Section 52 entitles employees to five days of unpaid leave during each employment year to meet responsibilities related to the care, health or education of a child in the employee’s care or the care or health of any other member of the employee’s immediate family.
Section 1 defines immediate family as the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family.
An employer cannot refuse to grant family responsibility leave. While there is no request process set out in the act, employees are expected to give the employer reasonable notice of family responsibility leave and sufficient information for the employer to ascertain that the employee is entitled to the leave.
The entitlement to five days' unpaid leave each year does not carry over from year to year if unused. In addition, a portion of a day taken off work may be counted as one full day of family responsibility leave for the purposes of calculating an employee’s remaining entitlement.
Decisions Interpreting Leave Provisions of the Act
The scope of family responsibility leave recently came before an arbitrator when an employee grieved his employer’s refusal to grant leave in order to move his adult son home from university: Eurocan Pulp and Paper v. Communications, Energy and Paper Workers Union of Canada, Local 298 (Schibli Grievance) (2007), 166 LAC (4th) 78 (Burke).
The grievor applied for two days of family responsibility leave related to his son. The reason given for the leave was “Edmonton relocation for summer employment”. The grievor had been granted family responsibility leave for similar requests in the past. However, those requests had been granted under a prior administration policy where supervisors granted such leaves without requiring employees to provide information sufficient to establish their entitlement to the leave. In 2005, the Employer changed its approach to family responsibility leave so that all requests were considered by the Employee Relations Office whose function was to ensure that only those requests which fell under the provisions of the Act were granted.
The Employee Relations Officer considered the grievor’s request and determined that transporting a post-secondary student home from university at the end of the school year was not “a responsibility related to the health, care or education of a child in the employee’s care” pursuant to section 52 of the Act. The Employer also sought clarification from the Employment Standards Branch as to whether its view was consistent with the Act. The Branch advised that such a situation did not entitle individuals to leave.
The Employer denied the request for family responsibility leave. The grievor applied for and was granted paid leave under provisions of the collective agreement and took the time off under those provisions.
At arbitration, the Union argued that helping a child relocate to and from university qualified as responsibilities related to child’s care and education under the Act. The Union also noted that section 52 did not stipulate restrictions to entitlement beyond the specific language of the section, that being for the “care, health or education of a child in the employee’s care.”
The Employer, on the other hand, argued the desire to pick up an adult child at the end of the school year was not a parental responsibility nor was it a responsibility related to education. It further argued that an employee must establish the absence is “required” or “reasonably necessary”. The Employer noted that parents have no legal obligation to enrol their children in post-secondary education. Further, it argued that the grievor’s son was not a child within the definition of the Act, or alternatively, was not a child in the care of the grievor as there was no evidence that the grievor’s child was under the direct care of his parents.
The arbitrator allowed the grievance and found that while a request for family responsibility leave must contain particulars of the identity of the person, the relationship to the employee, and the reason for the absence, employers do not have discretion to deny the leave once sufficient particulars are given. In expressing agreement with the Union’s claim that the grievor need not justify why he had to assist his son moving home, Arbitrator Burke stated as follows:
In this case, it is enough to establish the Grievor needed leave to attend to moving his son home from university. A university is an educational institution. Moving a child home at the end of a university term is not a frivolous activity. That is clearly a responsibility associated with his child's education. To find otherwise in my view ultimately imports discretion into S. 52 contradicting the jurisprudence in Phillips, supra, Dale, supra and the plain language of the provision. Indeed, it creates a situation where, as was done here, the logistics of the situation are evaluated by the Company. The Company assesses whether the reason for the leave is a necessary part of the child's education, importing the Company directly into a decision about appropriate family responsibilities…I do not find the Grievor must justify why he had to assist with his son's move back home from university for the summer months. I find this falls within the parameters of parental responsibility associated with a child's education.
The Arbitrator went on to state:
While particulars must be provided, once those prima facie satisfy the requirements, it is not for the Company to weigh or judge whether the family responsibility action is “really needed” or "reasonably necessary" in the particular circumstances. That directly brings discretion into S. 52 inconsistent with the language and intent expressed. The leave is a statutory entitlement imported into the Collective Agreement. (See Dale , supra )
The Arbitrator also rejected the Employer’s assertion that the grievor’s son was no longer a child and/or not in the employee’s care pursuant to the Act. The Arbitrator held that the Employer’s arguments created an overly narrow interpretation of the provision. In her view, if a child lives at home when not attending school or university that was sufficient to establish he or she is “in the employees care”. Arbitrator Burke ruled the leave request related to the son’s education as “education does not end at the age of majority”.
This decision is being appealed to the Court of Appeal in September 2008.
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