Mother of groom denied leave for son's wedding

Employer ordered to reinstate lieu time used to attend ceremony

Nancy Hamilton — an employee of the Toronto District School Board — requested paid time off to attend her son’s wedding. The employer granted her the time off, but declined to provide her with paid time off.

Hamilton decided she would not let the denial of her request prevent her from attending the ceremony, so she took the day off and received compensation using lieu time she had accumulated through overtime work.

Following the request, however, Hamilton’s union — the Canadian Union of Public Employees (CUPE) — filed a grievance on her behalf. According to CUPE, Hamilton should have been granted a miscellaneous leave day that would have been paid for by the employer.

By failing to grant that leave day, the union argued, the employer violated the parties’ collective agreement.

Under the agreement, miscellaneous leave was set aside for purposes such as attending graduations, moving to a new place of residence, attending a funeral or under special circumstances approved by management.

It was under the special circumstances bracket that Hamilton applied for the miscellaneous leave day. The request was denied by Employee Services, however, and Hamilton was advised to take the time unpaid or by using vacation time.

The employer argued Hamilton made the request one month before her son’s wedding, despite the fact the ceremony was not an unforeseen event. There was nothing exceptional about a wedding that would warrant leave with pay, and no extenuating circumstances in the case.

The union acknowledged miscellaneous leave was discretionary but argued the employer’s discretion to grant or deny the leave must be reasonable and take into account all of the circumstances of the individual.

And while the employer assumed the wedding was not an unforeseen event, the union argued no inquiries had been made to verify that with Hamilton.

Furthermore, some of the events specifically mentioned in the collective agreement — such as graduations — were also pre-planned. The employer’s reasoning for denying Hamilton’s request was arbitrary, the union said.

The employer, however, argued “special circumstances” must be looked at objectively and cannot be based on the employee’s subjective view.

The right to be paid is normally dependent on the performance of work, the employer said, and therefore the right to be paid without working requires something that is out of the ordinary.

The clauses in the parties’ collective agreement concerning miscellaneous leave involve the exercise of discretionary power, arbitrator Larry Steinberg said. In his ruling, he found the employer fettered its discretion by its erroneous interpretation of “special circumstances.”

As a result, the grievance was allowed and the employer was ordered to reinstate the lieu time Hamilton used to attend her son’s wedding.

Reference: Toronto District School Board and the Canadian Union of Public Employees. Larry Steinberg — arbitrator. Carolyn Kay for the employer, Cynthia Peterson for the union. May 3, 2016.

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