Nothing in collective agreement to specify treatment
After taking one day off to attend a wedding, a worker in a food packaging company in Hantsport, N.S., was surprised to find one of his holiday days was used by the employer for the time off.
Mike Shiers was a Leotech operator at Canadian Keyes Fibre (CKF) when he filled out a request-for-leave form for July 18, 2015. He had arranged with another worker, Patti Sanford, to cover his shift on the specialized machine, so it could continue operating during his absence.
When he looked at his following paycheque and saw that he “had been paid for a banked day that I did not request for taking a day off and having someone fill in for my shift,” Shiers filed a grievance on Aug. 1.
Joanne O’Leary, production resource scheduler for the company, handled scheduling duties. She testified that CKF instituted an attendance management system in July 24, 2007, to better manage scheduling after it found that too many absences from 2001 to 2006 negatively affected production.
The employer posted the updated policy on all union bulletin boards in 2008, according to O’Leary.
The policy said: “Employees will be required to use all eligible paid leaves (e.g. floaters, banked days) before any unpaid leave of absences will be granted.”
Ever since the implementation of the policy, a holiday was used when employees requested time off for unexpected circumstances, said O’Leary.
When Shiers made the request, O’Leary said she spoke with him and his wife (who works on the same machine) and said he would have to use a holiday for the time off, — but Shiers said this didn’t happen.
The union, Unifor Local 576, grieved the decision and argued there was nothing in the collective agreement that specified how days off are to be treated, meaning the company breached it.
The union said employees should be allowed to choose how to be compensated when taking days off.
The arbitrator, Augustus Richardson, dismissed the grievance.
“The onus lies on the union to establish a violation of the collective agreement. There was no evidence that any particular clause of the agreement was applicable or had been breached. The rule or condition imposed by the employer with respect to requests for leave was a reasonable one; it had been in place since at least 2008; it did not violate any provision in the collective agreement,” said Richardson.
The suggestion that O’Leary didn’t fully explain the policy to Shiers was rejected by the arbitrator.
“The fact that Shiers did not agree with the policy when it was applied to him in July 2015 is not evidence that the rule was arbitrary, or that is was suddenly imposed — or resurrected — without notice in 2015. O’Leary testified that she had always applied the rule, and she would be responsible for many such requests over the years,” said Richardson.
And because there was nothing specific in the collective agreement, the employer’s policy could be enforced, according to Richardson.
“Is he or she to be treated as having used a paid holiday (whether banked or a floater)? Or is it to be considered an unpaid day off? To put it another way, is there anything in the collective agreement that allows the employee who seeks permission to be excused from his or her scheduled day of work to require that the employer treat it as an unpaid rather than as a paid day?
"Neither party drew my attention to any provision in the collective agreement that expressly dealt with — or answered — that question.”
Reference: Canadian Keyes Fibre and Unifor, Local 576. Augustus Richardson — arbitrator. Rebecca Saturley for the employer. Gary Healey for the employee. June 5, 2017.
