Blanket policy to deny/defer all discretionary leaves is a breach of the collective agreement

In response to teachers' "teach only" job action starting in September, the Surrey School District adoped a blanket policy that it would deny all leaves it considered "discretionary", i.e. not related to sickenss, bereavement and the like, on the basis that it needed to protect its teacher on call list for mandatory leaves.  The Surrey School Teachers Association filed grievances and the BC Teachers' Federation also brought a complaint to the Labour Relations Board that the policy amounted to a unilateral alteration of the collective agreement, contrary to the terms of the Essential Services Order  and s.73 of the Labour Relations Code that provides that employees working under an essential services order are governed by all the terms of the  collective agreement (except where modified by the LRB to facilitate the delivery of essential services).  At a hearing of the complaint the parties agreed that the matter would be resolved by way of an expedited hearing before arbitrator Irene Holden.  Arbitrator Holden issued her decision earlier this week, but the case has not yet been published on An interesting part of th eprocess wasgrieved the school district's blanket policy that it would deny all leaves,  under the collective agreement that it considered "discretionary", i.e. not related to sickness, bereavement or the like.  The policy was adopted by the district in response to the teachers' job "teach only job action".  The employer alleged that it needed to "protect" its pool of teachers on call during the job action.   the collective agreement allows for a numIn an expedited arbitration award issued on November 15, 2011, Arbitrator Holden ordered the Surrey School District to cease denying leave under a blanket policy formulated in response to Phase 1 of the BCTF job action. She concluded that, in all of the circumstances, the School District’s exercise of discretion in denying all leaves it deemed discretionary was not objectively reasonable and constituted a violation of the Collective Agreement. The Arbitrator concluded that such a policy is not warranted in the absence of an immediate risk of serious disruption to educational services. In upholding the BCTF’s General Leave grievance and the Department Head Leave grievance, she ordered the employer to review leaves that were denied under its blanket policy and to “make whole” any teachers who suffered a financial loss as a result of the blanket leave denial policy. Any BCTF members who incurred a loss as a result of the Surrey School District’s blanket leave denial policy should contact the Surrey Teachers’ Association to provide details of the loss incurred.

In the future, the employer is required to review the nature of each individual leave application and assess it based on its own merits having full regard to all of the circumstances, including operational needs. The arbitrator opined that, during the labour dispute, it would be reasonable for the employer to closely scrutinize discretionary leaves in comparison to ongoing TOC usage for mandatory leaves; but that it was unreasonable to impose a blanket moratorium deferring all leaves that it considered discretionary.

As of the date of this post the decision is not yet available on CanLii.