In a recent labour arbitration decision, an arbitrator upheld two grievances filed by a trade union against an employer (the company) that refused to allow employees to take personal emergency leave if they had already used all the “floater days” that they were allowed under a collective agreement.
The standard the union was seeking to enforce came into effect when the Ontario Employment Standards Act, 2000 (ESA) was amended on Jan. 1, 2018, to allow for personal emergency leave days, which, subject to some limitations elsewhere in the ESA, allows for two paid days of leave and a further eight unpaid days of leave in the following situations (s. 50):
• A personal illness, injury or medical emergency.
• The death, illness, injury or medical emergency of a family member.
• An urgent matter that concerns a family member.
When the personal emergency leave provisions came into effect, company employees were already entitled to three paid floater days in a 12-month period, from July to June, which they could either use as a holiday or for unexpected justified absences from work.
When two employees attempted to take paid personal emergency leave, the company said they could not because they had already used their paid floater days, which the company said counted as taking paid personal emergency leave days.
The Company relied on s. 5 of the ESA, which provides that, if a provision in an employment contract provides a greater benefit to an employee than does the employment standard, the provision in the contract applies and the employment standard does not apply.
Floater days not emergency leave days
Ultimately, the arbitrator decided the new entitlement to personal emergency leave days was in addition to the floater days already allowed under the collective agreement.
The arbitrator explained that the greater benefit provision of the ESA requires comparing “apples to apples,” meaning the two benefits must have the same purpose in order for s. 5 to apply. As floater days could be used as holidays, it would be inconsistent with their purpose, and inconsistent with what was negotiated, to force employees to save two of those days for personal emergency leave purposes.
Further, the timeframe was relevant in that personal emergency leave days were based on a calendar year, whereas floater days were based on a different 12-month period. If employees used more than one of their floater days before the new calendar year, they would not have the required two personal emergency leave days in the next calendar year.
Employers must be sure to comply with the post-Bill 148 requirements of the ESA, without reducing negotiated terms of a collective agreement to compensate. In determining whether or not a benefit meets the ESA standard, both purpose and timeframe must be considered.
Maxwell Radway is an associate in the employment and labour group of Norton Rose Fulbright in Toronto. He can be reached at (416) 216-2318 or email@example.com.