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Arbitrator holds that Floater Days are not a Greater Right or Benefit in light of new PEL Rules

A recent labour arbitration decision has determined that the three paid floater days provided in a collective agreement did not constitute a greater right or benefit under the terms of the Employment Standards Act, 2000 (“ESA”), given that the statute now provides the employees with two paid personal emergency days.

The Union and the Employer were parties to a collective agreement in effect from July 1, 2016 to June 30, 2019, applicable to the Employer’s employees employed at Terminal 1 of the Toronto’s Pearson International Airport.

Article 17 of the Collective Agreement provided employees with the benefit of three paid floater days in a twelve-month period running annually from July 1 to June 30. Pursuant to this provision, if an employee has an unexpected justified absence from work and they have an available floater holiday, that employee can elect to be paid out a floater day for the justified absence.  

As we all know by now (and if you don’t, consider listening to Episode 2 of the Lawyers for Employers Podcast) Bill 148 amendments to the ESA regarding entitlement to personal emergency leave (“PEL”) days have been in effect since June 1, 2018. Section 50 of the ESA pertaining to PEL days entitles employees with 10 PEL days and the first two of these days are paid.

The first Grievor in this matter had used her three floater days under the collective agreement on September 2 and 3, and October 22, 2017. She became ill on January 23, 2018 and requested a paid PEL day because of her inability to attend work due to her personal illness. The Employer did not pay Grievor 1 a PEL day for the day of work missed on January 23, 2018. The Grievor was informed her that she did not have a floater day available, and instead that she could take the day off but would not be paid.

A second Grievor had used two of her floater days on October 29 and 30, 2017. She became ill on January 18, 2018 and requested a paid PEL day due to her inability to attend work. The Employer did not provide Grievor 2 with a paid PEL day. Instead, she was informed that she could take her last floater day if she wanted it to be paid.  Grievor 2 chose not to utilize her floater day, and she was not paid for the missed work day.

The Employer argued that the collective agreement allowed the use of floater days for any justified absence when employees encountered “unexpected circumstances”. As such, the Employer said that this contractual arrangement was a “like benefit” to the one afforded under the ESA for paid PEL days.

The Union’s contention was that the grievors were entitled to paid statutory PEL days notwithstanding Article 17 of the collective agreement. The Union argued that Article 17 afforded employees access to paid holidays and therefore, the contractual floater days addressed needs that were different from and not directly related to those provided for in section 50 of the ESA.

Arbitrator Rogers allowed the grievances and concluded that the grievors were entitled to the paid PEL days for the absences in question.

The Arbitrator’s decision including the following ruling:

The collective agreement did not require an employee to save floater days for personal emergency leave applications and it did not disentitle an employee to paid personal emergency leave if or to the extent that he or she has previously taken paid floater days for reasons other than personal emergency leave.  Therefore, absent a negotiated requirement that the floater days be reserved for the purposes of providing the equivalent of three personal emergency leave days with pay – in which case the floater days would lose all value as “holidays” – they cannot be withheld or applied by the Employer as the means by which its obligations to provide paid leave under subsections 50(5) and (8) are to be satisfied.

This decision reminds employers to review their collective agreements and assess their obligations pursuant to the new benefits in effect post Bill 148 amendments to the ESA. The lawyers at CCP are experienced in advising on all matters related to collective agreements and the ESA.

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