Since January 1, 2019, the Act respecting labour standards (the "Act") provides that employees with three (3) months or more of uninterrupted service are entitled to up to two (2) days of paid absence per year due to sickness, an organ donation, an accident, domestic violence or sexual violence or for reasons relating to the care, health or education of family members. Before this legislative change, no such absence had to be paid under the Act.
The requirement to pay the first two days of absence due to sickness or to fulfil a family obligation soon created a problem for employers who already offered their employees paid leave in addition to their annual vacation under a policy, employment contract or collective agreement. Since this legislative change came into force, several decision-makers have had to analyze the leaves offered to employees to determine whether their employment conditions met the minimum under the Act or whether the employer had to give them additional paid leave based on the new provisions of the Act.
The case of Maax Bath inc. et Syndicat des salariés d'acrylique de Beauce (CSD),1 described below, arose out of such a situation.
The facts
In that case, the employees are governed by a collective agreement entered into on October 1, 2016, between Maax Bath Inc. (the "Employer") and the Syndicat des salariés d'acrylique de Beauce (the "Union"). The collective agreement contains terms providing for unpaid personal leave and paid floating holidays, among others. More specifically, employees may be absent from work without pay for fifteen (15) days per year to fulfil family obligations, and employees with at least one (1) year of seniority are entitled to four (4) or six (6) paid floating holidays, which are cashable if unused.
During January and February 2019, three (3) employees were absent from work due to sickness or to fulfil family obligations. They asked to be paid based on the new provisions of the Act, which the Employer refused, claiming that they could use their paid floating holidays under the collective agreement.
On February 15, 2019, the Union filed a group grievance on behalf of the three (3) employees, arguing that the floating holidays under the collective agreement had not been negotiated and included in the agreement to be used for family obligations or sickness. In the Union's view, the Employer's refusal to pay employees leave for family obligations or sickness contravenes the Act, is in breach of the collective agreement and is contrary to the parties' intention to treat the use of floating holidays differently from days off for family obligations and sickness.
The arbitrator therefore had to determine whether the terms of the collective agreement relating to leave for family or parental reasons, and more specifically those granting floating holidays, were employment conditions that were as advantageous as those prescribed by the Act.
The arbitrator's decision
After analyzing the evidence, the arbitrator noted that the floating holidays provided for in the collective agreement are not granted to employees for specific reasons. Employees may take them for any reason without having to give any justification whatsoever, provided a written request is made to the supervisor at least 14 days before the desired date (unless there is a valid reason justifying the request for leave, including sickness and family obligations, in which case the employer does not apply the time limit). In this context, the arbitrator believed that the Employer had not contravened the Act in the case of the absences of the three (3) employees covered by the grievance.
However, in light of the jurisprudence, the arbitrator held that he could not dismiss the grievance in its entirety.
The arbitrator noted firstly that, according to the collective agreement, an employee with less than one (1) year of seniority cannot take advantage of floating holidays, which, according to the Employer, would be equivalent to the two days of paid leave prescribed by the Act. Under the Act, this right vests after three (3) months of uninterrupted service.
He noted that if an employee uses all the floating holidays to which they are entitled during a given year for personal reasons other than sickness and family obligations, that employee could lose the right to paid leave later due to sickness or family reasons if they needed leave during the same year. According to the arbitrator, this goes against the provisions of the Act:
[Translation] [48] One would then be in a situation in which, if an employee legitimately takes advantage of a negotiated benefit under the collective agreement, they would lose the right to take advantage of a minimum standard under a law of public order.
[49] It cannot be presumed that the legislator's intention was that taking advantage of a benefit under the collective agreement would lead to the loss of a right prescribed by the Act.
In the two situations described above, the arbitrator held that the Employer should pay employees with more than three (3) months of service at least two (2) days of leave per year for sickness or family obligations even if they had used up their floating holidays if those days were used previously for other reasons.
Application for judicial review
On July 24, 2020, the Employer filed an application for judicial review in the Superior Court to contest the arbitrator's decision.
On July 12, 2021, Justice Claudia P. Prémont dismissed the Employer's application for judicial review and upheld the arbitrator's decision, ruling that it was reasonable.
Decision of the Quebec Court of Appeal
On November 3, 2021, the Employer presented a motion for leave to appeal the judgement rendered on July 12, 2021, by Justice Prémont. In the motion, the Employer argued, among other things, that this matter raised a new issue since the Quebec Court of Appeal had not yet ruled on the application of the provisions of the Act involving days of absence due to sickness and family obligations in existing employment contracts.
Considering that it was in fact a new issue, the Quebec Court of Appeal allowed the Employer's motion for leave to appeal.
On January 24, 2023, the Honourable Simon Ruel, Sophie Lavallée and Peter Kalichman, JJ.A., of the Quebec Court of Appeal (the "Court") dismissed the Employer's appeal and upheld the decision rendered by Justice Prémont, holding that the decisions rendered by the arbitrator and the Superior Court were reasonable.
First, the Court pointed out that in order to determine whether the provisions of the collective agreement provide for conditions that are as advantageous as those of the Act regarding paid leave for sickness or family obligations, the arbitrator first had to consider whether the working conditions under the collective agreement were of the same kind and had the same purpose as those of the labour standard before deciding whether the contractual provision is at least as advantageous as the labour standard.
The Court found that the arbitrator could have concluded that the clause in the Employer's collective agreement providing for paid floating holidays was not of the same kind and did not have the same purpose as the provisions of the Act, in particular owing to the requirement that floating holidays need to be pre-approved and the fact that the leave provided for in the Act is intended to promote work-family balance (while the floating holidays under the collective agreement can be used for different purposes, without having to give any justification).
The Court also found that the arbitrator could have decided that the floating holiday clause did not provide for conditions that were equivalent to the provisions of the Act. In the two situations the arbitrator raised in his decision, that is, where employees have less than one (1) year of service and where employees have used up their floating holidays, the Court acknowledged that the collective agreement does not provide for conditions that are equivalent or superior to the provisions of the Act.
Lastly, the Court found that, contrary to the Employer's allegations, there is no duplication of fringe benefits. The Court pointed out that the legislator provides minimal protection that must be applied if the collective agreement does not provide for an equivalent benefit.
The Court therefore found that there was nothing inconsistent in the arbitrator's decision to maintain the group grievance but dismiss the claim of the three employees. The arbitrator correctly acknowledged that floating holidays can be used for sickness or family obligations but was of the opinion that according to the provisions of the collective agreement, in the two specific situations set out above, the employees could not benefit from the rights provided for in the Act. The Court found that the labour standards must therefore be applied in these situations.
In light of the above, the Court dismissed the Employer's appeal.
Main teachings
This Quebec Court of Appeal decision serves as a reminder of the importance of carefully drafting one's policies and agreements with respect to floating holidays and other types of leave. If the leave provided for in the policies and collective agreements is insufficient to satisfy the employer's obligations under the applicable legislation, the employer could be required to provide additional paid leave, as required by law.
Footnote
1. Maax Bath inc. et Syndicat des salariés d'acrylique de Beauce (CSD) (grief syndical), 2020 QCTA 316; Maax Bath inc. c. Racine, 2021 QCCS 2885 (application for judicial review denied); Maax Bath inc. et Syndicat des salariés d'acrylique de Beauce (CSD), 2021 QCCA 1650 (motion for leave to appeal allowed); Maax Bath inc. c. Syndicat des salariés d'acrylique de Beauce (CSD), 2023 QCCA 102.
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