FPSLREB Decisions

Heard at Saskatoon, Saskatchewan,
December 15 and 16, 2015.
(Written submissions filed January 8 and 25, and February 1, 2016.)

REASONS FOR DECISION

I. Indiviual grievance before the Board

1        The grievor in these proceedings, William Stewart, is an employee of the Canadian Nuclear Safety Commission (CNSC or “the employer”). He is currently employed with the Uranium Mines and Mills Division (UMMD) of the CNSC as a senior project officer and is classified REG-07. He grieved the employer’s denial of his request to work at home from January 21 to 25 and 30 and 31, 2013. His individual grievance states as follows:

Nature of Grievance

I am grieving under the Collective Agreement because (1) CNSC is not applying the Work at Home Policy in a fair and/or equitable and/or consistent manner and is differentiating adversely against me by denying my request(s) to work at home while approving similar request(s) under the Work At Home Policy for other staff member(s), and (2) the employer has refused to approve my request(s) to work at home during the period January 21 to 25, 2013, as well as during the period January 28 to 31, 2013 even though it was “operationally feasible” for the employer to do so, and (3) the employer’s denial of my request(s) to work at home is unfair, unreasonable, discriminatory in nature. The employer’s actions are contrary to the spirit and intent of CNSC’s Work At Home Policy which states “The key to a work at home arrangement is whether or not it is operationally feasible for the employees to work at home” as well as contrary to the terms of the Collective Agreement including Article 7.09.

2        The Professional Institute of the Public Service of Canada (PIPSC or “the bargaining agent”) is the bargaining agent for the grievor. The CNSC and the PIPSC had a collective agreement in place from April 1, 2011, to March 31, 2014
(“the collective agreement”). Clause 7.09 of the collective agreement provides as follows:

Work at Home

7.09 The Parties agree that there may be mutual benefit in permitting employees to perform work at home. At the employee’s request and subject to operational requirements, the Employer may grant an employee’s request to work at home. Details of the alternate work arrangement shall be agreed and recorded in writing by the Employer and the employee. The alternate work arrangement shall be consistent with the terms of this Agreement.

3        The employer denied the grievance. The grievor filed a “Notice of Reference to Adjudication of an Individual Grievance” with the Public Service Labour Relations Board (“the former Board”). The notice stated that article 7 of the collective agreement was the subject of the grievance.

4        The grievor also filed a notice to the Canadian Human Rights Commission on June 26, 2013, alleging that the employer’s decision to deny his work-at-home requests amounted to discrimination on the basis of his family status and that it breached the Canadian Human Rights Act (R.S.C., 1985, c. H-6).

5        On July 31, 2013, the Canadian Human Rights Commission advised the former Board that it did not intend to make any submissions in this matter.

6        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 Board”) to replace 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 393 of the Economic Action Plan 2013 Act, No. 2,a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

7        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Board and the title of the Public Service Labour Relations and Employment Board Act, (S.C. 2013, c. 40, s. 365), the Public Service Labour Relations Act, (S.C. 2003, c. 22, s. 2) and the Public Service Labour Relations Regulations (SOR/2005-79) to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the FPSLRA”) and the Federal Public Sector Labour Relations Regulations.

II. Summary of the evidence

8        The grievance was heard in Saskatoon, Saskatchewan, on December 15 and 16, 2015. At the hearing, the grievor amended the grievance (with the employer’s consent) by changing “January 28 to 31” to “January 30 and 31”. In addition, the grievor withdrew his allegation of discrimination on the basis of family status and, as a result, I do not have to deal with that issue. The grievor testified on his own behalf. The employer called Mark Langdon, the grievor’s manager, and Jean LeClair, the UMMD director, to testify. The parties entered 32 documents as exhibits, some by agreement.

9        The employer established a policy entitled “Work at Home Policy” (“the Policy”), which provides in part as follows:

The Canadian Nuclear Safety Commission (CNSC) is committed to providing a working environment to help employees balance their work, personal and family responsibilities.

The application of this policy will assist managers in meeting their operational mandates while ensuring employees have access to flexible working arrangements where necessary.

In keeping with our goal of being an employer of choice, this policy will assist in meeting business objectives while satisfying the growing needs of employees to improve their overall quality of life. In doing so, this policy will foster a more attractive work environment that will contribute to recruiting and maintaining the best possible talent.

...

POLICY STATEMENT

The employer recognizes the opportunities that a flexible working arrangement such as the work at home option can present, and encourages managers to consider work at home requests in a fair, equitable and transparent manner, where operational requirements permit.

POLICY OBJECTIVE

The work at home policy has been designed to allow an employee to, on occasion, request to work from their home location, thereby achieving a better balance between their work and personal lives, while continuing the attainment of organizational goals.

...

DEFINITIONS

Operational feasibility: permitted to be carried out within the context and scope of the mandate of the division and the existing working conditions or budgetary parameters of the division in consideration of the operational requirements of the job.

Operational requirements: the necessary function(s) of the job or the services required to be performed by the employee as specified by the manager in order to deliver services or products in response to the divisional mandate.

Work at home: a flexible work arrangement whereby the employees have approval to carry out some or all of their work duties from their home.

Work at home location: the employee’s home where they are permitted to carry out the work otherwise performed at or from their designated workplace.

POLICY REQUIREMENTS

The approval of each work at home request shall be made on a case-by-case basis at the discretion of the Employer. A Work at Home Arrangement Form outlining the responsibilities for both parties must be completed and approved (signed) by the employee’s manager and the employee before the employee works at home. This form need only be completed once and kept on file (by the manager) to demonstrate that both parties have read and agree to the provisions for working at home.

For any work at home situation, the following conditions will apply:

• the manager must receive a request in advance and in writing identifying the day requested to work at home, what hours will be spent working at home, and what tasks are to be completed while working at home;
• subject to operational requirements the manager may approve the request (and if so must do so in writing);
• the nature of the work to be performed off-site must be operationally feasible;
• the arrangements must be cost-neutral;
• all terms and conditions of employment, provisions of the collective agreement or Human Resources Manual, and the application of existing policies and legislation will continue to apply in work at home situations;
• official language requirements and services to the public, stakeholders or licensees cannot be compromised.

ACCOUNTABILITIES

Employee

If participating in a work at home situation the employee is responsible for:

...

• ensuring that they are accessible to the manager and their colleagues during the agreed hours for which the employee is working at home.

Manager

Any manager who has agreed to a work at home arrangement with an employee is responsible to:

• ensure that a work at home arrangement form has been signed and sent to Labour Relations, Classification and Compensation Division (copies should be retained by both the manager and the employee);
• ensure that the work being performed at the work at home location is operationally feasible;
• ensure that there is no interruption or compromise of services to other employees, stakeholders or licensees with a work at home arrangement;
• meet on a regular basis with any employee on a work at home arrangement to evaluate the effectiveness of the arrangement;
• ensure that they are in compliance with all terms and conditions of employment, the collective agreement, legislation and any related policies to the work at home arrangement.

10        The grievor completed a “UMMD Work At Home Arrangement” form referred to in the Policy. He and his manager, Mr. Langdon, signed it on January 13, 2012
(“the WHA”). It provides in part as follows:

UMMD Work at Home Arrangement

…

This is a work at home arrangement between William Stewart (the “employee”) and Mark Langdon (the delegated manager), on behalf of the Canadian Nuclear Safety Commission (the “employer”).

1. The employee has requested, and the manager has agreed that the employee may work at home on an occasional basis (that is, for a particular day) providing the following conditions have been met:

1. The line manager has been notified in writing (email) of: the requested day to work at home; the hours to be spent working from home; and, the tasks to be completed while working at home;
2. The line manager has approved the request (approval is granted on a case-by-case basis, subject to operational requirements);
3. The employee makes all necessary arrangements to ensure that he/she is accessible to colleagues and the line manager during the hours for which the employee is working at home; and
4. A valid Work at Home Arrangement form exists on file and has been appropriately signed by all parties.

…

11        The employer also issued a directive entitled “Directive on Work at Home Arrangements” (“the Directive”), which provides in part as follows:

…

Directive on Work at Home Arrangements

…

4. Directive Statement

The employer recognizes the opportunities that a flexible working arrangement such as the work at home option can present, and encourages managers to consider work at home requests in a fair, equitable and transparent manner, where operational requirements permit.

This directive has been designed to allow an employee to, on occasion, request to work from their home location, thereby achieving a better balance between their work and personal lives, while continuing the attainment of organizational goals.

5. Directive Requirements

The approval of each work at home request shall be made on a case-by-case basis at the discretion of the Employer. A Work at Home Arrangement Form outlining the responsibilities for both parties must be completed and approved (signed) by the employee’s manager and the employee before the employee works at home. This form need only be completed once and kept on file (by the manager) to demonstrate that both parties have read and agree to the provisions for working at home.

For any work at home situation, the following conditions will apply:

• the manager must receive a request in advance and in writing identifying the day requested to work at home, what hours will be spent working at home, and what tasks are to be completed while working at home;
• subject to operational requirements the manager may approve the request (and if so must do so in writing);
• the nature of the work to be performed off-site must be operationally feasible;
• the arrangement must be cost-neutral;
• all terms and conditions of employment, provisions of the collective agreement or Human Resources Policies and Procedures, and the application of existing policies and legislation will continue to apply in work at home situations;
• official language requirements and services to the public, stakeholders or licensees cannot be compromised.

A work at home arrangement can be terminated at any time, with one week’s notice by either party, in writing.

6. Roles and Responsibilities

Employee

If participating in a work at home situation, the employee is responsible for;

...

• ensuring that they are accessible to the manager and their colleagues during the agreed hours for which the employee is working at home.

…

[Emphasis in the original]

A. The grievor

12        As at the date of the hearing, the grievor had been employed with the CNSC for about 111⁄2 years. He works at the employer’s Saskatoon office. His core hours of work are from 9:00 a.m. to 3:00 p.m. He can start earlier or finish later but must complete 7.5 hours each workday. He usually works from 8:00 a.m. to 4:00 p.m. His duties include licensing, compliance, and project management. He is responsible for all licensing, compliance, and project management at two uranium mines in Saskatchewan. The CNSC issues a licence to each uranium mine pursuant to the Nuclear Safety and Control Act (S.C. 1997, c. 9).

13        The CNSC ensures through periodic inspections that licensees are in compliance with the licences granted to them. Each inspection is a small project and requires planning, developing criteria, carrying out an inspection (including interviews and site examinations), reviewing records and documentation, and preparing and delivering a summary report (which is done on-site). A final report is then completed and provided to the licensee within 40 business days from the start of the inspection.

14        The grievor’s duties also include reviewing incident reports and licence submissions and supporting other CNSC employees in Saskatchewan or Ottawa, Ontario, with issues of radiation exposure and radioactivity effects. He stated that all his duties (except for being on-site for an inspection) can be done remotely. The CNSC’s computer system allows remote access via a secured token, which provides access to all files and compliance documents.

15        The grievor completed the WHA on January 13, 2013, as required by the Policy. An employee need only complete that form once. Periodic requests to work at home can be made once the form is completed. His previous manager, Kevin Scissons, granted his requests to work at home. After a request was granted, the procedure was to inform the administrative assistant at the Saskatoon office, who would then make an entry on a whiteboard to inform other staff that someone was working at home. The grievor did not request to work at home often, and he saw such requests occasionally from other staff. He made a request to work at home part of the day on January 17 and 19, 2011, and for the whole day of January 18, 2011, for appointments, which Mr. Scissons granted. He then made another such request for two hours (after returning from another appointment) before taking a family member to an appointment. His supervisor at that time, Mr. Langdon, denied it. When she was 13, the grievor’s daughter was diagnosed with a serious, on-going medical condition. In January 2013, the grievor was in Ottawa to attend a training course. His wife phoned and told him that their daughter had suffered a relapse. After the grievor spoke with his wife, he emailed Mr. Langdon on January 16, 2013, stating as follows:

Due to a continuing medical ... issue with my daughter I respectfully request to be able to work from home during the week of her high school finals, January 21-25, to be able to ensure that she is able to get to and from school and reduce the risk ...

I ask that you assign any particular work to me that you would normally expect me to be able to complete from my office during normal working hours and I will complete it during 7.5 hours of work time in the day, but not necessarily normal working hours.

16        The grievor received an email reply from Mr. Langdon on January 18, 2013, which states in part as follows:

…

Next time something like this arises where you have a family situation that you need to attend to I would strongly suggest that your family is more important that taking training in Ottawa and that you should have cancelled your trip. Training can be re-scheduled.

With regards to your request to work from home, I consulted with Jean and labour relations to understand what has been done in the past and to ensure that I had a good understanding of the options that were available to address your concerns and your request. I note that you have previously requested to work from home to address a similar situation with your daughter. I understand that at the time, you were advised, that given your concern for your daughter’s well being that your focus should probably be on your daughter and leave was granted.

If you believe that you need to spend next week at home with and attending to your daughter’s needs, I have no problem accommodating this request. However, I believe that you should be fully attending to this situation and not trying to also work 7.5 hours per day. Therefore, I suggest that you apply for Compensatory, Banked or Annual Leave and forget about your work for the next week. Your family needs seem to be a priority to me at this time. Should you want to work part days at the office while exams are written you also have that option.

As you are aware, both CNSC and UMMD have certain policies and provisions on various leave which I try hard to work within as an equal fair process for all the UMMD employees. One such policy for UMMD Saskatoon, for example, was for employee overtime. We were targeting for all employees, that for overtime, an employee could take their OT at 100% cash, but that the employee could choose to take up to 50% of their OT as leave if they chose to do so and it was not causing operational conditions. The 50% allotment was chosen by myself to be conducted on a temporary basis to see if it was a good workable solution. Employees have been working their OT on this basis and generally it seems to be working well from my perspective. However, since August 2012 you have been taking 100% of your OT as leave as per agreed to between yourself and me. I have been approving 100% leave based on our discussions that because of your daughter’s status, you stated you might find it necessary to stay home for up to a couple of weeks at very short notice. Therefore, you wanted to accrue Compensatory leave for this necessity as you wanted to keep your annual leave for vacation purposes (you still have almost six weeks of Annual leave at this time). I agreed to your request and your Overtime expense claims since August 2012 show that I have signed off all your OT sheets at 100% leave for a total greater than two weeks (10 days) of compensatory leave.

…

[Sic throughout]

17        The grievor spoke with Mr. LeClair after he received Mr. Langdon’s email. Mr. LeClair told him that family is more important than work and that he should not work at home in those circumstances but should take leave instead. He then took compensatory and annual leave for the week of January 21 to 25, 2013. Compensatory leave (or “comp. leave”) comprises banked hours worked in excess of 7.5 hours per day. An employee can elect to be paid for overtime hours or can bank them and use them for time off.

18        The grievor’s wife called him at work on January 29, 2013, and asked him to take her to a hospital because she was not feeling well. He asked to leave work early, which Mr. Langdon approved. He took his wife and daughter to the hospital where they stayed until about 8:30 or 9:00 p.m. They were discharged on the condition that if they suffered a relapse, he was to bring them back. That evening, he emailed a
work-at-home request to Mr. Langdon for January 30 and 31. He stated as follows:
“So, I again ask if I can work from home, call into the UMMD meeting, and do other regular work from home in accordance with CNSC Policy, and the Collective Agreement.”

19        Mr. Langdon called the grievor the following morning, and they discussed operational concerns about him working at home. He told Mr. Langdon that he had access to the CNSC’s systems and documents as required. He did not receive any operational reasons from the employer for not being able to work at home. He believed that Mr. LeClair had directed Mr. Langdon to not approve work-at-home requests. He took annual leave on January 30 and 31 since he did not have any family leave left. He did not provide any medical documentation to the employer in support of his requests to work at home on January 21 to 25, 30, and 31, since both Mr. Langdon and Mr. LeClair were aware of his daughter’s medical issues. In addition, Mr. Langdon was aware of his wife’s illness since he had approved the grievor’s request to leave work early to take her to a hospital.

20        It was not feasible for the grievor to work part-time at the office while his daughter wrote her exams because of the travel time involved. It takes him about 40 minutes to start his workday at the office, including 10 to 15 minutes to drive from his house to his parking stall, 15 minutes to walk to the office, and about 5 to 10 minutes to get his computer started. To get his daughter to school for 8:30 a.m., it would have taken him about 40 minutes to get home, about another 15 to 20 minutes to drive her to school, and another 30 minutes to start work again at the office. He would have then have had to leave work at about 10:15 a.m. to pick her up from school and drive her home. All that would have left him with only about 45 minutes of actual work time at the office. He could not return to work at the office after picking up his daughter from school since he had to care for her when she got home.

21        The grievor took about 87 days of leave in 2012 and 72 days in 2013. Neither Mr. Langdon nor Mr. LeClair raised any concerns about that leave. And, his performance management form for 2013-2014, signed by Mr. Langdon, did not identify any performance issues. He received a “Bravo Award” in 2011.

22        When he was off work on January 21 to 25, 30, and 31, 2013, the grievor took his daughter to school and picked her up from there. He also kept current on office business, worked on office projects, reviewed incident reports, licensing documents and other reports because he continued to work remotely from home (since his daughter did not want him to miss work to provide care for her).

23        Finally, the grievor stated that he grieved the employer’s denial of his request to work at home because since he is a professional, it is imperative that he does his job. He wanted to do his job while dealing with an urgent and acute situation with his family.

24        In cross-examination, the grievor acknowledged that the WHA, which he signed on January 13, 2012, states that an employee may request to work at home
“for a particular day.” He also acknowledged that the Policy states that each
work-at-home request is approved on a “case-by-case” basis and that it must be made “in advance.” Mr. Langdon had denied a previous work-at-home request for June 4, 2012, because the grievor had not made it in advance and had not specified which work he would do at home. And, he did not identify any work to be completed at home in his request for the week of January 21 to 25, 2013. He agreed that it was possible that he could have worked on an outstanding report from an inspection done in November 2012, but he did not inform Mr. Langdon that he could have worked on it.

25        The grievor requested to work at home for all five days in the week of January 21 to 25 because he did not know which of the four days that week that his daughter would be writing exams. He became aware on Tuesday, January 15 that she would be writing exams the following week when his wife called him in Ottawa.

26        The grievor agreed that Mr. Langdon’s email response of January 18, 2013 (denying his request to work at home), offered him the opportunity to take compensatory leave for the week of January 21 to 25 or to work part-time at home. Working part-time at home was not efficient. He reviewed printouts from the MapQuest website provided by the employer and acknowledged that they stated that the travel time from his house to his daughter’s school was about 15 minutes, from his daughter’s school to his office was about 8 minutes, and from his office to his home was about 10 minutes.

27        The grievor was in Ottawa from January 14 to 17, 2013, and stayed there to complete his training after his wife called him about their daughter. He took annual leave on January 24, 25, 30, and 31, 2013, and compensatory leave from January 21 to 23, 2013. He also acknowledged that he attended training in Ottawa on February 4 to 7, 2013. He agreed that had he missed that scheduled training, he could have taken the course when it was offered again.

28        The grievor agreed that he did not provide any medical information to Mr. Langdon about his request to work at home on January 30 and 31, 2013. The collective agreement provides for five days of family related leave for a fiscal year (April 1 to March 31), but he had used them all by June 20, 2012. Other than planning to attend the UMMD meeting by telephone on January 30, he had not identified any work that he would have been able to do at home on January 30 and 31. He agreed that he could have worked on the two reports for the inspections that he had completed between November 5 and 7, 2012.

29        In re-examination, the grievor stated that he completes about six inspections per year and that he spends the remainder of his time (over 80%) at the office. His duties when working at the office include responding to emails and staff and reviewing reports. The tasks that he spends about 80% of his time on in the Saskatoon office can also be done remotely at home.

30        In his email request to Mr. Langdon to work at home (sent on January 29 at 9:05 p.m.), he stated that his wife and daughter had the flu or viral infections. At that time, he did not know that they had H1N1. He also stated that although the MapQuest directions show that it takes about 15 minutes to drive from his home to his daughter’s school, it takes him about 20 minutes, due to traffic. In January, it takes about 25 minutes. He also stated that he uses the MapQuest route from his daughter’s school to his office but that it takes him an extra eight minutes to walk from his parking stall to the office. In addition, the MapQuest directions from his office to his home do not reflect his normal route. Traffic is heavy at the end of the day, and it usually takes him about 35 to 40 minutes to get from his office to his house. It has never taken him 10 minutes to get to work from his house.

B. Mr. Langdon

31        Mr. Langdon has been employed with the CNSC for 10 years. He is currently the UMMD supervisor in the Saskatoon office. He previously served as a senior project officer there, where he worked alongside the grievor. He supervises all the staff in the UMMD (14 in Saskatoon and 4 in Ottawa). He reports to Mr. LeClair, the UMMD director.

32        The Saskatoon office staff is required to work 7.5 hours per day, not including a lunch break. Their core hours are between 9:00 a.m. and 3:00 p.m., Monday to Friday. Staff can start work before 9:00 a.m. and end after 3:00 p.m. but are required to be at the office from 9:00 a.m. to 3:00 p.m. Regular office hours end at 4:30 p.m. Staff require permission if they are not able to be at work during the core hours of 9:00 a.m. to 3:00 p.m.

33        The main job of the UMMD’s compliance group is ensuring that licensees are complying with their licences. Its goal is to protect the health and safety of workers and the public, protect the environment, and ensure security at mine sites. It also disseminates information to the public to ensure that it knows what is occurring at mine sites. The compliance group has a target of six inspections per year, per group. They undertake about 30 inspections per year. Each takes about three or four days. For each one, an inspection plan is created, which Mr. Langdon approves. The inspectors attend at the site, conduct the inspection, meet with mine staff, and then return to the office to write a report. The goal is to write the report within two weeks of the inspection.

34        The grievor has had difficulty in the past doing inspections and writing up his reports, which require many corrections. As a REG-07, he is supposed to lead by example. In addition, inspectors are supposed to take the initiative with respect to writing reports and regulatory letters. The grievor usually took more time than the other inspectors to complete his reports. While he takes the initiative with respect to his bargaining agent steward role and to his personal training, he does not put that effort into his reports. He needs more supervision than the other inspectors do.

35        Emergency site visits and events such as spills and radiation dose levels must be dealt with very quickly. Such an event is discussed, and a plan is developed to address it. Dealing with such events cannot be done by phone, since information comes in continuously. Videoconferencing would work better. In addition, privacy and personal information concerns exist since licensees send monthly reports on radiation doses received by employees, including their names and other personal information. The REG-07s, including the grievor, review those reports, which have to be locked up at all times and cannot be taken home. Each project officer also reviews them and must do so at the office, not remotely.

36        The grievor completed an inspection at a site in November 2012. The report was supposed to be completed within 40 working days but was not submitted until February 2013. It was outstanding as of January 16, 2013, the date of the grievor’s work-at-home request. Mr. Langdon did not raise the fact that it was overdue in response to the grievor’s work-at-home request, since the grievor needed to take care of his family and not work on it. He felt that the grievor’s family was more important than completing the report. Additionally, the grievor did not state that he could work on the report at home when he submitted his request. Completing that report would have been his priority if he were at work. At the time of his request, he had taken two recent trips, one for training in Ottawa, and one for union business. He then took two weeks of leave to deal with family issues. After that, he spent one week in Ottawa for further training. He then submitted his report a week later.

37        The grievor, as a senior project officer, trains and mentors other staff in the office. He has to do it there since if he is at home, staff members will go to someone else in the office and will not call him at home.

38        In early 2013, Mr. Langdon received requests from other employees to work at home, which he generally approved. One was from an employee who had to complete documents for the CNSC that were due the day after the request. A major snowstorm was forecast for Ottawa, and the employee was working on the report at home on the evening he made his request. He asked to work on it at home since it would take him a long time to get to work the next day because of the impending snowstorm. Mr. Langdon approved the request since there was an operational requirement to complete the report. He also received another request from an employee in Ottawa in about February or March 2013. That employee had a leaking pipe in his house and had a report to finish. He was waiting for a plumber and requested to work at home to complete his report while waiting.

39        Mr. Langdon received two other requests to work at home, one from an employee who was going on vacation to another province. That employee wanted to work at home for another week. Mr. Langdon refused that request since it did not fit with the Policy. He also received a verbal request from an employee to stay at his or her ailing mother’s out-of-province house for one month, to take care of her. Mr. Langdon declined that request since it would not fit with the intent of the Policy, which is to deal with a one or two-day event not fully under an employee’s control, such as when he or she has work to finish and something comes up that requires him or her stay at home. Its intent is not to have employees stay at home and look after their dependents. If that were the case, it would mean that all employees could stay at home and look after their children or parents. The Policy must result in a win-win situation for both the employee and the employer.

40        Mr. Langdon reviewed the WHA that he and the grievor signed. He stated that an employee has to give a reason for working at home and has to state what work will be done there. He then decides if that work is beneficial to the employer and if it has to be done.

41        The grievor was in Ottawa attending training. On January 16, 2013, he emailed Mr. Langdon a request to work at home from January 21 to 25. The training included courses on how to act as a REG-08 or director and was not essential to his job. He did not provide any medical documentation to support his request. He informed Mr. Langdon about his daughter’s relapse. The grievor told him that he did not have to provide medical documentation and asked him the following: “Don’t you believe me?” Despite that, Mr. Langdon stated that he did not doubt the grievor’s daughter’s medical issues.

42        The grievor’s statement in his email request of January 16, as follows: “... you assign any particular work to me that you would normally expect me to be able to complete from my office during normal working hours ...”, was not informative. Mr. Langdon viewed it as the grievor requesting to work at home to look after his family. He felt that if the grievor’s family had serious issues, then the grievor should be looking after his family, not working at home. He questioned the amount of work and quality of work that an employee could perform if he or she was at home attending to a sick family member, which was consistent with the Directive, the intent of which is not for an employee to stay at home and look after dependents.

43        In his view, the Directive does not intend for an employee to work at home to tend to a child with a serious medical issue. In that case, he would not expect the employee to do any work. Rather, the employee should take leave. In his view, it is more important for that employee to look after his or her child than to get work done.

44        Mr. Langdon reviewed his January 18, 2013, email response to the grievor in which he suggested the following: “Next time something like this arises where you have a family situation that you need to attend to I would strongly suggest that your family is more important than taking training in Ottawa and that you should have cancelled your trip. Training can be re-scheduled [sic].”

45        Before sending it, Mr. Langdon had a telephone discussion with the grievor. The grievor told him that his daughter had not been doing well the week before. Mr. Langdon then asked him why he had not cancelled the trips, one to Ottawa and one for union business. The grievor told him the following: “Both of those things are important to me.”

46        Mr. Langdon also discussed his suggestion to the grievor to work part-time in the office. The grievor had told him that his daughter had exams all week and that he needed to take her to school in the morning or she would not be able to attend to write them. He also needed to pick her up when she finished and take her home. Mr. Langdon suggested that the grievor take his daughter to school on his way to the office and leave work early to pick her up. The grievor then told him that he had to go pick up his daughter, take her home, feed her lunch, then take her back to school. He did not agree to work part-time in the office since he felt that going back and forth from his daughter’s school to the office and from the office to his home would not have left him sufficient time to be at work.

47        Mr. Langdon also discussed his suggestion in his January 18 email to the grievor that he should take compensatory leave from January 21 to 25, 2013. They had reached an agreement that the grievor did not have to abide by the office policy for banking overtime, which was that employees could bank up to 50% of their overtime and take it as leave. He agreed that the grievor could bank two weeks of overtime and take it as compensatory leave to look after his daughter if required. The grievor had 10 days of compensatory leave banked as of January 2013.

48        On January 29, 2013, the grievor attended work and left at about 1:00 p.m. to take his wife to the hospital. He later called Mr. Langdon and told him that he had to take his wife and daughter to the hospital because of the flu. He wanted to work at home on January 30 and 31, 2103, to attend to them. Mr. Langdon denied his request since he felt that the grievor should look after his family if they were ill and not work at home.

49        The grievor then sent Mr. Langdon an email request on January 29 to work at home on January 30 and 31 to attend to his wife and daughter. The grievor did not mention to him that they had the H1N1 flu. His statement in his January 29 email, requesting that he do “other regular work” from home, was not helpful since that did not tell Mr. Langdon the work he was planning to do at home. The Policy states that an employee has to describe to the employer the work to be done at home.

50        Mr. Langdon felt that the grievor was not very cooperative when they tried to find solutions other than him working at home. He felt that the grievor could have asked other family members to assist or sought the assistance of family services. The 10 days of banked compensatory leave did not seem to help the grievor with his family needs. He also offered the grievor the option of staggered work times to allow him to work at the office part-time. He felt that he tried to accommodate the grievor as much as he could.

51        Mr. Langdon discussed the grievor’s June 4, 2012, request to work at home. The grievor had already put in for leave for that entire day (for a dental appointment and to take his wife to a medical appointment). He wanted to change it to work at home for a couple of hours. It was a spur-of-the-moment request and was not done in advance. Mr. Langdon declined the request and reminded the grievor of a “situation last week.” It had involved a different employee who asked to work overtime to write an environmental assessment report. He approved that employee’s request to work up to five hours’ overtime to write a report in the office. The employee later informed him that the report was written at home. Additionally, the grievor’s request to work at home for two hours had almost expired by the time Mr. Langdon opened his email.

52        Finally, Mr. Langdon stated that he did not ask the grievor to do any work at home between January 21 and 25 or on January 30 and 31, 2013, because he was on leave and was looking after his family. Working at home would have been contrary to the concept of taking leave to look after his family.

53        In cross-examination, Mr. Langdon stated that he relied on the provisions of the collective agreement and the Directive when deciding whether to approve the grievor’s work-at-home requests. He also consulted with Labour Relations and Human Resources, as well as with Mr. LeClair. They agreed that the grievor working at home in the circumstances would not work out and that he could take other
leave. Mr. LeClair did not give Mr. Langdon any direction on the grievor’s two requests to work at home. Rather, Mr. Langdon informed Mr. LeClair about what he was going to do.

54        The difference between the Policy and the Directive is that the Policy outlines the general way to do something, while the Directive sets out how to fulfill the Policy. In Mr. Langdon’s view, the Policy and the collective agreement share the objective of achieving a balance between work and personal and family issues. He stated that the policy statement in the Policy was “exactly what [he] tried to do.” He approved two other employees’ work-at-home requests after the grievor filed his grievance. The grievor has not requested to work at home since making his two requests in January 2013.

55        The grievor checked his emails when he was on leave from January 21 to 25, 30, and 31, 2013. Mr. Langdon has no way of preventing an employee from checking his or her email while on vacation or leave. Most staff have tokens, which allow them to access emails and files remotely.

56        The examples given in the Directive address leave of one or two days, not of extended periods. In Mr. Langdon’s view, clause 7.09 of the collective agreement gives discretion to the employer or a manager to approve working at home. If a request fits with the Policy, he approves it. In his view, the statement in the Directive about operational requirements and the requirement to identify the day requested contemplates that work-at-home requests must be for one or two days, not for a week.

57        Mr. Langdon did not ask the grievor for medical documentation and did not dispute that he had family issues to attend to between January 21 to 25 and on January 30 and 31. He was aware of the grievor’s daughter’s medical condition.

58        Finally, Mr. Langdon agreed that most of the grievor’s duties (other than inspections) can be done remotely but that doing so would not be as effective as working in the office. The UMMD staff work as a team and are required in the office to work that way. While meetings by teleconference and videoconference can be done, they are not as effective as attending in person.

C. Mr. LeClair

59        Mr. LeClair has been employed with the CNSC since July 2003. He has served as the UMMD’s director since January 2013. Before that, he served as a senior project officer in the Saskatoon office. His office is located in Ottawa. He is responsible for managing the UMMD and the staff located at the Saskatoon and Ottawa offices. At one time, all staff were responsible for both compliance and licensing. His mandate was to create two separate groups for compliance and licensing.

60        Under the leadership of the previous director, Mr. Scissons, employees had flexibility with respect to time management and working at home. They had autonomy in terms of working at home — after signing a form, they simply called the administrative assistant and told her that they would do so. Mr. Scissons approved of that procedure, but Mr. LeClair had an issue with it. In his view, a signed form was not a blank cheque to work at home, and was one of his challenges to address when he assumed the director role. Some employees complained to him about others taking long lunches and not putting in a full day’s work.

61        Mr. LeClair discussed the grievor’s request to work at home for January 17 to 19, 2011; the grievor had to attend a hospital on those days. Mr. Scissons had approved the request. Mr. LeClair stated that working at home means to work from home, not from a hospital when attending to appointments. In his view, the Policy contemplates the consideration of requests to work at home on a case-by-case basis. It calls for examining the request and determining whether it is mutually beneficial to the employee and employer. A clear understanding is required of what both parties are committing to. A well-defined task is required that must be accomplished, and something must have come up that prevents it from being accomplished at the office. A last-minute work-at-home request is possible, but it can be difficult to deal with, depending on whether staff is in place to accommodate it.

62        A REG-07’s role in the Saskatoon office is twofold. First, he or she reviews documents and determines the best approach to take (the risk and necessary
follow-up). To do it, he or she dialogues with colleagues and specialists in the office, which is critical and essential to the job. Second, the REG-07 meets with licensees, usually in person but occasionally by videoconference. And, as a senior employee, a REG-07 is expected to mentor and train junior staff.

63        Mr. LeClair handled two requests from employees to work at home
(in Mr. Langdon’s absence). The first employee had a leak in the roof at his house in Ottawa. He was required to be at home when the workers were repairing his roof. He was working on a document and needed to have it done by a certain date. Mr. LeClair approved this request since there was a need and a clearly defined task that the employee could focus on. He could also verify if what the employee said he would do was actually done.

64        And, in July 2012, Mr. LeClair received a request from the grievor to work at home for one week. The grievor told him that he had a family crisis because of his daughter’s medical condition. He told the grievor that he needed to focus on his family and that he could not do that by working at home — his focus had to be on his daughter, and he told the grievor that “work can wait.” He denied the request and advised the grievor to take leave and deal with the family issue, which he did. The grievor did not grieve that denial. Before that, Mr. LeClair had never received a request to work at home for more than one day.

65        Mr. LeClair testified that he spoke with the grievor about his January 16, 2013, request to work at home from January 21 to 25, 2013. The grievor informed him about his daughter’s relapse. It was a serious family crisis. Mr. LeClair had two concerns with the grievor’s request. First, the grievor did not specify the work or task he would perform at home. Second, Mr. LeClair questioned whether it was reasonable to expect that the grievor would actually focus on work, given the serious nature of his daughter’s medical issue. The grievor’s request did not make sense to him as a parent of a child with a similar medical condition. Contrary to what the grievor stated in his January 30, 2013, email to Mr. Langdon, Mr. LeClair stated that he does not have a personal policy as the director. He was simply applying the Policy as intended.

66        After he received a copy of the grievor’s request to work at home for January 30 and 31, 2013, to attend to his wife and daughter at home, Mr. LeClair consulted with Labour Relations in Ottawa to ensure that his interpretation of the Policy was correct. He also spoke to Mr. Langdon and the Director General (his supervisor) about the grievor’s request to work at home. The Director General was supportive of the decision not to approve the request.

67        Mr. LeClair did not receive any medical documentation from the grievor about his two requests in January 2013 to work at home to attend to his wife and daughter. In addition, the grievor did not propose any other options or solutions for both requests other than working at home. Furthermore, Mr. LeClair was never informed that the grievor’s wife and daughter had contracted H1N1; had he been made aware of it, then he would have instructed the grievor to stay at home to prevent other employees at the office from contracting it.

68        Mr. LeClair stated that had he granted the grievor’s January 2013 requests to work at home, it would not have been of mutual benefit to both the grievor and the employer, as required by clause 7.09 of the collective agreement. In his view, the grievor’s requests were equivalent to family related leave, which was meant to allow an employee to care for family members in certain situations. And no urgent tasks needed to be done at that time. The grievor could have taken leave without pay or compensatory leave for both situations.

69        The Policy is on the CNSC’s intranet. While it does not form part of the collective agreement, it supports the collective agreement. His view of the Policy’s objective is that at times, an employee’s focus is on work, at other times, on life, and at still other times, it is on both. The objective seeks to balance those things. When considering a work-at-home request, he has to have evidence of the work proposed to be done and the work actually done at home. If it is too general, it is not possible to measure or assess the work done, which is easier done for one day rather than for multiple days. In this case, he had no information about the grievor’s intentions as to how he intended to balance work with his personal obligations.

70        The Directive is found on the CNSC’s intranet. Mr. LeClair reviewed the examples set out in it. In his view, the grievor’s requests to work at home in January 2013 did not fit those examples. They did not fit under the Policy because he would not have been able to balance his work obligations with his family issues; i.e., he would not have been able to focus on work while caring for his family. And in Mr. LeClair’s view, it would be cruel to ask an employee to work while undergoing a family crisis.

71        Finally, Mr. LeClair stated that the employer did not ask the grievor to perform any work duties when he was on leave in January 2013.

72        In cross-examination, Mr. LeClair stated that he did not ask the grievor to provide any medical documentation in support of his requests to work at home in January 2013. With respect to those requests, Mr. LeClair left that decision to Mr. Langdon, as he was the grievor’s supervisor. He supported Mr. Langdon’s decisions. He also supported Mr. Langdon’s suggestion to the grievor that he take other leave types rather than work at home, since that was not the way to handle the situation there.

73        Mr. LeClair stated that he had never approved a request to work at home for a Saskatoon office employee. He became involved in such requests only if Mr. Langdon was not available.

III. Summary of the submissions

A. For the grievor

74        The grievor submitted that the issue was whether the employer violated clause 7.09 of the collective agreement, the work-at-home provision. At no time did it consider allowing the grievor to work at home; rather, it considered only alternative leave that he could have used to attend to his family on January 21 to 25, 30, and 31, 2013. The employer refused to allow him to work at home, and he was forced to take other leave on the requested dates. The grievor sought about 36 hours of paid time, which would be reimbursed to his leave banks for future use.

75        The intent of the Policy is to allow employees to occasionally work at home, to achieve a better work-life balance while continuing to perform their duties on behalf of the employer. In this case, the employer would not have incurred any extra costs had it granted the grievor’s requests to work at home. It would also have benefitted from having him discharge his work duties on the dates in question, while at the same time, he would have benefitted from attending to the needs of his family.

76        It should be noted that clause 7.09 of the collective agreement does not impose a requirement on an employee to provide medical evidence in support of a request to work at home. Furthermore, in this case, the employer did not dispute that the grievor’s daughter and wife required medical attention; nor was such medical documentation requested.

77        The employer strictly follows the examples set out in the Directive and does not allow requests falling outside of them. That violates the collective agreement and is contrary to the intent of the Directive, which states that the key factor to a
work-at-home arrangement is whether it is operationally feasible for an employee to work at home.

78        In addition, the Directive states that a work-at-home arrangement is more suitable for jobs that require thinking and writing or research and data analysis. Most of the grievor’s job can be performed at home (other than his inspection duties).

79        The employer’s evidence was that the Policy does not envisage an employee working at home to attend to dependents or family members. The collective agreement has no such limitation. Furthermore, the employer’s limitation of working at home to one or two days is not supported by the language of the collective agreement
(which does not speak to any such limitation).

80        The grievor asked to work at home from January 21 to 25, 2013, to take his daughter to school and to drive her home after her exams. He intended to work at home after bringing his daughter home from school. He did not intend to claim the travel time for driving his daughter to and from school as work time. The employer’s reliance on MapQuest to show the grievor’s travel times was not reliable since they did not reflect real time or the reality of driving during rush hour or in school zones.

81        The grievor proved that he was able to perform all or some of his duties at home since in the face of a crisis at home, he completed training in Ottawa and passed his exam with a grade of 98%. This shows that he was fully able to perform at a high level even though there were issues he had to deal with at home. It also supports the considerations in the Directive that for a work-at-home arrangement to be successful, the employee should be well organized, motivated, and able to work independently. Mr. Langdon’s evidence about possible performance issues with the grievor is not supported by his result on the exam that he wrote in Ottawa, his performance reviews, or the Bravo Award that he received. The grievor stated that he had been addressing his daughter’s medical issues for several years and thus had become accustomed to performing his work duties while under those stressors.

82        The employer’s denial of the grievor’s requests to work at home was based on the personal preferences of Mr. Langdon and Mr. LeClair, who prefer to work face to face. They could have accommodated the grievor’s request to work at home by using technology and communication tools such as the telephone, email, and videoconferencing.

83        The grievor agrees that a work-at-home arrangement must result in a mutual benefit for the employee and the employer, as stated in clause 7.09 of the collective agreement. However, in this case, the employer did not show that the requested
work-at-home arrangement was not mutually beneficial. Rather, it has shown only that Mr. Langdon and Mr. LeClair believed that the requested work-at-home arrangement was not possible.

84        The grievor submits that clause 7.09 requires the employer to consider a
work-at-home request, which means it must consider how the request can be granted, thus entailing an exercise of discretion. However, this discretion does not give the employer carte blanche. Its decision must not be made based on a manager or supervisor’s feeling and judgment of an employee, such as that the employee should be more concerned for his or her family.

85        The grievor discharged his onus of showing that he met the conditions required of him as set out in the collective agreement. The onus then shifted to the employer to show that operational requirements prevented approving his requests to work at home. As stated in Power v. Treasury Board (Transport Canada), PSSRB File No. 166-02-17064 (19880225), the employer cannot use “operational requirements” as an excuse to disallow a request enshrined in a collective agreement. In this case, the employer cited a hypothetical emergency or a preference for working face to face as reasons to deny the grievor’s requests, which were not acceptable reasons for denying his requests. In Morton v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-14208 (19840309), the adjudicator stated that the onus is on an employer to show that operational requirements do not permit granting leave contemplated in a collective agreement. The grievor submits that the operational requirements referred to in clause 7.09 must be real and not perceived. Simply stating that operational requirements prevent granting a request to work at home does not make it so. Operational requirements must be transparent, not arbitrary, and must not be based on personal bias.

86        The employer failed to demonstrate that operational requirements prevented it from granting the grievor’s requests to work at home in January 2013. The denial of his requests was based on what Mr. Langdon and Mr. LeClair thought was best for the grievor and his family. The employer was willfully blind to the option for accommodating the grievor’s requests to work at home. The evidence is that the grievor took different leave in 2012 and that he simply wished to fulfil his work obligations by working at home rather than taking further leave in 2013. Allowing him to work at home on the days requested would have been an appropriate balance between his obligations to his family and his work and would have been at no cost to the employer.

87        The grievor requests that the grievance be allowed and that the leave that the grievor took for January 21 to 25, 30, and 31, 2013, be credited to his leave banks. Alternatively, the grievor requests that a portion of the leave taken be credited.

B. For the employer

88        The employer submits that the issue is whether the employer’s denial of the grievor’s requests to work at home from January 21 to 25 and on January 30 and 31, 2013, violated the collective agreement.

89        According to the provisions of the Financial Administration Act (R.S.C., 1985, c. F-11; FAA), an employer such as the CNSC can pay an employee only for work that he or she actually performs. In this case, there is no evidence that the grievor actually performed any work on the January dates for which he requested to work at home. If the grievance is allowed, it would require the employer to pay the grievor for work that he did not perform since he was not in a position to perform work at home on the January dates in question. The grievor testified that his wife contacted him when he was in Ottawa and informed him that his daughter had a relapse. He then requested to work at home from January 21 to 25, 2013. The employer submits that it was not a work-at-home scenario that would have supported paying the grievor in accordance with the FAA.

90        Since the grievor seeks a monetary benefit, he has the onus of proving clearly and unequivocally that the requested monetary benefit was intended by the collective agreement.When determining the intent of a collective agreement, an adjudicator must first look at its language, and if that language is ambiguous, he or she can then rely on extrinsic evidence. In Professional Institute of the Public Service of
Canada v. National Research Council of Canada, 2013 PSLRB 88, and
Lahnalampi v. Treasury Board (Department of Human Resources and Social Development), 2015 PSLREB 96, an adjudicator and the former Board, respectively, stated that the intention of the parties to a collective agreement is to be ascertained from the language of the collective agreement (which is to be construed based on its plain and ordinary meaning). In addition, a collective agreement’s provisions are to be construed as a whole, and its words and provisions are to be interpreted in its context. The purpose of the collective agreement is to maintain harmonious and mutually beneficial relationships between the employer, the bargaining agent, and employees.

91        Under its management rights clause, the employer retains all rights not specifically abrogated by its terms, including the employer’s authority (under the FAA) to determine that before an employee gets paid for working at home or elsewhere, he or she must actually perform work.

92        The use of the word “may” in clause 7.09 of the collective agreement is to be construed as permissive, not imperative. The Interpretation Act (R.S.C., 1985, c. I-21) states at s. 11 that “[t]he expression ‘shall’ is to be construed as imperative and the expression ‘may’ as permissive.” Supporting that section is clause 2.02 of the collective agreement, which states that if an expression is defined in the Interpretation Act but not in the FPSLRA, it has the same meaning as given in the Interpretation Act.

93        The Policy, the WHA, and the Directive are external to the collective agreement and amount to extrinsic evidence. As such, they can be relied upon to determine the collective agreement’s meaning and intent only if its language is first found unclear or ambiguous. In this case, the collective agreement language is clear and unambiguous in that the employer is not obliged to grant an employee’s request to work at home after the employer considers the request and operational requirements. A contrary finding would amount to an amendment of clause 7.09 in that the word “may” in that clause would effectively be changed to “shall”.

94        Given that the collective agreement language is clear, there is no need to turn to extrinsic evidence to interpret clause 7.09.However, if extrinsic documents are examined to aid in interpreting the collective agreement, they will support the employer’s interpretation that the grievor’s requests to work at home in January 2013 were not indicative of a work-at-home situation and the employer had the discretion to deny those requests. The Policy and the Directive are in essence the same document, since the Directive consolidated the Policy and guidelines, which had been previously separate. Those documents and the WHA are not incorporated into the collective agreement.

95        The Policy states that its objective is to allow employees to occasionally request to work at home, to achieve a better balance between their work and personal lives while continuing to attain organizational goals. Furthermore, the Policy states that work-at-home requests are approved on a case-by-case basis at the employer’s discretion. In addition, the Policy stipulates that an employee must complete a
work-at-home arrangement form before an arrangement can be approved. The completed work-at-home arrangement is kept on file, and the employee then makes specific requests to work at home. The Policy specifies that a manager must receive a request in advance, which must identify the desired work-at-home day and hours and the tasks that will be completed there. Furthermore, the employee is responsible for ensuring that he or she is accessible to his or her manager and colleagues during the hours spent working at home.

96        The Directive has guidelines, which confirm that an employee and his or her manager must mutually agree to the employee working at home and that approving it is at the manager’s discretion. The manager’s approval can consider operational feasibility, costs, the employee’s demonstrated work habits, and the impact on the employee’s colleagues, any stakeholders, and the public.

97        In the grievor’s completed WHA, he agreed to notify his manager in writing of the work-at-home request, the hours to be spent working at home, and the specific tasks he would complete. In that form, the employer and the grievor also agreed to the following:

• he could occasionally work at home on a given day provided that his manager approved the request;
• such requests would be approved on a case-by-case basis, subject to operational requirements; and
• he was to make all necessary arrangements to ensure that he would be accessible to his manager and colleagues.

98        In this case, the employer exercised its discretion and did not approve the grievor’s January 2013 requests to work at home. Mr. Langdon testified that the grievor required supervision with things such as completing his reports, and he had an overdue investigation report in January 2013. Additionally, he was a mentor to his colleagues and was expected to attend meetings in person.

99        An employer can adopt a broad interpretation of the term “operational requirements”, which could include considering costs and supervision needs (see Jenks v. Canada Revenue Agency, 2010 PSLRB 27). The most significant operational requirement in this case was the expectation that an employee working at home would actually perform work. An employee is not in a position to perform work duties if he or she is attending to personal or family situations at the same time.

100        Under the Policy, managers are still expected to meet their operational mandates. In this case, the evidence does not show that allowing the grievor to work at home on the requested January 2013 dates would have helped Mr. Langdon or Mr. LeClair meet their operational mandates.

101        The Board and adjudicators have stated that an employee’s presence at work is a legitimate condition of employment (see Sioui v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 44). In this case, under the terms set out in the WHA and the Policy, the grievor was required to outline the tasks he would complete while working at home. He neglected to do that in both of his January 2013 work-at-home requests (with the exception of proposing to call into the UMMD meeting). On the contrary, in his words, he left it up to Mr. Langdon to do the following: “... assign any particular work to me that you would normally expect me to be able to complete ....”

102        The employer was sympathetic to the grievor’s plight. Both Mr. Langdon and Mr. LeClair testified that given the serious family issues that the grievor was grappling with, they did not expect him to perform any work on the dates at issue. Rather, they expected him to attend to the needs of his family.

103        In June 2012, the grievor requested to work at home while attending medical appointments. In that request, he set out a plan for work at home and the work that he could perform between medical appointments. Therefore, he was aware of the requirement to provide details of the tasks that he would complete while working at home. He failed to do that in both of his January 2013 requests.

104        Clause 7.09 of the collective agreement states that a work-at-home arrangement has to be to the mutual benefit of the employer and the employee. In this case, the employer would not have benefitted from the grievor working at home on the requested dates in January 2013 since he failed to show a propensity to actually perform work and neglected to propose the work that he would perform there. He had the onus of stipulating the work he would do at home during the requested periods, which he failed to discharge. The few emails entered into evidence over the seven days at issue amount to a few minutes over seven days. Most of the emails are not related to any work function or operational requirements. Furthermore, they do not show that he worked for 7.5 hours on the days he was on leave. Moreover, the employer did not approve him working at home when he was on leave — both Mr. Langdon and Mr. LeClair testified that they had not asked him to perform any work while he was on leave.

105        The grievor did not include a reasonable proposal or plan with his request, which would have shown his manager that he intended to actually perform work at home in January 2013. Rather, his plan for the week of January 21 to 25, 2013, was to drive his daughter to school and to wait for her there while she wrote her exams. Other family members in Saskatoon could have done that, but the grievor did not ask them to (which would have allowed him to perform work duties at home).

106        This is in contrast to the sample work-at-home requests that Mr. LeClair and Mr. Langdon had approved. Those employees’ requests were approved because they provided realistic proposals and plans to perform work functions at home, which were shared with their managers, who approved their requests. Additionally, the approved requests were of limited duration, and they set out specific defined work to be completed. Those work-at-home requests demonstrated deliverables, which could have been easily tracked and reviewed. The grievor’s request neglected to include a proposal or plan setting out the duties or functions that he would perform; it simply stated that he would be attending to family crises.

107        The grievor’s requests to work at home in January 2013 were not for
work-at-home situations but rather for family matters that he had to attend to. Both Mr. Langdon and Mr. LeClair testified that they would not expect an employee to perform work in the situations the grievor faced in January 2013. Clause 14.03 of the collective agreement contemplates a situation in which an employee is required to provide long-term care for an ill or disabled family member. In such a case, the employee is required to take a minimum of three weeks of leave without pay, which would have allowed the grievor to address what he described as an acute family situation.

108        Furthermore, clause 14.04 of the collective agreement provides for leave with pay (for a maximum of five days in each fiscal year) for family related responsibilities, which include caring for a spouse, children, or a relative. In this case, the grievor had already used those five days, so they were no longer available in January 2013.Allowing the grievance would permit him to indirectly obtain a benefit that is not provided for in the collective agreement in that he would be allowed to increase the maximum of five days of family related leave set out in it.

109        The employer suggested that the grievor apply for compensatory, banked, or annual leave so that he could attend to his family needs. It did not insist that he take leave without pay. He was not left in a situation of being without pay for the periods at issue. He was not paid for performing work since he did not perform
any — he was provided with paid leave instead. The jurisprudence supports the employer’s position that there is no obligation to provide such paid leave. For example, with respect to requests for paid leave for religious observances versus using paid vacation, the authorities state that discretionary provisions in a collective agreement should not be interpreted such as to make it mandatory for an employer to grant leave with pay.

110        The employer’s denial of the grievor’s requests to work at home in January 2013 is consistent with the collective agreement and should not be interfered with. Granting the grievance would result in removing the “mutual benefit” requirement in clause 7.09, extending family related leave to more than the five days stipulated in the family leave provision, and amending the word “may” in clause 7.09 to “shall”.

111        Finally, allowing the grievance would remove the employer’s ability to effectively manage its workplace and would remove its discretion to deny work-at-home requests. It would result in each work-at-home request being approved, regardless of its merits. The grievance should be dismissed.

112        The employer also relied on the following authorities: Andres v. Canada Revenue Agency, 2014 PSLRB 86; Arsenault v. Parks Canada Agency, 2008 PSLRB 17; Lebeau v. Canada (Attorney General), 2015 FC 133; Montle and Gabriel v. Canada Revenue Agency, 2015 PSLREB 97; Cardinal Transportation British Columbia
Inc. v. Canadian Union of Public Employees, Local 561 (1997), 62 L.A.C. (4^th) 230, [1997] B.C.C.A.A.A. No. 83 (QL); Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68; Callan v. Suncor Inc., 2006 ABCA 15; Richmond v. Treasury Board (Public Service Commission) (National Defence) (Revenue Canada), PSSRB File Nos. 166-02-23653, 23862, 24140 to 24151, and 26000 to 26012 (19950515); Richmond v. Canada (Attorney General), [1997] 2 F.C. 946 (C.A.); Taurus Site Services Inc. v. United Brotherhood of Carpenters and Joiners of America, Local 1325, [2009] A.G.A.A. No. 47 (QL); Toronto District School Board v. Canadian Union of Public Employees, Local 4400, [2015] O.L.A.A. No. 380 (QL); Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55; and Brown and Beatty, Canadian Labour Arbitration, 4^th Ed. at para. 4:2100.

C. The grievor’s rebuttal

113        The employer’s submission is incorrect that allowing the grievance would result in changing the language of the collective agreement. The grievor did not ask that the word “may” in clause 7.09 be read as “shall”. Rather, the word “may” in that clause requires the employer to fully and reasonably consider an employee’s request to work at home, which does not allow a manager to make that decision based on personal bias and beliefs.

114        The grievor’s evidence is that he reviewed emails, reports, and licensing documents when he was at home on the dates at issue. These were work-related tasks that amounted to more than seven minutes of work.

115        In this case, the employer refused to grant the grievor’s requests to work at home and provided no reasons that operational requirements prevented it from doing so. It did not consider operational requirements until much later. It submits that the most significant operational requirement is an expectation that an employee will actually perform work when working at home. In this case, the grievor was willing and able to discharge his work duties on the days on which he asked to work at home.

116        The employer did not demonstrate that its operational requirements prevented it from granting the grievor’s request to work at home. Instead, it offered him other options, which did not amount to an exercise of discretion under clause 7.09 but instead to the employer requiring him to accept its preferred work options.

117        The grievor submits that the employer uses the Policy and Directive to create obstacles to working at home rather than enabling it. In this case, the employer would have benefitted from receiving productive work from the grievor as opposed to having him perform no work functions.

118        The grievor disagrees with the employer’s submission that the word “may” in clause 7.09 gives it the prerogative to disallow a work-at-home request. The employer’s discretion is qualified by the requirement that a refusal be based on operational requirements. The employer has not met its onus of showing that it considered operational requirements when it refused the grievor’s requests. The grievance should be allowed.

IV. Reasons

A. Issues

119        The issues to be decided in this adjudication are:

1. Do I have jurisdiction to interpret the Policy?; and
2. Did the employer violate the collective agreement when it denied the grievor’s requests to work at home from January 21 to 25 and on January 30 and 31, 2013?

B. Analysis

1. Jurisdiction regarding the Policy

120        In the grievance, the grievor states that the employer’s denials of his requests to work at home were contrary to the spirit and intent of the Policy and the terms of clause 7.09 of the collective agreement. This brings into issue my jurisdiction to interpret the Policy.

121        The employer is granted broad powers under section 16 of the Nuclear Safety and Control Act, which provides as follows:

16 (1) The [CNSC] may, notwithstanding any other Act of Parliament, appoint and employ such professional, scientific, technical or other officers or employees as it considers necessary for the purposes of this Act and may establish the terms and conditions of their employment and, in consultation with the Treasury Board, fix their remuneration.

122        This includes the ability to establish workplace policies and issue directives related to those policies. However, the Board’s jurisdiction to interpret such policies and directives is restricted by the provisions of section 209(1) of the FPSLRA:

209 (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

1. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
2. a disciplinary action resulting in termination, demotion, suspension or financial penalty;
3. in the case of an employee in the core public administration,
   1. demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
   2. deployment under the Public Service Employment Act without the employee’s consent where consent is required; or
4. in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

...

123        In Malhi v. Treasury Board (Department of Employment and Social Development), 2016 PSLREB 2, the Board found that its jurisdiction does not include the interpretation of a policy which does not form part of a collective agreement:

[61] The employer noted that the Treasury Board Directive on Leave and Special Working Arrangements gives it the authority to replace an employee on leave without pay after one year. It submitted that to the extent that this grievance could be characterized as dealing with how it applied the Treasury Board directive, it is not within the jurisdiction of the Board. I agree. The Board’s jurisdiction in this case is limited to questions identified in section 209 of the PSLRA, which does not include policy interpretation (for example, see [Spencer v. Deputy Head (Department of the Environment), 2007 PSLRB 123]).

124        I adopt that reasoning. Although the powers of the Treasury Board in that case were founded in a statute different than that applicable in this case, I find that the powers of the Treasury Board under the FAA and those of the employer under the Nuclear Safety and Control Act entitle each of them to establish workplace policies and issue directives related to those policies.

125        In this case, I do not have jurisdiction to interpret the Policy unless I find that it has been incorporated into the collective agreement. Further, if the Policy has not been incorporated into the collective agreement, pursuant to section 209 of the FPSLRA, my jurisdiction is limited to determining whether it violates the collective agreement, including clause 7.09.

126        The employer submitted that the Policy has not been incorporated into the collective agreement. The grievor did not dispute that position or take issue with the provisions of the Policy. Rather, the grievance states that the employer applies the Policy unfairly, inequitably, and inconsistently. It also quotes from the Policy, as follows:

... The Employer’s actions are contrary to the spirit and intent of CNSC’s Work At Home Policy which states, “The key to a work at home arrangement is whether or not it is operationally feasible for the employee to work at home” as well as contrary to the terms of the Collective Agreement including Article 7.09.

127        For a policy to be expressly incorporated into a collective agreement, the collective agreement must reference the policy specifically and specify that it forms a part of that collective agreement. It is also possible for a policy to be incorporated into a collective agreement by implication. In this case, the collective agreement makes no reference whatsoever to the Policy or its terms. As such, I find that the Policy has not been incorporated by reference into the collective agreement either explicitly or implicitly.

128        Therefore, I conclude that I do not have jurisdiction to interpret the terms of the Policy. I only have jurisdiction to review the Policy to determine whether it violates the collective agreement, including clause 7.09.

129         However, since the grievor does not allege that the Policy violates the collective agreement, it is not necessary for me to make such a finding.

2. The WHA

130        Clause 7.09 of the collective agreement provides that subject to operational requirements, the employer may grant an employee’s request to work at home. In addition, the employee and employer (not the bargaining agent) must agree to the details of the alternate work arrangement, which details must be recorded in writing, and the alternate work arrangement must be consistent with the terms of the collective agreement.

131        By specifying that the alternate work arrangement must be agreed and recorded in writing by the employee and the employer and stipulating that such an agreement must be consistent with the terms of the collective agreement, the parties have impliedly agreed that an adjudicator must necessarily examine the terms of such an agreement to determine matters such as:

• The details of the work-at-home arrangement;
• The obligations and rights of the employer and the employee under the work-at-home arrangement;
• Whether the terms of the work-at-home arrangement are consistent with the terms of the collective agreement.

132        I conclude that I have the authority to interpret the terms of the WHA (signed and dated January 13, 2012 by the grievor and his manager, Mr. Langdon) and to determine whether its terms are consistent with the terms of the collective agreement since that is what is required in clause 7.09.

133        Clause 7.09 does not stipulate the matters which are to be recorded in an alternate work arrangement. The details of the work-at-home arrangement are set out in the WHA. In his email of January 21, 2013 to Mr. Langdon, the grievor confirmed that “I previously signed the Work At Home Arrangement form, and it is on file.” In my view, the terms of the WHA are consistent with clause 7.09 of the collective agreement since it requires that:

• an employee request to work at home to be in writing (and include details of the proposed date to work at home, the hours to be spent working from home, and the work tasks to be completed); and
• the employer’s approval of the request is subject to operational requirements.

134        I also note that the grievor has not taken the position that the Work At Home Arrangement is not consistent with the terms of the collective agreement. Presumably, that would have been grieved if that was an issue for him.

3. The Onus

135        The WHA sets out conditions that an employee must fulfill in an alternate work arrangement:

1. The employee must notify his or her manager in writing of:
   1. the requested work-at-home date;
   2. the hours to be spent working from home; and
   3. the tasks to be completed while working at home.
2. The employee must make all necessary arrangements to ensure that he or she is accessible to his or her colleagues and manager during the hours to be spent working at home.

136        These conditions are implied in Clause 7.09 since they are necessary for the employer to assess whether operational requirements permit the granting of a request to work at home.

137        A careful reading of clause 7.09 and the terms of the alternate work arrangement (here, set out in the WHA) show that consideration of the request under clause 7.09 entails a two-step process. First, an employee must meet the conditions required of him or her in the WHA. Second, if those conditions are met, the employer must determine whether there are operational requirements that prevent it from granting the work-at-home request. If the conditions are not met, then the inquiry ends. The sequence of the process makes sense. The employer cannot assess in a vacuum whether it is operationally feasible to grant a request to work at home. To make such an assessment, the employer requires, at a minimum, information such as the date that the employee will be working at home, the hours to be spent working from home, and the work tasks to be completed while working at home.

138        This means that the grievor had the initial onus to establish that he met the conditions set out in the WHA, including notifying his manager in writing of the requested days to work at home, the hours to be spent working from home, the tasks to be completed while working at home, and making arrangements to ensure that he was accessible to his colleagues and manager during the hours that he planned to work at home. After doing that, the onus then shifted to the employer to review the grievor’s request and determine whether its operational requirements allowed it to grant the work-at-home request.

139        This is consistent with the grievor’s position in his written submissions:

It is our view that the grievor discharged the burden of proving that he met his portion of the conditions set in the Collective Agreement and now it falls to the employer to demonstrate that operational requirements prevented them from approving the request.

140        The grievor relied on Morton for the proposition that the onus is on an employer to show that operational requirements do not permit the granting of an employee request. The applicable collective agreement provision in Morton stated that “When operational requirements permit, the Employer will grant leave without pay....” An adjudicator made the following comments on the onus on the employer in that case at para 33:

33. In my view, the onus of demonstrating that operational requirements do not permit the granting of leave for any purpose specified in a collective agreement rests with the employer. My reasons for so stating are twofold. First, knowledge of operating requirements is information in the hands of the employer and therefore more readily accessible to it. More importantly, in the clause concerned the employer has undertaken an obligation, the release from which is contemplated only in special circumstances. To not impose the onus on the employer to establish the exceptions to the right granted under the provision could undermine its intent. Stated another way, in the instant case the employer has undertaken to grant leave without pay to a reasonable number of employees to attend certain specified meetings and conventions, the sole limitation upon this request being the need to meet operations requirements. To ensure that the employer honours that commitment, it is incumbent upon the employer, within reason, to justify any exceptions arising out of operational requirements. In short, the primary onus for any exceptions to clause 18.13 lies with the employer. As I have indicated, the employer has discharged that onus in the instant case.

141        I accept this general statement of an employer’s onus. However, in this case, the onus only shifts to the employer after the grievor has discharged his initial burden. As stated, the grievor does not appear to dispute that from his written submissions.

4. The employer’s discretion in clause 7.09

142        The grievor submitted that the operational requirements referred to in clause 7.09 must be real, not perceived, transparent, not arbitrary, and must not be based on personal bias. The grievor referred to Power, where an adjudicator stated as follows at page 18:

…

Operational requirements” is not a magic wand which the employer can wave [sic] in order to deny employees their due under a collective agreement. Ms. Gobeil, on behalf of the employer, developed an ingenious argument in this respect. She began by saying that an operational requirement is, in effect, anything the employer says it is including a desire to make allowance for an unknown possibility which may, or may not, come to pass. Then basing herself upon the decision of the Adjudicator and of the Federal Court of Appeal in the case of Tremblay (supra) she argued that once the employer has established the existence of an operational requirement it is no longer subject to the duty to “make every reasonable effort” to accommodate an employee.

...

[Emphasis in the original]

143        The adjudicator rejected the employer’s argument at page 18:

...

This line of argument is not acceptable. It would have the effect of converting certain rights of employees under the collective agreement to matters of simple employer discretion…

...

144        The applicable collective agreement provision in Power stated that
“An employee shall take vacation leave on the basis of the schedule he is working. In scheduling vacation leave with pay to an employee the Employer shall, subject to operational requirements of the service, make every reasonable effort…”. The employer submitted that, unlike the language of clause 7.09, that language in Power was mandatory, not discretionary.

145        In his written submissions, the grievor agreed that the language in clause 7.09 is discretionary. However, he submitted at page 6 that such discretion “… does not give carte blanche to the employer based on their feelings and judgment of the grievor, that he should be more concerned for family.” Instead, the employer is required to consider the request to work at home and must exercise its discretion by first considering how the request can be accomplished, and then looking at alternatives.

146        I agree with the employer that the use of “may” in clause 7.09 is permissive and gives the employer the discretion of whether to grant a work-at-home request. However, the employer submitted at paragraph 33 of its written brief that the permissive language in clause 7.09 means that “… even after considering the employee’s request and operational requirements, the CNSC may grant the employee’s request. It does not have to grant the request... [Emphasis in original]”

147        The implication is that the employer can deny a request for any or no reason. That cannot be what the parties intended. While the employer is not obligated to grant a request, the employer cannot deny a request to work at home for just any
reason - clause 7.09 states that the employer’s decision to grant a request to work at home is “subject to operational requirements”. The qualifier “may” must be read in conjunction with the phrase “subject to operational requirements”. Read as a whole, the better interpretation of clause 7.09 is that if an employee makes a request to work at home and operational requirements are met, the employee’s request must be granted. This does not amend “may” to “shall”. The employer always has the discretion whether to grant a request to work at home but an approval or denial must be based on operational requirements.

5. The grievor’s request to work at home from January 21 to 25, 2013

148        It is clear from the WHA that a request to work at home must, among other things, identify the hours to be spent working and the tasks to be completed at home. In this case, the grievor neglected to do that. Instead, he stated as follows in his request emailed to Mr. Langdon:

...

“I ask that you assign any particular work to me that you would normally expect me to be able to complete from my office during normal working hours and I will complete during 7.5 hours of work time in the day, but not necessarily normal working hours.”

...

149        I find that the grievor did not meet the obligations required of him under the WHA to notify Mr. Langdon in writing of:

• the hours he would work at home; and
• the tasks he would complete there.

150        In addition, in the WHA, the grievor was required to make all necessary arrangements to ensure that he would be accessible to colleagues and Mr. Langdon during the hours in which he planned to work at home. He testified that his intent was to take his daughter to school during the week of January 21 to 25, 2013, to wait there until she completed her exams, and then to drive her home. He would then remain at home for the remainder of the day to care for his daughter and would work 7.5 hours at home.

151        The grievor’s daughter had to be at school for 8:30 a.m., according to his testimony. He stated that it took him about 15 to 20 minutes to drive her to school from their home. He had planned to stay at the school until she finished her exam at 10:30 a.m. Given that her school was about a 15 to 20 minute drive from his house, he would have been home around 10:45 a.m. Therefore, if he had to complete 7.5 hours of work after that, he would have had to work until about 6:15 p.m., uninterrupted and without breaks, and without taking any time to care for his daughter. Therefore, from around 4:30 p.m. until about 6:15 p.m. (of the 7.5 hours of his work time), he would not have been available to Mr. Langdon or his colleagues since normal office hours ended at 4:30 p.m. That time would have been even greater had the grievor taken any time between 10:45 a.m. and 6:15 p.m. to attend to his daughter’s needs (or have meal or convenience breaks). As such, I find that this additional condition of the grievor being accessible to his colleagues and manager during the hours he stated he would be working at home during the period of January 21 to 25, 2013 was not met.

152        For the foregoing reasons, I find that the grievor did not discharge the initial onus on him to satisfy the conditions in the WHA. As such, the burden did not shift to the employer to consider whether the grievor’s request was operationally feasible.

153        I further find that the employer was within its rights to refuse the request even if the grievor had discharged his onus to show that he had satisfied the conditions in the WHA. Clause 7.09 speaks of the mutual benefit that could be attained by allowing an employee to work at home. Mr. Langdon and Mr. LeClair both testified that they did not perceive a benefit to the employer in granting the grievor’s request given the health issue that the grievor’s daughter was undergoing at the time that he made the request to work at home.

154        Although the grievor requested to work “…7.5 hours of work time in the day, but not necessarily normal working hours”, the WHA required him to be accessible to his colleagues and manager during the hours spent working at home. This was simply not possible if the grievor was caring for his daughter at home during regular works hours.

155        I conclude that the employer’s refusal to allow the grievor to work at home on January 21 to 25, 2013, was a reasonable exercise of the employer’s discretion and that did not violate clause 7.09 of the collective agreement.

6. The grievor’s request to work at home on January 30 and 31, 2013

156        The grievor took his wife and daughter to a hospital on January 29, 2013. They stayed at the hospital until about 8:30 or 9:00 p.m. The grievor then emailed a request to Mr. Langdon at 9:05 p.m. that evening to work at home on January 30 and 31, 2013. This request stated in part as follows: “So, I again ask if I can work from home, call into the UMMD meeting, and do other regular work from home in accordance with CNSC Policy, and the collective agreement.”

157        As stated, an employee’s request to work at home must be in writing and include, among other things, details of the hours to be spent working from home and the work tasks to be completed. In addition, the employee is required to make all necessary arrangements to ensure that he would be accessible to colleagues and his manager during the hours in which he plans to work at home. In this case, the grievor proposed to call into the UMMD meeting and do regular work. However, he did not identify the hours he would spend working at home and the tasks he would complete while working at home.

158        I find that the grievor did not meet the conditions required of him under the WHA to notify Mr. Langdon in writing of:

• the hours he would work at home; and
• the tasks he would complete there.

159        In my view, given that the grievor did not discharge his burden to meet the conditions required of him in the WHA, the employer’s refusal of his request to work at home was reasonable since the onus did not shift to the employer to consider whether its operational requirements prevented it from granting the
work-at-home request. It is only after an employee makes a request and meets the conditions in the WHA that a manager has to determine whether it is operationally feasible to grant the request.

160        I conclude that the employer’s refusal to allow the grievor to work at home on January 30 and 31, 2013, was a reasonable exercise of the employer’s discretion and did not violate clause 7.09 of the collective agreement.

161        For all of the above reasons, the Board makes the following order:

V. Order

162        I declare that:

1. I do not have jurisdiction to interpret the terms of the Work at Home Policy; and
2. The employer did not violate the collective agreement when it denied the grievor’s requests to work at home from January 21 to 25 and on January 30 and 31, 2013.

163        The grievance is dismissed.

January 29, 2018.