Leave timing not restricted absent language in agreement

A British Columbia worker is entitled to paid bereavement leave to attend a ceremony in which she would spread her father’s ashes, even though her father died more than one month earlier when she was on layoff and not actively working, an arbitrator has ruled.

B.C. School District No. 27 employed the worker as a school secretary at Cataline Elementary School in Williams Lake, B.C. The worker was originally hired in 2007 on a casual basis before obtaining a full-time position. However, her full-time position involved working for 10 months during the school year and being laid off for July and August, during which time she received employment insurance (EI) benefits. She returned to her position each September.

The collective agreement between the school district and the worker’s union included bereavement leave of five working days “in the event of death” of a member of an employee’s immediate family.

On Aug. 6, 2019, the worker’s father passed away. The worker was his oldest daughter and took on much of the responsibility for planning a memorial service and helping her mother.

A celebration of life for the worker’s father was held on Aug. 24. It was also decided to have a ceremony with the family in mid-September during which they would spread his ashes at a meaningful location.

The worker was on layoff at the time of her father’s death and the celebration of life, but she was scheduled to be back at work in September. She emailed the school district’s HR manager on Sept. 19 to request her five bereavement days in September for the ash-spreading ceremony. The HR manager initially allowed the request.

However, a few days later, the HR manager emailed her back to say the bereavement leave request was denied, as “you were not scheduled to work and thus the leave provision wouldn’t apply.” The worker asked why spreading ashes wouldn’t fall under bereavement, to which she was told it would be considered leave without pay as it wasn’t immediately following her father’s death, as per the collective agreement.

The worker took 14 days of unpaid leave in September and the union filed a grievance, arguing that there was nothing in the collective agreement requiring the death to be during active employment and the worker’s reason for requesting leave in September was “consistent with the purpose of bereavement leave.”

The arbitrator noted that there wasn’t any language in the collective agreement specific to the entitlement of 10-month employees to bereavement leave, so the worker’s entitlement was the same as any employee. In addition, the bereavement leave clause didn’t have any restrictive or qualifying conditions regarding the timing of the leave — the language used was “in the event of death,” which didn’t clearly direct when the employee may be absent, said the arbitrator.

The arbitrator found that the jurisprudence established that a funeral could consist of one or more observances and, given the “varying habits, customs and traditions in our pluralistic society,” should be given a broad interpretation. As a result, the arbitrator found that the ash-spreading should be considered an activity reasonably related to the death of the worker’s father.

“Absent restrictive language directing a different outcome, an employee may claim bereavement leave for a period which does not follow immediately upon the death of a recognized family member,” said the arbitrator. “Nor must an employee have been actively employed at the time of the family member’s death unless that is stipulated by the applicable clause.”

The arbitrator upheld the grievance, determining that the worker was entitled to the five paid days of bereavement leave she requested in September 2019.