator said.
The employer needed to reposition its HR policies to acknowledge the primacy of the collective agreement. Catastrophe was not the threshold for special leave eligibility outlined in the collective agreement.
“While it is certainly appropriate for management to establish guidelines for exercising discretion under the collective agreement, these guidelines must be consistent with the contract language and must be applied based on individual circumstances. In this case, I conclude that limiting leaves beyond 10 days to catastrophic situations is not consistent with the terms of the contract. It sets a threshold far above that contemplated in the collective agreement.”
The Arbitrator allowed the grievance and found that A.P. was entitled to 29 days of special leave.
