Bozek et al v. Canada Customs and Revenue Agency

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166-34-30797, 30931 to 30935 (2002 PSSRB 60)
Bozek et al. v. Canada Customs and Revenue Agency

Before: L.-P. Guindon
Appearances: R. Fredericks, for the Grievors; J. Jaworski, for the Employer
Decision rendered: July 12, 2002

Vacation leave – Scheduling – Vacation leave unilaterally scheduled by management – the grievors alleged that the employer unilaterally scheduled their unused 2000/2001 vacation leave credits within that fiscal year contrary to their collective agreement – in 1999/2000 management introduced a new vacation leave policy at the Hamilton Tax Services Office (TSO) – the employees were advised that they were expected to take their 1999/2000 vacation leave credits during that fiscal year – the policy further provided that employees with an excess of 35 days of leave credits to carry over would be asked to take their current year vacation leave entitlements by March 31st of that fiscal year – the policy, though slightly modified, was applied for the 2000/2001 fiscal year – the employees would be asked to submit a written plan for the utilization of their credits and, if they failed to do so by November 30, 2000, management would schedule their vacation leave – as of November 30, 2000, the grievors still had a substantial accumulation of vacation leave credits over 35 days and had not used the entirety of their vacation leave credits for the 2000/2001 fiscal year – management, in accordance with the policy, scheduled each of the grievors to take the balance of their 2000/2001 vacation leave credits on various dates between February 1 and March 31, 2001 – the adjudicator determined that the clauses of the collective agreement relating to management's rights (5.01) and those relating to vacation leave (15.05 and 15.07) had to be read together to determine the grievors' vacation leave rights – clause 15.05(a) created an obligation for the employees who were expected to take all their vacation leave during the vacation year in which it was earned – the adjudicator concluded that the word "expected" had to be understood as encouraged rather than as imposing a mandatory obligation on the employees – moreover, the adjudicator concluded that by forcing employees to take all of their 2000/2001 fiscal year vacation leave credits in excess of the accumulation of 35 days, the employer acted in violation of clause 15.07(AU)(a) of the collective agreement because this clause, applicable to the AU group (of which all grievors were members), did not contain a 35-day cap as is included in clause 15.07 applicable to the CO and PG groups – the employer could not impose unilaterally a 35-day cap on the employees of the AU group without negotiation and agreement with the bargaining agent inside the normal collective bargaining process – the adjudicator ordered the employer to reinstate all of the vacation leave credits scheduled by the employer without the grievors' consent in the fiscal year 2000/2001.

Grievances allowed.

Cases cited: Ladouceur (166-2-29494); Low and Duggan (168-2-56).