GSB#0476/01
UNION#01B195
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Brochu)
Grievor
-and-
The Crown in Right of Ontario
(Ontario Clean Water Agency)
Employer
BEFORE Randi H. Abramksy Vice-Chair
FOR THE GRIEVOR Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Len Hatzis Counsel Legal Services Branch Management Board Secretariat
HEARING January 9, 2002.
AWARD
This grievance involves whether or not the Employer properly deducted 11.18 vacation credits from the grievor, Claude Brochu, pursuant to Article 46.5 of the collective agreement. Article 46.5 provides:
An employee may accumulate vacation to a maximum of twice his or her annual accrual but shall be required to reduce his or her accumulation to a maximum of one (1) year’s accrual by December 31 of each year.
Facts
The grievor is a Waste and Water Operator 1 at the Hurst, Ontario plant, and has worked for the Employer since March 1987. The Hurst plant is a small facility and has only two Waste and Water operators, plus Assistant Manger Andre Doucet.
Pursuant to Article 46.1, an employee with the grievor’s length of service earns 20 vacation credits per year. He had carried forward 19 vacation days from 1999, and 20 more were added in January 2000, so that as of January 31, 2000, he had 39 vacation credits.
On February 21, 2000, a memo went to all employees in the Northeastern Ontario Hub, requesting each employee to specify their vacation week preferences by March 31, 2000. The purpose of this was “to schedule work and maintain the necessary manpower to ensure reliability and safety at our facilities, and so that you take your vacation when you want it…” The grievor did not submit a vacation request.
As of May 31, 2000, the grievor had 37 vacation days remaining. Assistant Manager Doucet testified that because the grievor had not submitted his vacation requests and normally took vacation time over the summer, he spoke to the grievor to remind him that he had excess vacation to use and had not yet used them. The grievor did not recall this conversation.
Mr. Doucet testified that he again spoke to the grievor about using his excess vacation time in September or October. He stated that he told the grievor that the year was coming to an end and that he needed to reduce his vacation time because under the collective agreement, he would lose any days in excess of one year’s accrual unless management approved it being carried forward. The grievor recalls a similar conversation in October 2000 and stated that Mr. Doucet requested that he submit a plan to reduce his excess vacation. The grievor testified that he did not submit such a plan and that no further mention of it was made. Accordingly, at the end of December 2000, the grievor still had 31.18 vacation credits remaining.
In January 2001, Mr. Doucet gave the grievor a form to complete to request that his excess vacation time (11.18 days) be carried forward. The form was prepared by the Administrative Assistant Karen Klinke. It was signed by the grievor and returned to Mr. Doucet. It states as follows:
January 12, 2001
TO: Tony Janssen Operations Manager Northeastern Ontario Hub
RE: Excessive Vacation Carryover
I am hereby requesting to carry over 11.18 days of the year 2000 vacation credits to the year 2001.
Sincerely,
/s/ Claude Brochu
Claude Brochu
Cc: Andre Doucet Assistant Manager
I hereby approve the above noted request:
____________________________
Tony Janssen Operations Manager Northeastern Ontario Hub
According to Mr. Doucet he discussed the request later that day with Tony Janssen, Operations Manager, Northeastern Ontario Hub, and it was decided that before the request could be approved, the grievor would have to write a letter explaining why he had been unable to take his vacation time in 2000 and submit a plan to show how the time would be reduced by the end of 2001. Mr. Doucet wrote down these two requirements on yellow sticky notes and attached them to the January 12, 2001 request. Because he was not going to be at the plant the next morning, he then left the request, with the sticky notes attached, near the Log Book in the lunch room where employees sign in and out each day. The grievor testified, however, that he never saw it.
Mr. Doucet testified that he had a conversation with the grievor on January 13, 2001 about the two requirements for approval, and that he told him that to approve the request for carryover, he would need a letter explaining why the vacation had not been taken in 2000 and a plan to reduce it by the end of the year. The grievor recalls Mr. Doucet mentioning the requirement for a plan to reduce the vacation time, but does not recall being asked for a letter explaining why he had not taken the vacation time in 2000.
To the extent that Mr. Doucet’s and Mr. Brochu’s recollection of their conversations differ, I credit the recollection of Mr. Doucet. His recollection was far clearer and more specific than the recollection of the grievor.
The grievor testified that on January 12, 2001, he submitted his “plan” to reduce the excessive vacation carryover. According to Mr. Doucet, this “plan” was provided on January 13, 2001. The memo, dated January 12, 2001, states as follows:
January 12, 2001
To Andre Doucet Assistant Manager
RE: Excessive Vacation Carryover
To minimize the carryover, I would like to take off the week of January 22-27 and February 5-10, 2001. This is the best I can do in such a short notice.
Sincerely,
Claude Brochu
The grievor testified that Mr. Doucet denied this vacation request, stating that the first week requested he had quarterly reports to issue and that he was scheduled to take holidays the week afterward, but that he could “take them at a later date.”
Mr. Doucet testified that when he saw the vacation request he told the grievor that this was not what management requested. He told the grievor that it did not show how the excess vacation time would be reduced by the end of the year and there was no letter regarding why the vacation time had not been used in 2000. He said that he would take it to Janssen, but told the grievor that he was sure it would not be approved because it was not a full plan. He confirmed that he also told the grievor that the two week vacation he requested was not approved. He denied that he told the grievor that he could take the excess vacation time later on. Instead, he told him he could take these two weeks – from the 40 days available to him – at a later time.
Mr. Doucet did talk to Mr. Janssen again about the grievor’s request to carryover the excess vacation days, but the request was not approved because there was no explanation as to why the vacation time had not be used in 2000, and no plan for reducing the vacation. It does not appear that this decision was conveyed to the grievor.
The grievor testified that immediately after his vacation request was denied he off for three weeks on sick leave. He returned in February and the subject of the excess vacation carryover was not discussed. On April 2, 2001, he sent an e-mail to Administrative Assistant Karen Klinke, asking: “What ever happened to my 11.25 days of vacation days. Did I lose them or were they carried over?” He received no response and so e-mailed her again on April 19, 2001, after receiving his quarterly report which showed that the 11.18 excess vacation days had been deleted. She responded that no request for a carryover was ever received. In fact, however, as the testimony of Mr. Doucet indicates, the request was submitted but denied.
The evidence showed that another employee in the Northeastern Region Hub had requested a carryover of 6 vacation days, and this request was approved. According to Mr. Doucet it was approved because the applicant had reduced his vacation time substantially yet had been unable to reduce it all because of operational needs.
Arguments of the Parties
For the Union
The Union contends that the Employer, pursuant to Article 46.5, cannot just eliminate an employee’s excess vacation days. It submits that the obligation, under Article 46.5 is on the Employer to require the employee to reduce (i.e., take his vacation time), not on the employee. It contends that employees have no control over vacation approval since that is a matter decided by the Employer. Accordingly, it submits that the obligation cannot be on an employee to take his vacation time but must be read to be on the employer to require the employee to take his or her vacation. Alternatively, if that would create operational difficulties, the Employer would have the option of paying the employee for that time. What is prohibited, according to counsel for the Union, is for the Employer to unilaterally delete the credits which is what occurred here.
The Union acknowledges that the Employment Standards Act (ESA), S.O. 2000, c.41, as am. S.O. 2001, c. 9, Sched. I, s.1, vacation provisions do not apply to Crown employees, but submits that the Act should serve as an interpretative guide. It notes that under the ESA, an employee must either take his vacation time or must be paid for it. Section 41 of the Act states as follows:
41.(1) Approval to forego vacation – If the Director approves and an employee’s employer agrees, an employee may be allowed to forego taking vacation to which he or she is entitled under this part.
(2) Vacation pay – Nothing in subsection (1) allows the employer to forego paying vacation pay.
The Union contends that the same is true under Article 46.5 – that an employee must either be required to take his vacation time or must be paid for it. He cannot simply forego it without pay. The Union submits that there is no requirement to “use it or lose it” in the collective agreement and that such an interpretation is inconsistent with the ESA.
The Union acknowledges that this issue was decided in OPSEU (Upshaw) and Ministry of Health, GSB No. 2163/97 (Abramsky), but argues that it was wrongly decided since it is only the Employer who can require employees to take vacation time. To rule otherwise, it suggests, opens up the possibility that the Employer will not approve vacation requests, and then rely on the operation of Article 46.5 to delete the excess vacation time and the employees are left with no vacation and no pay.
The Union submits that under Article 46.5, there can be no carryover of excess vacation days, and that it is not up to the employer to approve carryover. Instead, the Employer must require the employee to take his or her excess vacation during the calendar year or pay for the days involved.
In the alternative, the Union contends that the grievor did put forward a “plan” to reduce the excess vacation time, and when Mr. Doucet told him that he could take it later in the year, he reasonably believed that he was referring to the excess vacation time, not his regular vacation days. It also notes that the Employer never responded to the grievor’s request to carryover the 11.18 days, and his first notification that his request was denied was through the quarterly report. Consequently, the Union contends that even if the Employer can deprive employees of vacation credits under 46.5, it was inappropriate here since they were, in effect, “snatched away” without explanation.
For the Employer
The Employer first contends that the ESA does not apply to Crown employees and has no bearing on the interpretation of Article 46.5.
It submits that this case involves whether or not the grievor’s 11.18 excess vacation credits were properly deducted under Article 46.5 and contends that they were. It submits that Article 46.5 makes no provision for a carryover of the excess days, that the decision to allow a carryover lies in the discretion of management, and that there was no breach of Article 46.5 in this case.
The Employer contends that Article 46.5 places the obligation on the employee, not the employer, to reduce his or her vacation credits to a maximum of one year’s vacation entitlement by the end of the year. It submits that the grievor received quarterly reports specifying the number of his vacation credits, and that he was specifically warned by Mr. Doucet in June and again in September or October either to use the excess vacation time or he would lose it. Yet he did nothing – he submitted no plan to reduce his vacation time and took no vacation time. The Employer submits that there was no evidence that the grievor had been unable to take his vacation time in 2000, but chose not to do so knowing that he would lose the time unless management approved his request to carry it over.
The Employer further contends that the grievor’s request for carryover was properly denied. It submits that he was told to provide reasons for why he had been unable to use his vacation in 2000 and a plan to reduce it. Instead, the grievor submitted a request for two weeks vacation. In management’s view, that was not a sufficient plan and there was no explanation provided as to why he was unable to use his vacation time. The decision regarding requests to carry over lies with management and it asserts that the decision was, under these specific facts, properly made. The Employer notes that there is no allegation and no proof of bad faith in the denial of the grievor’s request.
Finally, the Employer asserts that management never represented to the grievor that his request to carryover the excess vacation would be approved, nor did the grievor rely on any such representation. It also submits that estoppel cannot apply to a matter within management’s discretion, citing OPSEU (Coubrough/Sinisalo) and Ministry of Health, GSB No. 3018/90 (Gorsky) and OPSEU (Brummell) and Ministry of Health, GSB No. `584/91 (Kirkwood) and OPSEU(Nunn) and Ministry of Correctional Services, GSB No. 141/93 (Kaufman).
Decision
I conclude, after carefully considering the evidence and arguments of the parties, that the Employer did not violate Article 46.5 when it deducted the grievor’s excess vacation credits.
In OPSEU (Upshaw) and Ministry of Health, supra, at issue was whether the Employer had properly deducted, under Article 46.5, the grievor’s vacation credits in excess of one year’s entitlement for each of the eleven years year that the grievor had served first as First Vice President and then President of OPSEU. Although the case involved the union leave provisions in the collective agreement, it also involved Article 46.5. In that decision, at p. 23, I ruled:
The purpose of Article 46.5 is to prevent large accumulations of vacation time. It ensures that employees use their vacation time, not accumulate it then take it causing operational difficulties for the Employer. Employees, under Article 46.5, must use their vacation by December 31 or lose it.
I further concluded, in dicta, as follows at p. 25:
Further, it must be emphasized that, in general, there is nothing wrong with the Employer’s deduction of vacation credits of employees who do not reduce their total accumulation by year end. The employee has some control over the situation - they can plan and use their available credits throughout the year and they are on notice that if they do not use them, they will be deducted. Consequently, if they do not reduce the credits, the employer can properly deduct the excess.
The problem for Mr. Upshaw was that while he was on union leave he was not able to use his vacation credits. I ruled, however, that included in his yearly salary was his vacation time, and that the employer properly deducted his vacation credits to reflect that payment. I concluded at pp. 23-24: “An employee is paid for 48 weeks of work and four weeks of vacation, or 47 weeks of work and five weeks of vacation. He is not paid for 52 weeks of work plus four or five weeks of vacation. Consequently, since the grievor was paid for his vacation credits, the Employer properly deducted his vacation credits to reflect that payment.”
I find this case applicable to the instant matter. From the plain language of Article 46.5, the obligation is on the employee to reduce his or her accumulated vacation to a maximum of one (1) year’s accrual by December 31 of each year. Although it is true, as the Union asserts, that it is the employer who controls the scheduling of vacation, the employer cannot exercise that control in an unreasonable manner so as to deprive employees of their right (and obligation) to use their excess vacation time. If the employer did so, a grievance could be filed.
Under the Union’s interpretation, the Employer would be required to compel employees to take their excess vacation time by year end. In both large and small operations, this could cause substantial operational difficulties. The other alternative suggested by the Union – payment for the time – flies in the face of the conclusion in Upshaw that an employee’s annual salary includes his or her vacation time. In this case, if the employer were required to pay the grievor for the excess 11.18 vacation days, he would receive his full annual salary plus an additional 11.18 days pay.
In terms of the ESA, I conclude that its vacation provisions are not applicable to Crown employees. A number of other provisions of the ESA apply to Crown employees, but not the vacation provisions. I also conclude that there is nothing in the ESA which precludes or prohibits this Employer from deducting an employee’s excess vacation under Article 46.5 of the collective agreement.
In addition, I note that Section 41 of the ESA, specifically provides that while an employee may forego taking his or her vacation, the employer is not allowed to forego paying vacation pay. The requirement to pay for the unused vacation time is explicit. In contrast, the only explicit requirement to pay for unused vacation time is found in Article 46.11 when an employee leaves the public service or qualifies for LTIP. There is no similar payment requirement in Article 46.5 in regard to unused vacation in excess of the maximum of one year’s accrual. Further, the purpose of Article 46.5 is to require employees to take their vacation time up to the maximum they may accrue it, not forego it. Implicit in Article 46.5 is that unless an employee reduces his or her accumulated vacation to the maximum of one year’s accrual by December 31, they will lose it.
I also conclude, based on the evidence, that no representation was made by Mr. Doucet that the grievor could use his excess vacation time from 2000 later in 2001. It is understandable why the grievor thought Mr. Doucet was referring to the excess vacation time since his January 12, 2001 request for two weeks off specifically referred to reducing his “excess vacation carryover”, the evidence shows that Mr. Doucet was referring to his general vacation entitlement (and the 20 days the grievor could properly carry over) for 2001. Further, the evidence is clear that the grievor did not rely on any such representation by Mr. Doucet. If he had, he would not have been sending e-mails to Karen Kinke in April asking whether his request for carryover had been approved or not.
Finally, I conclude on the facts of this case that the employer’s decision not to approve the grievor’s request to carry over his excess vacation days was reasonable. The evidence showed that the grievor was specifically advised that he had to use his excess vacation time in 2000, or risk losing it. He was specifically told in October that he had to reduce his excess time and submit a plan to that effect. He did not do so. When he requested the carryover, he was told that he would have to submit a plan to reduce his vacation time (which, if he had been granted the 11.18 day carryover would have amounted to 51.18 vacation days, 31.18 of which he would have had to use by December 31), as well as an explanation as to why he was unable to use his vacation time in 2000. The plan he did provide was deemed inadequate and no explanation was provided. Under these specific circumstances, management’s decision to deny the request appears to be reasonable.
The situation in which management approved vacation carryover for another employee is distinguishable. In that case, the employee had substantially reduced his excess vacation time during the year but could not take the last six days due to operational requirements. With Mr. Brochu, there was no reason provided as to why his excess vacation credits were not taken in 2000.
Accordingly, based on the specific facts of this case, I conclude that there was no violation of the collective agreement and the grievance must be dismissed.
Dated at Toronto, this 14th day of January, 2002.