BETWEEN:
and
Heard at Ottawa, Ontario, on March 22, 2007.
Judgment delivered from the Bench at Ottawa, Ontario, on March 22, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Docket: A-301-06
Citation: 2007 FCA 117
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
BRIAN ROSEKAT
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on March 22, 2007)
[1] This is an appeal of the decision of Mr. Justice Rouleau of the Federal Court (2006 FC 769) dismissing an application for judicial review of the decision of D.R. Quigley (the “adjudicator”) of the Public Service Labour Relations Board (“Board”) acting pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. The application puts into question the adjudicator’s interpretation of the collective agreement and its application to the appellant’s particular situation.
[2] The facts in this case are not in dispute.
[3] The relevant provisions of the collective agreement are as follows:
ARTICLE 5
MANAGEMENT RIGHTS
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5.01 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 being retained by the Employer. |
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ARTICLE 15
VACATION LEAVE
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15.05 |
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Provision for Vacation Leave |
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a. |
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Employees are expected to take all their vacation leave during the vacation year in which it is earned. |
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b. |
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In order to maintain operational requirements, the Employer reserves the right to schedule an employee's vacation leave but shall make every reasonable effort: |
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i. |
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to provide an employee's vacation leave in an amount and at such time as the employee may request; |
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ii. |
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not to recall an employee to duty after he has proceeded on vacation leave. |
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c. |
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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 the written reason therefore, upon written request from the employee. |
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15.07 |
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Carry-Over and Liquidation of Vacation Leave |
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a. |
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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. |
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b. |
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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 31 st, of the previous vacation year. |
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c. |
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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 31 st 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 installment 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 31 st of the applicable previous vacation year. |
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[4] The adjudicator found as a fact that 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) (paragraph 57).
[5] The adjudicator also found as a fact that 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 (paragraph 58).
[6] The adjudicator found the wording in subclause 15.05(a) very clear: “Employees are expected to take all their vacation leave during the vacation year in which it is earned” (paragraph 50).
[7] The adjudicator then determined at paragraph 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 such 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.
[8] Accordingly, the adjudicator dismissed the grievance.
[9] We cannot find any reviewable error by the adjudicator in this case. Having so decided, it is not necessary to express an opinion on the alternative ground adopted by the applications’ judge, namely that the phrase “In order to maintain operational requirements” in subclause 15.05(b) is sufficiently broad to include financial constraints.
[10] Accordingly, the appeal will be dismissed with costs.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-301-06
(APPEAL FROM A JUDGMENT THE HONOURABLE PAUL ROULEAU DATED JUNE 16, 2006, DOCKET NO. T-1887-05)
STYLE OF CAUSE: Brian Rosekat v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 22, 2007
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.,
LÉTOURNEAU J.A.
and NOËL J.A.
DELIVERED FROM THE BENCH BY: RICHARD C.J.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Ottawa, Ontario
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FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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