FPSLREB Decisions

Files: 166-2-27085, 27086, 27087 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ANNE-MARIE REID, PEGGY DIXON, DEBRA-LYNN DESMARAIS Grievors and TREASURY BOARD (Revenue Canada - Taxation)

Employer

Before: J. Barry Turner, Board Member For the Grievors: David Landry, Public Service Alliance of Canada For the Employer: Maureen Crocker, Counsel Heard at Sudbury, Ontario, November 22, 1996

Decision Page 1 DECISION The grievors Anne-Marie Reid, Peggy Dixon and Debra-Lynn Desmarais all CR-04 term employees, Enquiries and Adjustment Branch, Client Services, Revenue Canada, Taxation, Sudbury, Ontario, are grieving the employer’s decision that required them to repay their maternity leave allowance as a contravention of subclause M-21.03(C) of the Master Agreement between the Treasury Board and the Public Service Alliance of Canada. I have been asked to hear all these grievances jointly and to issue one decision.

Their grievances read: I grieve managements decision to require me to repay the maternity allowance in contravention of the agreement between myself and the employer pursuant to Article M21-03 of the “Legislated Collective Agreement”.

Subclause M-21.03(C) reads: (i) After completion of six (6) months’ continuous employment, an employee who agrees to return to work for a period of at least six (6) months and who provides the Employer with proof that she has applied for and is eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment Insurance Act, 1971, shall be paid a maternity leave allowance in accordance with the Supplementary Unemployment Benefit Plan.

(ii) An applicant under clause M-21.03(C)(i) shall sign an agreement with the Employer, providing:

(a) that she will return to work and work for a period of at least six (6) months, less any period in respect of which she is granted leave with pay;

(b) that she will return to work on the date of the expiry of her pregnancy leave, unless this date is modified with the Employer’s consent.

(iii) Should the employee fail to return to work as per the provisions of clause M-21.03(C)(ii)(a) and (b) for reasons other than death or lay-off, the employee recognizes that she is indebted to the Employer for the full amount received as maternity leave allowance.

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Decision Page 2 Their requested corrective action reads: That the employer complies with the agreement and that I not be requested to repay the maternity allowance.

I am being asked to decide if the employer’s action by recovering the maternity leave allowance is justified.

A request for the exclusion of witnesses was made and granted. The hearing lasted one day with three witnesses testifying and ten exhibits were submitted into evidence.

Summary of Evidence 1. Peggy Dixon has been employed on a series of term contracts for Revenue Canada (Exhibit G-1) on enquiries and adjustments to personal income tax returns. She went on maternity leave from April 30, 1993 to October 26, 1993. Her baby was born on May 6, 1993. She applied for her “maternity leave top-up”, as it is called, around December 10, 1993, and received it before Christmas 1993 as a lump sum payment (Exhibit G-2 plus attachments). She was told in January 1994 that she would have to pay it back. She grieved on January 21, 1994. The employer began to recover the money in January 1996. She added that in February 1994 she was doing the same job that she is doing now, and that from March 8, 1993 until February 4, 1994 she had no break in service (see Exhibit G-1).

During cross-examination, Ms. Dixon identified Exhibit E-1 that showed she was actually on maternity leave from May 2, 1993 to August 14, 1993, then on parental leave from August 15, 1993 to October 23, 1993. She agreed with Exhibit G-1 that between term contracts January 20, 1993 to February 3, 1993 and March 8, 1993 to August 25, 1993 there was a contract break. Similarly between the January 28, 1994 to February 4, 1994 and April 18, 1994 to August 26, 1994 contracts there was a break in employment and another break between August 26, 1994 and October 13, 1994. She said that she was aware of Mr. Moncion’s reply (Exhibit G-2) to her memorandum (Exhibit E-1) requesting the top-up. Exhibit G-2 reads in part in paragraph 3:

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Decision Page 3 As a reminder only, I wish to advise you that if you do not complete six (6) months of continuous service (from the date you returned from Maternity Leave), you will be required to repay in full, the entire amount of the maternity benefit top up.

She applied for the top-up after she came back from parental leave in October 1993 upon the advice of her colleague Anne-Marie Reid.

2. Debra-Lynn Desmarais performs the same duties as grievor Dixon and worked very similar term contracts as Ms. Dixon (Exhibit G-1). She went on maternity leave from June 7, 1993 to November 29, 1993. Her baby was born on June 11, 1993. She applied for her maternity leave top-up in December 1993 when grievor Anne-Marie Reid suggested she do so. When she received the top-up as a lump sum payment she was told she would probably have to repay it. She grieved on January 21, 1994. All monies have since been recovered. She identified Mr. Moncion’s response to her request for top-up as Exhibit G-3. The grievor agreed that between March 8, 1993 and February 4, 1994 she had no break in service (Exhibit G-1), but from February 4, 1994 to March 21, 1994 there is a gap in service. She then worked from March 21, 1994 until August 26, 1996. She is now an indeterminate employee based on no employment break of more than sixty-two days in a five year period.

During cross-examination, she identified her memorandum requesting top-up (Exhibit E-2) that also shows she was on maternity leave from June 6, 1993 until October 3, 1993 followed by parental November 20, 1993.

An employee is allowed up to twenty-six weeks of leave under the collective agreement. The top-up is only paid after an employee returns to work and produces unemployment insurance pay stubs.

3. Anne-Marie Reid performs similar duties to the other two grievors. She was employed on a series of term contracts from April 8, 1992 to February 3, 1993 (Exhibit G-1) without interruption. She also worked term contracts from March 8, 1993 to February 4, 1994 (Exhibit G-1). She testified that there was no reason to know that she and the other two grievors would be let go after the end of the January 28, 1994 to February 4, 1994 term contract, since there was still a lot of work

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leave from October 3, 1993 to

Decision Page 4 to do. She added that sometimes they are not advised of contract extensions until the last day and they are even called back after being told to go home. She added that about eighty term employees all left between February 4, 1994 and April 18, 1994. She went on maternity leave from April 19, 1993 until October 18, 1993. Her baby was born on April 27, 1993.

Ms. Reid testified that she had been advised by the personnel department that she could have applied for the maternity top-up before she was off maternity leave. She received the same response from Mr. Moncion (Exhibit G-4) to her request for the top-up that Ms. Dixon and Ms. Desmarais received. She returned to work on October 19, 1993 and was given a lump sum top-up payment. She grieved the employer’s decision to take back the payment on January 21, 1994 because the end of a term contract was approaching on January 28, 1994. She wanted the grievance to be filed while she was still represented by the bargaining agent. The recovery of her top-up payment began in early 1996.

During cross-examination Ms. Reid identified a copy of Appendix ”A” from Exhibit G-4, signed by her, as Exhibit E-4, and a copy of her memorandum requesting the top-up as Exhibit E-5. She also agreed with reference to Exhibit G-1 that January 28, 1994 to February 4, 1994 and April 18, 1994 to August 26, 1994 were two term contract periods. The witness signed the contract for her term of April 18, 1994 to August 26, 1994 on April 18, 1994 (Exhibit E-6).

She agreed that she had a break in service between February 4, 1994 and April 18, 1994 and that to have had six straight months of service prior to February 4, 1994, she should have returned to work on August 4, 1993. She added that if she had been told to return on August 4, 1993 in order to qualify for the top-up she would have. She agreed all this was now hindsight. If she had returned to work on August 4, 1993, she would have given up nine days of maternity leave and all parental leave from August 13, 1993 until October 18, 1993.

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Decision Page 5 Argument for the Grievors Mr. Landry argued that paragraph M-21.03(C)(i) reads that an employee must agree to return to work for a period of at least six months after coming back from maternity leave and does not read six months of continuous employment. He reminded me that all three grievors returned to work at the end of their pregnancy leaves as is called for in subparagraph M-21.03(C)(ii)(b), and that they all worked six months after returning from pregnancy leave (Exhibit G-1) and therefore met the requirements of the collective agreement. He argued that the wording of the employer’s letters Exhibits G-2, G-3 and G-4, is incorrect where it reads in paragraph 3 “if you do not complete six (6) months of continuous service from the date you returned from Maternity Leave”, since the collective agreement does not speak of continuous service. He reminded me that in spite of these three letters, all three grievors were paid the allowance.

Mr. Landry also argued that the employer is estopped from recovering the allowances since Ms. Reid was advised by the personnel department and subsequently told Ms. Dixon and Ms. Desmarais, that she could apply for the top-up allowance in the first place.

He said that the employer actually received its six months worth of employment many times over and that the grievors’ term contracts are not meant to be tricky devices to avoid some due benefit.

Mr. Landry referred me to the adjudication decisions in Dionne (Board files 166-2-24975, 24976) and Sousa (Board file 166-2-17988).

Argument for the Employer Ms. Crocker argued that the requirements of clause M-21.03 were met by the employer in that the grievors’ employment ceased at the end of each term contract period. They were not laid off. They applied for the allowance, were advised by Mr. Moncion in Exhibits G-2, G-3 and G-4 that they might be required to pay back the allowance, and they all signed page three of Exhibits G-2, G-3 and G-4 agreeing to the six months of work requirement after returning from maternity leave. Ms. Crocker concluded Exhibit G-1 is clear. The grievors did not return for six months because

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Decision Page 6 they all had a break when their employment ended on February 4, 1994 that did not constitute at least six months after returning from maternity leave. She agreed the collective agreement does not say six months of continuous employment but it does say “at least six (6) months”.

Ms. Crocker referred to subclause M-2.02(a) and (b) of the collective agreement to argue that, since there is no definition of period of six months in the Public Service Staff Relations Act, the Interpretation Act, paragraphs 28(a), (b) and (c), must be referred to as an aid to interpretation. Subclauses M-2.02(a) and (b) of the collective agreement read: M-2.02 Except as otherwise provided in this Agreement, expressions used in this Agreement:

(a) if defined in the Public Service Staff Relations Act, have the same meaning as given to them in the Public Service Staff Relations Act,

(b) if defined in the Interpretation Act, but not defined in the Public Service Staff Relations Act, have the same meaning as given to them in the Interpretation Act.

Paragraphs 28(a), (b) and (c) of the Interpretation Act read: 28. Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;

(b) excluding the specified day; and (c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.

Counsel argued that “the specified day” is the day the grievors returned to work. They must return to work under the collective agreement to qualify for the allowance. She argued that neither the collective agreement nor the Interpretation Act permits a break in employment during the return period for six months. She reminded me that Ms. Dixon, who returned to work on October 26, 1993, would have had to work up to April 25, 1994 to perform six months work but her employment Public Service Staff Relations Board

Decision Page 7 was broken from February 4, 1994 until April 18, 1994. The end of a contract is not a lay-off.

Counsel referred me to the decisions of the Federal Court of Appeal in Mireille Dansereau v. National Film Board and Pierre-André Lachapelle, [1979] 1 F.C. 100 and The Queen v. Zinck, Court file A-384-79.

Counsel also referred to paragraph M-21.03(C)(iii) which specifies that death and lay-off are the only two ways for the grievors not to have to pay back the allowance. Paragraph M-21.03(C)(iii) reads: (iii) Should the employee fail to return to work as per the provisions of clause M-21.03(C)(ii)(a) and (b) for reasons other than death or lay-off, the employee recognizes that she is indebted to the Employer for the full amount received as maternity leave allowance.

She concluded therefore that I can not read in any other reasons for keeping the allowance, and that Mr. Landry’s suggestion reads in an exception not expressed by the parties to the collective agreement.

Counsel argued that the elements of estoppel have also not been met in this case, particularly since Mr. Moncion informed the grievors that they might have to pay back the allowance. They were also all aware that their contract was going to end on January 28, 1994 with no guarantee of renewal. Grievors Dixon and Desmarais only decided to apply for the allowance when they returned from leave, and grievor Reid had not received any promise to extend her contract beyond August 25, 1993. Ms. Crocker referred me to The Queen in Right of Canada as represented by the Treasury Board, Transport Canada, J.P. Little and R.G. Bell v. Canadian Air Traffic Control Association, [1984] 1 F.C., 1081, and Andrée Ménard and Michel Ouellette v. Her Majesty the Queen, [1992] 3 F.C., 521.

Counsel said in Sousa (supra) the grievor did not return to work; counsel also referred me to Bourdon (Board file 166-2-20098) and Tekmin Inc. v. Canada, Federal Court, Trial Division, Court file T-856-88, and Jorgensen (Re) [1990] M.J. No. 322, Manitoba Provincial Court, Criminal Division.

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Decision Page 8 In rebuttal argument, Mr. Landry argued that in Tekmin (supra) the issue is how to calculate a one year period, and in Jorgensen (supra), the language is also clear in subsection 490(2) of the Criminal Code of Canada that reads in part: “Nothing shall be detained ... more than three months after the day of the seizure ...” In the matter before me, he argued the words in subparagraph M-21.03(C)(ii)(a) “... a period of at least six months ...” does not have a cut-off date. In Bourdon (supra), Mr. Landry argued that the reference is only to a minimum period of six weeks. He reminded me that throughout the Master Agreement, the parties used the word 'consecutive' when they wanted to but did not use it in clause M-21.03 purposely. He also argued that if a period of six months is defined in the collective agreement, I can use the definition, otherwise clause M-2.02 does not apply. To strengthen his arguments, he drew the analogy to a hockey game where a period is twenty minutes long but takes about thirty-five minutes to play.

He agreed that section 28 of the Interpretation Act does explain how to calculate a time period, but he emphasized again that in subparagraph M-21.03(C)(ii)(a) there is no specified day, only a six month period, even though there is a date the employee has to return to work at the end of her pregnancy leave in subparagraph M-21.03(C)(ii)(b).

Mr. Landry said he is not alleging that the grievors were laid off. He added that if the employer had all the information it had as shown in Exhibits G-2, G-3 and G-4, particularly page 4 of these three exhibits that reads in part, in paragraph three “... Otherwise, payment should be made after the employee has returned to work for 6 months”, the employer is estopped from recovering the allowances especially since in December 1993 no one really knew their terms would not go beyond February 4, 1994. There was lots of work to do at the time.

Decision The facts before me are not in dispute. The three grievors went on maternity leave; returned to work at the end of their leaves; requested the maternity allowance top-up, were given the allowance on condition that they met the requirements of the collective agreement, and then were directed to pay the allowance back. What is at issue is the interpretation of subparagraph M-21.03(C)(ii)(a) that reads:

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Decision Page 9 (ii) An applicant under clause M-21.03(C)(i) shall sign an agreement with the Employer, providing:

(a) that she will return to work and work for a period of at least six (6) months, less any period in respect of which she is granted leave with pay;

I have to decide if the grievors met the requirement of work “for a period of at least six (6) months” after they returned to work from maternity leave in order to have properly qualified for the top-up allowance. I have concluded that they have met this requirement.

Grievor Reid returned to work on October 19, 1993, grievor Dixon returned on October 26, 1993 and grievor Desmarais returned on November 29, 1993. All three returned to work during their term contract periods of September 24, 1993 to January 28, 1994 (Exhibit G-1). New term contracts began for all three grievors on January 28, 1994 to February 4, 1994 followed by a break in employment until April 18, 1994 for grievors Dixon and Reid, and until March 21, 1994 for grievor Desmarais. They were not laid off during any of these periods.

In order to determine the meaning of “for a period of at least six (6) months” I must look to Article M-2, Interpretation and Definitions, of the Master Agreement signed in May 1989. Clause M-2.01 reads: M-2.01 For the purpose of this Agreement and the Group Specific Agreements:

... (d) “continuous employment” has the same meaning as specified in the existing Public Service Terms and Conditions of Employment Regulations of the Employer on the date of signing of this Agreement;

The Public Service Terms and Conditions of Employment Regulations that were in effect on the date of signing the Master Agreement read in part regarding “continuous employment” as follows: Sec. 3 For the purposes of these directives, when (a) during any relevant period a person, other than a person performing duties of a casual nature, has ceased to be employed in Schedule A Service for any

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Decision Page 10 reason other than dismissal, discharge, release or declaration that he or she had abandoned the position, and has again become employed in it within three months of the day on which he or she ceased to be employed, his or her employment in the position held by him or her before he or she ceased to be employed and in the position to which he or she is appointed shall constitute continuous employment;

The grievors were not casual workers. The Master Agreement does therefore allow for a break in employment providing the employee becomes employed again “within three months of the day on which he or she ceased to be employed.” All three grievors were re-employed on term contracts within three months of February 4, 1994 that allowed them to complete at least six months of employment after they returned from maternity leave.

The collective agreement does say not six months of continuous employment, but even if it did, under the Public Service Terms and Conditions of Employment Regulations the grievors would qualify for the allowance because they were all working again less than three months after February 4, 1994 and completed six months of employment after coming back from maternity leave.

I therefore order the employer to repay the maternity leave allowance to grievors Reid, Dixon and Desmarais. I shall remain seized with this matter in the event that the parties encounter any difficulties in implementing my decision.

These grievances are therefore allowed.

J. Barry Turner, Board Member

OTTAWA, January 3, 1997. Public Service Staff Relations Board