In Teamsters Local Union 987 of Alberta v Purolator Inc., 2024 CanLII 21937 (CA LA), an arbitrator dealt with a clash between the amount of leave days under a unionized employer’s collective agreements (CA) and the leave entitlements under the Canada Labour Code (CLC). Specifically, Arbitrator Robertson considered the interaction between the unionized employees’ receipt of 5 days of paid personal leave under two applicable collective agreements and the 10 days of paid medical leave days and 5 days of personal leave (only 3 paid) under the CLC to determine whether employees would be entitled to 13 days of paid leave (the employer’s position) or 15 days of paid leave (the union’s position).

Arbitrator Robertson sided with the union when he determined that the CLC entitlements to medical and personal leave are different from the entitlement to the CA personal leave. However, when an employee qualifies for both types of personal leave, the CA personal leave will count against the employee's entitlement to CLC personal leave such that an employee will never be entitled to more than 5 personal leave days per year (paid or unpaid).

CLC Leave Entitlements

In 2022, as discussed here, the federal government amended the CLC by creating a new entitlement to 10 days of paid medical leave and separating personal leave and medical leave into two distinct CLC sections.

CLC Medical Leave

The CLC medical leave is set out at s. 239 of the CLC. It provides that:

• Entitlement to CLC medical leave is for personal illness or injury, organ or tissue donation, medical appointments during working hours, or quarantine.
• Employees are entitled to 3 days of CLC medical leave after 30 days of continuous employment.
• After the first 30 days of continuous employment, employees earn 1 day of CLC medical leave at the beginning of each month, after they complete one month of continuous employment.
• Employees may earn up to 10 days of CLC medical leave in a calendar year.
• Each day of CLC medical leave not taken by an employee in a calendar year carries forward to January 1 of the following calendar year and counts toward the 10 days that can be earned in the new year.
• Employers may require employees who take at least 5 consecutive days of CLC medical leave to provide medical certificates within 15 days of their return to work.
• Employees who change employers due to the lease or transfer of a work, undertaking, or business or due to a contract being awarded through a retendering process are deemed to be continuously employed with one employer.

CLC Personal Leave

The CLC personal leave is set out at s. 206.6 of the CLC. It provides that:

• Entitlement to CLC personal leave is for carrying out responsibilities related to the health or care of any of an employee’s family members, carrying out responsibilities related to the education of any family members who are under 18 years of age, addressing any urgent matter concerning themselves or their family members, and attending their citizenship ceremony under the Citizenship Act.
• After 3 consecutive months of continuous employment, employees are entitled to 3 days of CLC personal leave at their regular rate of wages for their normal hours of work, and this pay must for all purposes be considered to be wages.
• An employee may take CLC personal leave in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.
• Employers may request employees who take CLC personal leave to provide documentation to support the reasons for the leave within 15 days of their return to work; however, the employee must provide that documentation only if it is reasonably practicable for them to obtain and provide it.

Arbitrator’s Decision

In Purolator, certain conflicts existed between the personal leave under the employer’s collective agreements and the CLC medical and personal leave entitlements, including: (1) the CA provided for a combined paid personal leave/illness leave entitlement with certain restrictions such that personal leave had to be for the employee’s own illness or medical appointment; (2) the CLC and the CA had different qualifications to be entitled to the leave provided in each; and (3) the time in which employees could be entitled to CLC leaves could be sooner than the point when they could be entitled to the CA entitlements.

In determining whether to side with the employer’s position of a total entitlement of 13 days versus the union’s position of 15 leave days, the arbitrator noted that although they may sometimes overlap in use, the scope and purpose of the CLC medical leave and the CLC personal leave differed from that of the CA personal leave. While the CLC specifies what the 10 medical leave days may be used for, employees may choose how to use the CA personal leave days and they do not need to be used for the purpose of medical leave or sick days. The arbitrator emphasized that the CLC medical leave days cannot be taken away from the employee when they use personal leave days for non-illness related reasons as these leaves are for different purposes.

The arbitrator ultimately determined that as the 3 paid CLC personal leave days are included in the 5 CA personal leave days, there were a total of 15 combined medical leave and personal leave days allowed. Breaking that out, he concluded that qualified employees are entitled to: (1) up to 10 CLC medical leave days; (2) up to 5 days of CLC personal leave days; and (3) up to 5 CA personal leave days. However, when an employee qualifies for the two types of personal leave:

• The CA personal leave days will count against the employee's entitlement to CLC personal leave days;
• An employee will never be entitled to more than five personal leave days per year (paid or unpaid); and
• Unused paid CA personal leave days must be paid out to eligible employees.

Bottom Line for Employers

The arbitrator’s award will be of interest to federal employers as they consider the interaction between employees’ leave entitlements under the CLC and their other leave entitlements, whether under a CA or otherwise.

Our discussion of Purolator should be read together with our discussion of United Steelworkers Local 14193 v. Cameco Fuel Manufacturing Inc., 2023 CanLII 115899 (ON LA), which considered the interaction between the paid CLC medical leave days and the employer’s short-term disability (STD) plan benefits. In Cameco, the arbitrator sided with the employer and found that the CLC medical leave had the same purpose as the STD plan benefits. Therefore, the employer could simultaneously count approved sick days paid at 100% of weekly earnings under its STD plan as CLC medical leave days. Arbitrator Robertson considered Cameco in his analysis in Purolator. When one considers the awards in Cameco and Purolator together, it seems that the outcome of a policy grievance of this nature may differ based on the purpose of an employment-related leave entitlement.