OTTAWA, Ontario, June 16, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for leave and judicial review, under s. 18.1 of the Federal Courts Act, R.S.C 1985 c. F-7, of the decision dated September 28, 2005, in which an Adjudicator appointed by the Public Service Labour Relations Board issued a negative decision with respect to a grievance filed by the applicant regarding the forced use of his vacation leave. The Adjudicator acted pursuant to s. 92 of the Public Service Staff Relations Act, R.S.C. 1985 c. P-35.
[2] The applicant, Brian Rosekat, is a Supply Officer (PG-02) with Public Works and Government Services Canada (PWGSC, the employer) in Mississauga, Ontario. The applicant has worked for PWGSC since June 10, 1975.
[3] Prior to 2002-2003, the applicant had been allowed to cash out his unused vacation leave credits at the end of the fiscal year. At the beginning of 2002, he carried over from the previous year the maximum of 35 days credit of vacation leave; he also was entitled to earn during the following year, 26 more days of vacation.
[4] In 2002-2003, the applicant was requested, under Clause 15.05 of the Collective Agreement (the "Agreement") between the Treasury Board and the Professional Institute of the Public Service of Canada (PIPSC), to take his vacation leave before the end of the 2002-2003 fiscal year without his request or consent. The employer scheduled his vacation from February 24, 2003 until March 21, 2003, for a total of 147.5 hours of vacation time.
[5] A number of clauses in the Agreement were relied upon and were referred to in the decision by the Adjudicator and, for convenience, I reproduce them below:
5.01 Management Rights
All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Institute as retained by the Employer.
15.05 Provision for Vacation Leave
a. Employees are expected to take all their vacation leave during the vacation year in which it is earned.
b. In order to maintain operational requirements, the Employer reserves the right to schedule an employee's vacation leave but shall make every reasonable effort:
i. to provide an employee's vacation leave in an amount and at such time as the employee may request;
ii. not to recall an employee to duty after he has proceeded on vacation leave.
c. The Employer shall give an employee as much notice as is practicable and reasonable of approval, denial or cancellation of a request for vacation or furlough leave. In the case of denial, alteration or cancellation of such leave, the Employer shall give written reason therefore upon written request from the employee.
15.07 Carry-Over and Liquidation of Vacation Leave
a. Where in any vacation year all of the vacation leave credited to an employee has not been scheduled, the employee may carry over into the following vacation year up to a maximum of thirty-five (35) days credits. All vacation credits in excess of thirty-five (35) days will be paid in cash at the employee's daily rate of pay as calculated from the classification prescribed in his certificate of appointment of his substantive position on the last day of the vacation year.
b. During any vacation year, upon application by the employee and at the discretion of the Employer, earned but unused vacation leave credits in excess of fifteen (15) days may be paid in cash at the employee's daily rate of pay as calculated from the classification prescribed in his certificate of appointment of his substantive position on March 31st, of the previous vacation year.
c. Notwithstanding paragraph (a), if on the date of signing of this Agreement or on the date an employee becomes subject to this Agreement, he or she has more than two hundred and sixty-two point five (262.5) hours of unused vacation leave credits earned during previous years, a minimum of seventy-five (75) hours credit per year shall be granted, or paid in cash by March 31st of each year, until all vacation leave credits in excess of two hundred and sixty-two point five (262.5) hours have been liquidated. Payment shall be in one instalment per year, and shall be at his or her daily rate of pay as calculated from the classification prescribed in his or her certificate of appointment of his or her substantive position on March 31st of the applicable previous vacation year.
[6] The employer advised the applicant in October 2002 that a memorandum of agreement had been entered into between his union, PIPSC, and the employer, whereby all employees would be expected to take their earned vacation leave before the end of the fiscal year.
[7] Shortly after being advised of the change of policy, the applicant was asked by management to supply a vacation leave plan before October 23, 2002. Although the applicant alleges that he prepared a plan prior to October 23, 2002, he did not submit it as requested. The applicant's supervisor advised the Manager, Mr. Shaw, of his failure to produce a plan; he in turn attempted to schedule a meeting with the applicant to formalize a vacation plan.
[8] Leave from December 27, 2002 to January 3, 2003 was requested and allowed but no plan was provided by the applicant to use his remaining vacation leave credits prior to the end of the fiscal year. There remained outstanding 21 days of vacation leave credit.
[9] On February 14, 2003, Mr. Shaw sent the applicant an email, requesting that he schedule vacation leave to reduce his credit balance to 262.5 hours (35 days). The applicant did not respond; a follow up email was forwarded on February 18, 2003; the applicant was advised that, since he had made no effort to schedule vacation leave despite repeated requests, vacation leave would be scheduled for him from February 20, 2003 to March 20, 2003. The applicant and Mr. Shaw subsequently agreed that the leave would be scheduled from February 24, 2003 to March 21, 2003, but not before the applicant attempted to have 75 hours cashed out, rather than taking vacation time.
[10] The applicant grieved the forced vacation time and sought to have his hours reinstated and that he be allowed to cash them out at the applicable rate.
[11] The Adjudicator, after carefully analysing submissions from both parties, concluded that the vacation leave was reasonably scheduled by the employer and dismissed the applicant's grievance. He found as follows, at paragraph 7 of his decision:
[7] Despite repeated requests and numerous discussions, the grievor would not comply with management's requests that he take his earned vacation leave before end of the 2003 fiscal year. Therefore, it was the employer's right to schedule him on vacation leave. At no time did the employer violate the provisions of the collective agreement, as alleged by the grievor.
[12] He came to the conclusion that the scheduling of the applicant's vacation leave was within the provisions of the Agreement, and more particularly that the employer was not constrained by clause 15.05 of the Agreement, and determined that the scheduling was within its authority "to maintain operational requirements".
[13] The first issue submitted by the parties was an analysis of the standard of review that the Court should apply when reconsidering an Adjudicators' determination. Citing various authorities, it was submitted that the standard of review should be determined on the basis of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (3) the matter of the question whether it is that of a question of law, or fact, or mixed law and fact.
[14] Relying on a decision from the Supreme Court of Canada in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, the Court was urged to find that Arbitrators have greater expertise in interpreting collective agreement provisions; the interpretation of a collective agreement is a question of law that is in the core expertise of an Arbitrator, and as such, some deference should apply. Since an Arbitrator's decision is not protected by a full privative clause, he should be entitled to some measure of deference on a standard of reasonableness.
[15] It became apparent after listening to prolonged discussions by both parties that in reviewing this decision the Court should apply the standard of reasonableness.
[16] The applicant's strongest argument before the Adjudicator was that the scheduling by the employer of forced vacation leave cannot, in law, validate his decision by relying on the wording of Clause 15.05(b) "to maintain operational requirements" (Clause 5.01), which has no application in the present case. However, the Adjudicator considered and dismissed this argument, finding as follows, at paragraphs 55-58:
[55] I do not agree with Ms. Balfe's argument that the employer only has the right to schedule an employee's vacation leave in order to maintain operational requirements. The cases submitted by the grievor's representative, and in particular Graham (supra), dealt with a situation whereby the employer scheduled an appropriate number of employees to work to meet operational requirements and therefore denied their vacation leave.
[56] The wording of clause 5.01 provides that the employer retains all rights, functions, powers and authority unless these are specifically restricted by the collective agreement. Clause 15.05(b) recognizes that the employer, in order to maintain operational requirements, reserves the right to schedule an employee's vacation leave, but the collective agreement restricts this right. The employer must make every reasonable effort to provide an employee vacation leave at the time and in an amount as the employee may request. As well, the employer must be reasonable in its application of 15.05(b)(ii) and 15.05(c). I find no limitations in the collective agreement to the employer's right to schedule an employee's vacation leave when the employee refuses to take vacation leave during the fiscal year.
[57] The grievor was never denied vacation leave; in fact, he was asked on several occasions to submit a vacation leave plan but refused to do so, although he had reached the 35-day carry over limit stated in subclause 15.07(a). If the employer had refused to grant him vacation leave after he attained the 35-day carry over limit because of operational requirements, then the employer would automatically have been obligated to reimburse him for any unused vacation leave on the last day of the fiscal year.
[58] In this case, the grievor was not denied vacation leave in an amount and at such time as requested. The employer gave him ample opportunity and several opportunities to schedule his vacation leave, but he chose not to do so. I cannot, therefore, conclude that he was treated unjustly or unreasonably by the employer.
[59] In the absence of the grievor's willingness to schedule his vacation leave, I find that the employer was justified in applying the provisions of clause 5.01.
[17] The Adjudicator concluded that the employer had the right to schedule the applicant's vacation leave time, under Clauses 5.01, 15.05, and 15.07 of the Agreement, and dismissed the applicant's grievance. The applicant now applies to this Court for judicial review of the Adjudicator's decision.
[18] The applicant raises one major issue: that the Adjudicator's conclusion is unreasonable, given that Clause 15.05 of the Agreement limits the employer's ability to schedule forced vacation time to situations requiring the "maintenance of operational requirements"; the employer could not schedule the applicant's vacation leave for budgetary reasons; it could not be implied as a power granted under "operational requirements".
[19] In summary, the applicant alleges that the Adjudicator erred in finding that the employer could unilaterally schedule leave, under Clause 5.01 of the Agreement, when considering the limitations imposed by Clause 15.05. He further submits that the residual employer rights, which exist by virtue of Clause 5.01, cannot be used in the face of an explicit requirement, such as the one put forth in Clause 15.05(b). The applicant relies on the Supreme Court of Canada's decisions in Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42 at paras 26 & 31, and Heustis v. New Brunswick (Electric Power Commission), [1979] 2 S.C.R. 768 at p. 7, in which the Supreme Court of Canada found that management right must be exercised in accordance with the express provisions of a collective agreement and that the express provisions take precedence over a general management rights clause.
[20] The applicant's argument relies on the submission that the Adjudicator found justification on a residual exercise of discretion to determine that the employer could schedule the applicant's vacation leave. However, he argues that there was an express clause, Clause 15.05(b), which purposefully dealt with the employer's ability to schedule vacation leave for employees. Clause 15.05(b) reads as follows:
b. In order to maintain operational requirements, the Employer reserves the right to schedule an employee's vacation leave but shall make every reasonable effort:
i. to provide an employee's vacation leave in an amount and at such time as the employee may request;
ii. not to recall an employee to duty after he has proceeded on vacation leave.
[21] It was abundantly clear to me that this submission was totally rejected by the Adjudicator when he wrote:
Clause 15.05(b) recognizes that the employer, in order to maintain operational requirements, reserves the right to schedule an employee's vacation leave, but the collective agreement restricts this right. The employer must make every reasonable effort to provide an employee vacation leave at the time and in an amount as the employee may request. As well, the employer must be reasonable in its application of 15.05(b)(ii) and 15.05(c). I find no limitations in the collective agreement to the employer's right to schedule an employee's vacation leave when the employee refuses to take vacation leave during the fiscal year.
[22] The applicant relies on jurisprudence which he submits sets aside reliance by the employer on the principle of "maintaining operational requirements" to schedule leave time.
[23] The first decision relied upon is In re Kenneth E. Norman, Member of the Public Service Staff Relations Board and Adjudicator and in re Melvin Grant and Gerald Stoykewich, [1979] 2 F.C. 258 where the Court, dealing with a particular Adjudicator's decision, found that he had failed to analyse whether the employer had considered or reviewed whether or not he had made a reasonable effort to grant the employees' request under Clause 15.05(b) and it returned the matter for re-determination. My review of this decision does not support what is alleged by counsel for the applicant. The Court of Appeal did not determine whether or not the annual leave or the reinstatement thereof and the carryover of annual leave days could or could not be justified "to maintain operational requirements".
[24] Counsel then referred me to the decision by the Canada Public Service Staff Relations Board in Bozek v. Canada Customs and Revenue Agency, [2002] C.P.S.S.R.B. No 48. This decision dealt with whether or not a grievor could carryover an excess of 35 days leave credit when requested by an employer to take his current year's vacation. That matter turned on whether or not the employer could force employees to take vacation leave in excess of the accumulation of 35 days since the collective agreement did not contain a 35 day cap.
[25] Finally, I was referred to the decision Power and Treasury Board (Transport Canada), [1988] C.P.S.S.R.B. No. 56. This decision dealt with operational requirements where the employer refused permission to unilaterally schedule leave when his sole reliance was on the fact that he had failed to allocate enough resources to meet increasing annual leave entitlements. At page 9 of the decision, the Adjudicator wrote:
"In any case, the words of Article 16.04 of the present collective agreement lead me to conclude that it would only be under very peculiar circumstances that the employer could justify a refusal to carry over leave on the basis of operational requirements."
The main reason why the lack of resources in this particular case could not justify operational requirements was due to the employer's actions which were two-fold. A number of employees working in this particular division of Transport Canada had acquired greater seniority and, as a result, were entitled to an increased number of vacation leave days; in addition, the employer's responsibilities in the region had been increased resulting in a lack of personnel.
[26] But may I point out the next paragraph of the decision which states as follows:
"In the normal course of events, the employer can plead operational requirements only when an employee requests leave on a particular day. It is then open to the employer to determine whether or not operational requirements will permit leave to be granted on that day."
[27] In the matter before the Court today there was no request by the employee for leave on any particular day. As a matter of fact there was no request for leave submitted at any time. Express provisions of Clause 15.05(b) contains the broad statement, "In order to satisfy operational requirements". As I read the Clause the only constraint imposed on the employer would arise if he chose to ignore or not schedule an employees' vacation leave or make reasonable efforts to do so, when a request has been submitted.
[28] There was evidence before the Adjudicator that the applicant's leave was scheduled due to financial constraints. The Adjudicator was satisfied that the region was expected to reduce its budget by $300,000 and was so directed by the Assistant Deputy Minister as a cost management control initiative. Mr. Shaw testified that he expected a $300,000 short fall in his budget. To construe Clause 15.05(b) as narrowly as suggested would unduly limit its application. I am satisfied that the phrase "maintain operational requirements" is sufficiently broad to include financial constraints and I see no reason to disturb the Adjudicator's decision. Had the applicant requested vacation, another analysis may have been necessary. As I see it, the Adjudicator's decision is reasonable on the facts and correct in his interpretation of the Clauses relied upon in the Agreement.
[29] No one seems to refer to the fact that it was the applicant's union, PIPSC, who had agreed with management that all employees would be expected to take their earned vacation leave before the end of the fiscal year. It was their own memorandum whose existence was doubted by the applicant.
[30] No submission would allow me to conclude that the Adjudicator's decision is one that could not stand up to a "somewhat probing examination".
JUDGMENT
The application for judicial review is dismissed. Since the respondent was seeking costs, I will entertain written submissions in that regard from the respondent to be served and filed by June 30, 2006 and reply by the applicant by July 15, 2006.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1887-05
STYLE OF CAUSE: Brian Rosekat v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 12, 2006
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Stephen Welchner Welchner Law office
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| Stéphane Hould Legal Services, Treasury Board
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SOLICITORS OF RECORD:
| Welchner Law Office Ottawa, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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