Alberta worker didn’t follow proper vacation, leave rules
A Canada Post term worker claimed the corporation purposely failed to schedule her on a shift to maintain continuous employment status, but poor communication from the worker meant Canada Post thought she was on vacation.
Leah Visser was hired by Canada Post Corporation (CPC) in October 2015 to work in the Whitecourt, Alta. post office. In April 2016, she became a term employee — appointed on an annual basis to cover for absences, holidays and heavy workloads.
Under the collective agreement, term employees received “applicable benefits” under the Canada Labour Code if they had continuous, uninterrupted employment of at least six months. The collective agreement also gave term employees with continuous employment a right of recall if another term assignment became available within 90 days of their last day of employment with CPC.
Term employees lose their continuous employment status if they don’t work for a period of more than 30 consecutive days. Scheduling of term employees was generally done directly in person or by telephone so it could be done in a timely manner.
In June 2016, Visser discussed with the postmaster the possibility of taking vacation time in July to go on a fishing trip — term employees didn’t get regular vacation leave, they just asked for time off during which they wouldn’t be scheduled to work. The postmaster told her to put the dates on the white board in the lunchroom where vacation schedules and requests were normally put.
The postmaster posted scheduling sheets with the availability and assigned shifts for each employee showing Visser as off on her requested dates of July 18 to 22. In addition, no term employees were scheduled from July 11 to 15 or July 25 to 29 due to low mail volumes.
Just before the start of the fishing trip, Visser wasn’t able to go, so she went to the post office on July 15, changed the dates on the white board, filled out a vacation form requesting a personal day for July 18 and texted the postmaster to tell her she was available for work that week after the personal day.
However, the postmaster didn’t receive the text. In addition, the vacation request form was refused because she already scheduled off work and term employees didn’t get formal vacation leave.
On July 21, a three-hour shift became available and CPC called in a casual employee to fill in. On Aug. 2, 30 days elapsed, during which Visser hadn’t worked and she lost her continuous employment status.
Visser’s term contract finished on Dec. 31, 2017 with only continuous service since August 2016. When it wasn’t renewed, the union filed a grievance arguing that Visser should have been called into work on July 21, 2016 as she should have had priority over a casual employee to work that shift and the collective agreement prohibited CPC from artificially creating “a break in service of a term employee solely in order to prevent the term employee from attaining an improved status as a term employee.”
The arbitrator found that Visser didn’t clearly communicate the change in her availability since she didn’t speak to the postmaster directly, she created confusion by filling out a vacation request form — something term employees didn’t do — and she didn’t verify that CPC knew of her availability. The text wasn’t the accepted way to communicate and when Visser didn’t receive a reply, she didn’t check that it had been received.
The arbitrator also found that there was no evidence CPC “knowingly, intentionally or maliciously scheduled (the casual employee) for the unexpected shift on Thursday, July 21 rather than (Visser).” The postmaster was unaware that Visser was available that day and also wasn’t responsible for keeping track of Visser’s continuous employment status, said the arbitrator, in dismissing the grievance.
Reference: Canada Post and CPAA (Visser). D.P. Jones — arbitrator. Geoff Hope, Evie Thorne for employer. Sean McGee for employee. Sept. 26, 2019. 2019 CarswellNat 5190
