National Post (National Edition)
Civil servant wins over snowstorm pay
Dispute over 3.5 hours of paid leave
OTTAWA • It took nearly five years, but the Canada Revenue Agency has been ordered to give 3.5 hours of paid leave to an employee in Prince Edward Island for time he missed from work because of a fierce snowstorm that lashed the province, closed schools, scrubbed flights and even forced the government office where he worked to shut down early.
The grievance, by employee Leslie Smith and his union, the Public Service Alliance of Canada, was heard in Ottawa this summer by Federal Public Sector Labour Relations and Employment Board and a ruling was published online last week. It is an almost identical ruling to one issued in 2016 for another snowbound federal employee.
“We’ve won these cases in the past,” PSAC vice-president Magali Picard said. “It’s hard for me to understand ... Why they would penalize an employee when it’s something completely out of their control.”
The storm on Dec. 4, 2013, hit the island with 15 centimetres of heavy, wet snow and high winds. Smith, who lives in Summerside, an hour’s drive from his job at the Charlottetown Tax Services Office, called CRA’S employee emergency line that morning to see if the office was open. After learning it was, Smith set out at 7:04 a.m., driving for 20-25 minutes on unplowed roads before deciding it was too dangerous and returning home.
When Smith’s street was plowed at 10:30 a.m., he spent 30-40 minutes shovelling his driveway before setting out for Charlottetown again. Smith quickly realized the driving was still hazardous and turned around a second time. He called the office at 12:30 p.m. to say why he was staying home. At 1 p.m., managers at the Charlottetown office decided to close for the day and sent employees home early.
His employer granted Smith four hours paid leave because of the early closing plus another hour for the time he spent driving, but CRA insisted Smith use vacation time to cover the remaining 3.5 hours.
Smith wanted to be given 3.5 hours leave for the remainder of the day, citing a clause in the collective agreement that says paid leave can be given if the employee misses work because of circumstances beyond the employee’s control.
The employer countered that argument with its “storm policy,” which said that, if the office was open and the employee couldn’t get to work because of the conditions, he or she would have to use vacation “or other leave” for the missed time.
Eventually Smith was allowed to use sick leave to cover the missing hours, but he and his union grieved the employer’s decision. The grievance, denied at three levels within CRA, eventually came before the labour relations and employment board.
In her decision, adjudicator Nathalie Daigle sided with Smith and the union, concluding Smith “made reasonable efforts to get to work on December 4, 2013, but that a snowstorm prevented him from reporting for duty.” The employer’s decision to deny him leave for the part of the day the office was open “was unreasonable in the circumstances,” Daigle found.
She ordered CRA to reinstate 3.5 hours of Smith’s sick leave and grant him paid leave for the time instead.
At Smith’s salary, the lost time is worth about $100.
IT COSTS THE TAXPAYER A LOT OF MONEY EVERY TIME.
“It’s really unfortunate the government pushed this case this far to this level. It costs the taxpayer a lot of money every time we go to arbitration,” Picard said.
“We don’t want to say that it’s fair to be late for work every day. We are talking about an abnormal situation.”
The decision on the P.E.I. case mirrors a similar ruling in 2016 in the case of a Citizenship and Immigration employee who was snowed in by a storm in 2011 in Sydney, N.S. In that case, the woman struggled to clear her driveway with a snowblower because her husband was laid up with a bad back. The woman was three hours late and was told by her boss to work extra hours to make up the lost time.
The board ruled in that case that circumstances were beyond the employee’s control and ordered the employer to pay her for the extra hours she worked and to grant paid leave for the missed time.