University employee’s sick leave endures layoff

Sick leave credit deemed to be an earned benefit

In August 2013, Garth Arsenault chose to be laid off from his position at the University of Prince Edward Island rather than terminate his employment.

In October 2014, he was recalled to another position and placed on probation. Additionally, the employer refused to recognize his continued service for the purpose of vacation and sick leave credits.

Arsenault’s union, the Canadian Union of Public Employees (CUPE) Local 1870, filed a grievance on his behalf.

Following the grievance, the employer removed the probationary period and reinstated Arsenault’s previous vacation rate, as per the parties’ collective agreement. However, the employer denied his claim of sick leave accrual.

While vacation accrual is addressed by the collective agreement, the employer said, the accrual of sick leave credits is not. As a result, the employer argued Arsenault was not entitled to any of the 101 1/6 sick leave days showing as accrued as of his day of layoff.

Furthermore, the employer argued that to provide Arsenault with the sick leave accrual would require reading into the collective agreement words in support that are not found.

The union, however, argued that sick leave accrual — like vacation accrual — is an earned benefit that endures through a layoff under the agreement. This is further illustrated, the union said, by Arsenault’s choice to be laid off rather than to terminate the employment relationship. Because of this distinction, the layoff itself cannot be interpreted as an end to Arsenault’s employment. As such, his sick leave accrual should stand.

Arsenault himself testified he was given no reason as to why his sick leave accrual was not retained on recall and further testified that he at no time made any agreement with the employer that he was not so entitled.

The arbitration board — made up of chair Robert D. Breen, employer nominee Ron MacLeod and union nominee Bob Crockett — ruled Arsenault’s layoff did not constitute a severing of his employment relationship with the university, as evidenced by his remaining on a recall list for five years.

"The employer here has conceded to Arsenault’s accrued vacation rate on recall, an accumulated benefit at a rate of a number of working days per calendar months, as is sick leave, as well as a waiver of probation," Breen wrote in the ruling.

"Arsenault did not start afresh for either his vacation rate or on a probation. So too, he should not be seen to start afresh for his sick leave accrual."

The board found Arsenault’s sick leave accrual was an earned right under the parties’ collective agreement on his recall. The grievance was allowed and Arsenault’s 101 1/6 days of sick leave credit were ordered reinstated as at the date of his recall.

The University of Prince Edward Island and the Canadian Union of Public Employees. Arbitration board: Robert D. Breen, chair; Ron MacLeod, employer nominee; Bob Crockett, union nominee. Stephen Carpenter for the employer, Bill McKinnon for the union. May 26, 2015.

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