As employers have long maintained, paid leaves that overlap with the purposes for which personal emergency leave is granted do count towards those personal emergency leave days.
Personal emergency leave was introduced to Ontario workplaces in September 2001 when the Employment Standards Act, 2000 came into force. Employees of employers with 50 or more employees are entitled to a total of 10 days of unpaid leave each calendar year because of a personal illness, injury or medical emergency; or the death, illness, injury, medical emergency or urgent matter concerning a prescribed family member. Many employers, of course, provide paid leaves for these same purposes such as sick pay, bereavement leave and personal days. Loss of earning benefits paid as a result of a workplace accident under the Workplace Safety and Insurance Act, 1997 also overlap. The question that immediately arose was whether personal emergency leave days were an additional entitlement to whatever an employer already provided by way of paid leave or whether the bank of 10 personal emergency leave days could be deducted whenever an employee used a paid leave for the same purpose.
From an employer’s standpoint, paid leaves are difficult enough to manage let alone 10 personal emergency leave days on top of this. For this reason, and with the assistance of the Ministry of Labour’s own policy, employers adopted the position that if an employee opts to use a paid leave then the employee has effectively designated the absence as a personal emergency leave day.
Communications, Energy and Paperworkers Union of Canada, Local 333 challenged this position and Ministry of Labour policy by referring to arbitration an employee’s grievance that his four paid bereavement leave days to which he was entitled under his collective agreement should not have been deducted from his bank of 10 unpaid emergency leave days. Arbitrator Marilyn Nairn disagreed and found that it was not permissible to add the statutory entitlement to the collective agreement entitlement. The Union applied for judicial review of the arbitration decision. The Divisional Court. has recently released its decision dismissing the Union’s application for judicial review. In doing so, the Court held that the Arbitrator’s decision was logical, considered and intelligible. It held that that it was a reasonable interpretation of the combined effect of the statutory entitlement and the collective agreement entitlement. Accordingly, Ontario employers may continue their practice of deducting paid leaves from the statutory bank of personal emergency leave days.
Communications v. IKO Industries, 2012 ONSC 2276 (CanLII).