Employer provided three days while statutory minimum in BC is five
A British Columbia employer violated the province’s Employment Standards Act (ESA) by requiring employees to use paid personal leave days to meet the statutory minimum for paid sick leave, instead of providing the full five sick days mandated by law, an arbitrator has ruled.
Heidelberg Materials Canada is a company that manufactures and supplies cement, aggregates, ready-mix concrete, concrete pipe, asphalt, and other building materials to customers across Canada from BC to Quebec. It operates a cement plant in Delta, BC.
Heidelberg’s collective agreement with the Delta cement plant employees contained a sick leave provision that provided for three paid sick leave days each calendar year, with any unused days paid out in the first pay of the next year. Sick days could be taken immediately when an employee was ill or injured.
The collective agreement also had a letter of understanding (LOU) at the back allowing for three paid personal days each calendar year. Employees had to pre-arrange these days and obtain authorization by filling out a form and the LOU stated that they were to be used “to attend a dental, medical, or legal appointment, or to deal with other personal or family matters that require absence from work.” Paid personal days were included in the collective agreement some time after paid sick days.
Paid sick leave
On Nov. 7, 2022, the union filed a grievance alleging that Heidelberg breached both the ESA and the collective agreement by failing to provide five days of paid sick leave as required by s. 49.1 of the ESA and s. 45.01 of the BC Employment Standards Regulation – a minimum standard since April 2022. Instead, Heidelberg had reportedly allowed workers to use three paid sick days and then personal leave days if they needed additional sick days, maintaining that this combination met the ESA’s requirements.
The union argued that Heidelberg’s practice violated the legislative intent of the ESA amendment, which sought to ensure that workers could take dedicated sick leave without being required to use leave days allocated for other personal matters.
The arbitrator determined that the collective agreement’s paid personal leave provision and the paid sick leave provision were distinctly separate entitlements, each designed to address different needs. The personal leave benefit was established for scheduled absences such as dental or medical appointments rather than unforeseen sick days, the arbitrator said.
The arbitrator also said that “the parties did not mutually contemplate that the personal leave benefit and the sick leave benefit fall within the same species of entitlement,” noting that the plain language of the collective agreement specifically framed the purposes of each – sick leave was under the “benefit plan” entitlements and stated it was to “provide sick leave benefits,” while personal leave was existed “to provide time to deal with matters that can be scheduled in advance.”
Sick leave, personal leave separate
The arbitrator determined that combining these benefits was inconsistent with the language and intent of the collective agreement, which had been structured to keep the categories of leave separate.
Heidelberg argued that it had unilaterally waived the preauthorization requirement for personal leave days so they could retroactively qualify as sick leave, but the arbitrator noted that any adjustment to the negotiated terms of the collective agreement would need to occur through further bargaining with the union, not unilateral employer action to change established practice.
The arbitrator ordered Heidelberg to provide the full five days of paid sick leave in compliance with the ESA separate from personal leave, effective from April 1, 2022 - the date the ESA’s sick leave amendment granting five days came into force. Additionally, the arbitrator directed the company to cease requiring employees to use personal leave days to meet their sick leave entitlements under the ESA.
See Heidelberg Materials Canada Limited (Delta Cement) v. Cement et al Local D277, 2024 CanLII 101987.
