Employer argued firefighter didn't earn full year's vacation entitlement by retiring early in the year
This edition of You Make the Call features a firefighter who took a full years’ allotment of vacation before retiring four months into the year.
Barry Cox was a firefighter for the City of Cornwall, Ont., for 25 years. With his length of service, Cox was entitled to six weeks of vacation per year. Early in 2010, Cox applied for and was granted all six weeks of his annual vacation entitlement, which were scheduled to be taken by April 25. On April 16, with one week to go on his vacation, Cox provided notice to the city that he planned to retire effective April 30.
The city wasn’t happy about this, as it believed vacation was earned throughout the year and if Cox retired at the end of April, he should only get a prorated portion of his annual vacation entitlement— two weeks for working four months, or one-third of the year. It cancelled his final week of vacation and sought to recover the salary Cox was paid for the three extra weeks of unearned vacation he had taken.
The city said that the collective agreement allowed it to prorate vacation allowance according to the portion of the year an employee worked before retiring. It pointed to an article stating “An employee terminating his employment at any time in his vacation year shall be entitled to a proportionate payment of salary in lieu of any unused vacation.”
The firefighters’ union argued that the collective agreement did not provide for proration of vacation entitlement and the article in question only allow for prorated payments for unused vacation time that had been earned by an employee.
Was the city entitled to prorate the retiring firefighter’s annual vacation entitlement?
Was the firefighter entitled to take a full year’s worth of vacation before he retired?
If you said the firefighter was entitled to take the full year’s allotment of vacation, you’re right. An arbitrator found that the language of the collective agreement was straightforward in that it allowed an employee who terminated employment was entitled to a proportionate payment relating to unused vacation for that year. However, Cox had no unused vacation for the year of his retirement and the article made no mention of prorating anything other than unused vacation entitlement, said the arbitrator.
On the city’s appeal, the Ontario Divisional Court supported the arbitrator’s view, dismissing the city’s argument that the collective agreement’s wording was ambiguous. The court found the article, which was drafted by the city, gave some help in clarifying the city’s desire for proration, but not to the extent it was pushing for in Cox’s case. If the city specifically wanted proration of vacation entitlement, it should have expressly included it in the wording along with the proration of pay for unused vacation, said the court.
The court dismissed the city’s appeal and reiterated the arbitrator’s finding that Cox was entitled to his full annual entitlement of six weeks of vacation for 2010, though he retired at the end of April that year.
For more information see:•Cornwall (City) v. Cornwall Professional Fire Fighters’ Assn., 2011 CarswellOnt 14423 (Ont. S.C.J. (Div. Ct.)).