Numéro de sentence arbitrale 13-008

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Award Date:	2013-03-08
Arbitre:	Kaplan, W Voir les prix par Kaplan, W
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Vacation, Call-back, Remedies
Plaignant:	Association
Comparutions:	M. Mitchell, pour l'Association M. Hines, pour l'employeur
Longueur:	15 pp
Référence conventions collective	Art. 5 and 7
Référence législative

Sommaire

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Vacation   Uniform members - Call-back from vacation - Grievance concerned cancellation of vacation days during G20 summit - Members who reported for duty on scheduled vacation days received pay for the day plus call-back pay at time and one-half - Vacation days an earned benefit - Collective agreement requires that members receive specific number of paid vacation days - Vacation days may be cancelled but not, as here, permanently eliminated - Grievance allowed

Call-back   Uniform members - Call-back from vacation - Grievance concerned cancellation of vacation days during G20 summit - Members called back to work from scheduled vacations received pay for the day plus call-back pay - Employer entitled to cancel vacation days for legitimate police business but not eliminate them entirely - Employer should have offered members choice about whether they wished to be paid for worked vacation day or have it restored to their vacation bank - Grievance allowed

Remedies   Damages - Uniform members - Call-back from vacation - Grievance concerned cancellation of vacation days during G20 summit - Employer cancelled vacations for legitimate reasons - Employer breached collective agreement by permanently eliminating vacation days - Declaratory relief alone insufficient - Affected members entitled to modest award of damages for each day of cancelled vacation - Grievance allowed.

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Réalités

On June 27, 2010, due to events that transpired during the G20 summit, management made a decision to suspend annual leaves beginning on June 28th. Members who were on scheduled vacation were called back from those vacations to work during the policing emergency. The vacation suspension lasted only a single day. The employer accommodated members who could not change their vacation plans or who faced personal hardship. Those members who reported for duty were paid for the day plus time and one-half for all hours worked. The premium payment could be taken later as lieu time if the member wished. Approximately 500 members were affected on June 28th and 33 on June 29th. Article 5 of the collective agreement defined call-back as including performance of duties “on regularly scheduled days off” and provided for payment at time and one-half or lieu time. Members called back during vacation to attend court were entitled to two days off, if the attendance had been approved by the unit commander. Article 7 set out weekly vacation entitlements on the basis of service milestones.

Argument

The association agreed that the employer was entitled to cancel vacation days in order to deal with the policing emergency. The association contended, however, that members who were called in to work from their vacation should have been paid time and one-half for all hours worked and should also have had their vacation bank credited for the day worked. The association argued that Article 7 provided members with specific vacation entitlements, and the entitlement was to time off with pay, not just pay. In the association’s view, as a result of the events arising out of the G20 summit, members did not receive their negotiated entitlements, since they lost a vacation day. Furthermore, past instances where members worked on their vacations and received vacation pay along with call-back pay were distinguishable, since on those occasions members volunteered to work. As a remedy the association sought a declaration of breach, an order that vacation banks not be diminished in this manner in the future, and compensation for affected members in the amount of 8 hours to be credited to each member’s non-cashable lieu bank. The employer argued that no member had his or her vacation cancelled. Instead, some members were required to work on a vacation day. The employer pointed out that it was common under the collective agreement for employees to work on statutory holidays or scheduled days off; and in such situations the employee did not get a new scheduled day off but rather compensation for working on what would otherwise have beena day off. Since members in this case were paid for their vacation day and had the option of taking hours worked later as lieu time, there was no need to restore the worked vacation day. The employer submitted that there was nothing in the collective agreement that entitled an employee to receive vacation pay plus another paid day off. In the event the grievance was not denied, the employer argued that relief should be limited to a declaration of breach. Because members had already received pay for the day as well as premium pay for hours worked, it would be excessive to give employees, years later, another paid vacation day.

# de sentence arbirale

There was no question that the employer had a bona fide need to cancel vacations, or that the employer accommodated members who had fixed plans or who would experience financial hardship. However, while the employer was entitled to cancel vacation, it was not entitled to permanently eliminate vacation days. Collective agreement provisions relating to call-back during scheduled days off, statutory holidays or sickness during vacation were immaterial to the decision in this case. By definition, vacations were different; they were paid time away from work. Article 7 provided clear entitlement to a specified number of vacation days based on service. Vacations with pay were an earned benefit. There was nothing in the collective agreement that allowed the employer to permanently cancel vacation days even where, as in this case, it paid employees for the cancelled days. While vacation could be cancelled for legitimate police business, it could not be permanently eliminated. In this case the employer violated the collective agreement when it eliminated vacation days and deprived members of a negotiated entitlement. Since two years had passed, crafting a remedy for the breach was difficult. Given the purpose of vacation, its benefits were only realized if the vacation was taken with pay in a timely fashion. The employer should have given affected members a choice: not about the call-back pay, but about whether they wished to be paid for the worked vacation day or have it restored to their vacation bank. Although declaratory relief alone was insufficient, overcompensation would be equally wrong. Accordingly the most appropriate remedy, in addition to the declaration of breach, was a non-punitive and modest monetary award. The arbitrator ordered the employer to pay each affected member $100 as damages for each day of cancelled vacation. Grievance allowed.

Autorités cité

Re Cardinal Transportation& C.U.P.E.(1997), 62 L.A.C. (4th) 236 (Devine) Re Sifto Canada & C.E.P., Local 16-0 (1997),46 C.L.A.S. 102 (Albertyn) Re Assiniboine Regional Health Authority & C.U.P.E., Local 4593 (2009),189 L.A.C. (4th) 137 (Graham) ** This award has been selected for publication in Labour Arbitration Cases

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