FPSLREB Decisions

I. Grievance referred to adjudication

1 The grievor, Thomas Robin Hyland, was a citizenship and immigration officer with the Department of Citizenship and Immigration in Coutts, Alberta. Effective December 12, 2003, pursuant to paragraph 2(a) of the Public Service Rearrangement and Transfer of Duties Act, R.S.C., 1985, c. P-34, the enforcement activities of the department were transferred to the Canada Border Services Agency (“CBSA”): SI/2003-215. The style of cause of this matter has therefore been amended accordingly.

2 On December 30, 2003, the grievor requested leave without pay for the care of immediate family from January 27, 2004 to April 21, 2004, under clause 41.03 of the collective agreement signed by the Treasury Board (“the employer”) and the Public Service Alliance of Canada on November 19, 2001, for the Program and Administrative Services Group bargaining unit (“the collective agreement”). Clause 41.03 of the collective agreement reads as follows:

ARTICLE 41

LEAVE WITHOUT PAY FOR THE CARE OF IMMEDIATE FAMILY

…

41.02 For the purpose of this article, family is defined as spouse (or common-law partner resident with the employee), children (including foster children or children of legal or common-law spouse) parents (including stepparents or foster parents) or any relative permanently residing in the employee’s household or with whom the employee permanently resides.

41.03 Subject to clause 41.02, an employee shall be granted leave without pay for the care of family in accordance with the following conditions:

(a)      an employee shall notify the Employer in writing as far in advance as possible but not less that four (4) weeks in advance of the commencement date of such leave, unless, because of urgent or unforeseeable circumstances, such notice cannot be given;

(b)      leave granted under this article shall be for a minimum period of three (3) weeks;

(c)     the total leave granted under this article shall not exceed five (5) years during an employee’s total period of employment in the Public Service;

(d)     leave granted for a period of one (1) year shall be schedules in a manner which ensures continued services delivery.

3 The requested leave was denied on January 7, 2004. The grievor filed the following grievance on February 6, 2004:

On 30 December 2003 I submitted a ‘Leave Without Pay For The Care of Immediate Family’ application pursuant to Article 41.03 of the collective agreement for the period of January 27, 2004 to April 21, 2004. This leave application was denied on January 7, 2004 by S.D. HAUGEN, Site Manager at the Canada Immigration Centre at Coutts, Alberta.

The grievor requested the following corrective actions:

That  –

1) a determination be made that the Employer acted improperly.

2)  the leave be approved as requested.

3)  I be re-instated to my substantive position at CIC Coutts in the event that the Employer backfills my position.

4) I receive back pay (including overtime associated with designated paid holidays) and all other leave credits that would have been earned from April 22, 2004 to the date of my re-instatement.

5) I receive re-instatement of any leave credits or other leave that was used as a result of the leave application refusal.

6) I be reimbursed for any travel costs to enable me to resume my duties at CIC Coutts.

7) I be made whole again.

4 On September 14, 2004, the grievance was allowed at the final level of the grievance process, but no corrective measures were granted. The grievor received the employer’s final-level reply on or around October 1, 2004. He referred his grievance to adjudication on October 27, 2004.

5 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.

6 The parties first attempted to mediate this grievance, unsuccessfully. A hearing was then scheduled and postponed at the grievor’s request. The parties were not available for a hearing until November 4, 2009.

7 The only issue before me is whether the grievor is entitled to a remedy for the acknowledged breach of the collective agreement; that is, should the grievor receive back pay, overtime for designated holidays and any leave credits for the period from April 22 to September 14, 2004 as requested in the corrective action that forms part of the grievance (points 4 and 5)?

II. Summary of the evidence

8 The grievor’s evidence is the following. The grievor has been a federal public service employee since 1979. In March 2001, the grievor’s wife, also a federal public service employee, accepted a temporary posting in a supervisory position at the Halifax International Airport. On April 1, 2002, his wife’s position in Halifax became permanent.

9 From March 1, 2001 to April 1, 2002, the grievor was on sick leave with pay until his sick leave credits ran out and then on sick leave without pay. The grievor then returned to work in his substantive position in Coutts on a graduated work schedule. The grievor subsequently took the following leaves without pay: for the care of immediate family from August 15 to October 21, 2002 and from December 19, 2002 to January 5, 2003; and for personal needs from January 6, 2003 to December 29, 2003.

10 Without going into all the details, the following facts are relevant to the outcome of this grievance. Since his wife has been posted in Halifax, the grievor has maintained the family residence in Coutts as well as a house in Halifax. The grievor’s children live with their mother in Halifax, and the grievor has been living in Halifax during periods of leave approved by the employer. During the summer holidays, the family resides in Coutts.

11 Since his wife’s permanent appointment in Halifax, the grievor has sought to find employment there. His first efforts were unsuccessful because of the legal difficulties associated with a transfer or secondment to another position in the federal public service. The grievor eventually found some short-term employment as a customs inspector with the then Canada Customs and Revenue Agency at the Halifax airport. However, the grievor resigned from that position and planned to return to work in his substantive position in Coutts on April 22, 2004.

12 Throughout his periods of leave without pay, the grievor was careful to maintain his attachment to his substantive position in Coutts. However, he made it known to his immediate supervisor that he was seeking long-term employment in Halifax to be reunited with his family. The grievor has since secured permanent employment in Halifax with the Canada Border Services Agency.

13 The grievor testified that, after his leave without pay for the care of immediate family from January 27, 2004 to April 21, 2004 was denied on January 7, 2004, he reapplied on January 23, 2004 for leave without pay for the care of immediate family for the period from January 27, 2004 to January 31, 2005. That application was also denied. After consulting with his supervisor through his union representative, the grievor applied once again for leave without pay for the care of immediate family for a period of a year plus a week, as follows:

…

Subject :  Leave Without Pay For The Care Of Immediate Family application for Jan. 27, 2004 to Jan. 31, 2005

Thank you for the information concerning Priority Persons that I received yesterday. With this information I hereby revoke my leave application for the above mentioned period.

Enclosed is a new application for the period Jan. 27, 2004 to Nov. 30, 2008. For your action.

…

That leave was approved.

14 The grievor testified that when he applied for leave without pay for January 27 to April 21, 2004, he and his wife had agreed that he should return to his substantive position in Coutts in April 2004 and not request further leave. However, when that leave was denied, the grievor stated that he felt coerced to accept his supervisor’s advice to take leave without pay for a period greater than one year, as that was the only period that the employer would approve. The grievor testified that an absence for a period of more than a year allowed the employer to backfill his substantive position in Coutts, whereas an absence of less than one year only allowed the employer to replace him with term or casual employees. There is no evidence to contradict that statement by the grievor. The grievor filed the grievance that is the subject of this decision on February 6, 2004.

15 When his grievance was allowed on September 14, 2004, the grievor decided that he was no longer interested in returning to his substantive position in Coutts because he wished to be with his family and because he felt that future similar leave requests would result in a winless situation. On October 1, 2004, he sent the following email to his area manager:

…

Subject: Grievance 04-PRA-011 et al

Sharon:

It was my intention to return to work on 22 April 2004 and it has finally been determined that Prairies and Northern Territories Region should have granted my leave application. I want to return to work and have made this known.

Yesterday was my 30th anniversary in the Public Service. In my discussions with you yesterday and after much reflection, I have no confidence that Citizenship and Immigration will act in a correct and ethical manner concerning myself. Past and continuing actions support my conclusion.

Although I want to return to work, my family and my health must take precedence. Therefore for the time being I will not be returning to work at CIC Coutts and wish to remain on my present leave.

…

16 Briefly put, the grievor testified that he was trying to make the best of a bad situation. In his view, the employer was not supportive of his desire to be reunited with his family. The grievor emphasized that he was completely honest with the employer about his career plans and that he expected some compassion concerning his family situation.

17 The employer called no witnesses.

III. Summary of the arguments

A. For the grievor

18 The grievor argues that, although he was entitled to take leave under article 41 of the collective agreement from January 27 to April 21, 2004, that leave was denied to him. It is only after his request was denied that the grievor took alternative steps to adapt his employment situation to accommodate his family situation. The grievor argues that, when the employer eventually granted his request at the final level of the grievance process, it was too little, too late and, therefore, the grievor is entitled to compensation for the period from April 22, 2004, when the grievor was prepared to return to work in his substantive position in Coutts, to the retroactive granting of the leave request on September 14, 2004.

19 The grievor submits that he had planned to return to his substantive position in Coutts in April 2004 but that the employer’s requirement that he take a longer leave to satisfy its operational requirements forced the grievor to change his plans.

20 The grievor argues that his subsequent requests for leave for a longer period and then an extension to November 30, 2008 should not trump his initial request for a much shorter period because the situations were different. When the grievor requested leave from January 27 to April 21, 2004, he decided to adjust his family life and to return to work in his substantive position in Coutts. When that leave request was refused, he reviewed his options and, to preserve his pension rights of over 30 years, he went along with his supervisor’s suggestion of a leave request for a year and a week. The extension of the leave request for a further period was a response to his family situation at that time. The grievor argues that, for the purposes of remedy, I should only consider his intention to return to work in his substantive position in Coutts on April 22, 2004 and the delay in the employer’s decision to allow the grievance on September 14, 2004. The grievor further argues that the employer has not substantiated its position to deny him redress. The grievor seeks full compensation for the loss of wages and benefits due to the employer’s acknowledged breach of the collective agreement.

21 In support of his position, the grievor asked me to consider the following cases:

• MacGregor v. Treasury Board (Transport Canada), PSSRB File No. 166-02-22489 (19921022);
• Domtar v. Communications, Energy & Paperworkers Union of Canada (1997), 65 L.A.C. (4th) 154;
• West Park Healthcare Centre v. S.E.I.U., Loc. 1.ON (2005), 138 L.A.C. (4th) 213;
• National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Union of Canadian CAW Staff Representatives (1997),63 L.A.C. (4th) 129;
• Nova Scotia (Civil Service Commission) v. N.S.G.E.U. (1991),20 L.A.C. (4th) 61; and
• Metro Transit Operating Co. v. Independent Canadian Transit Union (1983),14 L.A.C. (3d) 358.

B. For the employer

22 The employer submits that its final-level reply to the grievance speaks for itself. Not only did the grievor request leave for January 27 to April 21, 2004, he further requested and was granted leave for an additional four years even before he filed a grievance. Other than filing a grievance, the grievor made no attempt to return to his substantive position in Coutts in April 2004. The grievor’s decision to extend his leave had nothing to do with the employer.

23 The employer referred to the many previous requests for leave (requested consecutively, beginning January 18, 2002) as further evidence that the grievor never intended to return to work in his substantive position in Coutts.

24 In the employer’s view, the grievor’s request to extend his leave beyond April 21, 2004, even before filing a grievance, was not an indication that the grievor was prepared to return to work in his substantive position in Coutts and did not justify corrective action when the grievance was allowed.

25 The employer agrees with the grievor that there is no decided case on point. However, the employer argues that the conclusion in MacGregor, an adjudication decision under the Public Service Staff Relations Act, should prevail; that is, that a simple declaration can be proper relief to resolve a grievance. The employer argues that the other decisions submitted by the grievor concern other matters and do not provide guidance in deciding this matter.

26 The employer maintains that its decision was reasonable in the circumstances and that there is no corrective action to be granted in this case. The employer concludes that the grievor’s subsequent decision to extend his leave beyond April 21, 2004 is a bar to any compensation.

IV. Reasons

27 After carefully considering the evidence, the precedents and the arguments of the parties, I take the view that this grievance cannot succeed.

28 This grievance concerns the grievor’s request for leave without pay for the care of immediate family for the period from January 27 to April 21, 2004, inclusive. The employer first denied the request, but replied at the final level of the grievance process that the request should have been allowed without compensation. The employer’s final-level reply is dated September 14, 2004. The evidence is that the grievor received the final-level reply on or around October 1, 2004. The grievor’s position is that he should receive compensation for the period from April 22 to September 14, 2004 because of the missed opportunity to return to work in his substantive position in Coutts on April 22, 2004, contrary to what he had planned. From April 22 to September 24, 2004, the grievor was on leave without pay, at his request.

29 Article 41 of the collective agreement provides that, if the reason for the leave without pay is the care of immediate family as defined in that article, an employee “shall be granted” such leave. Such leave is not discretionary. While operational requirements may affect the scheduling of the leave period, it does not operate as a bar to the employee obtaining such leave. The employer recognized this at the final level of the grievance process.

30 The question before me is whether any remedy should follow the employer’s final-level reply allowing the grievance.

31 I see the circumstances of this case as follows. According to his evidence, the grievor originally requested a three-month leave, which the employer refused to grant. The grievor then asked for a longer period of leave, which was also not granted. Then, after some discussion with his supervisor, the grievor applied for a longer period of leave, which the employer granted. The grievor testified that he was forced to take this longer leave to satisfy the employer’s wish to backfill his substantive position in Coutts during his absence. Significantly, the grievor’s grievance is limited to the single fact that the employer refused to grant leave without pay from January 27 to April 21, 2004, and nothing else.

32 The grievor’s evidence is also that he did not return to work in his substantive position in Coutts on April 22, 2004. In fact, he did not request to return, even after he received the employer’s reply at the final level of the grievance process. Between April 22 and October 1, 2004, the grievor was on leave without pay, at his own request.

33 I acknowledge that the grievor was in difficult circumstances when the events occurred as he was trying to balance his family life at two ends of the country with the necessity of preserving his job. I have no doubt that he acted in good faith under difficult circumstances when he decided to accept the employer’s proposal to extend his leave if he wanted it to be granted. Had the grievor nonetheless attempted to return to work in his substantive position in Coutts on April 22, 2004, this case would likely have had another outcome, but that is not what occurred. After being refused the first request for leave, the grievor was granted a subsequent request, which was extended to November 30, 2008. While I understand that the request for an extension may have been to protect his pension entitlements, that consideration and the fact that the grievor apparently with reluctance agreed to extend his leave is nowhere reflected in the exchange of documents between the parties at the time of the events in question.

34 In my view, the grievor’s email to his area manager dated October 1, 2004 indicates his conscious decision not to return to work in his substantive position in Coutts based on his family situation and other considerations. Since the grievor was not clear in his attempt to return to work in his substantive position in Coutts on April 22, 2004, and since I find no suggestion that the employer prevented him from doing so, I conclude that the grievor has no basis for claiming compensation as he was on extended leave without pay, at his own request, during the claimed period.

35 In light of the circumstances of this case, I find that the cases submitted by the grievor to persuade me otherwise are not helpful since they concern employment situations that are very different from the one at hand.

36 For these reasons, I am of the view that the employer’s recognition, in its final-level reply, that it had breached the collective agreement fulfilled its obligation under article 41.

37 For all the above reasons, I make the following order:

V. Order

38 The grievance is dismissed.

November 27, 2009.

Michele A. Pineau,
adjudicator