When the grievor, a long-term employee with many skills and a glowing record, asked for vacation on the week before Christmas, he was refused. His excellent performance worked against him as the employer argued it could not do without him during a peak time.
Entitled to six weeks vacation annually, a worker with 25 years’ seniority requested eight months ahead of time to take the week off before Christmas. When his request was denied, the union grieved.
M.W. was one of four full-time employees in the meat department at a large “24/7” grocery retailer. He was the only full-time meat cutter. With 25 years’ service, M.W. was the most senior employee in the department. He was also the best: the most skilled meat cutter; the best at stocking the service counter and he excelled at customer service.
Vacation requests were accommodated as much as possible. There were no “blackout” periods for which requests were not permitted, but requests for vacations during the store’s busiest weeks — before holidays and during inventory — were discouraged.
Language in the collective agreement limited summer vacations to no more than three weeks. The contract also said, “the balance of an employee’s vacation entitlement shall be scheduled according to seniority and requirements of the operation.”
According to standard practice, M.W. signalled in March his desire to book off the week before the upcoming Christmas holiday — eight months beforehand.
No ‘blackout’
The union said the employer’s refusal was unreasonable and the employer was operating as though there was a “blackout” — even though there was no such proscription in the collective agreement against holidays during that period. The union said the employer had erred in its calculations about how many work hours it could draw on from its other part-time staff members during that week.
The assumptions management made about its labour needs and availability for that week, which were based on the experiences from previous years, were not necessarily applicable, the union said. More than that, the union said it was unfair that M.W.’s excellence at his job should count as a factor to be weighed against his chances of securing his preferred vacation slot.
The employer said management’s rights and legitimate business calculations supported its need to have its only full-time meat cutter working during the busiest time of the year.
The Arbitrator agreed.
The question was not if it was possible for the employer to accommodate M.W.’s request. The issue was whether or not the company’s refusal was objectively reasonable in the circumstances.
The Arbitrator said it was.
The store manager “reasonably forecast” the meat department would need substantially more hours from its staff during that week, the Arbitrator said.
The employer had to take into account the vagaries of part-time staff turnover and the fact part-timers were limited to no more than 27 hours per week.
As well, the employer could not absolutely count on the availability eight months hence of the next best meat cutters on staff whose skills were in demand at other stores.
Worker’s excellence a ‘valid operational consideration’
M.W.’s skills and excellence at his job could not be used to deprive him of vacation, but his impact on service quality was a valid operational consideration during certain critical periods — such as the week before Christmas. Sales volumes are higher at that time and expectations with respect to service and quality are increased.
“The effect on quality of [M.W.] taking vacation may be more problematic in periods when quality is more critical, as the store manager reasonably concluded it would be in the week before Christmas. That differential is a pertinent consideration,” the Arbitrator said.
“I accept that likely effects on the quality and quantity of work were objectively reasonable operational considerations, and that both were particularly important ones for the week before Christmas. I also appreciate the irony, from the grievor’s and the union’s point of view, of the grievor’s excellence at his job having played a part in the decision to deny his preferred vacation week. It was a relevant consideration to the extent I have indicated, however. It was for the employer to balance the other pertinent considerations against any possible impact that that irony might have on other employees’ motivation to excel, and it is not for me to substitute any notion I might have of the appropriate balance.”
The grievance was dismissed.
Reference: Zehrs Markets/Real Canadian Superstores and United Food and Commercial Workers Union, Local 175. Owen V. Gray — Sole Arbitrator. Marcia Barry for the Union. Gordon Fitzgerald for the Employer. Nov. 17, 2011. 15 pp.
