Canadian Employment Law Today

CELT Sept 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 8 September 18, 2013 A grievance for grieving employees THIS INSTALMENT of You Make the Call involves three employees looking for bereavement leave for the death of their spouses' grandparents. Three employees of Essex County, Ont. — two paramedics and one inside worker — sought paid bereavement leave to attend the visitation and funeral of their spouse's grandparent or greatgrandparent. Under the collective agreements, employees were entitled to five consecutive days for the funeral of a parent, spouse, child or step-child, or stepparent. Three days were allowed for the funeral of a brother, sister, mother-in- Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 8 How would you handle this case? Read the facts and see if the judge agrees law, father-in-law, grandparent, step-sibling, brother-in-law, sister-in-law, grandchild, or "any relative who has been residing in the same household of the employee." One day's paid leave was allowed for the funeral of an uncle, aunt, niece or nephew and one-half day off for that of a close friend on a work day. The death of a spouse's grandparent or great-grandparent was not specified in the collective agreement provision, but the county was willing to treat it as the death of a close friend — granting one-half of a day off. The employees and the union felt it should be treated the same as the death of the employee's own grandparent and warrant three paid days off. The employees in each case argued they had personal connections with the deceased, had an obligation to comfort their spouse and family and be there at family events around the funeral, much as they would if it was their own grandparent. The county didn't dispute the employees' claims of closeness to their spouses' grandparents, but said the closeness of employees to family members varies and it wasn't its place to evaluate those relationships. Therefore, it had to apply the collective agreement provisions to determine the bereavement leave allotment according to the relationships outlined. You make the call ✓ ❑ Were the employees entitled to three days off as if their own grandparents passed away? OR ✓ ❑ They weren't entitled to three days because the agreement didn't name spouse's grandparents? IF YOU SAID the employees were not entitled to three days' paid leave, you're right. The majority of the arbitration board noted that in previous cases, where there was ambiguity regarding relationships warranting lengths of bereavement leave — sometimes there is a specific list of relatives, sometimes there is reference to "immediate family" — a broad interpretation of collective agreement provisions should be given, but where there are specifics, the language of the collective agreement should be followed. The board found in Essex County's collective agreements, there was no reference to immediate family or other general relationship groups in the bereavement leave provision, only to specific relationships of the employee, except for "an uncle, aunt, niece or nephew." The only reference to grandparents was for the employee's own, not a spouse's. With the references to specific relationships, the collective agreement should be interpreted according to its wording, said the board. "In the circumstances, we find that the parties have agreed to the employee being paid for bereavement leave on the death of a grandparent of great-grandparent of only the employee themselves," said the board in denying the grievances. However, there was one dissenting member who found the purpose of bereavement leave was to provide paid time off to "gather with relatives at a time of personal tragedy for mutual comfort," grieve privately and provide support. Given this purpose, the bereavement leave provision in the collective agreement should be interpreted broadly and "grandparents" should be interpreted to include the grandparents of an employee's spouse, said the dissenting arbitrator. CELT For more information see: ■ Essex (County) and CUPE, Local 2074.1 (Hope), Re, 2013 CarswellOnt 10199 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013

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