September 29, 2021
41.4.139
Background
The grievor is employed with Department X in City A, Province M and their spouse was transferred to Province N in 2019. The grievor’s spouse’s house hunting trip (HHT) was approved by their department on July 12, 2019 to begin six days later, for the period of July 18 to 21, 2019.
On July 4, 2019, the grievor requested two days of family leave as there was no provision for spousal relocation leave in their collective agreement. On July 9, 2019 the grievor asked whether they would be entitled to spousal relocation leave under the NJC Relocation Directive (the Directive) subsection 2.4.3 instead of requiring their use of family-related leave.
In the email refusing their leave request on July 17, 2019, the day before the HHT, the Employer citied that due to inability to cover their shifts because of short notice, summer leave, and the additional weekend shifts implemented in June 2019 for mental health coverage, the leave was denied. It was confirmed, however, that they would be able to take the time at a later date under the Directive, providing they give sufficient notice.
Grievance
The employee grieves the Employer’s refusal to provide them with the necessary leave to carry out all activities related to their spouse’s relocation. The grievor asserts that this violates their collective agreement including, but not limited to Article 35 (NJC agreements) and the NJC Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated the grievor was denied two (2) days of other leave with pay for an HHT due to the grievor’s spouse being relocated by their department. They stated that this denial is a violation of the collective agreement and the principles of the Relocation Directive.
The representative indicated that the grievor had not been treated respectfully throughout the process. The representative advised that the grievor advised their managers on April 30, 2019 that their spouse was transferred, following up on July 4, 2019 in an email indicating that they had a discussion that morning, providing notice that the HHT could only occur at this one time. The representative indicated the manager should have informed the grievor that they recognized the importance of the event in the grievor’s life and arranged for the grievor to have that time off. The representative advised, however, that the manager made no efforts to arrange for coverage.
The representative advised that the grievor heard they were entitled to HHT leave under the Relocation Directive on July 9, 2019. They pointed out that the section is a non-discretionary article, with the only caveat being operational requirements. They advised that when the grievor reached out to Labour Relations, they were referred to their manager, who had not responded to their request at all at this point. They further argued that if the Employer had asked people to work overtime and no one had wished to do so, then the argument of operational requirements could be put forth, however as this did not occur, citing operational requirements in the denial of leave in this situation is inappropriate.
The representative advised that on the morning of July 17, the grievor again contacted their manager, regarding their leave, and again, received no response from the manager. They indicated that it is at this point that the grievor was advised that they requested the wrong leave type and that they needed to go to the Regional Director for approval. The representative asserted that the Regional Director exercised their discretion improperly, not determining if the request could be made to work, rather relying heavily on the request being brought to their attention late. The representative indicated that the heart of the problem and grievance is that the manager knew when the grievor was travelling and did nothing to arrange for coverage.
The Bargaining Agent representative indicated that one of the Employer’s arguments will be that the grievor is not entitled to be reimbursed leave as they did not take leave. They stated that the grievor was forced to amend the planned four (4) day itinerary they had with a real estate agent to attempt to locate a home in a very active market, which made the ordeal stressful and painful. They asserted, however, that since the Employer incorrectly denied the leave, there should be some consequence for the Employer, indicating the decision of Nolan v Treasury Board Secretariat, where the arbitrator ordered the Employer to pay the grievor for eight (8) days of leave in lieu of granting leave, as the grievor no longer worked for the department, similar to the current situation. Additionally, the decision in Brown v Treasury Board Secretariat highlights the importance of applying the principles and recognizing how decisions impact people’s lives. The representative also referenced Hester v. Treasury Board Secretariat wherein it was determined that the Employer performed an improper assessment, stating that the denial of leave to avoid paying overtime is a violation.
The representative argued that the grievor and their family were more than inconvenienced; they were forced to rearrange their entire trip at the eleventh hour. Therefore, in consideration of the above facts and arguments, the Bargaining Agent representative requested that the grievance be upheld.
In the clarifying questions, it was raised that, as the spouse was relocated under another Directive, the grievor is not covered by the NJC Relocation Directive, however the representative argued that per the definition of Employee under the Directive, an employee is a person who is paid out of the Consolidated Revenue Fund, arguing that this is a broad qualification to meet for the Directive to apply to a spouse.
Departmental Presentation
The Employer representative examined the grievor’s requested corrective actions being that the Employer recognize the impact this refusal to provide leave had on them and their family; that the Employer make a declaration that the collective agreement was violated; 15 hours (two days) of leave credits to be restored to their leave bank; to be made whole; as well as a later request that the Employer post the decision in the workplace.
The representative indicated that the first corrective action regarding recognition of the impact of the denial of leave has been provided in all grievance level responses to date. They also advised that the Employer has repeatedly recognized that the grievor was entitled to leave under subsection 2.4.3 of the Directive. However, as the grievor ultimately shortened the HHT to two (2) days only and did not take any additional time off, the representative argued that an employee should not be indemnified without having incurred any losses or having suffered any measurable damages.
The representative cited NJC grievance 41.4.11 where the grievor had not been treated within the intent of the Directive where the grievor was out-of-pocket expenses for which the grievor had not been reimbursed. In that grievance, the representative indicated that the Executive Committee upheld the grievance, arguing that this decision demonstrated the intent of the Directive to ensure employees are reimbursed for out-of-pocket expenses.
While recognizing that the NJC is not bound by Federal Public Sector Labour Relations and Employment Board (FPSLREB) decisions, the representative highlighted Benson v Treasury Board Secretariat (TBS), whereby the Employer was ordered to reinstate the personal needs leave without pay which was used instead of spousal relocation leave due to a wrongful interpretation of the applicable collective agreement by the Employer. The representative argued that this decision confirmed that for leave credits to be awarded or reinstated, leave must have been used, which is not the case in this grievance. The representative further argued that Nolan v TBS substantiated that leave must have been used. He also argued that Brown v TBS is not relevant as it is an Employer right to exercise discretionary power.
The representative reiterated that the corrective measures requested by the grievor have already been granted to the extent possible. The Employer has repeatedly recognized the impact on the grievor and their family. The representative advised that the only other remedy that can reasonably be granted is a declaration that the collective agreement was violated. Finally, the representative advised that should the Employer be required to post the decision, this would be potentially prejudicial to the Employer in the eyes of staff, should it be unfavourable and is also unnecessary, as all NJC decisions are accessible online to everyone.
In conclusion, the Employer representative argued that, while the situation was not ideal for the grievor, the grievor still managed to participate in their house hunting trip. Additionally, the spouse completed their relocation with the grievor who has since left the Department. They submitted that the prejudice to the grievor was minimal, simply an inconvenience without measurable damage, which does not entitle the grievor to a monetary remedy or other advantage.
Therefore, the representative requested that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the report of the Relocation Committee which concluded that given that the person relocating was covered under another directive, the grievor was never subject to the Relocation Directive and therefore, the grievor is not entitled to any benefits under this Directive. Consequently, the grievance is moot.
The Executive Committee however, noted concern with the lack of support provided by the Department in this stressful period and encourages the Department to clarify management processes and implement any corrective actions to ensure this type of situation does not arise again, noting it is reasonable for employees to be properly supported in similar situations and for the Employer to respond in a timely fashion to leave requests.