Canada: Arbitrator Concludes that Flexible Paid Time Off Is Distinct from New Personal Emergency Leave Entitlements

In Carillion Services Inc. and LIUNA, Local 183 (Williams), an arbitrator concludes that new Personal Emergency Leave entitlements under the Employment Standards Act, 2000 (“ESA”) are distinct and in addition to an employee’s floater days under a collective agreement. This decision further clarifies the interaction between Personal Emergency Leave (“PEL”) under the ESA and other paid leaves provided by an employer.

On January 1, 2018, Bill 148 amended the ESA to provide employees with two paid and eight unpaid PEL days for any of the following circumstances:

• A personal illness, injury or medical emergency;
• The death, illness, injury or medical emergency of a family member; or
• An urgent matter that concerns a family member.

When the ESA was amended in January 2018, the employer was providing employees with three paid “floater” days under the terms of its collective agreement. Employees were able to take these floater days within a twelve-month period that ran from July to June. These days were flexible in that they could be used as a holiday or for an unexpected absence from work.

Two employees attempted to take their paid PEL days under the amended ESA. The employer denied the employees’ request, saying that the employees had already used their three paid floater days. The employer argued that the three floater days counted as the employees’ PEL days. As part of its argument, the employer relied on section 5 of the ESA, which states that if a provision in an employment contract provides a greater right or benefit to an employee than a statutory employment standard, the provision in the contract applies and the ESA standard does not.

The arbitrator determined that the new entitlement under the ESA to two paid PEL days was in addition to the floater days already provided for under the collective agreement. The arbitrator interpreted section 5 of the ESA as requiring an “apples to apples” comparison. In other words, in order for the greater benefit provision to apply, the two benefits being compared must have the same purpose.

In doing so, the arbitrator remarked that PEL days “are not always to be excluded as being irrelevant to the fulfillment of the Employer’s obligations to furnish employees with paid leave in personal emergency situations.” This suggests that, in some circumstances, an employer may rely on section 5 of the ESA where the benefit under the collective agreement is meant to address the same purpose of the PEL days.

However, in this case, the fact that the floater days could be used as holidays made their purpose different from the new paid PEL days under the ESA. Furthermore, the June to July period in which employees could use their floater days was different than the January to December period in which employees could use their statutory PEL days.

For a summary of an earlier decision interpreting the new PEL days, click here.