FPSLREB Decisions

Heard at Ottawa, Ontario,
July 4, 2014.
(PSLREB Translation)

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        On October 17, 2012, Nathalie Paquet (“the grievor”) filed a grievance against a decision by her employer, the Department of Public Works and Government Services (“the employer”), to recover 278.125 hours of annual leave credits.

2        The grievor was represented by the Canadian Association of Professional Employees (“the bargaining agent”). The employer and the bargaining agent concluded the applicable collective agreement for the Translation Group, which expired on April 18, 2011 (“the collective agreement”).

3        On May 9, 2013, the bargaining agent referred the grievor’s grievance to the Public Service Labour Relations Board (“the Board”) pursuant to paragraph 209(1)(a) of the Public Service Labour Relations Act.

4        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

II. Summary of the evidence

5        At the hearing, the parties submitted the following agreed statement of facts, accompanied by supporting documents (Exhibit G-1). They also agreed that when she arrived in the public service, the grievor was entitled to fewer annual leave credits than she received when she worked at the House of Commons of Canada.

[Translation]

This agreed statement of facts establishes the facts recognized by the Canadian Association of Professional Employees (CAPE), Ms. Nathalie Paquet, and the Treasury Board (Department of Public Works and Government Services Canada) (“the parties”) with respect to the grievance at hand for which the PSLRB reference number is 566-02-8503.

The parties agree to the following statement of facts:

1. The CAPE is the bargaining agent for the TR group.

2. The collective agreement in force between the Treasury Board and the CAPE when the grievance was filed is the one with the April 18, 2011, expiry date.

3. Ms. Nathalie Paquet had been an employee of the House of Commons of Canada since May 25, 1992.

4. In August 2003, Ms. Paquet was appointed for an indeterminate period to a translator position (TR-02) with Public Works and Government Services Canada. That appointment took effect on September 15, 2003. A copy of the letter of offer is attached. (See Appendix A.)

5. In May 2010, Ms. Paquet was appointed for an indeterminate period to a translator position (TR-03), and in May 2011, she was transferred to a TR-03 position at the Scientific and Technical Translation Branch. She currently holds a position as head of the isolated subsection (TR-03) of the Translation Bureau of Public Works and Government Services Canada for the Office of the Auditor General.

6. The employer applied the continuous service date of May 25, 1992, for pension purposes and, mistakenly, for annual leave purposes.

7. That mistake was discovered in December 2011 after the wave of calculations to pay severance pay. The employer corrected it later, on April 1, 2012. A copy of the notes from the employee’s personnel file is attached (Appendix B).

8. On October 16, 2012, the employer’s Compensation Services sent a letter to Ms. Paquet advising her of the mistake and informing her that the employer would recover 278.125 hours. A copy of the letter is attached. (See Appendix C)

9. Due to that administrative error, she received 396.875 hours of excess leave credits for the period from 2003 to 2012.

10.On April 1, 2012, Ms. Paquet had 340.875 hours of annual leave banked. A copy of her 2012 leave statement is attached. (See Appendix D)

11.Before October 16, 2012, Ms. Paquet requested 142.5 hours of annual leave, which was approved.

12.After October 16, 2012, she cancelled her request for 142.5 hours and requested 82.5 hours of compensatory time and 60 hours of annual leave.

13.Ms. Paquet filed a grievance on October 17, 2012, challenging the employer’s decision to recover the excess annual leave credits placed in her leave bank from November 2006 to October 2012 (278.125 hours over 6 years).

14.On October 18, 2012, Ms. Paquet requested 67.5 hours of annual leave. A copy of the transaction is attached. (See Appendix E)

15.On December 12, 2012, the balance in the annual leave bank was 213.375 hours, and the employer recovered the 213.375 hours from her annual leave credit bank.

16.On December 31, 2012, the employer recovered 37.5 hours from her special leave credits bank.

17.An unrecovered balance of 27.25 hours remains.

The parties reserve the right to present other documentary and oral evidence in support of their respective positions.

A. For the grievor

6        The grievor testified that she left her employment at the House of Commons to join the federal public service on September 15, 2003, as a translator classified TR-02 (Exhibit G-1, tab 1). When she was employed at the House of Commons, she was entitled to five weeks of annual leave. It must be noted that the parties agreed at the hearing that when she arrived in the public service, she was entitled to fewer annual leave credits than she received when working at the House of Commons. The amount of hours of annual leave to which she was really entitled under article 18 of the collective agreement is set out in Exhibit G-1, tabs 4 and 5. The parties agreed that over a period of 9 years, the employer credited 396.875 hours of excess annual leave. However, due to the limitation period, only 278.125 hours of those annual leave credits are in dispute.

7        Once working for the employer, in fall 2003, the grievor testified that she received a call from the employer’s pay service. She asked if her 11 years of service at the House of Commons would be recognized. She indicated that she was primarily concerned about the impact that her transfer to the public service might have on her pension. According to her, although no particular mention was made of annual leave, the employer allegedly assured her at that time that her 11 years of service at the House of Commons would be considered for pension purposes. No specific question was raised as to the number of annual leave credits the grievor would be entitled to. She testified that she assumed at that time that her years of service at the House of Commons would also count when the employer granted annual leave credits.

8        In November 2003, Danièle Constantin, the person responsible for entering leave data, asked Louise Maisonneuve, a compensation advisor, whether the grievor’s leave was transferred and what she was entitled to. According to the grievor, that request was not followed up (Exhibit G-2, tab 8). She indicated that despite several staffing measures between 2004 and 2012, the question never arose that her years of service at the House of Commons would not be considered when calculating her annual leave with the employer (Exhibit G-2, tabs 5 and 6). She affirmed that before October 2012, the employer never informed her that her years of service with the House of Commons would not count when her annual leave was calculated.

9        The grievor testified that only on October 16, 2012, did Jean Préfontaine, the employer’s compensation team leader, advise her for the first time of an error granting her annual leave credits. Essentially, the employer should not have considered her years of service at the House of Commons when granting annual leave credits (Exhibit G-2, tab 3). She indicated that she was very surprised and furious when she read Mr. Préfontaine’s letter because between 2004 and 2012 she had taken annual leave without knowing that she was not entitled to all the leave granted to her. She contacted Mr. Préfontaine the same day. However, she affirmed that she could not remember what she said to him.

10        The employer began recovering the annual leave credits on December 12, 2012. The grievor then noticed that her annual leave credits bank, which had had a balance of 213.375, was empty and that she had no annual leave credits left.

11        For the grievor, all that was even more difficult and unfair because well before October 2012, she had planned for and requested 142.5 hours of annual leave for January 2013, which her manager had approved. It must be noted that in April 2012, her leave bank had a balance of 340.875 hours of annual leave (agreed statement of facts, paragraphs 10 and 11). She testified that she was frustrated by the decision to recover the excess 278.125 hours because in the past, she had often waived taking annual leave because of a very heavy workload.

12        On October 17, 2012, the grievor filed a grievance against the employer’s decision to recover the 278.125 hours of excess annual leave credits. She then amended her request for 142.5 hours of annual leave, instead requesting 82.5 hours of compensatory time, in accordance with article 13 of the collective agreement, and 60 hours of annual leave. On October 18, 2012, she also requested 67.5 hours of annual leave as she planned to pick up her spouse in Florida in March 2013. She acknowledged in cross-examination that when she submitted her two leave requests, she had already been advised that the employer wanted to recover the excess credits. However, she added that she had already arranged for that leave before receiving Mr. Préfontaine’s letter and that, regardless, the employer had approved her requests. Thus, when the employer began recovering the 278.125 hours, only 213.375 hours remained in the grievor’s annual leave credits bank (agreed statement of facts, paragraphs 12 to 14).

13        At the hearing, the grievor stated that she was frustrated by the employer’s decision to recover the annual leave credits in that way. She affirmed that she always acted in good faith, sincerely believing for 9 years that her 11 years of service at the House of Commons counted when the employer granted her annual leave credits.

B. For the employer

14        Mr. Préfontaine testified for the employer. He is a team leader in the employer’s compensation services. He indicated that the employer generally verifies the start date of an employee’s years of service when the employee joins the public service, transfers from another department, or retires. In this case, it was during the employer’s verifications after the government decided to pay employees their severance pay in December 2011 that it noticed that the grievor had received too many annual leave credits. According to Mr. Préfontaine, such a check is normally performed when an employee arrives in a department or retires. The employer does not perform that check following a staffing measure, such as when an employee is appointed to an acting position.

15        According to Mr. Préfontaine, the error continued for nine years, until the employer realized the problem. He testified that he began working for the employer in March 2012. At that time, the employer had known since April 2011 that there was an error in the annual leave credits granted to the grievor. However, as there was no compensation team leader before he arrived, no one did anything about it. So he had to handle it when he arrived. He affirmed that he consulted several stakeholders at that time, including representatives from the Treasury Board, legal services, and other departments, to determine the measures to be taken under the circumstances and that it took some time.

16        After the consultations, Mr. Préfontaine sent a letter to the grievor on October 16, 2012, advising her of the error and informing her that it would recover the annual leave credits that it had mistakenly granted her in the past. Mr. Préfontaine stated that as of October 16, 2012, 396.875 hours of excess annual leave credits had been granted to her. However, due to the limitation period, the employer could go back only 6 years and could recover only 278.125 hours of the 396.875 hours of excess annual leave credits.

17        Mr. Préfontaine affirmed that although he advised the grievor on October 16, 2012, of an error and that the employer planned to recover the excess credits, the employer still granted her leave requests for 60 and 67.5 hours respectively in October 2012 because the grievor’s manager had already approved them, and the employer did not want to disrupt her vacation plans.

18        Mr. Préfontaine affirmed that the employer then began recovering the 278.125 hours of annual leave credits from the grievor in December 2012. First, on December 12, 2012, the employer recovered all the credits in the grievor’s annual leave bank, or 213.375 hours. Then, on December 31, 2012, it recovered 37.5 hours from the grievor’s special leave credits bank, as its labour relations officials felt that the employer was also entitled to recover that type of leave credit, which according to them was annual leave. According to Mr. Préfontaine, in January 2013, a balance of 27.5 hours of annual leave credits remained to be recovered for the employer. It has not yet recovered those hours, preferring to await the outcome of this decision before acting.

19        In cross-examination, Mr. Préfontaine indicated that he did not know whether the employer had followed up on Ms. Maisonneuve’s November 6, 2003, email (Exhibit G-2, tab 8).

III. Summary of the arguments

A. For the grievor

20        The grievor’s representative noted that the employer erred in 2003, when the grievor joined the public service. He added that it realized the error only nine years later, in December 2011, despite the fact that it had had several opportunities during staffing measures involving the grievor to note the mistake (Exhibit G-2, tab 5; agreed statement of facts, paragraph 7). And in 2003, had the employer followed up on the question from the compensation officer, Ms. Constantin, it could have corrected the error and thus avoided prejudicing the grievor. Unfortunately, that was not done (Exhibit G-2, tab 8).

21        According to the representative, the employer was not diligent over the course of those nine years. And once it realized in December 2011 that an error was made in granting annual leave credits to the grievor, it waited 10 months, until October 2012, to advise her of it in a letter from Mr. Préfontaine.

22        For all that time, the grievor acted in good faith and took leave with the sincere belief that she was entitled to it.

23        For the representative, clearly in this case the principle of promissory estoppel applies, as decided in Prosper v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 140. In fact, he submitted that in this case, the grievor relied on representations from her employer that continually for nine years led her to believe that she was entitled to all that annual leave. The employer had many opportunities before 2012 to correct its error and to set the record straight with the grievor. It did not. Instead, for nine years, it let her believe that she was entitled to all her leave, when she was not. The employer must assume responsibility.

24        Not only did the grievor rely on her employer’s representations and promises all those years, but she also acted in good faith in the belief that she was entitled to that leave. As mentioned in Prosper, the grievor took action, through the fault of her employer, which then proved detrimental to her interests. On one hand, had she known that she was not entitled to the leave, she would have acted accordingly and would have managed her leave bank differently. In this case, she took leave without knowing that she was not entitled to all the available credits. For example, before the employer informed her of its error, she had requested 142.5 hours of annual leave, which was approved. She then amended that request by requesting 82.5 hours of compensatory leave and 60 hours of annual leave. In October 2012, she submitted another request for 67.5 hours of annual leave, which the employer again approved. So, the employer knew in October 2012 when it approved the grievor’s last request that the balance of annual leave credits was then at 213.375 hours, or 64.75 hours less than the 278.125 hours that it sought to recover. Thus, by approving the grievor’s leave requests in October 2012, the employer again reiterated its promise to her. Had she known that she was not entitled to those hours, she would have acted differently. The employer’s error and the time it took to inform the grievor clearly prejudiced her (agreed statement of facts, paragraph 11).

25        The representative also insisted the fact that not only was the grievor prejudiced by acting on the false premises the employer had dictated but also had she known at the start in 2003 that she would not benefit from her 11 years of service at the House of Commons with respect to the annual leave credits grant, she might have made a different career choice and not joined the federal public service.

26        The representative also argued that the employer could not invoke subsection 155(3) of the Financial Administration Act (FAA) to avoid its responsibility. According to the representative, that section applies only if the employer must recover amounts of money. However, in this case, the employer recovered leave credits, not money.

27        According to the grievor’s representative, the grievor was clearly prejudiced after the employer’s decision to go back on its promise to grant the leave credits in dispute. It was a change to the grievor’s employment conditions, which the employer could not make. In the circumstances, once the employer realized its mistake, it could have granted special leave under clause 21.24 of the collective agreement — paid or unpaid leave for other reasons. It did not.

28        The grievor’s representative insisted on the unreasonable nature of the employer’s decision, particularly since it waited nine years to correct its error. The representative referred me to Murchison v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 93, in which the adjudicator allowed the grievance on the grounds that s. 155(3) of the FAA does not apply to leave credits and that the employer took too long to recover the excess credits, thus prejudicing the grievor. The representative also referred me to Lapointe v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 57, in which the adjudicator ruled that the employer’s inaction, even after another employee raised the issue of a possible error, amounted to a promise by the employer and that therefore a period of seven years before the employer recovered the overpayments was unreasonable.

B. For the employer

29        From the start, the employer’s counsel asked that I set aside the grievor’s argument that the employer could have resolved the situation by using clause 21.24 of the collective agreement, which states that at its discretion, the employer may grant paid or unpaid leave in situations not provided for in the collective agreement. According to counsel, the grievor’s grievance was not related to that article of the collective agreement, and the nature of a grievance could not be changed at the hearing (see Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.)). Alternatively, that clause does not apply when the subject of the grievance is already covered by other collective agreement clauses, in this case annual leave, set out in clause 18 of the collective agreement. According to counsel, clause 21.24 is secondary to the collective agreement’s other clauses. It can apply only if other specific provisions, such as article 18, on leave, do not apply.

30        Counsel maintained that the principle of estoppel did not apply to the facts of this case because, essentially, the grievor did not demonstrate that she acted to her detriment following a promise by the employer.

31        According to counsel, unfortunately, anyone can make an administrative mistake, which does not change the fact that no one must benefit from mistakes that are made in good faith. The grievor had to demonstrate that she had a right. However, the parties agreed that her annual leave credits were attributed to her in part because of an error. She was not entitled to them under the collective agreement. In error, the employer initially considered her years of service at the House of Commons when granting annual leave credits. Fairness does not justify her benefiting from that error.

32        According to counsel, I cannot conclude that the principle of estoppel applies because from the start, a fundamental element was missing — a promise made to the grievor. According to counsel, there cannot be a promise without a certain intent. In this case, therefore, I must conclude that the employer intended to grant more annual leave to the grievor than what is set out in the collective agreement. Essentially, I must be satisfied that the employer decided to waive its right set out in the collective agreement. According to counsel, although it was acknowledged that the employer erred, it was not demonstrated that it sought to modify the collective agreement with respect to the number of days of annual leave to which the grievor was entitled. Counsel insisted that it was false to claim that the employer took too long to correct the error. As soon as it became aware of the error, it corrected it for the future. In terms of past years, Mr. Préfontaine explained that such a verification takes time and that several organizations had to be consulted.

33        Alternatively, counsel argued that if my opinion is that a promise was made to the grievor, nevertheless, I must conclude that the principle of estoppel still does not apply because it was not demonstrated that she acted to her detriment after a promise. According to counsel, she did nothing that could lead me to conclude that she acted to her detriment — she took the annual leave that she wanted to take, nothing more.

34        According to counsel, the employer could well have refused the grievor’s leave requests of 60 hours and 67.5 hours in October 2012 since she no longer had the credits needed to remit the 278.125 hours of excess credits granted. However, given the fact that those leave requests had been approved, the employer did not want to disrupt her vacation plans and therefore allowed her to take it. According to counsel, the employer sought to accommodate the grievor, but still, it wished to recover those annual leave credits.

35        As for the 37.5 hours that the employer recovered from the grievor’s special leave credits bank, counsel submitted that the employer might have acted too quickly. Thus, counsel proposed to return the 37.5 hours to the grievor’s special leave credits bank. Counsel still insisted on the employer’s right to recover all 278.125 hours of excess credits.

IV. Reasons

36        The facts of this grievance can be summarized as follows. The employer erred when the grievor joined the federal public service in 2003. In effect, when granting annual leave credits, it considered her years of service when she was employed at the House of Commons, and did so for nine years. Consequently, from 2003 to 2012, she benefited by error from 396.875 excess hours granted as annual leave credits. The employer decided to recover those excess annual leave credits. It advised her so in a letter on October 16, 2012. However, it recognized that it could claim only from the last six years, i.e., from 2006. Thus, it claimed that it was entitled to recover 278.125 of the 396.875 hours as it was prescribed from recovering the remaining 118.75 hours.

37        After the employer informed the grievor on October 16, 2012, of the error in granting annual leave credits and of its intent to recover them, she amended a request that had already been approved and claimed 60 hours of annual leave. Then, on October 18, she submitted another request for annual leave, this time for 67.5 hours, which the employer also approved.

38        Thus, the employer recovered 213.375 hours on December 12, 2012, the number of annual leave hours that remained in the grievor’s annual leave credits bank at that time; 37.5 hours were also taken from her special leave credits bank on December 31, 2012. And the employer still claims the balance of 27.5 hours, for a total of 278.125 hours.

39        At the hearing, counsel for the employer acknowledged that the employer might have acted prematurely on December 31, 2012, when it recovered the 37.5 hours of special leave credits. Consequently, therefore, the employer is prepared to return that amount to the grievor, without prejudice. However, it continues to claim the entire 278.125 hours of annual leave credits.

40        It is important to note that the employer acknowledged that it erred in good faith by applying the concept of continuous service to the grievor’s annual leave when she arrived in the federal public service. However, the grievor maintained that under the circumstances, the employer’s position was unreasonable and unfair and that it prejudiced her. For its part, the employer maintained that it was entitled to recover the excess annual leave credits that it granted due to an administrative error. Finally, it must also be noted that the subject of the grievance is the recovery of the annual leave credits for the period from November 2006 to October 2012 and that the employer could not recover the annual leave credits granted between 2003 and 2006. As for the period after 2012, the fact that the employer was entitled to correct the error and make the necessary adjustments for the future was not contested.

41        The grievor maintained that she was entitled to the 278.125 hours, most of which the employer has already recovered and that the principle of estoppel applies in this case. I do not agree.

42        The principle of estoppel is twofold. First, a promise must have been made, in word or in conduct, to the grievor that the employer would waive granting her leave credits as set out in the collective agreement; second, based on that promise, she had to have taken leave without knowing that she was not entitled to it, which prejudiced her because she had to return it.

43        In Canada (Attorney General) v. Lamothe, 2008 FC 411, the Federal Court indicated the following about conduct or words:

...

The conduct or promise on which the party alleging estoppel relies must be “unequivocal”.For example, R.B. Blasina, the adjudicator in Abitibi Consolidated Inc. and I.W.A. Canada, Local 1-424 (2000), 91 L.A.C. (4th) 21, stated:

In other words, an estoppel will arise when a person or party, unequivocally by his words or conduct, makes a representation or affirmation in circumstances which make it unfair or unjust to later resile from that representation or affirmation.The unfairness or injustice must be more than slight.It does not matter whether the representation or affirmation was made knowingly or unknowingly, or actively or passively.The representation is taken to have that meaning which reasonably was taken by the party who raises the estoppel.

...

[Emphasis in the original]

44        In their submissions, both parties also referred me to one of my decisions, i.e., Prosper, at para. 28, which reiterates the following estoppel statements in Brown and Beatty, Canadian Labour Arbitration, 4^th edition, at paragraph 2:2211:

The concept of equitable estoppel is well developed at common law and has been expressed in the following way:

The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.

One arbitrator has summarized the doctrine in the following terms:

It is apparent that there are two aspects of the doctrine as thus stated. There must be a course of conduct in which both parties act or both consent and in which the party who later seeks to set up the estoppel is led to suppose that the strict rights will not be enforced. It follows that the party against whom the estoppel is set up will not be allowed to enforce his strict rights if it would be inequitable to do so. The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up the estoppel has relied to his detriment.

Thus the essentials of estoppel are: a clear and unequivocal representation, particularly where the representation occurs in the context of bargaining; which may be made by words or conduct; or in some circumstances it may result from silence or acquiescence; intended to be relied on by the party to whom it was directed; although that intention may be inferred from what reasonably should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom.

...

45        Thus, it appears from that statement that a representation must be clear and unequivocal. How then can it be claimed that the employer’s alleged promise in this case was clear and unequivocal when both parties agreed that until April 2012, it did not know that the annual leave credits granted to the grievor were not consistent with what the bargaining agent and the employer had negotiated?

46        In that sense, I must point out that the period during which the error continued should not be the only element used to conclude that the employer made representations or promises to the grievor. Again, in my opinion, it must be demonstrated in this case that the employer did not know or was negligent to the point of not seeing what was evident. I do not believe that it knew that there was an error in the leave credits calculation. I also hold that the grievor never sought to check as to whether she was entitled to those days of leave by contacting the federal public service. I would also add that it must be remembered that despite the employer’s error that lasted for nine years, from 2003 to 2012, she still benefitted for three years from leave to which she was not entitled under the collective agreement due to the limitation period that precluded the employer from recovering more than six years.

47        Although the Board concluded in Lapointe that the employer was negligent when it took too long to react, nevertheless, the doctrine of estoppel must be applied with care. It cannot be used systematically to remedy anything that seems unfair. Note first that in Lapointe, another employee informed the employer of a possible error in the leave calculation and that nothing was done. That was not so in this case. I would also add that the fact that an error went on for a certain amount of time is not enough to conclude that there was a promise. Such a conclusion, in my opinion, misrepresents the true idea behind the principle of estoppel, which is that a party cannot knowingly through its actions lead the other party to believe that it will not exercise a given right in a way that misleads. Estoppel is in fact a principle that precludes a party that knowingly gives another party a sense of security about a given interpretation or practice from subsequently requiring the correct application of that clause or practice when the other party is no longer able to negotiate. Negligence by a party that does not react once informed of a potential error in my opinion would also allow the principle of estoppel to apply. That was not demonstrated in this case.

48        First, it must be determined that the party against which estoppel was invoked intended to waive the strict application of its rights. That was not proven in this case. The parties agreed that the dispute arose from an error made in good faith. The grievor’s representative referred me to Murchison, in which the adjudicator allowed the grievance, based among other things on the fact that the grievor had questioned the employer several times about her rights on the issue of annual leave and because, in that context, it took about five years for the employer to decide to recover the overpayment. In that case, through Ms. Murchison’s questions, the employer was confronted from the start with the issue of the amount of annual leave to which she was entitled. After checking, the employer kept the grievor under a false impression. In my opinion, this case differs from Murchison.On one hand, the issue of the application of estoppel was not raised in Murchison. And in this case, unlike in Murchison, in which the grievor inquired about her rights with respect to annual leave and in which the employer reassured her about its error, in this case, the grievor never inquired about the number of days of annual leave to which she was entitled when the employer hired her.

49        In her testimony, the grievor affirmed that she inquired in the beginning about whether her years of service at the House of Commons would count with the employer for pension purposes. In that sense, nevertheless, I find it curious that by the grievor’s admission, she never wondered or inquired with her employer about such a fundamental issue as the number of days of leave to which she was entitled. That is just to say that in general, employees transferred in this context will wonder about salary and the impact on their pensions as well as their rights with respect to the granting of annual leave credits. It seems that the grievor did not feel the need to. And it was demonstrated that she had access to and knew how many annual leave credits were granted to her each year.

50        In his arguments, the grievor’s representative maintained that the employer should have realized the error well before April 1, 2012, due to the staffing measures, including several acting appointments, involving the grievor between 2003 and 2012. I do not agree with that argument. A conclusion that the employer can simply use a staffing measure to check the status of an employee’s leave does not reflect the fact that the burden thus placed on the employer would be unreasonable. It is well known that a very large number of staffing measures, including acting appointments, take place each day in the public service. Requiring that the employer ensure the consistency of annual leave each time would undoubtedly and quite simply paralyze the system. I would also add that it seems to me that that obligation of diligence with respect to an employee’s rights in terms of annual leave must be shared between the two parties. For example, it seems unfair to me that an employee who is aware of an error in granting annual leave credits and who does not raise the issue with the employer could then invoke the principle of estoppel to preclude the excess credits being recovered.

51        The grievor’s representative also maintained that had the grievor known that she would not continue to be entitled to five weeks of annual leave credits when she joined the public service, she might not have made that career choice. Note that no evidence was presented to me in that sense and that, again, I feel that she was also obliged to inquire before making her decision. I emphasize the fact that the issue of the number of annual leave credits to which a new employee is entitled is normally one of the first questions raised before accepting a position.

52        Therefore, I find that estoppel does not apply for the period from 2003 to April 2012 because the employer was not aware of the error and therefore did not make any representation or promise. I will now consider the period after April 1, 2012, when the employer realized its error. From Mr. Préfontaine’s testimony, I retain that as of April 1, 2012, the employer was aware that the grievor had been receiving excess annual leave credits since 2003, and it advised her of it only 10 months later, on October 16, 2012.

53        In her testimony, the grievor indicated that she followed up on her vacation plans with the employer’s approval after October 16, 2012, and that she requested a total of 127.5 hours of annual leave credits. In her undisputed testimony, she affirmed that she had already made those vacation plans before the employer told her of the excess credits. And the employer allowed her to take those 127.5 hours, knowing that she would then have to reimburse annual leave credits.

54        Although I found earlier that the employer could not be faulted for not having acted before April 2012 because it did not know that an error had occurred in granting leave, I find it at the very least unfortunate that it not only waited 10 months before informing the grievor but also made no effort to communicate with her about her request for a total of 127.5 hours of annual leave credits, i.e., 60 hours and 67.5 hours, in October 2012.

55        In effect, the employer knew about the error as of April 1, 2012, but failed to advise the grievor. The fact that there was no compensation chief at that time, in my opinion, is not a valid excuse. The grievor was not informed of the problem or of the employer’s intent, and she planned her vacation under the incorrect belief for 10 months that she was entitled to additional leave. And although she was informed on October 16, 2012, and although she requested a total of 127.5 hours of leave, the employer knew that she would have to repay 278.125 hours and yet agreed to her request as if no problem existed. Under the circumstances, it seems to me that the employer should have communicated with her to ensure that no misunderstanding was in place. In my opinion, by letting things go and approving the requested leave, the employer added to the confusion. The grievor testified that she had planned those days of leave in advance based on the number of hours the employer had approved. Thus, I find that at the very least, the employer should have made things clear in April 2012 or in October 2012 before granting the 127.5 hours of leave.

56        Therefore, I allow the grievor’s grievance in part. I find that she is entitled to keep the 127.5 hours that correspond to the 60 and 67.5 hours the employer approved after October 16, 2012, and that the employer is entitled to recover 150.625 hours, the difference between the 278.125 and 127.5 hours.

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

V. Order

58        The grievance is allowed in part. The employer can recover only 150.625 hours in annual leave credits from the total of 278.125 hours.

59        I will remain seized of this case for a period of 60 days in case the parties have difficulty implementing this decision.

April 6, 2016.

PSLREB Translation