FPSLREB Decisions

File: 166-2-26892 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ARMAND LACHAPELLE Grievor and TREASURY BOARD (Revenue Canada - Taxation)

Employer

Before: J. Barry Turner, Board Member For the Grievor: David Landry, Public Service Alliance of Canada For the Employer: Maureen Crocker, Counsel Heard at Sudbury, Ontario, November 21, 1996.

Decision Page 1 DECISION Armand Lachapelle, an Enquiries Officer, PM-01 classification, Client Assistance Division, Revenue Canada, Taxation, Sudbury, Ontario, is grieving the employer’s denial of care and nurturing leave under Article M-21 of Annex ”B” of the Master Agreement between the Treasury Board and the Public Service Alliance of Canada.

His grievance reads: I grieve management’s decision to deny my request for leave without pay for care and nurturing of pre-school age children. M-21.06.

I request consultation at each level of the grievance procedure.

Article M-21.06(a), Annex B-8 of the Master Agreement reads: Leave Without Pay for the Care and Nurturing of Pre-school Age Children

21.06 AS, IS, PG, PM DD, EG, EU, GT, SI, PI, PY, TI CM, CR, DA, OE, ST OX(S&NS), GS(S&NS), GL(S&NS), FR(S&NS), and LI(S&NS)

(a) At the request of an employee, leave without pay in one (1) or more periods to a total maximum of five (5) years during an employee’s total period of employment in the Public Service shall be provided for the care and nurturing of pre-school age children.

Mr. Lachapelle is requesting the following corrective action: That my request be approved. I am being asked to decide if the employer’s denial under these circumstances contravened the collective agreement.

The hearing lasted one half day with two witnesses testifying and eight exhibits submitted into evidence.

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Decision Page 2 Summary of Evidence 1. Armand Lachapelle had been on care and nurturing leave Thursdays and Fridays of his normal work week attending to his daughter’s needs for two years prior to October 1993. His daughter was born October 7, 1987. The employer refused to extend the leave in the fall of 1993 because his daughter, although only five years old in September 1993, was then attending school full-time, that is, Monday through Friday in Grade one. She had already been in Junior and Senior kindergarten. Mr. Lachapelle had written his employer in June 1993 asking for confirmation of the last day when he would be granted leave (Exhibit G-1). The employer’s response (Exhibit G-2) indicated that he “may be granted the above-noted leave up to the month of September of the year in which the child is legally required to start attending school. (In Ontario, the age is 6).”

The employer’s response also had attached an extract from the Taxation Operational Manual (TOM) that reads in part: (10) Leave Without Pay for the Care and Nurturing of Pre-School Age Children

(A) This type of leave shall be granted on request from an employee but it cannot be extended further that (sic) the month of September of the year in which the child is legally required to start attending school. There is no limit to the number of requests for period (sic) of leave without pay that an employee can make under this clause except for the cumulative total.

The grievor applied on August 10, 1993 for part time employment (Exhibit G-3) in order to get Thursdays and Fridays off because he felt then that his care and nurturing leave was going to end in September 1993. He identified a response to this request in the form of an E-mail printout (Exhibit G-4) that Mr. André Villeneuve, also from the Client Assistant Division, gave him on September 8, 1993, that said he could start part time employment. After reading this response closely, the grievor felt that since his daughter was still five years old in September, 1993, he would be able to have one more year of care and nurturing leave. This type of leave is more beneficial to an employee than being employed part time. The relevant part of Exhibit G-4 reads:

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Decision Page 3 1. His care and nurturing ends September 6, 1993 as the criteria is Pre-school age child = Legal age to enter school in province of Ontario is 6 years as of 1st school day. ...

He was then informed by Mr. Villeneuve on September 8, 1993 that his request for part time status was not approved and that he should seek clarification from Human Resources to extend his care and nurturing leave to September 30, 1993. The grievor felt that he qualified for thirteen months of further leave.

Mr. Lachapelle said that the Sudbury Board of Education told him at the time that he was not legally required to have his daughter in school according to the Education Act of Ontario, section 21(1) (Exhibit G-5). He then wrote his employer informing it that his daughter did not legally have to be in school, and requested to have care and nurturing leave extended one more year (Exhibit G-6). Since he never got a proper response to this request, he wrote an urgent memorandum (Exhibit G-7) on September 14, 1993 requesting additional information regarding his legal entitlements. His last days of care and nurturing leave were September 2 and 3, 1993. He was forced to work full time until some time in 1994 when he job-shared with someone.

During cross-examination, the grievor said that his daughter attended the Jeanne Sauvé school in Sudbury from 0900 hours to 1535 hours Monday through Friday in 1993. He was separated at the time but his daughter was with him from Wednesday evening to Saturday.

2. André Villeneuve worked in the Client Assistance Division in 1993 with the grievor. He identified a Facts Sheet that he prepared after having a meeting with the grievor and his union representative on October 5, 1993 to clarify the issue of care and nurturing leave (Exhibit E-1). He felt that the daughter was no longer considered a pre-school child since she was attending school full time in September 1993 and therefore did not qualify under subclause M-21.06(a).

During cross-examination, Mr. Villeneuve said the Facts Sheet (Exhibit E-1) reflects his thoughts on the matter. He wrote them after Mr. Lachapelle had grieved. The witness was aware of section 10 of the Taxation Operational Manual and was aware that the daughter was only five in September, 1993 and therefore not legally required to go to school.

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Decision Page 4 Argument for the Grievor Mr. Landry argued that according to subclause M-21.06(a) care and nurturing leave shall be provided and is therefore not discretionary. To substantiate this argument he referred me to Messier (Board files 166-2-16062 to 16064 and 166-2-16265 and 16359). He argued that pre-school age means under six years of age on the first day of school in September. He said it does not matter if a child is a genius at age three and is in primary school, and referred me to Beaudry (Board file 166-2-15337) to make this point. He added that even the employer’s own policy in the TOM (Exhibit G-2) refers to when “the child is legally required to start attending school”. Mr. Lachapelle’s daughter was not legally required to attend school until September 1994. Mr. Landry concluded therefore that the grievor is entitled to thirteen months of care and nurturing leave. As an alternative, he asked me to make a declaration that the collective agreement was breached and order the grievor’s personnel record to be changed for the relevant parts of the thirteen months in question that will have an impact on the grievor’s accumulated benefits.

Argument for the Employer Ms. Crocker agreed that subclause M-21.06(a) reads “shall be provided” as long as the employee meets certain conditions. She argued that this subclause does not say that care and nurturing will be provided for a child not legally ready for school and that Mr. Villeneuve’s rationale in Exhibit E-1 substantiates her argument. She also argued that the province of Ontario does not preclude attendance at school before an age that is legally required, therefore the child is of school age according to the provincial authorities. She argued that section 10 of the TOM (Exhibit G-2) is not the same wording that I must rely on from the collective agreement, and that section 10 does not mean that an entitlement may not end sooner. She concluded that if a child attends school the entitlement should cease. Counsel reminded me that the child attended school full time and that there is no evidence while she was in school that the grievor provided care and nurturing for her.

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Decision Page 5 Counsel argued that the word “care” presupposes the presence of a child with a parent to provide care and is not unlike paragraph M-21.09(b)(ii) that provides leave for the temporary care of a sick family member. Paragraph M-21.09(b)(ii) reads: (ii) up to two (2) consecutive days of leave with pay to provide for the temporary care of a sick member of the employee’s family;

She argued that both Messier (supra) and Beaudry (supra) must be viewed as to whether an employee needed the requirement of care and nurturing leave. In Messier (supra) she said there is no evidence that the child was at school or that a parent actually gave care, and in Beaudry (supra), there is no evidence that the child was not with the mother during the requested period.

Regarding remedy, Ms. Crocker said that I could only make a declaration in this matter since there was no financial loss for the grievor, nor is there any evidence the grievor lost any time to spend with his daughter during the period in question.

Counsel referred me to: Lansey (Board file 166-2-25569); Watson (Board file 166-2-16807); The Attorney General of Canada and Jean-Pierre Lussier, F.C.C., A-1235-91.

Rebuttal Argument for the Grievor In rebuttal, Mr. Landry argued that Annex B, Section 9, subclause M-21.06(a) only says “at the request of an employee” and does not talk about where a child may or may not be.

He reminded me that what is at issue is the fact that the daughter was of pre-school age and that the grievor had her in his care from Wednesday evenings until Saturdays. He agreed that in the case of paragraph M-21.09(b)(ii) someone must be sick for care leave, but in clause M-21.06 no one needs to be ill. He also argued that in Messier (supra) there was evidence that the care was not for the care of a child and has nothing to do with what is before me. The damages awarded in Lussier (supra) were overturned by the Federal Court. Mr. Landry concluded that he is not asking for damages, but wants me to restore the grievor’s right by making him whole again.

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Decision Page 6 Decision Unlike Beaudry (supra), I am not being asked to determine whether a brief recurring period of time constitutes a “period” of time in accordance with subclause 21.06(a), but whether or not care and nurturing leave should be granted. I recognize that Mr. Lachapelle has to satisfy a minimum of conditions in order to qualify for his requested leave.

Subclause M-21.06(a) says care and nurturing leave “shall be provided”. However I believe what I must decide in this case is the intent of the parties as expressed in the words “pre-school age children” and how it applies to the facts before me.

Mr. Lachapelle had been on care and nurturing leave before September 1993 while his daughter was in pre-school. In September 1993 she began school full time.

I can not rely on the provisions of any provincial education act, Ontario or otherwise, since none are referred to in the Master Agreement. The ordinary meaning of pre-school age is a time before a child attends school. I believe the clear intent of the parties is to provide for care and nurturing leave for a pre-school child who is in need of such care when not in a regular full time school situation. This is not the case before me. Mr. Lachapelle’s daughter was no longer of pre-school age as she was at school full-time.

In conclusion, I fully agree with Mr. Villeneuve’s comments in Exhibit E-1 that reads in part: ... To me, the intent of the care and nurturing clause is to provide care and nurturing for children not attending full time school. To interpret this clause otherwise would suggest that employees could be granted leave without pay for children attending full time school.

For all these reasons, this grievance is denied.

J. Barry Turner, Board Member.

OTTAWA, January 6, 1997.

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