Teacher waits too long to fight denial of bereavement leave

Board's refusal of request was clear and unequivocal but teacher continued to hope board would change its mind

An Alberta teacher’s claim for personal leave to attend a memorial service has been rejected by an arbitration board because she waited too long to file a grievance, though her complaint had merit.

Leanne Jacobson began working for Alberta’s Wild Rose School Division near Rocky Mountain House, Alta., in September 2006. Shortly after she began work, Jacobson asked her school principal for four days’ bereavement leave under the collective agreement to attend a memorial service for her grandfather in Prince Edward Island in November 2006. She had been unable to travel to the funeral when he died in December 2005.

The principal said he wasn’t sure if the memorial service qualified for paid leave and said he would bring it up at an administrative meeting, though she would be able to take the time off at any rate. Later, the principal informed her that her request for bereavement leave had been denied but it was still fine for her to take personal leave for those days. Jacobson filled out a personal leave application form but still hoped for paid leave.

On Oct. 9, 2006, Jacobson formally appealed the denial of bereavement leave and said if it wasn’t granted she would use her pre-approved personal leave. The school board denied the appeal the next day, saying bereavement leave could only be taken “in close proximity to the actual event of illness or death.”

The board confirmed it granted Jacobson an unpaid leave of absence for one day and personal leave for the other three days.

At the end of November, Jacobson refused to sign an absence report because she still felt she should have been given paid leave for her absence. When she received her December salary, she learned the school board had still treated it as unpaid leave when she saw the deductions from her pay. Jacobson filed a grievance on Jan. 16, 2007, saying she should have been granted paid leave since it was related to the death of her grandfather.

The arbitration board found the collective agreement didn’t contain any limitation between the timing of the leave and the death in question. The agreement only specified leave was available for “each occurrence” but not within a certain time. As a result, the arbitration board found the school board should have granted Jacobson bereavement leave.

However, the grievance was dismissed because Jacobson didn’t file it within 30 days of the event, as stipulated by the collective agreement. It found the board’s denial of her appeal on Oct. 10, 2006, was a “clear and unequivocal refusal” to her request for bereavement leave and was the incident starting the 30-day window for a complaint. However, despite the formal denial, Jacobson held out false hope for an acceptance and didn’t begin her complaint process until she received her December pay with the deductions, filing the appeal in January 2007.

“(Jacobson) disagreed with (the board’s) interpretation of the collective agreement, but she could have been in no doubt that the school board refused to grant her leave,” the court said. “She should have grieved that refusal when it was communicated to her.” See Wild Rose School Division No. 66 v. A.T.A., 2008 CarswellAlta 336 (Alta. Arb. Bd.).

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