FPSLREB Decisions

[1]    Mr. Sanschagrin has been employed at the Correctional Service of Canada since 1977 and has been working at the Montée St-François establishment since 1992, in an AC-2 position.

[2]    On April 26, 2001, he applied for two days' leave from his vacation leave bank. Following the employer's refusal, the grievor filed a grievance, alleging that the employer had violated clause 29.07 of the collective agreement.

[3]    The grievance was referred to adjudication on March 25, 2003, and heard on September 8 and 9, 2004.

The facts

[4]    Mr. Sanschagrin indicated that at the time of the events, he had been on the evening schedule, from 3:50 p.m. to 11:59 p.m. The Montée St-François establishment is a minimum security institution, with approximately 260 inmates. There is no security fence. Some of the inmates can leave the establishment to work in industry, special programs, for medical reasons or courses; at the same time, volunteers can enter the establishment for socio-cultural and sport activities. On the weekend, some inmates are allowed to go out on excursions.

[5]    At the time of the events, Mr. Sanschagrin was assigned to an evening relief position.

[6]    On April 26, 2001, Mr. Sanschagrin requested annual leave for April 29 and 30, 2001 (Exhibit F-2). His supervisor told him he would have to wait for a last-minute approval under 29.08 (shorter notice than under 29.07 b), which is for two days' notice for each day of leave).

[7]    Mr. Sanschagrin rejected this suggestion and demanded a response before the end of his shift on April 26, 2001. In the end, it was the acting manager of the unit who confirmed that the leave had been refused, given that three employees had already been granted leave for April 29 and 30, 2001 (Exhibit F-2).

[8]    Mr. Sanschagrin filed a roll call corresponding to the employees' actual assignments for April 13 to 16, 2001, as well as for April 29 and 30, 2001 (Exhibits F-3 to F-9).

[9]    Mr. Sanschagrin used these documents to explain that, as a rule, the schedule involves five morning positions (night shifts) and eight day positions (day and evening shifts). Sometimes, when there is a holiday (such as Easter Monday), seven day positions are planned.

[10]    It should be noted that there are also relief positions (employees who are not assigned can replace, fill in or perform specific tasks). Sometimes, employees who are assigned to the escort position may not have any specific tasks, in which case they can serve as replacements.

[11]    In closing, Mr. Sanschagrin agreed that, in general, the administration approves at most three vacation leaves per work day. However, additional vacation leaves may also be approved.

[12]    On April 29 and 30, 2001, Mr. Sanschagrin indicated that he would be taking leave for family-related reasons.

[13]    After April 29 and 30, 2001, upon reviewing Exhibits F-3 and F-4 (roll call), Mr. Sanschagrin noticed that he would have been able to get vacation leave on the morning of April 29, 2001, instead of leave for family-related reasons.

[14]    Madeleine Mainville has been the case management coordinator at the Montée St-François establishment since 1996. However, she often replaces the unit manager.

[15]    In April 2001, she was replacing the unit manager. On April 26, 2001, Mr. Sanschagrin's request for leave reached her desk. Normally, the work schedules are checked by the supervisor, who approves or denies leave. However, this time, she had to do the checking herself. Upon reviewing the schedules, she noticed that three annual leaves had already been approved, which meant that there was no availability.

[16]    Rémi Leduc, a witness for the employer, has been a correctional supervisor since 1997 (acting until 2000). His responsibility was to supervise the work schedule. A draft schedule was prepared for 14 working days (Exhibit E-4). Employees were assigned for each shift and specific position (sector 1 and sector 2, common area, dwellings, escort or relief).

[17]    However, in practice, on that day, there were some changes. Hence, the schedule was updated based on the roll call. Each employee signed at his/her position. Employees whose leave had been approved were indicated on the roll. Other absences, such as sick leave and leave for family-related reasons, were marked off next to the employee's name and then another available employee (relief or escort) was assigned as a replacement for those who were absent.

[18]    Mr. Leduc explained that the union delegate and employees had been consulted before setting the vacation ratios (Exhibits E-1 and E-3). A guide prepared by regional administration (Exhibit E-2) was used to identify the staffing requirements and the vacation ratio options. In 2001, the ratio could allow up to three employees to take vacation leave on a given day.

[19]    Mr. Leduc used Exhibits F-3 and F-4 (roll call) to explain the changes that occurred on those days. On April 29, 2001, three vacation leave absences had been planned (Exhibit F-3). One sick leave and three leaves for family-related reasons were later added.

[20]    Mr. Leduc pointed out that it had been possible to add another vacation leave at the last minute, entered as supplementary vacation leave.

[21]    Mr. Leduc used the April 30, 2001 roll call (Exhibit F-5) to show that two annual leaves had been officially scheduled for April 30, 2001, and that on April 16, 2001, employee Vachon requested the following annual leaves: April 27 and 30, 2001 (Exhibit E-5), and was approved for April 30, 2001, since this made him the third employee on annual leave, which corresponded to the ratio.

[22]    Mr. Leduc explained that, in general, it was difficult to allocate supplementary vacation leave when three employees had already been approved leave for a given day. In this case, it was customary to put the employee's request on a waiting list. Since employees generally have to give two hours' warning of their absence, sick or other leave, if not many leaves are approved, additional vacation leave can be approved at the last minute (in the last hours).

[23]    According to Mr. Leduc, the three shifts are generally 5-8-8 positions. However, on holidays and weekends, the three shifts are generally 5-6-7.

[24]    The availability of relief and escort positions generally help make up for absences. When unexpected developments occur, employees have to be called back to work.

[25]    The documents filed (Exhibits E-6, E-7 and E-8) pertain to the employee's grievance and to the employer's responses. After the fact, the employer noticed that on April 29 and 30, 2001, given the actual number of employees absent on sick and leave for family-related reasons, Mr. Sanschagrin could have been given annual leave instead of leave for family-related reasons.

[26]    On June 29, 2001, the employer offered the employee two days' vacation leave instead of his two days' leave for family-related reasons (Exhibit E-7). The employer maintained that on April 26, 2001, it could not foresee this development but that it could have approved the leave requested on short notice, under clause 29.08, by placing the employee's name at the top of the waiting list.

[27]    The employer deems to have thus responded to the grievance (this item will be analyzed in the reasons for the decision).

Arguments of the parties

[28]    The grievance concerns the interpretation of clauses 29.07 and 29.08 of the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (Correctional Services Group - codes 601-651), which terminated on May 31, 2002:

29.07	The Employer shall, subject to the operational requirements of the service, make reasonable effort to:
a)	grant the employee vacation leave for at least two (2) consecutive weeks provided notice is given prior to May 31st of any vacation year;
b)	grant the employee vacation leave on any other basis if the employee gives the Employer at least two (2) days' advance notice for each day of leave requested.
29.08	The Employer may for good and sufficient reason grant vacation leave on shorter notice than that provided for in clause 29.07.

[29]    The employee's representative maintained that the notice required pertains to each day requested; thus, the notice covers April 29, 2001, but even more so, April 30, 2001, since it was given three days in advance.

[30]    In this context, Mr. Sanschagrin's request should have been reviewed under clause 29.07. Since advance notice was given, the employer should have approved the leave within the timeframe and not kept referring to clause 29.08 (short notice) in approving the leave.

[31]    Referring to Lefebvre v. Treasury Board (Solicitor General of Canada) , Board file No. 166-2-16101 and 16490 (1987) (QL), Lauzon v. Treasury Board (Transport Canada), Board file No. 166-2-15728 (1986) (QL) and Grégoire v. Treasury Board (Solicitor General Canada, Correctional Service of Canada), Board file No. 166-2-20961 (1991) (QL), the employee's representative maintained that the provisions of the collective agreement, specifically clause 29.07, should apply, and that the employer should provide the necessary staff and try to grant vacation leave subject to specific notice, pursuant to clause 29.07.

[32]    The employer, for its part, claimed that the April 26, 2001 application was submitted too late to constitute valid advance notice under 29.07. According to the employer, clause 29.07 requires at least two days' advance notice for each day of vacation leave requested. Since the employee's application had been for two days of leave, the required notice would have been four days, according to the employer. In this sense, the employer would be justified in handling this application under clause 29.08, which applies to last-minute (very short notice) leave requests.

[33]    The employer maintains that the vacation ratio allowed for three employees a day, which the union does not contest. The employer was able to maintain this ratio and grant supplementary vacation leave under clause 29.08.

[34]    Referring to Grégoire (supra) , the employer pointed out that the establishment had scheduled enough employees to be able to grant leave or compensate for absences during the April 29 and 30, 2001 shifts.

[35]    Finally, referring to Exhibit E-7, the employer claimed that it had approved the employee's request by offering, after the fact, to treat his absences on April 29 and 30 2001 as vacation leave.

Reasons for the decision

[36]    At the hearing, the employer pointed out that the leave application had been submitted late in order to be treated under sub-clause 29.07 b). In this regard, the adjudicator had to check whether the employee could take advantage of this sub-clause (29.07 b)).

[37]    The request was submitted on April 26, 2001, for leave on April 29 and 30, 2001. The only way to interpret sub-clause 29.07 b) is that the length of the advance notice period depends on the number of days requested. "Two days' advance notice for each day of leave requested" means that four days' advance notice is required for two days of leave.

[38]    Clause 29.07 reads as follows:

29.07	The Employer shall, subject to the operational requirements of the service, make reasonable effort to:
a)	grant the employee vacation leave for at least two (2) consecutive weeks provided notice is given prior to May 31st of any vacation year;
b)	grant the employee vacation leave on any other basis if the employee gives the Employer at least two (2) days' advance notice for each day of leave requested.

[39]    Clause 29.08 reads as follows:

29.08  The Employer may for good and sufficient reason grant vacation leave on shorter notice than that provided for in clause 29.07.

[40]    Clearly, there are conditions for approving vacation leave: the advance notice period (prior to May 31st) in the case of two consecutive weeks of vacation leave (sub-clause 29.07 a)), sufficient advance notice for subsequent vacation leave, i.e. two days for each day requested (sub-clause 29.07 b)) and finally, leave may be granted on shorter notice for good and sufficient reason (clause 29.08).

[41]    The interpretation of any given clause of a contract is connected to that of others, and since the previous clauses have different wording, each one has to be attributed a specific meaning.

[42]    The text of sub-clause 29.07 b) is very explicit, referring to "grant(ing) the employee vacation leave on any other basis". The clause refers to the leave, hence two or more weeks of vacation leave, which is taken differently. It might involve two weeks, one week, three days or a single day. I think it is logical that the advance notice would change according to the amount of leave requested.

[43]    Another element to be considered is the fact that the employer, in its response to the grievance, decided after the fact that it should allow it, by agreeing to substitute two days of vacation leave for the two days of leave for family-related reasons requested. The administration's response indicated, after the fact, that the employee's absence on April 29 and 30, 2001, could be treated as the taking of vacation leave. In my view, this decision cannot be interpreted as the settling of the grievance, since the very essence of the grievance was to determine that the employer should have authorized the leave before April 29 and 30, 2001, under the terms and conditions set out in sub-clause 29.07 b).

[44]    I already answered the question related to the application of sub-clause 29.07 b) above. The adjudicator must apply the provisions of the collective agreement. Since the employee did not follow the notice requirement, in this case four days, I cannot conclude that the employee is entitled to the benefit under sub-clause 29.07 b).

[45]    In his leave request (Exhibit F-2), the employee did not refer to any specific clause in the collective agreement. He wanted leave on April 29 and 30, 2001. The employer had to respond.

[46]    In the case before us, Mr. Sanschagrin forced the employer's hand by making it respond to his leave request on April 26, 2001. I do not believe that clause 29.07 could be interpreted in a way that would force the employer to respond on the same day the application is made. If at least two days' notice is required for each day requested, the employer can, if necessary, use this time to assess the situation.

[47]    Thus, if only two vacation leaves are authorized for a given day, as the evidence shows in the case of employee Vachon, the employer grants the leave quickly.

[48]    The employer may, in the case of a holiday or weekend, use the employee assigned to the escort position as a replacement.

[49]    The benefits of absences are not always the same. Absence for sick leave or leave for family-related reasons is different from vacation leave.

[50]    Clause 29.12 of the collective agreement provides some guidance for the taking of vacation leave:

29.12

The Employer agrees that, once a year before scheduling vacation leave, consultation shall take place at each institution with the local authorized representative of the Bargaining Agent, to determine the minimum number of correctional officers of each level who may be granted vacation leave at the same time based on the operational requirements of the institution.

[51]    In this case, the leave ratio is three per day. Hence, the employer must grant this minimum. In this sense, I agree, as provided in Lefebvre (supra) , that the employer must arrange to assign the necessary staff to ensure that this vacation leave ratio can be approved.

[52]    However, this is a minimum that is generally applicable. The granting of supplementary vacation leave must be assessed on a specific basis.

[53]    Second, the employer offered to put the employee at the top of the priority list for leave under clause 29.08.

[54]    Since this is an exception clause used for good and sufficient reason when the leave request is submitted on very short notice, I believe it is appropriate for the employer to provide a last-minute response when the established ratio has already been reached.

[55]    Thus, if there had been fewer than three leaves planned, under clause 29.08 (shorter notice) the employer would probably have been able to respond positively to Mr. Sanschagrin's request as early as April 26, since these staffing rules are based on the need to accommodate three vacation leave options per day.

[56]    I did not receive many explanations from the parties about the real chances of granting additional vacation leave for April 29 and 30, 2001. However, I noted upon reviewing the items tabled (roll call) that for April 29, 2001, an employee assigned to the escort position was on vacation leave but had not been replaced. It is likely that he did not have to be replaced, which left room to grant another vacation leave for a total of four, since the leave did not penalize the administration, given that the position had not been replaced. This is different from the relief positions, which are specifically designed to replace absences for vacation and other leave.

[57]    It is possible that on April 30, 2001, the absences in escort positions may have been filled by replacements. Thus, employee Meloche, in the escort position, was replaced by employee Lefebvre.

[58]    As a result, I believe that it might have been possible to grant one more vacation leave before April 29, 2001, for that day, but there was no way to foresee whether leave could be granted for April 30, 2001.

[59]    The employer may have been overly prudent in assessing the service requirements in this case. However, the employee was the one who forced the employer's hand by demanding an immediate response to his leave request. The latter did not have enough time to review the situation. A more careful review might have led to a positive response for April 29, 2001, but less likely so for April 30, 2001.

[60]    While supplementary annual leave was granted at the last minute, Mr. Sanschagrin refused to have his name put on the priority list for short-term leave approval (which often takes place on the same morning, before the shift, if the absence rate is low). Thus, he can only blame himself for missing out on this leave. Moreover, he forced the employer's hand on April 26, 2001, by demanding an immediate response on his leave for April 29 and 30, 2001, which meant there was no chance of discussing possibilities for April 29, 2001, or the complications surrounding April 30, 2001.

[61]    As indicated above, the employee is not entitled to the benefit under sub-clause 26.07 b) and, in light of the circumstances, the employer provided an adequate response to the leave request.

[62]    Consequently, the grievance is dismissed.

Jean-Pierre Tessier,
Board Member

OTTAWA, January 7, 2005

P.S.S.R.B. Translation