Changes to scheduled vacation

If an employee’s vacation request has been approved under standard company policy, does the employer have the right to withdraw the approval?

Colin Gibson

Question: If an employee’s vacation request has been approved under standard company policy, does the employer have the right to withdraw the approval or otherwise change the employee’s vacation schedule unilaterally? Where approved vacation is revoked or amended, is the employer required to reimburse the employee for monetary losses, such as non-refundable airline tickets?

Answer: In many workplaces, vacations are scheduled in accordance with such factors as seniority, the timing of the request and employee preferences with the employer reserving the right to make the final decision based on its operational needs.

The British Columbia Employment Standards Act (ESA) requires employers to give employees an annual vacation of two weeks after 12 consecutive months of employment. An employee’s annual vacation entitlement increases to three weeks after the employee has completed five consecutive years of employment.

Under s. 52 of the ESA an employer must ensure an employee takes the statutory vacation to which she is entitled within 12 months after completing the year of employment entitling the employee to the vacation. The ESA also requires employers to allow employees to take their vacation in periods of one or more weeks.

Nothing in the ESA requires an employer to approve an employee’s vacation request, or prevents an employer from altering or revoking approved vacation, as long as the s. 52 requirements are met.

The common law does not fetter an employer’s discretion to approve, alter or revoke an employee’s vacation based upon operational requirements or other proper considerations.

Such restrictions would only exist if they were included in the express terms of the employment contract between the employee and the employer, in which case a violation by the employer would be a breach of contract.

In this regard, it must be kept in mind that provisions contained in an employee handbook or policy manual might be contractually binding on the employer, depending on the circumstances.

In unionized environments, many collective agreements contain provisions dealing with the scheduling of vacations, and some agreements include language that specifically addresses the employer’s ability to alter approved vacations.

In the absence of specific language, an arbitrator will require an employer to exercise its discretionary management rights reasonably and to refrain from making decisions that are arbitrary, discriminatory or in bad faith.

If an employer revokes or changes an employee’s vacation without her consent, in a manner that constitutes a breach of the applicable employment contract or collective agreement, the employer may be exposed to a claim for damages flowing reasonably and foreseeably from the breach.

The measure of damages will be the amount of money that will restore the employee to the financial position she would have been in had the breach not occurred.

This could result in a requirement to reimburse the employee for non-recoverable expenses, such as non-refundable airfares and accommodation costs. However, the employee must act reasonably to mitigate her losses and must be able to prove them with certainty.

For an example of an arbitration decision where damages were awarded to an employee for losses suffered as a result of the improper cancellation of his vacation, see Labatt’s Alberta Brewery (1996), 53 LAC (4th) 158 (Melnyk).

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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