OTTAWA: After seven years, a labour grievance and a court battle that went up to the Federal Court of Appeal, a Canada Revenue Agency employee has finally won her bid for a paid day of personal leave.
The appeal court ruled earlier this month in favour of auditor Stephanie Delios and her union’s interpretation of a provision in its collective agreement with the CRA.
The case began when Delios took a day of paid leave in January 2008 while a member of one union. A few months later, after the revenue agency promoted her to a new job, she sought another leave day as a member of the different union she was switched to.
The two unions are the 170,000-member Public Service Alliance of Canada (PSAC), and the Professional Institute of the Public Service of Canada, (PIPSC), which has over 57,000 members.
Each has separate labour contracts with the revenue agency, and each contract allows for one personal leave day per fiscal year — a total of 7.5 hours in addition to regular vacation and sick time.
Delios and her new union PIPSC took the position that as soon as a worker changes unions and, therefore, contracts they’re entitled to a leave day again.
The CRA disagreed, arguing the leave was CRA-wide, and one-time only per year per employee — not per contract.
Delios’ manager refused the leave request. Delios later grieved that refusal.
The matter landed before labour adjudicator David P. Olsen, who in his Nov. 1, 2013 decision upheld Delios’ grievance, accepted her interpretation of the leave day provision and awarded her a day’s pay.
Olsen said the provision applies to all employees covered by the contract, and the fact Delios benefited from a similar type of leave under another collective agreement was of no material relevance.
Olsen said accepting the CRA’s position in the matter amounted to “reading in’’ restrictions to the contract’s personal leave rules.
Any perceived unfairness or inequity resulting from the way the provision is applied should be resolved at the bargaining table, the adjudicator found.
The Attorney General of Canada applied to the Federal Court for a judicial review of that ruling. And in a Nov. 5, 2014 judgment Justice Henry Brown found the adjudicator’s decision unreasonable because it would bring significant additional costs for the government.
Brown quashed Olsen’s ruling and remitted the case for another adjudicator to hear.
Brown found among other things that the adjudicator “failed to apply the plain and obvious meaning’’ of the leave provision in the contract.
Also as part of its submissions to the Federal Court, Ottawa provided fresh new details arguing “financial hardship’’ — an impact analysis that said the consequences of Olsen’s ruling would be about $1 million a year, evidence that Brown allowed in and later relied on in his decision.
Every year the CRA experiences about 5,000 temporary and permanent staff movements in either direction between the PSAC and PIPSC unions. The average salary for PIPSC employees is $327.71 a day, and $262.54 a day for PSAC employees, Brown noted in his ruling.
But in a unanimous decision that also sends a signal about how decisions of expert panels such as labour adjudicators should be weighed, Federal Court of Appeal Justices David Stratas, Andre Scott and Richard Boivin restored Olsen’s order, finding it, “acceptable,’’ “defensible’’ and “reasonable.’’
In its 3-0 ruling written by Stratas, the appeal court found that as reviewing judges, their job is not to develop their own view of the case, but apply legal standards.
And the appeal court agreed it’s not for the adjudicator to modify the text of collective agreements to deal with matters that seem unfair or inequitable to either side — that’s for subsequent rounds of collective bargaining.
The appeal panel found the PIPSC agreement doesn’t explicitly address the situation of employees who transfer from union one to another.
As for the fresh evidence regarding the $1 million financial impact study, the appeal court ruled the details inadmissible because they weren’t presented to the adjudicator, and aren’t “general background’’ details permitted in the court’s review process.
Patrizia Campanella, the lawyer representing PIPSC at the Federal Court hearings, (she wasn’t counsel at the appeal) said Thursday the leave day issue is an ongoing one at the CRA, adding a few grievances were on hold pending the outcome of Delios’ case.
For entitlements such as leave to get married, there’s specific language in the contract saying it’s one-time, company-wide, per employee.
But not so with the leave day, Campanella said.
“It’s important to protect the gains we made in our collective agreements. I would say that public servants have been under attack, especially with the current government. We need to stand strong by gains we’ve made over the years, and can’t let that go,’’ the lawyer added.
“A judicial review isn’t an appeal, not rehearing a case the way you want. If a tribunal decision was acceptable and defensible based on the facts, it shouldn’t be tampered with,’’ Campanella said.
Delios did not reply to the newspaper’s request for a reaction to the appeal court ruling, and her reasons for seeking the leave days.
It’s unclear if Ottawa will appeal.
Treasury Board of Canada spokesperson Lisa Murphy said it’s premature to comment at this time on the appeal court ruling, adding “we are reviewing the decision carefully with the Canada Revenue Agency to determine our next steps.”
