FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Lorraine Martin (“the grievor”) has been employed at the Department of Veterans Affairs (“VAC”) for the past nine years. Since 2008, she has worked in the Halifax, Nova Scotia, office. At the material time, her supervisor was Lisa Jessome.

2 In April 2010, the grievor was vacationing in England when the Eyjafjallajökull volcano (“the volcano”) erupted in Iceland, causing much of the European airspace to be closed and grounding aircraft from April 15, 2010, until April 21, 2010. Due to the closure of the airspace and the grounding of aircraft, the grievor’s stay in England was extended past the date she was scheduled to return to work, and she requested five days’ leave with pay under article 52 of the agreement entered into between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group; expiry date, June 20, 2011 (“the collective agreement”).

3 The grievor was granted two and one-half days of leave under article 52 of the collective agreement and was required to use annual leave for the other two and one-half days. The grievor has filed a grievance against the denial of article 52 leave and has requested as corrective action that I grant the additional two and one-half days of leave (totalling 20.826 hours) under article 52 and that I order the employer to reimburse her annual leave bank for the same amount.

II. Summary of the evidence

4 The grievor testified that she departed Canada via Halifax on March 29, 2010, on Air Canada Flight 860 to London England’s Heathrow airport (“Heathrow”). She stated that she was staying in England in a friend’s flat and that she was scheduled to return to Canada on April 20, 2010, via Air Canada Flight 861 from Heathrow to Halifax.

A. April 16, 2010

5 In about mid-April 2010, the volcano erupted, and it spewed volcanic ash into the atmosphere. On April 16, 2010, the grievor learned through the news media that airspace in England as well as much of Europe was closed and that flights were cancelled. The grievor testified that she monitored the London news media, and on that day, the reports could not predict how long air travel would be grounded; however, a closure of the airspace for a week or more was not unrealistic.

6 The grievor stated that although her flight back to Halifax was not scheduled until April 20, 2010, she was concerned about her ability to successfully get back home due to the news reports about the extent of the eruption and the potential length of the flight cancellations. Given the uncertainty surrounding the extent of the closure of the airspace and the cancellation of flights, the grievor contacted Air Canada on April 16, 2010, and made enquires of it as to what she should do.

7 The grievor testified that she advised the Air Canada representative of her return flight details and that she was advised by that person that the best course of action was to rebook her return flight for Tuesday April 27, 2010. According to the grievor, the Air Canada representative told her that April 27, 2010, was the first available flight with seats still available after April 20, 2010. In addition, she stated that the representative told her that all passengers who were on cancelled flights would automatically be placed on a stand-by list that would be activated once flights resumed. She stated that the stand-by list was to operate in a chronological fashion such that all passengers whose flights were cancelled on April 16, 2010, would be first to be found seats on outgoing flights to Canada after flights resumed. She stated that she was advised by the Air Canada representative that the fact that she had rebooked on April 27, 2010, would not affect her place on the stand-by list; if her name came up on the stand-by list before April 27, 2010, she would be entitled to take the earlier flight.

8 The grievor testified that her smart phone was set up to receive information alerts from Air Canada with respect to the flight situation and to alert her when her stand-by status became activated and when, or if, she was allotted a seat before April 27, 2010. The grievor also testified that Air Canada had set up a special link on its website for passengers stranded due to the volcano incident that allowed them to check on their stand-by status.

9 On April 16, 2010, the grievor contacted her supervisor, Ms. Jessome, via email. I was provided with an email chain between the two that day. The emails sent by the grievor are shown as received by Ms. Jessome at Greenwich Mean Time (“GMT”), while the emails sent by Ms. Jessome are shown as received by the grievor at Atlantic Standard Time (“AST”). I will use only AST.

10 The first email in the chain is from the grievor to Ms. Jessome at 9:52 a.m. In this email, the grievor requested to extend her leave by a week, to return to work on April 28, 2010. In the email, there is no mention of the volcano, the closure of the airspace or cancelled flights. Ms. Jessome responded to the grievor’s email at 10:30 a.m. and stated that she would have to look into the grievor’s request, as the grievor was scheduled to cover for another employee on her return from London.

11 In response to Ms. Jessome’s 10:30 a.m. email, the grievor wrote back at 10:51 a.m. and advised Ms. Jessome that she had already changed her flight due to the volcano and the closure of the airport. The grievor advised Ms. Jessome that she did so as Air Canada had not been flying in or out and flights had been cancelled.

12 At 10:57 a.m., the grievor sent Ms. Jessome an email, advising that she had looked at the airport website that morning and that it was still anticipating cancellations. At 10:58 a.m., Ms. Jessome wrote back to the grievor and commented that “the pictures look bad.”

13 Both the grievor and Ms. Jessome testified that they communicated only via email and that they never actually spoke to one another about this matter.

14 The grievor also testified that she contacted British Airways, Virgin and United Airlines to see if she could get back to Canada before April 27, 2010; however, none had availability to get her back to Halifax before the Air Canada flight she had rebooked on.

B. April 21 to June 2010

15 The grievor testified that on April 21, 2010, the news media in London reported that flights were resuming. According to the grievor, the news media instructed people not to attend at airports, that police would be stationed at the airports and that only those people who were travelling within four hours of their arrival at the airport would be permitted into the airport.

16 The grievor testified that once the flights had resumed, she received an alert from Air Canada that her stand-by status had been activated. She also confirmed in cross-examination that she checked the Air Canada website daily after April 16, 2010.

17 According to the grievor, on April 21, 2010, Air Canada had six flights that departed from Heathrow, one each to Ottawa, Toronto, Montreal, Edmonton, Calgary and Vancouver. There were no flights on April 21, 2010, from Heathrow to Halifax. The grievor did not know when, after April 21, 2010, the first Air Canada flight from Heathrow to Halifax took place.

18 The grievor testified that she never received an alert from Air Canada that her spot on stand-by had come up before her new scheduled departure of April 27, 2010, and as such, she departed on that day on Air Canada flight 861 from Heathrow to Halifax. She returned to work on April 28, 2010.

19 In cross-examination, the grievor confirmed that she did not contact Heathrow airport; nor did she go to the airport before her rescheduled flight of April 27, 2010.

20 When the grievor returned to work, she submitted leave forms and requested, under clause 52.01(a) of the collective agreement, leave with pay for “… When circumstances not directly attributable to the employee prevent his or her reporting for duty.” The leave code utilized when requesting such leave is “699.”

C. June 8, 2010

21 On June 8, 2010, after the grievor had returned to Canada and to her work, she and Ms. Jessome exchanged emails with respect to the leave the grievor had requested. The first email that day was from Ms. Jessome at 11:34 a.m., advising the grievor that of the five days of 699 leave requested, she was prepared to grant two days, April 21 and 22, 2010. Her email (Exhibit E-1, Tab 2) was as follows:

…

I have reviewed your request for the 699 for the time in April. I am aware that flights were back up and running on April 22nd. So, in consultation with HR, I will allow for two days of the 699, April 21st and 22nd. The remaining 3 days will have to be vacation.

…

22 The grievor responded to Ms. Jessome at 11:54 a.m. (Exhibit E-1, Tab 2) and stated as follows:

Hi Lisa, yes the flights were backed up, which is why I didn’t get out right away. I was originally scheduled to fly out on the 20th, so by the time Air Canada started to fly on Thursday (22nd) they had 7 days of people to get onto flights (5 days of people that were on scheduled flights that never left, before my flight). I was on a stand by list for available flights as soon as they started to fly, but none were to be had. I am not happy with only 2 days of 699 leave, it doesn’t seem fair.

…

23 Ms. Jessome responded to the grievor at 3:35 p.m. (Exhibit E-1, Tab 2) and stated as follows:

Hi Lorraine, I have consulted with RO again, who consulted with HO on the issue. Looking at it, you emailed me on April 16th requesting the extension of your leave by a week. I responded stating that I wanted to consult with Gordon first because we had plans for your work etc. By the time I responded you said you had already had rebooked your flight to April 27th, without my prior approval.

I will stand by the 2 days of 699 and the other three vacation.

…

24 At 3:42 p.m., the grievor responded to Ms. Jessome (Exhibit E-1, Tab 2) as follows:

The flights were already cancelled (and Heathrow shut down) on Friday, the 16th, when I emailed you … which is why when I called Air Canada (while waiting for your response) they suggested I rebook ASAP, and put me on the April 27th flight with stand-by for available flights if they started flying before then. So .. it wouldn’t have mattered whether I got “prior approval” or not .. there were no flights available for me to return. So .. I’m not understanding your point exactly.

…

[Sic throughout]

25 Ms. Jessome emailed the grievor back at 4:09 p.m. (Exhibit E-1, Tab 2) and stated as follows:

Hi, I guess for me you chose to re-book your flight instead of staying in the “cue” which would have most likely gotten you home sooner. As a result of my consultations we will approve the 2 days 699 and 3 days of vacation.

…

[Sic throughout]

26 Ms. Jessome testified that she did not contact Air Canada to obtain any information about the volcano eruption or the ensuing flight disruptions. She did confirm that she was aware of the volcano’s eruption and that flights to and from Europe were disrupted; however, she did not elaborate as to what exactly she knew, and when. She did testify that her brother, who was in England as well during this time frame, returned to Newfoundland via Air Canada on April 22, 2010. She testified that she did not know when, after flights resumed, the first flight from Heathrow to Halifax took place.

27 Ms. Jessome stated that she approved only two and one-half days of leave instead of all the leave requested because she felt that if the grievor had stayed in the queue, she would have gotten out of London sooner. She stated that this was based on her own personal knowledge, her professional knowledge and advice she received from Human Resources.

28 Exhibit G-2 is the first-level grievance reply dated September 15, 2010. It stated as follows:

…

… Heathrow airport was shut down commencing on April 14, 2010 following the volcano eruption in Iceland. You called Air Canada on April 16, 2010 to get your return trip rebooked to April 27, 2010 and then you set up through Air Canada a stand-by alert on your mobile phone. As you weren’t contacted by Air Canada with the offer of a stand-by seat, you returned to Canada on April 27, 2010 as per the rebooked flight.

…

The acid test in this case is whether you could have done anything more than what you did to mitigate this situation. It is the position of management that the 2 day delay in contacting Air Canada to rebook the return flight contributed to the delay to April 27, 2010 of returning to Canada. Also, by informing your manager that you would be taking vacation leave, you did not open up a discussion on alternate ways of utilizing your time during the extended delay, {for example the supervisor may have advised using the internet to do online research on the VAC website, visit a VA office in London to establish contacts, etc]. Thirdly, even though you admitted during the grievance hearing that you were only 15 minutes away from Heathrow airport, you did not attempt during the period April 20-26 to go to Heathrow to queue up for a stand-by ticket.

By simply leaving a mobile phone number where you could be contacted in the event a stand-by ticket became available, the “out of sight out of mind” reality meant that the airline instead focused on persons who were more actively and promptly seeking rebookings.

…

[Sic throughout]

29  Exhibit G-3 is the final-level grievance reply dated June 16, 2011. It states as follows:

…

… Although I appreciate that the circumstances that caused a delay in your return were beyond your control, I can see no evidence of any attempts on your part to mitigate that delay. I feel that management was fair and reasonable in their approval of 699 leave for half of the leave you were required to take.

…

30 The grievor testified that no one suggested to her that she should work during these extra days, and no one suggested that she could work at a VAC office in London or somehow telework from London.

31 Ms. Jessome stated in her evidence that she never told the first-level grievance decision maker that the grievor waited too long to rebook her flight; nor did she tell them that the grievor was not on stand-by.

III. Summary of the arguments

A. For the grievor

32 The grievor provided a first-hand account of her efforts to get home after the volcano disrupted air travel in April 2010. Four days before her scheduled departure day of April 20, 2010, after much of Europe’s airspace was closed, she immediately contacted Air Canada and received its advice that there could be a significant delay if she waited to rebook a flight. She took its advice and rebooked her return seat.

33 The first-level grievance reply was marked as Exhibit G-2. It suggested that the grievor should have done more to try and get home sooner and that she had waited two days to rebook her flight, which was “too long.” Exhibit G-2 erroneously suggested that the airspace was shut down on April 14, 2010. Exhibit G-2 also suggested that by requesting vacation leave, this did not allow for a discussion on alternate ways of utilizing time stranded in London; suggesting that the grievor could have done online research or gone to a VAC office in England and done work. There was absolutely no evidence that the grievor requested vacation leave and there was no evidence that anyone suggested to the grievor that she attend at a VAC office or telework from England.

34 The final-level grievance reply was marked as Exhibit G-3. In this reply, the Assistant Deputy Minister admitted that the volcano and flight delays were circumstances beyond the grievor’s control. However, he also stated that they saw no evidence of any attempts on the grievor’s part to mitigate the delay. This is not accurate.

35 The employer suggested that the grievor should have hung around the airport. Millions of people were stranded in Europe; it is not clear how this was going to get the grievor home any sooner. Four days before her original scheduled return flight (and the end of her approved vacation), the grievor was taking steps to get home. There was no evidence proffered by the employer as to what else she could have done to get home any sooner.

36 Ms. Jessome’s evidence was that if the grievor had stayed in the queue, she would have gotten home sooner, but that is not what Air Canada told the grievor. In fact, the grievor did stay in the queue, which did not result in an earlier flight.

37 The grievor referred me to Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 7:3120, “Leaves of absence,” which refers to collective agreement clauses that recognize that the employer has some discretion when granting or denying certain leave, which discretion is tempered by the proviso that the employer may not unreasonably withhold granting leave. On this issue, it states as follows:

…

… even when an agreement does not expressly fetter how an employer exercises its discretion, arbitrators usually find that leave should be granted whenever an employee could have provided reasonable justification for what otherwise would have been characterized as an unauthorized absence if leave had not been requested. Regardless of whether or not a collective agreement expressly limits the employer’s discretion to grant or withhold leave, more often than not arbitrators have required that discretion be exercised reasonably and only after it has considered all of the relevant factors….

…

[Footnote omitted]

38 Once an employee has established that he or she could not have made it to work and that the circumstances were beyond his or her control, the onus shifts to the employer to establish why it did not grant the paid leave, in this case, the additional two and one-half days. The employer must have some facts and some realistic basis for reaching its conclusions.

39 The grievor referred me to Cloutier et al. v. Treasury Board (Agriculture Canada),PSSRB File Nos. 166-02-21838 to 21840 (19920721). The collective agreement clause in issue in Cloutier et al. is exactly the same as in this case and involved the inability of three employees to get to work due to poor road conditions caused by a snowstorm. The Public Service Staff Relations Board (“PSSRB”) found that in considering this type of clause of a collective agreement, it had to give consideration to the particular situation of the grievor and had to exercise its discretion reasonably, once it had taken into consideration the facts.

40  The grievor also referred me to Colp and Bunch v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-23215 and 23216 (19930803), which was also a snowstorm case, and in which the grievors lived a significant distance from their place of work. The PSSRB held that the fact that employees reside some distance from the workplace is not reason in itself for the employer to deny the special leave requested.

41 The grievor stated that the employer has not adduced evidence to sustain their obligation that their decision was reasonable.

42 The grievor also relied on Newfoundland and Labrador Association of Public and Private Employees v. Nova Central School District,2013 CanLII 48114 (N.L. L.A.).

B. For the employer

43 There are three elements at play when considering article 52 of the collective agreement, as follows:

• management has discretion; the article states that it “may” and not that it “must” grant leave if an employee is unable to report to work;
• onus is on the employee to demonstrate that the circumstances restricting them from reporting for work were beyond their control; and
• onus is on the employee to demonstrate that management failed to exercise reasonableness in granting the leave.

44 The employer relied on Chutter v. Treasury Board (National Defence), PSSRB File No. 166-02-15160 (19870325); Sinclair v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-14295 (19840507); and Strickland v. Treasury Board (National Capital Commission), PSSRB File No. 166-02-14697 (19850215), which are all cases involving a collective agreement clause worded exactly as clause 52.01(a) of the collective agreement, and all involve employees’ inability to get to work due to snowstorms. These cases stand for the proposition that the adjudicator must be convinced that the employer acted unreasonably in the circumstances.

45 The employer also relied on Dollar v. Treasury Board (Canada Employment and Immigration Commission) (1979), 21 L.A.C. (2d) 34, and Ryan and Ryan v. Treasury Board (Indian and Northern Affairs), PSSRB File Nos. 166-02-11431 and 11432 (19820820), for the principle that if the employer grants discretionary leave, and it is reasonable, that does not mean that granting only part of it is unreasonable.

46 The employer submitted that reasonableness has been demonstrated by the actions taken. It took two months to reach the conclusion that two and one-half days of leave was reasonable. The grievor was given an opportunity to give her side of the story, and the manager considered the grievor’s case.

47 The employer stated that the grievor did many things however, she did not contact Air Canada between April 17 and 22, 2010. Between those dates, she failed to make any contact with the airline or the airport. The employer argued that the grievor wanted to take the safe way and as such did not take any other steps. Although she was placed on a stand-by list, she took no proactive steps. She had a guaranteed seat, and she simply waited for that flight. She could have redoubled her efforts; she did not. Her actions were half-hearted, and she made no reasonable effort to get home sooner.

48 The employer relied on Thibaudeau v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-10528 (19820826), which stands for the principle that employees’ personal liabilities should not be transferred to the employer. According to the employer, this case is about a personal decision and an attempt to transfer liability for that decision to the employer. The grievor was overseas on vacation. There is inherent risk in flying. The employer should not have to bear the responsibility of an employee being overseas.

49 The employer acted in good faith in granting the two and one-half days of leave and was not unreasonable in withholding the other two and one-half days.

C. Grievor’s reply

50 While the leave is discretionary, once the employee has satisfied the collective agreement terms, that discretion is not wide open; it is fettered.

51 To suggest that somehow the grievor should accept some of the risk because she chose to take her vacation in England is absurd. This risk was already negotiated by the bargaining agent and was dealt with by article 52 of the collective agreement.

52 Ms. Jessome did not even speak with the grievor. The grievor did not wait until her vacation came to an end to take steps to try to get home; she was proactive, acting immediately upon the closure of the airspace. She contacted Air Canada and followed its advice. There is no evidence that calling the airline daily or going to the airport would have accomplished anything.

IV. Reasons

53 An adjudication hearing with respect to an allegation of a breach of a collective agreement under paragraph 209(1)(a) of the Public Service Labour Relations Act is a hearing de novo, and the burden of proof is on the grievor.

54 The clause of the collective agreement at issue is clause 52.01(a), which states as follows:

52.01   At its discretion, the Employer may grant:

(a)   leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld;

55 The initial question that has to be answered in cases interpreting clauses such as clause 52.01(a) of the collective agreement is whether there were circumstances not directly attributable to the employee that prevented him or her from reporting to work. Once this has been established, the next question that has to be answered is whether, if it has been requested, leave with pay was unreasonably withheld by the employer.

56 Cases such as these are factually driven. Of the case law presented to me with respect to interpreting wording exactly like, or similar to, clause 52.01(a) of the collective agreement, seven dealt with fact situations involving snowstorms, while two dealt with illnesses involving other family members.

57 The grievor requested five days of leave to cover the days between her scheduled return-to-work date of April 21, 2010, and her actual return-to-work date of April 28, 2010. The employer initially granted two days of paid leave under clause 52.01(a) of the collective agreement and required the grievor to take the other three days as annual (vacation) leave. At some point, an additional half-day of leave under clause 52.01(a) was authorized.

58 The grievor was on annual leave, authorized by her employer, from March 29 to April 20, 2010. She was scheduled to return to work on April 21, 2010. She was out of the country in England during this time frame, travelling there via a direct Air Canada flight from Halifax to Heathrow. In April 2010, the volcano erupted, which caused a massive closure of airspace and grounded flights in and out of most of Europe. The last flights in and out of Heathrow were on April 15, 2010, and no flights arrived or departed until April 21, 2010.

59 I have no doubt that the grievor was unable to get out of London on her scheduled return flight, as it was on April 20, 2010, and flights were still cancelled. Therefore, she could not report for work on April 21, 2010, as she was still in London. The employer has clearly accepted that the grievor’s situation fell within the confines of clause 52.01(a) of the collective agreement and within the definition of “… circumstances not directly attributable to the employee …,” as it initially granted her two days of leave due to her inability to get to work, obviously caused by the volcano closing European airspace and causing flights to be cancelled. The only question left to be answered by me is whether the decision to not grant the full five days of leave, by the employer, was reasonable.

60 The grievor’s unchallenged evidence was that, on April 16, 2010, immediately upon learning that the volcano had caused a significant closure of European airspace and massive flight cancellations, she contacted Air Canada and spoke with a representative, who assisted her in getting back to Canada. The evidence in this regard was that the grievor was advised by the Air Canada representative that despite it being April 16, 2010, and her scheduled flight was not until April 20, 2010, it was best for her to rebook her seat home on the April 27, 2010, flight from Heathrow to Halifax. The grievor also stated that the representative advised her that despite her rebooking from April 20 to April 27, 2010, she, with all other passengers whose flights would have been cancelled, would automatically be placed on stand-by. She was told that the stand-by queue would be chronological and that those travellers whose flights were cancelled first would be first in line for empty seats on the return flights to Canada, once they started flying again.

61 The grievor testified that she set up her smart phone to receive alerts from Air Canada about her stand-by status and checked the Air Canada website daily for alerts and information. According to the grievor’s testimony, Air Canada resumed flights to Canada on April 21, 2010, on a limited basis. She stated that she received an alert on her smart phone that her place in the stand-by queue was activated when Air Canada restarted flights out of Heathrow. She stated that she never received notification that she had a seat on a flight earlier than the April 27, 2010, flight she had been rebooked on.

62 Ms. Jessome testified that she did not approve the additional paid leave under clause 52.01(a) of the collective agreement because she felt that the grievor had rebooked her flight home too early, on April 16, 2010. According to Ms. Jessome, flights were landing at Heathrow on April 15, 2010, and as such, the grievor’s rebooking on April 16, 2010, was too early. Ms. Jessome stated that from her perspective, if the grievor had stayed in the queue, she would have gotten out sooner. She stated that she spoke with HR, and based on what they told her, and given that she understood her brother had gotten out of London earlier than the grievor, the grievor could have gotten out sooner.

63 Exhibit E-1, Tab 2, is the email exchange between the grievor and Ms. Jessome on June 8, 2010. Ms. Jessome’s last two emails speak volumes about her reasoning. At 3:35 p.m., she wrote as follows:

… Looking at it, you emailed me on April 16th requesting the extension of your leave by a week. I responded stating that I wanted to consult with Gordon first because we had plans for your work etc. By the time I responded you said you had already had rebooked your flight to April 27th, without my prior approval.

…

64 At 4:09 p.m., Ms. Jessome wrote the following:

Hi, I guess for me you chose to re-book [sic] your flight instead of staying in the “cue” [sic] which would have most likely gotten you home sooner….

…

65 Ms. Jessome’s decision was unreasonable. There was no factual underpinning to it. In her email of June 8, 2010, at 3:35 p.m., she stated that before approving the grievor’s extended leave, she wanted to consult with someone named Gordon, as Ms. Jessome had plans for the grievor. Ms. Jessome also stated that before receiving approval for the extended leave, the grievor had rebooked her flight. Whether Ms. Jessome approved any type of leave for the grievor was irrelevant. The simple fact was that airplanes were not leaving London. As time passed, it became abundantly clear that the grievor was not going to be at her job on April 21, 2010, because no flights were going in and out of Heathrow to Canada after April 15, 2010, and before April 21, 2010. Quite simply put, the grievor could not get home to Halifax.

66 Ms. Jessome, in her 4:09 p.m. email of June 8, 2010, stated that the grievor’s rebooking of her flight rather than staying in the queue was clearly the deciding factor. It was Ms. Jessome’s view that had the grievor chosen to stay in the queue, she would have likely gotten home sooner. Not only is there absolutely no evidence of this, in fact, the evidence is the opposite. The grievor booked the new return flight based on a discussion with an Air Canada representative the first day (out of five) Heathrow was closed and flights were cancelled. The Air Canada representative’s advice to her was to book the first available flight, which she was told was on April 27, 2010. This guaranteed the grievor a seat out, and so she did it. In addition, the grievor was put into the stand-by queue automatically, which she confirmed occurred. The grievor also stated that at no time before her April 27, 2010, flight was she alerted that her spot in the queue came up to allocate her a seat on an earlier flight. This is not only what the grievor testified to in front of me, but is also what she specifically told Ms. Jessome on June 8, 2010 both before and after Ms. Jessome’s email of 3:35 p.m.

At 11:54 a.m., the grievor stated as follows:

… I was originally scheduled to fly out on the 20th, so by the time Air Canada started to fly on Thursday (22nd) they had 7 days of people to get onto flights (5 days of people that were on scheduled flights that never left, before my flight). I was on a stand by list for available flights as soon as they started to fly, but none were to be had….

At 3:42 p.m., the grievor stated as follows:

The flights were already cancelled (and Heathrow shut down) on Friday, the 16th, when I emailed you … which is why when I called Air Canada (while waiting for your response) they suggested I rebook ASAP, and put me on the April 27th flight with stand-by for available flights if they started flying before then. So .. it wouldn’t have mattered whether I got “prior approval” or not .. there were no flights available for me to return. So .. I’m not understanding your point exactly.

…

[Sic throughout]

67 There is absolutely no evidence that contradicts the grievor’s evidence. Ms. Jessome conceded that she was aware of the volcano and its disruption of air travel and conceded that she never contacted Air Canada or received any information from Air Canada. Ms. Jessome’s decision cannot stand as it cannot be reasonable, quite simply because there is no factual basis supporting it. Her decision, according to the evidence she gave and according to her own emails, was based on the grievor taking herself out of the queue. However, the grievor did not do this but remained in the queue despite her new outgoing seat on April 27, 2010. Based on the evidence before me, had the grievor not rebooked her return seat on the April 27, 2010, flight, she would not have gotten out until after that flight.

68 I would be remiss if I did not address the clear discrepancy in another part of the employer’s case. Ms. Jessome stated in her evidence-in-­chief in front of me that the grievor had acted too hastily in rebooking her flight home. In her words, flights had still been landing on April 15, 2010, so in her opinion, April 16, 2010, was too early to start trying to book a new flight out. This is in direct contrast to the reasoning found in Exhibit G-2, the first-level grievance reply, wherein the area director stated as follows:

…

The acid test in this case is whether you could have done anything more than what you did to mitigate this situation. It is the position of management that the 2 day delay in contacting Air Canada to rebook the return flight contributed to the delay to April 27, 2010 of returning to Canada….

…

69 On the one hand, the grievor’s supervisor told her she booked too soon after flights had been cancelled, while on the other hand, the area director told the grievor she did not rebook soon enough. Which was it? In my view, both were wrong, as both operated on mistaken assumptions rather than facts. Ms. Jessome’s testimony in front of me was that on April 15, 2010, the last flights arrived at Heathrow before the airport closed. On April 16, 2010, the grievor contacted Air Canada and her supervisor. The exact date of the volcano eruption was not before me. If it was on April 15, 2010, and the airport shut down on April 16, 2010, how could the grievor possibly have waited too long if her flight was not supposed to leave until April 20, 2010? Ms. Jessome stated that the grievor acted too soon, yet if the grievor had not acted when she did, the evidence before me is that she would have gotten home later rather than sooner. As for the area director’s comments in Exhibit G-2, there is no evidence to suggest that the volcano eruption occurred before April 15, 2010. As such, how could the grievor have predicted its eruption and the subsequent closure of the airspace and the cancellations of flights?

70 Also with respect to Exhibit G-2, the area director stated that because the grievor informed her manager that she would be taking vacation leave, she did not open a discussion on alternate ways of utilizing her time during the extended delay period, suggesting that the grievor could have done online research or attended a VAC office in the UK and worked from there. This suggestion is also without any factual basis. Both the grievor and Ms. Jessome testified that the only contact they had while the grievor was stranded in London was via email. While the grievor’s initial email just stated that she would like to extend her leave, by the second email, it was clear that she was stranded in London. How was the grievor supposed to know if there was any work she could have done from London via the Internet or whether she could access a VAC office? If this was a realistic option, it was something the manager could have looked into and, if it were viable, suggested it. There was no such discussion.

71 There is also the suggestion in Exhibit G-2, which the employer also argued, that the grievor somehow did not mitigate as she did not go to Heathrow before her new scheduled departure day of April 27, 2010. This argument is without any merit. The only evidence I was provided on this was from the grievor and it was that the London news media were instructing those travelling by air not to go to the area airports (of which Heathrow is one). According to the evidence, the news media were advising that only those persons who had seats on flights within four hours of departure would be admitted to the airport. The employer offered no evidence contrary to that of the grievor or any suggestion in its argument as to how going to Heathrow would have enhanced the grievor’s chances of getting out sooner. International air travel is not like getting on your local bus. One does not just mosey on down to the airport, line up and wait for the next airplane to whatever destination, and as long as there is room, pay the fare and get on. The seats on these aircraft are booked in advance. While there might be some empty seats on each flight, this situation was one in which there were thousands of stranded passengers vying for a limited number of seats. It is clear that Air Canada had a plan and had put it into place, which was a stand-by list that would electronically contact passengers to alert them when to make their way to the airport.

72 Finally, the employer argued those two and one-half days granted were reasonable because somehow the grievor was partially responsible because she took her vacation overseas, and there is an inherent risk when one travels. While I agree that there is a certain risk in travelling generally and in travelling by air, I reject this argument as there is again no factual basis to support the apportionment of any risk. Clause 52.01(a) of the collective agreement is clearly meant to deal with situations when an employee is kept from getting to work by obstacles beyond his or her control. As I stated earlier, these are fact-driven cases, and of the cases submitted, seven dealt with snowstorms. The reasonableness or unreasonableness of the decision to grant leave is generally driven by whether at some juncture the circumstance that kept the employee from getting to work changed. In the snowstorm cases, this question usually turns on when the roads became passable or when the bus routes were restored and whether the circumstances remained such that the employee could not get to work. In this case, the grievor attended the first day of work after she got on the first available flight back to Halifax.

73 For all of the above reasons, I make the following order:

V. Order

74 The grievance is allowed.

75 The employer shall replace the annual (vacation) leave between April 21 and 27, 2010, inclusive, with leave with pay under clause 52.01(a) of the collective agreement.

76 The employer shall credit to the grievor’s annual leave bank the time the grievor was required to take as annual (vacation) leave between April 21 and 27, 2010, inclusive.

77 I remain seized for 60 days of any issue relating to the calculation of annual (vacation) leave owed to the grievor.

March 20, 2014.

John G. Jaworski,
adjudicator