FPSLREB Decisions
Decision Information
This grievance was about two issues, whether leave granted for the purposes of travel related to a death (which is part of bereavement leave) is calculated in full days or in hours, and how much leave should have been granted to the grievor. The employer granted 9.65 hours based on the total time the grievor travelled, instead of the 3 days that she requested. The Board found that bereavement leave, including leave with pay for the purpose of travel related to the death, is provided by the calendar day and not the hour, except when an employee asks (and the employer agrees) to split the leave under clause 47.04 of the collective agreement. It held that leave for travel related to a death is “in addition” to regular bereavement leave because travelling for the purpose of a death meaningfully interferes with the purposes of bereavement leave. The Board allowed the grievance and concluded that the grievor should have been provided with a total of 9 days’ bereavement leave, comprising 7 days of regular bereavement leave and 2 additional days’ of it for travel related to a death. As a result, it ordered the employer to pay the grievor damages of $180.00.
Grievance allowed.
Decision Content
Date: 20250120
File: 566-02-41719
Citation: 2025 FPSLREB 5
Labour Relations Act
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Between
Jody Vogelzang
Grievor
and
(Department of Employment and Social Development)
Employer
Indexed as
Vogelzang v. Treasury Board (Department of Employment and Social Development)
In the matter of an individual grievance referred to adjudication
Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Nasim Amiri, Public Service Alliance of Canada
For the Employer: Raymond Lee, counsel
Decided on the basis of written submissions,
filed August 9, 14, and 19, 2024.
REASONS FOR DECISION |
I. Overview
[1] This grievance is about two issues: whether leave granted for the purposes of travel related to a death (which is part of bereavement leave) is calculated in full days or in hours, and how much leave should have been granted to Jody Vogelzang (“the grievor”) for the period from January 30 to February 8, 2019.
[2] I have concluded that leave for the purposes of travel related to a death is provided for in full-day increments, not by the hour (or part of an hour). I have also concluded that the grievor should have been provided with a total of 9 days’ bereavement leave: 7 days of regular bereavement leave and 2 additional days’ bereavement leave for travel related to a death. I have ordered the employer to pay the grievor damages of $180.00 as a result. My reasons follow.
II. Facts
[3] The grievor’s father passed away on January 30, 2019. She took leave from January 15, 2019, until his passing to care for him when his health deteriorated. She took family-related leave from January 15 to 18 and then paid vacation leave from January 21 to 29. Originally, the employer placed her on vacation leave for January 30, but that was corrected during the grievance process.
[4] She returned to work on February 11, 2019.
[5] She was initially provided with paid bereavement leave from January 31 to February 6, 2019 and then her choice of vacation or sick leave until her return to work on February 11; as I just mentioned, this was eventually corrected to a period from January 30 to February 5. There is no dispute that the grievor was provided with the maximum of seven calendar days of regular bereavement leave available under the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services group that expired on June 20, 2018 (“the collective agreement”).
[6] The grievor lived in Edmonton, Alberta. Her father lived and passed away in Lacombe, Alberta, and his memorial service was held in Barrhead, Alberta. Lacombe is located approximately 130km south of Edmonton, and Barrhead is located approximately 120km by car northwest of Edmonton.
[7] On January 31, 2019, the grievor drove from Lacombe to Edmonton (130km, 90 minutes) to gather information and physical photos so that she could write her father’s obituary. On February 1, 2019, she returned to Lacombe (130km, 90 minutes). That same day, she travelled to and from Red Deer, Alberta (approximately 30km south of Lacombe), to do tasks related to her father’s death such as meeting an estate lawyer, returning medical equipment, and meeting with a potential dog sitter to watch her father’s dog on the day of the memorial service. The trip there and back took exactly 69 minutes.
[8] On February 5, 2019, the grievor drove from Lacombe to Barrhead (250km, 180 minutes) for her father’s memorial service, which took place on February 6, 2019. On February 6, 2019, she returned to Lacombe (only 240km this time because an accident lengthening the distance the previous day had been cleared, but still 180 minutes according to one document, or 150 minutes according to another) after a memorial service and fellowship luncheon.
[9] In total, the grievor estimates that she drove for either 609 minutes (10.15 hours) or 579 minutes (9.65 hours) and a distance of 810km during this period.
[10] Initially, the employer denied the grievor any paid leave for travel related to her bereavement leave. At the second level of the grievance process, the employer decided to pay her one day’s paid leave for travel (or 7.5 hours). At the final level of the grievance process, the employer provided her with another 2.15 hours of leave because the grievor’s bargaining agent submitted that she had a total of 9.65 hours of travel over that period, using the lower of the grievor’s two estimates.
[11] This means that the grievor was provided with bereavement leave (including for travel related to the death) between January 30 and February 6 inclusive, plus an additional 2.15 hours of leave. The remaining 5.35 hours on February 7 and the full day on February 8 were taken as either vacation or sick leave, as discussed in more detail later.
III. Issues
[12] This grievance raises two issues:
a) Is leave for travel related to a death calculated in hours or in days?
b) How many days of bereavement leave is the grievor entitled to for travel related to her father’s death?
IV. Leave for travel related to bereavement is calculated in days, not hours
[13] The question of whether leave for travel related to a death is calculated in days or hours is a question of collective agreement interpretation. Interpreting a collective agreement is a contextual exercise. To quote from Ewaniuk v. Treasury Board (Department of Citizenship and Immigration), 2020 FPSLREB 96 at para. 45, the words in a collective agreement “… must be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the parties’ intention.”
[14] The relevant context in this case consists of the headings to the text and the historical development of the text influenced by case law interpreting other types of leave. However, as will become clear, this case is one of those times when the text predominates.
[15] The important text is found in clauses 33.01, 47.01, and 47.04 of the collective agreement, which read as follows:
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[Emphasis added]
[16] To dispense with one issue quickly, the employer points out that clause 33.01(d) (which says that bereavement leave is provided by the calendar day) refers to article 46, not article 47; the employer submits that this means that clause 33.01(d) is not about bereavement leave. As the grievor stated in reply to that submission, the reference to article 46 is clearly a typographical error in light of the use of “bereavement leave” immediately after mistakenly listing article 46. The agreement immediately preceding this one (expired June 20, 2014) had bereavement leave under article 46; the parties clearly just forgot to change the article number in clause 33.01(d), something they fixed with the most recent collective agreement (expiring June 20, 2025). The correct interpretation of clause 33.01(d) is to ignore that typographical error, just as was done for a different typographical error Sahota v. Canada (Customs & Revenue Agency), 2004 PSSRB 166 at para. 27.
[17] Returning to the main issue, there is a long-standing principle that when the parties to a collective agreement say “day”, they mean the full day, regardless of the number of hours an employee usually works in that day. The Federal Public Sector Labour Relations and Employment Board (“the Board”) and its predecessors have issued a number of decisions ordering that employees receive a full day’s leave when their hours of work are longer than the usual 7.5 hours, such as Stockdale v. Treasury Board (Fisheries and Oceans Canada), 2004 PSSRB 4 (personal leave and volunteer leave), Phillips v. Treasury Board (Transport Canada), [1991] C.P.S.S.R.B. No. 82 (QL) (marriage leave), King v. Canada Customs and Revenue Agency, 2001 PSSRB 117 (upheld in 2003 FCT 593; family-related leave), Bouchard v. Treasury Board (Agriculture and Agri-Food Canada), 2004 PSSRB 41 (volunteer and personal needs leave), and Breitenmoser v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 103 (family-related leave, marriage leave, personal leave, and volunteer leave).
[18] The issue in those cases sometimes came down to whether leave was treated as an earned leave credit that was calculated in hours (such as vacation) or as an unearned leave credit that was calculated by the day. That distinction was important because the collective agreement used to distinguish between those two types of leave (earned leave was calculated in hours, unearned leave was not). The cases in the previous paragraph, with the exception of Phillips, were decided in the early 2000s. The Board in King was particularly critical of the employer for not having clarified the meaning of the word “day” since the Phillips decision in 1991. It is no coincidence that the parties negotiated new language in clause 33.01 of the collective agreement for this bargaining unit signed on March 14, 2005 (that expired June 20, 2007), which added clause 33.01(b) granting “[e]arned leave credits or other leave entitlements” [emphasis added] on an hourly basis. In other words, the parties agreed in the early 2000s that both earned and unearned leave credits would both be granted by the hour.
[19] Importantly, the parties kept in place the final paragraph of clause 33.01(d) that exempted bereavement leave from the rule that leave is granted on an hourly basis. Bereavement leave is granted by the day, regardless of how long that working day would have lasted. Bereavement leave is not granted by the hour.
[20] This approach is also consistent with the purpose behind bereavement leave. Its purpose is to permit an employee to “… grieve privately, obtain comfort from family members and friends, to provide comfort in return, to assist in making arrangements for the funeral and interment, and to attend the funeral and interment” (from Youville Home (Covenant Health) v. United Steelworkers, Local 1-207 (2024), 358 L.A.C. (4th) 417 at para. 43). With the possible exception of attending a funeral or interment, these are not activities that lend themselves easily to occurring in hourly increments.
[21] I want to note that these four purposes are non-exhaustive and there may be other purposes behind bereavement leave. On the facts of this case, it is not necessary to determine whether there are other purposes of bereavement leave.
[22] Therefore, the issue is whether leave for travel related to the death is calculated the same way as the rest of bereavement leave, i.e. by the calendar day.
[23] The additional three days’ bereavement leave for travel related to a death is contained within article 47. It is set out under the heading “bereavement leave”. The employer has not argued that it must be carved out from the rest of article 47 and, uniquely, provided by the hour instead of by the day. Therefore, it too is taken and granted in increments of days, not hours. If an employee is granted one days’ leave for travel related to the death, they receive the full day off with pay.
[24] Finally, the employer argues that clause 47.04 gives it the discretion to grant leave with pay “… in a manner different than that provided for in clauses 47.01 and 47.02”, which means that providing leave on the basis of hours instead of days is permitted. The employer has ignored the opening phrase of that sentence, which makes it clear that providing leave with pay in a different matter is available “[o]n request” [emphasis added] — which, read in the grammatical and structural context of that clause, means on the request of an employee. For example, an employee may request that they be provided with only 3.75 hours of bereavement leave on one day and 3.75 hours on another because they are attending a funeral in the afternoon of one day and an interment on the morning of another. The grievor did not request that her bereavement leave be split up by the hour. Therefore, clause 47.04 does not apply to this case.
[25] For these reasons, bereavement leave, including leave with pay for the purpose of travel related to the death, is provided by the calendar day and not by the hour, except when an employee asks (and the employer agrees) to split this leave under clause 47.04. The grievor did not request to split her leave. Therefore, she was entitled to zero, one, two, or three days’ leave for travel related to the death.
V. The grievor was entitled to two days of leave with pay for the purpose of travel related to the death
A. How to determine travel related to a death in clause 47.01
[26] The parties both agreed to some extent on how to interpret the entitlement to leave with pay for the purpose of travel related to the death in clause 47.01. Both parties agreed that the use of the word “may” in that clause means that the employer has the discretion to decide whether to grant or deny that leave. Both parties also agreed that this discretion must be exercised reasonably.
[27] The parties part company on what that discretion means and on whether the employer acted reasonably in this case.
[28] The grievor submits that the employer must exercise its discretion in a broad and liberal manner. This is because bereavement leave entitlements are typically interpreted liberally and sympathetically (citing Brown & Beatty, Canadian Labour Arbitration, 5th ed., chapter 8:48) and because clause 47.02 does not expressly use the phrase “with the approval of the Employer” or “at the discretion of the Employer”, unlike other articles about leave, such as clauses 30.08(b) (leave in lieu of a public holiday that the employee had to work) and 31.03 (paid leave to fulfil a religious observation). The grievor further submits that the employer must exercise its discretion reasonably, by which it means not arbitrary, discriminatory, or in bad faith.
[29] The grievor makes two other submissions that I reject immediately. First, the grievor submits that the employer’s decision in this case is inconsistent with its past practice. However, the grievor has presented no admissible evidence to support this claim. The grievor relies on a statement provided by her bargaining agent during the grievance process, stating, “[i]n the past, an employee in the same office (who is willing to provide statements only in strict confidence, due to fear of repercussions) was granted two days of bereavement travel time for a commute of only 180 minutes.”
[30] The grievor’s attempt to rely on this as evidence is deeply flawed. I cannot rely on anonymous hearsay, as the employer has no opportunity to contest this evidence without knowing who the employee was and when the leave was granted. The anonymous hearsay is also unreliable because the grievor’s “impact statement” (included in her book of documents in this case) states that the other employee received leave for a total of 90 minutes travel, not 180 minutes; this contradiction cannot be explored through cross-examination. Even were I to admit this anonymous hearsay, I do not know any of the details of that situation to know whether it was analogous to this one. I know that the cases are not analogous in at least one way: this grievor is seeking 3 days’ leave, not 2.
[31] Second, the grievor submits that “… the Employer must balance its duty to accommodate an employee to the point of undue hardship with its operational requirements.” The grievor cites no authority for how or why the duty to accommodate comes into this grievance. The duty to accommodate to the point of undue hardship is a concept from human rights law, not collective agreement interpretation.
[32] Additionally, an employer’s operational requirements do not enter into this case. The collective agreement is rife with circumstances when employees may take leave “when operational requirements permit”, such as several parts of article 14 (leave to attend Board hearings, other labour relations hearings, and labour relations activities), clause 34.05 (scheduling vacation leave), clause 43.01 (volunteer leave), clause 45.01 (leave without pay for personal needs), and clause 53.02 (personal leave). Bereavement leave is exempt from the employer’s operational requirements; employees receive bereavement leave no matter how inconvenient its timing may be for the employer.
[33] The employer submits that it must assess a claim for travel related to a death “in a fair and reasonable manner”. The employer submitted specifically that
“… management needs to assess the individual circumstances of each leave request in order to determine what a reasonable amount of time off for travel purposes would be based on the employee’s travel requirements.”
[34] The employer cites University Hospitals Board v. A.U.P.E., 1989 CarswellAlta 898, for that proposition. That is not what University Hospitals Board was about. That case was about whether bereavement leave and related travel leave was granted on the basis of working days or calendar days (in that case, the travel was calendar days and the bereavement leave was working days). I did not find that case helpful in deciding this one. I also note that the employer purported to quote from that case but, instead, took two separate passages from the case (one of which was actually a quotation from an earlier case) and combined them like pieces from a jigsaw puzzle and presented it to me as if it was a single quotation.
[35] The only case I found on point suggests that the employer correctly stated that the reasonableness of leave for travel related to a death must be assessed in light of a reasonable amount of time off for travel purposes. In Central Care Home v. I.U.O.E., Local 882 (1996), 58 L.A.C. (4th) 282 (which neither party cited but was cited in some of the cases provided to me by the grievor), Arbitrator Munroe set out the approach to travel for reasons related to a death as follows:
…
24 At the same time, one must give full effect to Article 26.02(d) which contemplates as many as three travel days associated with bereavement leave - which as a matter of common sense would be required (if at all) partly at one end of the bereavement leave and partly at the other end. What is contemplated by Article 26.02(d), I believe, is a global judgment of the travel requirements reasonably associated with the bereavement leave in question. Whether the cumulative number of the required travel days is one, two or three, that is the number of paid days off which the employee is entitled to withdraw from her bank of earned sick leave credits - regardless of the precise timing of each of the return travel components.
…
[36] I do not agree with that arbitrator that travel associated with bereavement leave is required at each end of the bereavement leave. Funerals and memorial services often happen several days after a death. Say a person dies on a Sunday and a ceremony is held on a Friday. An employee may take Monday, Tuesday, and Wednesday off to grieve, travel on the Thursday, attend the ceremony on the Friday, travel on the Saturday, and grieve privately again on the Sunday.
[37] However, the idea of a “… global judgment of the travel requirements reasonably associated with the bereavement leave in question” is consistent with how the parties argue I should approach this case. The parties say it differently: the employer refers to the “individual circumstances of each leave request in order to determine what a reasonable amount of time off for travel purposes would be based on the employee’s travel requirements”, and the grievor relies on the “empathetic and humanistic nature of bereavement leave” to guide the employer in acting “reasonably.” But the concept is similar.
[38] The grievor also cited Canadian Union of Postal Workers v. Canada Post Corporation, 2016 CanLII 61474 (“CUPW”), in which an arbitrator awarded an employee two days’ travel time related to bereavement because she traveled on two days (one day to fly from Kamloops, British Columbia, to Los Angeles, California, and one day to fly back). The arbitrator did not award a third day of travel for the intervening day (during which the service took place) because “[t]here is no evidence she was required to spend any of the third day travelling to or from the Los Angeles airport.”
[39] I note that in that case, the relevant clause used the word “shall” instead of “may”, stating that an employee “… shall be entitled to up to three (3) additional paid days if required for the purpose of travel”; since this clause uses “may”, and the parties agree that that makes it discretionary, the CUPW case is not the best authority for me to follow. I also do not agree with the arbitrator in that case to the extent that they implied that a day during which someone travels from an airport to a residence counts as a day required for the purpose of travel.
[40] However, I do agree with the approach in that case to consider whether one day is taken up with travel and not to consider the precise number of hours of travel.
[41] This leaves me to make a “… global judgment of the travel requirements reasonably associated with …” the death in question. To do so, I must answer this question: What did the parties intend to be “travel” for the purposes of this leave?
[42] I pause to note that the travel must be “in relation to” a death. That issue does not arise in this case. The employer never suggests that the travel was unrelated to the death of the grievor’s father. Since the parties have not disputed this issue, I do not need to parse whether meeting with an estate lawyer or making pet-care arrangements to attend a ceremony are in relation to a death.
[43] The term “travel” is not defined in the collective agreement. I reviewed the National Joint Council’s Travel Directive (which is incorporated by reference into the collective agreement), but decided it does not assist me. That directive does not define “travel”, and it contains rules for so-called “travel” within a headquarters area (i.e., within 16km of a normal place of work). I cannot fathom that the parties intended a day’s extra leave when a person has to travel less than 16km related to a death, as that would amount to a guarantee of extra leave for every death so long as a grievor leaves their house. I did find it interesting that the Travel Directive provides (at clause 3.2.11) that employees are not expected to drive more than 500km in a day, 350km after working half a day, or 250km after working a full day. This gives me some indication of what the parties considered, in other contexts, to be a meaningful distance to travel — but those other contexts are very different than bereavement. It also shows that the parties are able to be specific about distance of travel when they want to be; that they did not here shows that they intended some flexibility in the determination of whether a person has travelled for the purpose of a death.
[44] The plain meaning of travel is also not helpful. The Oxford English Dictionary defines the verb “travel” as meaning “to make a journey, esp. of some length …”. The question of how much length is unanswered by a plain reading of the word. Additionally, the French version of the collective agreement uses the term “le déplacement.” This is the derivative noun of the pronominal verb “déplacer”, which the Larousse Dictionary defines simply as “changer de place” or also as “voyager” – which, again, does not help resolve what distance is required. Again, the parties cannot have used this language to intend an extra day’s leave for travel simply because an employee changes their place because they leave their house.
[45] I have decided that I must interpret the meaning of “travel” in the context of the purpose of bereavement leave. Leave for travel related to a death is “in addition” to regular bereavement leave. Since the leave for travel related to the death is “in addition” to bereavement leave, it must be connected to bereavement.
[46] I have concluded that the parties intended this benefit to be “in addition” to bereavement leave because travelling for the purpose of a death meaningfully interferes with the purposes of bereavement leave. As I said earlier, bereavement leave has four non-exhaustive purposes: to grieve privately away from work colleagues and strangers, to assist others with their grief, to attend a funeral or other ceremony, and to assist with the arrangements for that ceremony. Travel can interfere with those purposes, particularly the first two.
[47] I appreciate that this is still vague and no more precise than the “global judgment” test set out in Central Care Home. However, the parties could have been more specific in the collective agreement but chose not to be. The parties chose to be vague, and so this framework is too.
[48] One last thing before I apply this approach to the facts of this case: the travel in aggregate is irrelevant. As I said earlier, bereavement leave (including travel days) is awarded one day at a time. Similarly, a day of travel is just that — a day of travel. An employee who travels for an hour each day for a week has not earned an extra day’s leave just because their aggregate travel is seven hours.
B. Amount of travel related to the death in this case
[49] In this case, there are four possible days to consider for travel:
1) January 31, 2019: travel from Lacombe to Edmonton (130km, roughly 90 minutes);
2) February 1, 2019: travel from Edmonton to Lacombe (130km, roughly 90 minutes), and some further travel to and from Red Deer (59km in total, and exactly 69 minutes);
3) February 5, 2019: travel from Lacombe to Barrhead (250km, roughly 180 minutes); and
4) February 6, 2019: travel from Barrhead to Lacombe (240km, roughly 180 or 150 minutes depending on which document is read).
[50] I have no other facts about those trips or the way they impacted the grievor. Her impact statement provided during the grievance process explains her reaction to the employer’s decision but does not say anything about her grief or the specifics of her trips related to her father’s death. Therefore, I have based my decision solely on the distance and duration of trips. In other cases, other factors may show that the trips constituted “travel” because they meaningfully interfered with bereavement.
[51] Solely on the basis of the distance and duration of this travel, I have concluded that February 5 and 6 were days of travel but that January 31 and February 1 were not. A 3-hour drive (or even 150-minute drive) meaningfully interferes with the grieving process for that day. Based solely on time and distance, these were borderline days; I also considered the fact that the memorial service and luncheon occurred on February 6 before the grievor drove back to Lacombe, so that the drive did not interfere with her ability to attend those services. However, without more context, I can understand how a 2.5- or 3-hour drive would meaningfully interfere with the grieving process. By contrast, the 90-minute drives between Edmonton and Lacombe would not. The travel between Lacombe and Red Deer is particularly not “travel”, as driving that distance is common for any person in a given day and, in large urban centres, is less time than it takes to go “across town”.
[52] I considered the employer’s decision to grant 9.65 hours of leave based on the total time spent travelling over each of four days. As I said earlier, this type of leave is granted by the day, not the hour. However, I do not believe that I can take the employer’s decision to grant 9.65 hours of leave as a concession that each of the trips constituted “travel” and that this means there were 4 days of “travel” (which would lead to the maximum of 3 days of leave). The employer mistakenly believed that this leave could be granted by the hour (or part of an hour), and eventually decided to grant 9.65 hours of leave. The granting of this leave is discretionary, as both parties admit. The employer is free to grant up to three days’ leave on a discretionary basis even when it is not strictly required to do so. The employer’s exercise of discretion in this case to grant 9.65 hours of leave is not an admission that the grievor travelled on 4 days and is entitled to the full 3 days’ leave.
[53] I also want to emphasize that what constitutes a meaningful interference with the purposes of bereavement leave will vary according to the context of each case. For example, some religious and cultural practices require uninterrupted actions during the grieving process; a shorter period of travel may be more likely to meaningfully interfere with a period of bereavement in those circumstances. The method of travel may also be important, as travelling alone by car may interfere with the grieving process less than travelling by public transit. There will be other facts that are relevant in other cases as well. In this case I only considered time and distance, but that should not be taken to mean that 2.5 to 3 hours or 240 kilometers is a minimum amount of travel required.
[54] Therefore, I have concluded that the grievor was entitled to 2 days’ leave for travel related to a death.
VI. Remedy
[55] The grievor asks for compensation for “the days of leave that should have been granted but were not.” The grievor submits that she is entitled to 2 days’ compensation because she is entitled to 3 days’ leave but was only granted 1 day. The grievor’s submission appears to either ignore or discount the extra 2.15 hours’ leave granted by the employer at the final level of the grievance process. The grievor has resigned her employment, so she is not asking for an addition to her leave bank, but only compensation.
[56] The employer made no specific submissions about remedy.
A. Application of clause 33.05 in the collective agreement
[57] However, the employer cited clause 33.05 of the collective agreement. That clause states that “an employee shall not be granted two (2) different types of leave with pay or monetary remuneration in lieu of leave in respect of the same time period.” The employer pointed out that the grievor was on bereavement leave for the seven-day period ending February 5, 2019 and that her travel took place during that seven-day period plus an additional day on February 6, 2019. Since all of the travel took place either during the 7-day bereavement leave or on February 6 (a day of leave for travel related to the death already granted), the employer argues that clause 33.05 means the grievor can only be entitled to one days’ leave for that travel.
[58] In other words, the employer argues that the grievor should not receive an extra days’ leave because one of her “travel” days overlapped with the original grant of 7 days’ bereavement leave.
[59] The employer’s argument presumes that bereavement leave and leave for the purpose of travel related to the death are “different types of leave.” I have concluded that they are not. There is just one type of leave: bereavement leave. It comprises 7 calendar days plus up to 3 additional calendar days for travel related to the death.
[60] My conclusion is based on the wording of clause 47.01, the structure of the collective agreement, and the consequences of the employer’s proposed interpretation.
[61] Turning first to the wording of clause 47.01, I have already set it out earlier in this decision. It begins with the entitlement to bereavement leave and sets out the conditions for such leave (that it must include the day of the memorial commemorating the deceased, or begin within 2 days following the death). It then contains the sentence “In addition, the employee may be granted up to three (3) days’ leave with pay for the purpose of travel related to the death” (emphasis added). The parties’ use of the term “in addition” is important. The term does not indicate that there are two separate types of leave; instead, the term indicates that there is a single type of leave (bereavement) that may have an additional length of up to 3 days for a particular purpose (travel related to the death).
[62] Second, the structure of a collective agreement is relevant context for interpreting it (see, for example, Air Canada v Canadian Union of Public Employees, Air Canada Component, 2021 CanLII 3830 (CA LA) at para. 85 and United Brotherhood of Carpenters and Joiners of America, Local 1946 v. Losereit Limited, 2008 CanLII 44352 (ON LRB) at para. 15).
[63] The parties to this agreement have divided it into 7 parts, followed by 16 appendices. Part 4 of the collective agreement is titled “leave provisions.” It contains articles 33 through 53. Article 33 is entitled “leave, general” and it sets out some general rules for how to treat leave (such as how to treat earned leave credits, how to treat leave on termination of employment, and clause 33.05 that the employer relies on in this case). Articles 34 through 53 then each contain one type of leave.
[64] There are some types of leave that are outside of Part 4 of the collective agreement. In Part 2, which is about union security and labour relations matters, article 14 spells out forms of leave with or without pay for Public Service Alliance of Canada. Each clause between 14.01 and 14.13 sets out a different type of leave, and then clause 14.14 sets out which types of leave are paid or unpaid. The collective agreement also has clauses 28.08 and 32.07 providing “compensatory leave” (leave provided in lieu of a cash payment for overtime) and travel-status leave in clause 32.08.
[65] The point is that each type of leave in the collective agreement is contained within a distinct article or clause. Leave for travel related to a death and bereavement leave are both set out in the same article (47), and indeed in the same clause (47.01). It would be inconsistent with the structure of the collective agreement to conclude that these are two different types of leave, because every other type of leave in Part 4 of the collective agreement has its own article, and types of leave outside of Part 4 have their own clause.
[66] I note that the Board has followed this structural method of determining types of leave in other cases. In Edwards v. Treasury Board (Canada Border Services), 2019 FPSLREB 62 the Board had to decide whether employees who were on unpaid sick leave could take other forms of unpaid leave. In deciding that they could, the Board stated:
[43] There is no dispute that the parties’ true intent must be found by considering the whole of the collective agreement. The employer points out that Part IV of the collective agreement is structured to provide for many different types of leave, all for different purposes. When an employee cannot work and his or her sick leave credits run out, the appropriate form of leave is sick leave without pay. Personal-needs leave is not appropriate to address such a situation. Each type of leave has its specific purpose and must only be used for that purpose.
[44] The employer’s view of how the leave provisions interact, while sensible in theory, is not supported by the language of the collective agreement.
[67] The Board thus endorsed using the structure of the collective agreement as a tool to interpreting leave provisions but concluded that this structure was subordinate to clear language in the collective agreement. I agree; however, in this case, the structure of the collective agreement supports its clear language.
[68] I also note that different collective agreements are worded and structured differently. For example, in Central Care Home, travel related to bereavement was contained within a different article from bereavement leave that dealt with “special leave credits.” That structure, coupled with those words, clearly indicate that in that collective agreement travel associated with bereavement leave is a different type of leave from bereavement leave. In this case, the structure and the plain wording mean that they are the same type of leave.
[69] Finally, the employer’s submission that bereavement is a different type of leave from travel related to a death would lead to absurd consequences when applying clause 34.07 of the collective agreement. Clause 34.07 states that when a period of vacation leave is interrupted with bereavement leave (or two other types of leave), the period of vacation leave is displaced by bereavement leave. The employee then either takes the vacation immediately after their bereavement leave ends, or returns to work after the bereavement leave ends and has the vacation leave reinstated for future use. In essence, if a relative dies when an employee is on vacation, part of the employee’s vacation leave is converted into bereavement leave and then either returned to the employee or used to extend the period of time off.
[70] The employer’s submission that travel related to a death is a different type of leave from bereavement leave would exclude it from the ambit of clause 34.07. This exclusion is inconsistent with the purpose of that clause, which is to protect employees whose vacation is interrupted by events outside their control that would entitle them to other types of leave. Travel related to a death is just as much outside the employee’s control as the rest of bereavement leave. This exclusion would also lead to different treatment of employees depending on the days their vacation happened to have been scheduled and the days they happen to have travelled related to a death. For example, an employee who scheduled one day’s vacation but whose relative dies shortly before that vacation day would have the vacation day converted into bereavement leave; however, if they happened to travel on that day related to the death, on the employer’s interpretation it would not be so converted and would remain vacation leave. The parties cannot have intended this sort of irrational result, which confirms me in my reading of the plain language of the collective agreement.
[71] For these reasons, clause 33.05 does not apply to this case. The impact is that the grievor is entitled to a total of 9 calendar days of bereavement leave: 7 days of regular bereavement plus 2 additional days because of travel related to a death. She received 8 calendar days of bereavement leave (7 days of regular bereavement plus 1 day of travel) plus another 2.15 hours. Those 8 calendar days ran from a Wednesday (January 30) through Wednesday (February 6) inclusive, so that the extra day (February 7) lands on a workday.
B. Compensation to the grievor
[72] This means that the grievor is entitled to some compensation for not having paid bereavement leave. As I mentioned earlier, the employer allowed her to use either vacation leave or sick leave, but the parties have not said which type of leave she ended up using. Also, she resigned from the federal public service so she cannot simply have some hours returned to her leave bank.
[73] She is owed compensation regardless of the type of leave she used. Earned but unused vacation leave is paid out to employees when they resign from the public service (article 34.13); therefore, the grievor is entitled to compensation for it if she used vacation leave. Also, she went on unpaid sick leave later in 2019 so if she used paid sick leave for that day then she would have had that extra day’s paid sick leave available later in the year when she needed it. Therefore, whether she used vacation of sick leave, she suffered a financial loss of 5.35 hours of pay.
[74] Normally in cases involving compensation, the Board simply declares a grievor’s entitlement and leaves it to the parties to calculate the amounts. That requires the employer to assign a compensation advisor to compute the amount owing, the bargaining agent to check that amount, and the grievor to also confirm it. Then someone with the employer would have to enter this amount in the pay system. Since the grievor resigned, the employer would have to process the payment differently than for current employees. Eventually, after hours of work by everyone involved, money will be sent to the grievor.
[75] In this case, I am doing something different.
[76] The grievor was employed in a position classified at the PM-02 group and level and had been working in that position for long enough to be at the third and final step or pay increment for that classification.
[77] If she used vacation leave, the extra leave would have been paid out on the rate of pay she was earning when she resigned. I do not have that date; however, I do have the grievor’s statements during the grievance process that she was still employed at the time of the final level grievance meeting in January 2020. The top step for that classification at that time was $65 009 each year (according to the collective agreement signed on October 23, 2020).
[78] If she used sick leave, the documents filed in this adjudication show that she was on unpaid sick leave starting in March, 2019. Her rate of pay at that time was $63,610.
[79] That grievor had a 7.5-hour workday, or 1957.5 hours in each working year (261 weekdays times 7.5 hours). This means that the grievor earned approximately $33.21 each hour in 2020 (i.e. if vacation) or $32.50 each hour in 2019 (i.e. if sick leave).
[80] The employer provided her with 9.65 hours of paid leave, and I have concluded that it should have provided her with 15 hours instead (i.e. 2 days at 7.5 hours per day). Therefore, the grievor was short 5.35 hours.
[81] At the grievor’s hourly rate of pay in January of 2020, this comes to $177.67; at the rate of pay in March 2019, it comes to $173.88.
[82] It is quite possible that my calculations are off by a few dollars; for example, if the grievor actually resigned later in 2020, her annual rate of pay would have been $65 887 meaning that she is entitled to $180.07 instead (if she used vacation leave).
[83] Subsection 228(2) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 gives the Board the power to decide grievances and “make the order that … the Board consider[s] appropriate in the circumstances.”
[84] One principle of dispute resolution more generally is proportionality. The expense and time dedicated to resolve a dispute should only be what is necessary to lead to a just result. In this way, the expense and time taken to resolve a dispute must be proportionate to a just result; see Hryniak v. Mauldin, 2014 SCC 7 at paras. 27-29. This principle is most commonly discussed when a court or administrative tribunal is deciding on its process, in particular the processes that would shorten or lengthen a hearing. However, the principle also applies to ensure that the work that needs to be done by the parties. This is most evident in disclosure motions; see, for example, Ontario Council of the International Union of Painters and Allied Trades on its own behalf and on behalf of its Locals 1891 and 557 v. The House of Paint Corp., 2024 CanLII 126985 (OLRB) at para 5.
[85] Proportionality can also apply to the level of detail necessary to determine a remedy. There are a number of situations when courts and tribunals estimate damages instead of insisting on a detailed calculation. For example, when a non-unionized employee in the private sector is wrongfully dismissed without notice, they are entitled to compensation for that breach. The compensation includes the value of their health benefits during the notice period. In principle, this would require the parties to provide evidence to a court about the precise value of those health benefits. Instead, courts routinely order payment of 10 percent of salary as an estimate of the value of those health benefits for private sector employers in the absence of any evidence suggesting otherwise, because this is a “reasonable estimate” of their value; see Nemirovski v. Socast Inc., 2017 ONSC 5616 at para. 14, and also Cormier v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965 at para. 19 approving of this approach.
[86] To give another example, the British Columbia Workers’ Compensation Board used an estimate of a worker’s earnings from new employment to reduce the value of his claim for being wrongfully terminated as a reprisal for engaging in safety activities, rather than put the parties to the effort of leading evidence about the worker’s precise earnings from a short-term contract to build a fence; see A2100731 (Re), 2021 CanLII 128007 (BC WCAT).
[87] The common feature of both examples is proportionality. Since neither party in those cases presented firm evidence to calculate the remedy down to the penny, the court and tribunal were comfortable applying an estimate as the most procedurally proportionate response.
[88] In this case, neither party provided evidence or submissions about the dollar value of the remedy sought. Additionally, the financial amount at stake in this grievance is extremely modest. Therefore, I have concluded that – in the interests of proportionality – it is not appropriate in the circumstances that I make an order that requires the parties to devote several hours of effort to calculating the amount owing down to the penny.
[89] I have decided to order that the employer pay the grievor damages for failure to provide the 5.35 hours of paid leave of $180.00, less statutory deductions (i.e. income tax, CPP, and EI – if any). I have selected this figure because it is a round number that is closest to my calculations earlier. Any additional cost by a few dollars or cents incurred by the employer because I rounded the amount up is more than outweighed by the saving it will have by not having its compensation advisors have to work on these calculations; any loss by the grievor by a few dollars or cents because I used an estimate is more than outweighed by the savings of not having to wait for those calculations, check those calculations, or otherwise live with the uncertainty of knowing how and when she will be paid.
[90] Since ordering this lump sum payment of damages instead of requiring a pay calculation down to the penny will save time in processing its payment, the employer is also ordered to pay this amount within 30 days from the date of this decision.
[91] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VII. Order
[92] The grievance is allowed.
[93] The employer is required to pay damages in lieu of paid leave of $180.00, less statutory deductions, to the grievor within 30 days from the date of this decision.
[94] The Board remains seized for a period of 35 days to resolve any issues that arise in respect of implementing this order.
January 20, 2025
Christopher Rootham,
a panel of the Federal Public Sector
Labour Relations and Employment Board