It’s Special Leave Season!

Article 21.03 of our Collective Agreement provides for wage loss protection when circumstances not directly attributable to an employee prevent his or her reporting for duty. Article 21.03 states as follows:

Where conditions warrant it, special leave with pay may be granted when circumstances not directly attributable to the employee, including but not limited to illness in the family, as defined in clause 21.02, prevent his or her reporting for duty. Special leave shall not be unreasonably withheld.

Special leave is a discretionary leave, which simply means that management has the discretion of granting it. However, Article 21.03 states that special leave shall not be unreasonably withheld. Therefore, a grievance may be filed if the Union feels that the Corporation was unreasonable in denying a special leave application.

Special leave applications often follow on the heels of adverse weather conditions, such as snowstorms, blackouts, and other unpredictable occurrences.

However, special leave also applies to family illnesses and other situations that may arise which have the effect of preventing an employee from reporting to work for reasons beyond his/her control. For example, arbitrators have awarded special leave to employees who have attended specialist appointments. Arbitrators have also frequently awarded special leave to employees whose spouses, children, and other family members have required care when suffering from illness.

To qualify for special leave, an employee must be prevented from reporting for duty for reasons not directly attributable to the employee. The facts surrounding an application for special leave will ultimately determine whether or not special leave is warranted in each case and arbitrators have held that the employer has an obligation to make a legitimate inquiry into each special application.

The standard to be applied when assessing special leave applications is one of reasonableness. In adverse weather conditions, a reasonable attempt to report for duty might entail an attempt to dig one’s car out of the snow. It might also involve utilizing public transportation. In cases involving illness, a reasonable attempt to report for duty might include an attempt to secure other arrangements for the care of sick children or relatives.

However, as Arbitrator Norman once observed, the test in cases involving an illness in the family will involve consideration of what a responsible person would do under the circumstances:

As was the case in Rosario, it is not a matter of the parent being physically prevented from reporting for duty. The test is rather whether a reasonable person, in the shoes of the parent in question, would feel that they were obliged to stay with the sick child.

While one is required to make a reasonable effort to report for duty, one is not required to cross the threshold of heroism. One is simply expected to make a reasonable effort to report for duty.

Arbitrators have made many rulings on special leave over the years, but ultimately, an application for special leave will be assessed by the fact pattern particular to each individual application. In assessing each case, arbitrators have held that the Corporation must make a legitimate inquiry into the circumstances surrounding each application in order to be in a position to make a reasonable decision based on the merits of the application. Further, an employee’s inability to report for duty must be for reasons beyond his/her control, and he/she must make reasonable attempts to report for duty. If Canada Post is unreasonable in denying an application for special leave, a grievance may be filed by the Union.

In solidarity,

Ken Mooney
Regional Grievance Officer