Linda Grusie, a registered nurse at the Foothills Medical Centre in Calgary, had lived for about 25 years at the end of a 200-metre driveway on an isolated road northwest of the city. In early May 2002, a freak snowstorm prevented her from getting to work. It dumped about a foot of wet snow on the area, and high winds whipped it into drifts. She and her husband awoke May 6 to find their driveway completely blocked.
Grusie and her husband spent the rest of the day digging themselves out. They had neither a snow blower nor a contract with a snow removal service, but relied on neighbours to help them clear snow. And by 3 p.m., a neighbour with a tractor and a plow had done just that.
Things looked promising for the next day’s shift, especially with her husband at the wheel. However, the road to the highway had not been ploughed out at all, and they soon got stuck in a drift of particularly wet and heavy snow. Back home they went. Grusie made another call to work explaining her second day’s absence.
When she finally made it in on May 8, she applied for special leave under a new provision in the collective agreement allowing for up to four days’ leave without loss of pay in “sudden or unusual circumstances” preventing attendance at work. She was turned down.
Although a weather report had warned drivers about poor visibility and snow-covered roads not recommended for travel, the hospital asserted that “clearly” the roads were not closed on those days. It based this conclusion on the assertion that only the RCMP — not Mother Nature — could close the roads, and in this case, they hadn’t done so. Admittedly, Grusie’s limited description of the state of the roads in her area (amounting to little more than “stuck in driveway”) did not help her case.
The hospital suggested it was foolish of Grusie and her husband to live so far off the main road — despite the fact in the 16 years she worked at Foothills, she had been unable to get to work only a half dozen times because of the weather. Her husband had been stuck only twice in all his years of driving around the province in all kinds of weather.
As well, the hospital suggested Grusie should have made alternative plans to stay with friends in Calgary and avoid being trapped by the snow since there had been plenty of warning about the bad weather. But according to the employer, no such steps had been taken to avoid the crisis.
In rebuttal, the union noted the RCMP had nothing to do with closing the roads; only Alberta Transportation could do that. Secondly, while the snowfall was predicted, the blowing snow and drifting were not; hence, “it was the outcome of the weather that was unpredictable, not the weather itself.” It observed official closure of roads and impassability can be two different things. The union refuted the notion Grusie was the author of her own misfortune by her choice of a place to live. If the parties had wished to exempt employees living outside Calgary from the new leave provisions, they could have, but they hadn’t. Finally the union said the onus was on the hospital, not Grusie, to make sure it had a complete picture about the critical road conditions.
Two of the three arbitration board members agreed with the union’s argument. In doing so, they noted the relative newness of the provision in the Foothills Hospital agreement and the fact that similar provisions had been arbitrated in only two or three previous awards.
Even with such a lack of precedents, they nevertheless noted one important guideline: there must be objective standards to determine eligibility for “paid leave due to pressing necessity.”
The new article had three criteria for deciding to grant the special leave. “Sudden or unusual circumstances” were the first. The board agreed the drifting snow, not the storm itself, was the sudden or unusual outcome that made it impossible for Grusie to get to work.
“Attendance at work impossible” was the second. The board was persuaded that not even a four-wheel drive vehicle could have made it through the blocked roads.
At the heart of the matter was the third criterion: “foreseeable through the exercise of reasonable judgment.” Should Grusie have stayed at her own home on the night before a storm she knew was in the offing? The board said that her staying at home was reasonable. “One cannot expect employees to leave their homes every time there is some degree of risk.” It added, “the board is reluctant to require employees to seek shelter with others in order to qualify for payment” under the contract’s provisions. This was especially true in Grusie’s case since she had a long history of making it in to work under difficult weather conditions.
Lastly, the arbitration board rejected the hospital’s assertion that Grusie’s choice to live in an isolated area disentitled her to pressing necessity leave. She had a good attendance record, and there was no evidence presented to show others from similar locations had made it to work when she hadn’t.
However, this was a case where there was no unanimity on the board. The hospital representative dissented.
Snow days are the bane of most Canadian workplaces. How to handle absences in the event of bad weather is alluded to in many collective agreements across Canada. Perhaps the whole issue at Foothills could have been avoided had the hospital been able to follow the example of another frequently snow-bound region, Prince Edward Island. The collective agreement covering the public sector there requires employees unable to get to work because of bad weather to make up the time, charge it to vacation or take it as unpaid leave. Yet another clause in the collective agreement attempts to ensure employees’ ability to get to work — even in a blizzard. It lays down the regimen for “transportation and public works employees involved in operating equipment and other snow and ice control activities.” From Nov. 15 to April 30 (apparently snow in May doesn’t count), these employees are on duty for the 120 hours from midnight Sunday night to midnight Friday. Not only that, but they have to have the prior permission of the employer in order to leave the province during those months.
For more information see:
Calgary Health Region (Foothills Medical Centre) v. U.N.A., Local 115
, 2005 CarswellAlta 2001,  L.V.I. 3607-8 (Alta. Arb. Bd.).
Lorna Harris is the assistant editor of Canadian Employment Law Today’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or mailto:email@example.com. This article first appeared in Canadian HR Reporter.