FPSLREB Decisions

Grievance referred to adjudication

[1]    The grievance filed by Brian Rosekat, a Supply Officer (PG–02) in the Acquisitions Branch at Public Works and Government Services Canada (PWGSC), in Mississauga, Ontario, concerns the interpretation of clauses 1.01, 15.05 and 15.07 of the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (PIPSC) in respect of the Audit, Commerce and Purchasing (AV) group (Codes: 204, 309 and 311; expiry date: June 21, 2003).  In considering the meaning of these clauses, the parties also referred to Clause 5.01 at the hearing.  Clauses 1.01, 5.01, 15.05 and 15.07 read as follows:

ARTICLE 1

PURPOSE OF AGREEMENT

1.01   The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the employees and the Institute, to set forth certain terms and conditions of employment relating to remuneration, hours of work, employee benefits and general working conditions affecting employees described in the certificate issued by the Public Service Staff Relations Board on June 16, 1999, covering employees of the Audit, Commerce and Purchasing Group.

. . .

ARTICLE 5

MANAGEMENT RIGHTS

5.01   All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Institute as being retained by the Employer.

ARTICLE 15

VACATION LEAVE

. . .

15.05   Provision for Vacation Leave

1. Employees are expected to take all their vacation leave during the vacation year in which it is earned.

2. In order to maintain operational requirements, the Employer reserves the right to schedule an employee’s vacation leave but shall make every reasonable effort:

   1. to provide an employee’s vacation leave in an amount and at such time as the employee may request;

   2. not to recall an employee to duty after he has proceeded on vacation leave.

3. The Employer shall give an employee as much notice as is practicable and reasonable of approval, denial or cancellation of a request for vacation or furlough leave.  In the case of denial, alteration or cancellation of such leave, the Employer shall give the written reason therefore, upon written request from the employee.

. . .

15.07   Carry–Over and Liquidation of Vacation Leave

1. Where in any vacation year all of the vacation leave credited to an employee has not been scheduled, the employee may carry over into the following vacation year up to a maximum of thirty–five (35) days credits.  All vacation credits in excess of thirty–five (35) days will be paid in cash at the employee’s daily rate of pay as calculated from the classification prescribed in his certificate of appointment of his substantive position on the last day of the vacation year.

2. During any vacation year, upon application by the employee and at the discretion of the Employer, earned but unused vacation leave credits in excess of fifteen (15) days may be paid in cash at the employee’s daily rate of pay as calculated from the classification prescribed in his certificate of appointment of his substantive position on March 31 st, of the previous vacation year.

3. Notwithstanding paragraph (a), if on the date of signing of this Agreement or on the date an employee becomes subject to this Agreement, he or she has more than two hundred and sixty–two point five (262.5) hours of unused vacation leave credits earned during previous years, a minimum of seventy–five (75) hours credit per year shall be granted, or paid in cash by March 31 st of each year, until all vacation leave credits in excess of two hundred and sixty–two point five (262.5) hours have been liquidated.  Payment shall be in one installment per year, and shall be at his or her daily rate of pay as calculated from the classification prescribed in his or her certificate of appointment of his or her substantive position on March 31 st of the applicable previous vacation year.

. . .

[2]    The grievor’s representative introduced nine exhibits and called the grievor to testify.  Counsel for the employer introduced four exhibits and called one witness.  The parties filed an “Agreed Statement of Facts” (Exhibit A–1) on consent, which reads as follows:

THE PARTIES AGREE TO THE FOLLOWING STATEMENT OF FACTS AND AGREE THAT EITHER PARTY MAY INTRODUCE ADDITIONAL EVIDENCE AT THE HEARING ON THESE MATTERS:

1. At the date of filing the grievance, the grievor, Mr. Brian Rosekat occupied a position as a PG–2 Purchasing Officer with Treasury Board, Public Works Government Services Canada (PWGSC).  The grievor has worked at PWGSC since June 10 th, 1975.

2. At the date of filing the grievance, the grievor was subject to the Treasury Board and PIPSC Audit, Commerce and Purchasing (AV) Group Collective Agreement with an expiry date of June 21 st, 2003.

3. The relevant figures respecting the grievor’s vacation leave amounts are attached as Appendix ‘A’.

. . .

[3]    On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P–35 (the “former Act”).

[4]    In her opening remarks, the grievor’s representative stated that the grievor was obligated by the employer to take his earned vacation leave before the end of the 2003 fiscal year.  He was ordered by the employer to be on vacation leave from February 24 to March 21, 2003, inclusive, for a total of 147.5 hours.

[5]    In previous years, the grievor had been allowed to cash out his unused vacation leave credits at the end of the fiscal year (March 31).  However, in 2002–03, the employer alleged a lack of funding for mandatory cash–out of excess vacation leave.  The grievor alleges a violation of the provisions of the collective agreement and as remedy seeks reinstatement of the 147.5 hours and that those hours be cashed out at the applicable rate.

[6]    In his opening remarks, counsel for the employer stated that the collective agreement provides for the carry–over of a maximum of 35 days of vacation leave.  However, it also states that the employer has the right to schedule an employee’s vacation leave in the year that it is earned.  Counsel recognized that although the employer has that right, it is not an absolute right.  It is incumbent on the employer to accommodate an employee’s wishes, subject to operational requirements.

[7]    Despite repeated requests and numerous discussions, the grievor would not comply with management’s requests that he take his earned vacation leave before the end of the 2003 fiscal year.  Therefore, it was the employer’s right to schedule him on vacation leave.  At no time did the employer violate the provisions of the collective agreement, as alleged by the grievor.

Summary of the evidence

[8]    The grievor’s testimony can be summarized as follows.  He reports to Maria Ditella, a Team Leader.  She, in turn, reports to Jim Shaw, the Manager of the Acquisitions Branch for the Ontario Region.

[9]    On October 17, 2002, Ms. Ditella informed the grievor of a memorandum (agreement) between the PIPSC and the employer whereby all employees would be expected to take their earned vacation leave before the end of the fiscal year.  She then directed him to submit a vacation leave plan by October 23, 2002.  The grievor stated that he doubted the existence of such a memorandum; therefore, he requested a copy of it.  Ms. Ditella advised him that a copy would be circulated to all employees.  The grievor stated that he proceeded to plan his vacation leave but since he did not receive the requested memorandum by October 23, 2002, he decided not to submit his vacation leave plan.

[10]   Mr. Shaw then met with the grievor and asked him to submit his vacation leave plan.  The grievor stated that Mr. Shaw’s approach was confrontational and he appeared to be somewhat angry.

[11]    The grievor referred to an e–mail sent to all employees by Fred Pincock, A/Regional Director General, Ontario Region, on November 15, 2002 (Exhibit G–5).  The e–mail concerns the scheduling of vacation leave and in the opening paragraph it states: “I am writing to you to seek your cooperation…”  The grievor stated that since the words “mandatory” and/or “must” were not used, it was his belief that the intent of the memorandum was simply to seek his cooperation.

[12]   The grievor referred as well to the following paragraphs of the said e–mail:

. . .

There are many challenges in managing this region’s financial situation and this year our challenges are particularly acute…

. . .

Some funding must be available for mandatory cash out of excess vacation leave balances.  As well, applications for employee requested cash out of vacation leave balances, as permitted in your collective agreements, will be reviewed on an individual basis…

. . .

[13]   The grievor testified that he advised Mr. Shaw that he would not submit a vacation leave plan, as he did not view Mr. Pincock’s e–mail as a direct order.  Mr. Shaw then informed him, on February 18, 2003 (Exhibit G–6), that he would proceed to schedule the grievor on vacation leave from February 20 to March 20, 2003 (the original dates scheduled).  A copy of Mr. Shaw’s e–mail was sent to Ms. Ditella.

[14]   The grievor testified that this was the first time that he was ordered to schedule his vacation leave.  He stated that he was incensed by Mr. Shaw’s e–mail and on February 19, 2003, he sent him the following e–mail (Exhibit G–7):

   I have been clear and straight forward at all times that I have grave doubts whether management has either the right or the authority to force any employee to schedule vacation leave against his or her express wishes.

   In that regard, vague and general allusions aside, “You have made no effort to provide….in spite of repeated requests”, any clear and specific reference to any part of the AV Collective Agreement or any other documentation to support your alleged authority.

   My alleged “necessary” leave schedule was ready 23 October, 2002.  As no clear supportive authority was offered or provided, whether you were unable or unwilling or did not see fit to do so, it was unclear to me that its submission was mandatory.

   By not providing reference(s) to documented authority, you have denied me a fair and reasonable opportunity to offer an informed agreement or disagreement.

   This is the first correspondence I have seen that informs me that I “must take leave” and still it offers no clue by what authority.

   Fred Pincock’s email of 15 Nov, 2002 clearly states “should take leave” and, in an obvious reference to the collective agreement, clearly recognizes that “Some funding must be available for mandatory cash out of excess vacation leave balances.”

   The instructions you were given to deal with excess leave do not reference any authority.

. . .

[15]   That same day, Mr. Shaw replied to the grievor as follows (Exhibit G–8):  “I refer you to the agreement paragraphs 15.05 (a & b) and 15.07 (a).”

[16]   The grievor testified that in his discussions with Mr. Shaw, a projected $300,000 shortfall in the budgets was mentioned.  It was the grievor’s belief that this was an unrealistic target figure.  On October 23, 2002, he indicated to Mr. Shaw that he intended taking half of his earned vacation leave before the end of the fiscal year and cash out the rest, as he was on a tight budget and needed the money.

[17]   The grievor noted that in the last two years his unused vacation leave credits were cashed out by the employer.

[18]   The grievor testified that he did not feel that he was provided with clear information from management as to who authorized the change in past practice of cashing out vacation leave credits and why.  He also testified that he scheduled vacation leave for the Christmas period but had he known earlier that it would become mandatory that he take all his vacation leave before the end of the fiscal year, he would have taken time off during warmer weather.  He stated that from the time he received the e–mail from Mr. Shaw directing him to take vacation leave, there were only six weeks left in the fiscal year and he was being ordered to take four weeks of vacation leave.

[19]   In cross–examination, the grievor agreed that although his entitlement for the 2002–03 fiscal year was 200 hours, or 26.66 days, by October 2002 he had only taken two days of vacation leave:  June 24, 2002 (7.5 hours) and August 22, 2002 (7.5 hours).   He also agreed that from December 27, 2002, to January 3, 2003, he took an additional 37.5 hours of vacation leave.

[20]   When asked by counsel if the employer had ever denied him vacation leave from October 2002 to February 2003, he acknowledged that it had not.

[21]   Jim Shaw is the Manager of the Acquisitions Branch for the Ontario Region.  He stated that the Acquisitions Branch is national in scope and in 2002, the annual 3 ½ million dollar budget was expected to be reduced by approximately $300,000.  As well, the newly appointed Assistant Deputy Minister (ADM) announced a cost management control initiative that would reduce existing budgets by a further three percent, and in particular the budget for the Acquisitions Branch.

[22]   The witness testified that he received an e–mail on October 15, 2002, from Pat Bourgase (Exhibit E–2) suggesting a process that managers should follow to ensure that vacation leave was taken by those employees who had taken little or no vacation leave during the fiscal year.  Mr. Shaw forwarded the e–mail to his Team Leaders, including Ms. Ditella, and asked that they review all employees’ leave balances to ensure that no one would end the fiscal year with more than 35 days of vacation leave credits.  The witness stated that he, himself, had accumulated more than 35 days of vacation leave and therefore decided to take one day of vacation leave per week until the extra days were exhausted.

[23]   The witness stated that Ms. Ditella advised him that the grievor did not comply with her request that he submit a vacation leave plan by October 23, 2002.  Therefore, prior to the Christmas holidays, he met with the grievor to advise him that he wanted a schedule of his vacation leave, with his participation.  He stated that he found the grievor evasive and he avoided submitting a vacation leave schedule at that time.  The grievor subsequently requested vacation leave from December 27, 2002, to January 3, 2003 (37.5 hours), but no plan was provided to use his remaining vacation leave credits before the end of the fiscal year.

[24]   On February 14, 2003, the witness sent the grievor an e–mail (Exhibit E–3) asking him to schedule vacation leave to bring his balance to 262.5 hours.  He received no reply from the grievor.  Therefore, on February 18, 2003, he sent the grievor another e–mail (Exhibit G–6) advising him that he had 410 hours of vacation leave and since he had made no effort to provide a schedule of planned vacation leave, despite repeated requests to do so, he was scheduling the leave for him, from February 20 to March 20, 2003.  The grievor and the witness subsequently agreed that the scheduled leave would be from February 24 to March 21, 2003, instead.  This was only agreed to after the grievor was unsuccessful in trying to negotiate the cashing out of 75 hours of vacation leave, one half of his remaining balance, and schedule the remaining 72 hours before the end of the fiscal year (Exhibit E–4).

[25]   In cross–examination, Mr. Shaw agreed that the $300,000 shortfall in the budget was an artificial ceiling to force the Branch to meet the cost–control initiatives set by the ADM.

[26]   The witness stated that the grievor ignored repeated requests from his Team Leader, as well as from him, to schedule his vacation leave before the end of the fiscal year.  It was only as a result of his e–mail of February 18, 2003 (Exhibit G–6), that the grievor took vacation leave.

[27]   The witness also stated that whenever the grievor was requested to submit a vacation leave plan, he would shrug his shoulders and ask on whose authority it was being requested.  It was the witness’s belief that the grievor kept delaying the scheduling of his vacation leave in order to receive a cash–out at the end of the fiscal year.

[28]   The witness stated that to his knowledge no one went to Headquarters to request additional funds.

[29]   The witness concluded his cross–examination by stating that he has the authority to schedule an employee’s vacation leave if the employee has accumulated more than 35 days, as long as he is fair and does not contravene the provisions of the collective agreement.

Summary of the arguments

[30]   The grievor’s representative argued that the employer violated the provisions of the collective agreement by scheduling the grievor’s vacation leave for reasons other than to maintain operational requirements.  She noted, as well, that the grievor was not provided with clear and timely information as to who authorized the change to past practice of cashing out unused vacation leave credits at the end of the fiscal year.

[31]   Although clause 5.01 of the collective agreement provides management rights, it is not applicable in this case as the wording in subclause 15.05(b) (“in order to maintain operational requirements”) is clear and thereby supersedes those rights.

[32]   The words “employees are expected” found in subclause 15.05(a) do not mean that it is mandatory that an employee take all his/her vacation leave before the end of the fiscal year.  Subclause 15.07(a) clearly states that all vacation leave credits in excess of 35 days will be paid out in cash.

[33]   The employer has to comply with the requirements of subsection 15.05(b).  If it meets this condition, then the employer has the right to schedule an employee’s vacation leave.  In this case, however, both the grievor and Mr. Shaw stated that it was for budgetary reasons and not operational requirements that the grievor was ordered to take vacation leave.

[34]   Mr. Pincock’s e–mail of November 15, 2002 (Exhibit G–5), states that funding must be available for the cashing out of vacation leave credits, as permitted by the relevant collective agreement.  In other words, money has to be set aside by the employer for the cash–out of vacation leave credits.

[35]   Ms. Balfe argued that in Bozekv. Canada Customs and Revenue Agency, 2002 PSSRB 60, the adjudicator concluded that the word “expected” had to be understood as “encouraged” rather than as imposing a mandatory obligation on the employees.

[36]   In conclusion, she stated that in terms of remedy, the grievor should have his 147.5 hours of vacation leave credits reinstated and then cashed out, as per the collective agreement.

[37]   In support of her arguments, Ms. Balfe submitted the following case law:  Bozek v. Canada Customs and Revenue Agency (supra); Canada (Attorney General) v. Degaris, [1994] 1 F.C. 374; Sumanik v. Treasury Board (Ministry of Transport), PSSRB File No. 166–2–395 (1971); Graham v. Treasury Board (Department of National Revenue – Customs and Excise), PSSRB File No. 166–2–1678 (1975); Gray v. Treasury Board (Ministry of Transport), PSSRB File No. 166–2–457 (1971); Snowdon v. Treasury Board (Department of Energy, Mines and Resources), PSSRB File No. 166–2–6043 (1979); Power v. Treasury Board (Transport Canada), PSSRB File No. 166–2–17064 (1988) (QL); and Burgess v. Treasury Board (Department of Indian Affairs and Northern Development), 2004 PSSRB 164.

[38]   Counsel for the employer argued that clauses 15.05 and 15.07 must be read together; they interplay with one another and cannot be applied separately.

[39]   The argument by the grievor’s representative that only operational requirements permit the employer to schedule an employee’s vacation leave is not the issue.  The issue is subclause 15.05(a): “Employees are expected to take all their vacation leave during the vacation year in which it is earned.”  Subclause 15.07(a) imposes a 35–day carry–over limit of vacation leave credits.  This subclause covers an employee who is unable to schedule his/her leave credits during the fiscal year.  An employee may carry over up to 35 days and any excess vacation leave will be paid in cash at the appropriate daily rate of pay.  In this case, the grievor carried over 35 days of vacation into the 2002–03 fiscal year.  On April 1, 2002, he received an additional 26 days of vacation leave.  By October 2002, he had only taken two days of vacation leave.  Although he was asked on numerous occasions to submit a vacation leave plan for the remainder of the fiscal year, he refused to do so.  Therefore, it was the employer’s right to schedule his vacation leave.

[40]   Subclause 15.05(b) must be read in full and in conjunction with subclauses 15.05(b)(i) and (ii).  The grievor wanted to be paid for his unused vacation leave credits.  However, because of budget constraints, the employer was unable to comply with his request and exercised its right to schedule him on vacation leave.

[41]   The employer must be reasonable when scheduling an employee’s vacation leave and to provide that leave in an amount and at such time as the employee may request.  The grievor would not request vacation leave, as it was apparent that he was only interested in cashing out his unused vacation leave credits at the end of the fiscal year.

[42]   Counsel stated that the employer’s authority to schedule an employee’s vacation leave is defined in clause 5.01 (“Management Rights”) of the collective agreement.

[43]   In support of his arguments, counsel cited the following case law: Higgs v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 32; Marin v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 109; Farrell v. Treasury Board (National Defence), PSSRB File Nos. 166–2–26849 to 26855 (1996) (QL); and Ladouceur v. Treasury Board (National Defence), 2000 PSSRB 51.

Reply

[44]   In reply to counsel for the employer’s reference to Higgs (supra), Ms. Balfe stated that that case did not contain the words “in order to maintain operational requirements.”  In this case, there was no need to maintain operational requirements and the scheduling of leave was due to artificial budget constraints.

Reasons

[45]   Turning to the merits, the basic question at issue in the case at bar is whether or not the Employer has the authority, unilaterally, to schedule an employee’s accumulated vacation leave credits in the fiscal year in which they were earned, and at the times specified by the Employer.

[46]   This grievance hinges on the interpretation of clauses 5.01, 15.05 and subclause 15.07(a) of the AV group collective agreement.  Clause 5.01 refers to management rights; clause 15.05 refers to the scheduling of vacation leave; and subclause 15.07(a) concerns the carry–over and liquidation of such leave.

[47]   I have concluded that these clauses and subclause are interrelated and cannot be interpreted on their own.

[48]   On April 1, 2002, the grievor was credited with 26.66 days of vacation leave, as per the provisions of his collective agreement, in addition to carrying over 35 days from the previous fiscal year, for a total of 61.66 days of vacation leave credits.

[49]   According to the evidence, when he was approached by Ms. Ditella in October 2002, the grievor had only taken two days of vacation leave.  She asked him to schedule his remaining vacation leave, but he chose not to comply with her request.  Mr. Shaw then requested that he submit a vacation leave plan; again, the grievor refused to cooperate.  As a result of the grievor’s refusals to submit a vacation leave plan, Mr. Shaw proceeded to schedule his vacation leave for him, from February 24 to March 21, 2003.

Does the employer have the right to schedule an employee’s vacation leave credits?

[50]   I find the wording in subclause 15.05(a) very clear: “Employees are expected to take all their vacation leave during the vacation year in which it is earned” (emphasis added).

[51]   As of January 3, 2003, the grievor had only taken seven days of vacation leave.  The grievor’s representative argued that the word “expected” does not impose a mandatory obligation and referred to Bozek (supra).  In that decision, the adjudicator concluded that if the employer wanted to impose an obligation, the word “should” would have been incorporated into the provisions of the collective agreement.  I find in this case that the word “should”, as defined in Webster’s Ninth New Collegiate Dictionary, means “to express what is probable or expected.”

[52]   In Higgs (supra), I concluded that the employees were expected to take all their vacation leave during the vacation year in which it was earned.  In this case, I see no difference in the employer’s right to schedule unused vacation leave credits above the 35–day carry–over limit, as long as the employer is reasonable in that:  (1) it is in an amount and at such time as the employee may request; (2) the employee will not be recalled to duty after he/she has proceeded on vacation leave; and (3) the employer shall give the employee as much notice as is practical and reasonable of approval, denial or cancellation of a request for vacation leave.

[53]   Although an employee is expected to use his/her vacation leave during the year in which it is earned, I recognize that there are instances when this is not always possible.  For example, operational requirements may demand that an employee be recalled to work, that an employee’s vacation leave be cancelled or altered, or an employee may request that his/her vacation leave be replaced by another type of leave.  As I interpret Article 15.07(a), its purpose is to prevent the forfeiture of an employee’s earned vacation leave credits which have not been used by an employee in the fiscal year that they were earned or accumulated.  More precisely, the Article provides for a carry over of such vacation leave credits to a maximum of 35 days.

[54]   According to the grievor’s representative, subclause 15.05(b) has a caveat to the employer’s right to schedule an employee’s vacation leave.  The caveat is “in order to maintain operational requirements”, and the only instance where an employer may schedule an employee’s vacation leave.

[55]   I do not agree with Ms. Balfe’s argument that the employer only has the right to schedule an employee’s vacation leave in order to maintain operational requirements.  The cases submitted by the grievor’s representative, and in particular Graham (supra), dealt with a situation whereby the employer scheduled an appropriate number of employees to work to meet operational requirements and therefore denied their vacation leave.

[56]   The wording of clause 5.01 provides that the employer retains all rights, functions, powers and authority unless these are specifically restricted by the collective agreement.  Clause 15.05(b) recognizes that the employer, in order to maintain operational requirements, reserves the right to schedule an employee’s vacation leave, but the collective agreement restricts this right.  The employer must make every reasonable effort to provide an employee vacation leave at such time and in an amount as the employee may request.  As well, the employer must be reasonable in its application of 15.05 (b)(ii) and 15.05(c).  I find no limitations in the collective agreement to the employer’s right to schedule an employee’s vacation leave when the employee refuses to take vacation leave during the fiscal year.

[57]   The grievor was never denied vacation leave; in fact, he was asked on several occasions to submit a vacation leave plan but refused to do so, although he had reached the 35–day carry–over limit stated in subclause 15.07(a).  If the employer had refused to grant him vacation leave after he attained the 35–day carry over limit because of operational requirements, then the employer would have automatically been obligated to reimburse him for any unused vacation leave on the last day of the fiscal year.

[58]   In this case, the grievor was not denied vacation leave in an amount and at such time as requested.  The employer gave him ample opportunity and several opportunities to schedule his vacation leave, but he chose not to do so.  I cannot, therefore, conclude that he was treated unjustly or unreasonably by the employer.

[59]   In the absence of the grievor’s willingness to schedule his vacation leave, I find that the employer was justified in applying the provisions of clause 5.01.

[60]   For all of the above reasons, I make the following order:

Order

[61]   In the circumstances, this grievance is dismissed.

September 28, 2005.

D.R. Quigley,
adjudicator