A-317-78
In re Public Service Staff Relations Board deci
sion dated June 16, 1978 (File 161-2-176)
Court of Appeal, Pratte, Heald and Urie JJ.—
Ottawa, November 2 and 14, 1978.
Judicial review — Public Service — Arbitral award grant
ing right to elect either August 1st holiday or other provincial
or civic holiday, subject to operational requirements of
Department — Notifications given before any elections made
that only one holiday acceptable because of Department's
operational requirements — Whether or not Board erred in
law in holding that employer complied with award — Public
Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 20(1) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
decision of the Public Service Staff Relations Board arising out
of a complaint filed with the Board by the applicant, Public
Service Alliance of Canada. The complaint alleged that the
employer had failed to give effect to a provision of an arbitral
award. The award granted the employees the right to elect in
writing either the August 1st holiday or other provincial or
civic holiday, subject to the operational requirements of the
Department. Before any elections were made, the employees
were notified that any choice other than St. Jean-Baptiste Day
would be refused on the basis of operational requirements of
the Department. Applicant alleges that the Board erred in law
in finding that the employer had complied with the award. It is
contended that a sequential process had been established—the
employee indicating his preference between holidays, the
employer giving effect to the choice, except where impractical
due to operational demands, and followed in the case of refusal,
by notification in writing by the employer, with reasons.
Held, the application is dismissed. There was an advance
determination by the employer based on the employer's view
that the granting of a choice of holiday for employees would be
"operationally impossible". The arbitral award clearly gives the
employer the right to determine, as a prerogative of manage
ment, whether the choice of holiday made by an employee is
compatible with "operational requirements". The employer's
duty to consider the employees' requests and answer them does
not preclude it from deciding in advance to reject all the
choices except those of one particular day if there exists a
situation which, in its view, makes it operationally impossible to
give effect to all those other choices.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. and A. J. Raven for
applicant Public Service Alliance of Canada.
W L. Nisbet, Q.C. for respondent Deputy
Attorney General of Canada.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for applicant
Public Service Alliance of Canada.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Public
Service Staff Relations Board arising out of a
complaint filed with the Board by the applicant,
Public Service Alliance of Canada, pursuant to
section 20(1)(b) of the Public Service Staff Rela
tions Act', R.S.C. 1970, c. P-35.
Said complaint alleged that one, Maurice
LeClair, Secretary of the Treasury Board, acting
on behalf of the employer, had failed to give effect
to a provision of an arbitral award. The complain
ant requested that the Board order the employer to
act in keeping with the letter and spirit of the said
arbitral award.
The arbitral award in question covered the Pur
chasing and Supply Group in the Administrative
and Foreign Service Category and was made fol
lowing a request by the applicant to submit to
arbitration certain terms and conditions of
employment. The reference to arbitration was the
result of an impasse between the applicant and the
employer in negotiations for a new collective
' Section 20(1)(b) reads as follows:
20. (1) The Board shall examine and inquire into any
complaint made to it that the employer, or any person acting
on its behalf, or that an employee organization, or any person
acting on its behalf, has failed
(a) to observe any prohibition contained in section 8, 9 or
10;
(b) to give effect to any provision of an arbitral award;
(c) to give effect to a decision of an adjudicator with
respect to a grievance; or
(d) to comply with any regulation respecting grievances
made by the Board pursuant to section 99.
agreement covering the said Purchasing and
Supply Group.
One of the matters referred to arbitration and
the issue which forms the basis of this section 28
application involved the question of "designated
paid holidays". The applicant had sought in
negotiations with the employer and in submissions
to the Arbitration Tribunal to amend the existing
Article 25 which dealt with the subject of "desig-
nated paid holidays", by adding a new subclause in
order to allow employees under certain circum
stances to designate the provincial holiday of their
choice.
On the issue of "designated paid holidays", the
award of the Arbitration Tribunal dated March
31, 1978 provided as follows:
ARTICLE 25
DESIGNATED PAID HOLIDAYS
The Board awards that Article 25.01, sub-clauses (a) to (j),
of the expired collective agreement be renewed, and that prior
sub-clause (k) of this Article be deleted and the following
substituted therefor:
One additional day in each year, which is a recognized
provincial or civic holiday in the area in which the employee
is employed or resides. In any area where no such day is
recognized as a provincial or civic holiday, the first Monday
in August shall be the designated paid holiday.
An employee shall have the right to give not less than two (2)
months' notice, in writing, to his supervisor as to which of
any alternative recognized holidays he prefers to take and the
employer shall give effect to this choice unless operational
requirements make it impractical to do so. If the employer
refuses to give effect to the choice of the employee, it shall so
notify the employee, in writing, and give reasons for the
refusal.
On April 14, 1978, a directive was issued by the
Treasury Board over the signature of its Secretary,
Maurice LeClair, and was specifically directed to
"Deputy Heads, Heads of Agencies, Directors of
Personnel". That directive stated in part as
follows:
SUBJECT: Observance of St -Jean-Baptiste Day and August
Civic Holiday
By virtue of an arbitral award rendered on March 31, 1978,
employees in the Purchasing and Supply Bargaining Unit are
entitled to a paid holiday which is recognized as a provincial or
civic holiday in the area in which the employee is employed or
resides. In any area where no such day is recognized as a
provincial or civic holiday, the first Monday in August shall be
the designated paid holiday. In addition an employee has a
right to give not less than two months notice in writing to his
supervisor as to which alternate holiday he prefers to take and
the Employer shall give effect to the choice unless operational
requirements of the Department make it impractical to do so.
Since all collective agreements with the exception of the Pur
chasing and Supply Group arbitral award result in the cessa
tion of departmental operations in the Province of Quebec on
St -Jean-Baptiste Day, the granting of a choice of holiday for
employees in this group would be operationally impossible.
Accordingly, requests for a choice of holiday by Purchasing and
Supply Group employees shall be denied and, in accordance
with the arbitral award, employees should be notified in writing
that the Employer's refusal to give effect to their choice is on
the basis that operational requirements make it impractical to
do so. Hence Purchasing and Supply Group employees working
in the Quebec sector of the National Capital Region will
observe St. Jean-Baptiste Day and those working in Ontario
will observe the August Civic Holiday. The principle expressed
in this directive requiring the observance of the designated
holiday in the area in which the employee is employed will of
course, apply in other locations where a provincial or civic
holiday exists.
Departments and Agencies are requested to inform all
employees of the foregoing.
The said directive of April 14, 1978 was issued
before any requests had been received from
employees within the Purchasing and Supply
Group. Following the issuance of the said direc
tive, the applicant herein filed its complaint under
section 20(1)(b) referred to supra alleging that the
employer had failed to give effect to Article 25 of
the arbitral award of March 31, 1978. At the
hearing of the complaint before the Public Service
Staff Relations Board, the applicant herein called
as a witness one, Robert McCormick, who was
employed within the Purchasing and Supply
Group. He testified that, by a memorandum dated
April 18, 1978, addressed to his supervisor, he
advised said supervisor that in accordance with the
Purchasing and Supply arbitral award dated
March 31, 1978, he was electing to take the
August Civic Holiday instead of the St. Jean-Bap-
tiste Day Holiday. In response to this request, his
supervisor by a memorandum dated May 8, 1978,
advised Mr. McCormick as follows:
Reference is made to your memorandum to the undersigned
concerning the subject matter. Please be advised that your
request to take Monday, August 7, 1978, as your designated
paid holiday in lieu of St-Jean Baptiste Day is hereby denied on
the basis that "Operational Requirements make it impractical
to do so".
A copy of the directive received from the Treasury Board is
attached for your information.
Please acknowledge receipt of this memorandum by initialing
the attached duplicate and return same to the undersigned for
retention.
Attached to that memorandum was a copy of the
directive of April 14, 1978 signed by Dr. Maurice
LeClair and quoted earlier herein.
On May 26, 1978, Robert McCormick received
an additional memorandum from one J. M. Des-
Roches, the Deputy Minister of the Supply
Administration of the Department of Supply and
Services. This memorandum stated:
This is in response to your request for an alternative designated
holiday and supersedes any previous correspondence or decision
on this matter.
After having examined your request in light of the Supply
Administration's operational requirements, I am officially
informing you of my decision to deny your request on the basis
that operational requirements make it impractical to do so.
Since all collective agreements, with the exception of the
Purchasing and Supply Group Arbitral Award, result in a
cessation of departmental operations in the Province of Quebec
on St. Jean Baptiste Day, the granting of the holiday of your
choice would be operationally impossible.
In dismissing the complaint the Board stated:
... we do not accept the contention of the complainant that the
conduct of the employer was so arbitrary that it was tan
tamount to a failure to give effect to the provisions of the
Article.
In the result the Board finds that Article 25 of the arbitral
award provides the Treasury Board, as the employer, with the
authority to determine whether operational requirements make
it impractical to grant a request for an alternative recognized
holiday. Dr. LeClair, acting on behalf of the employer, has
exercised that authority and, on the evidence before us, has
done so in a manner that does not constitute a failure to give
effect to the provisions of Article 25.
In the submission of counsel for the applicant,
the error in law by the Board was in its finding
that the employer had complied with the provi
sions of Article 25.01(k) supra. It was counsel's
submission that Article 25 establishes a sequential
process—i.e., the right of an individual employee
to give notice of his preference between "alterna-
tive recognized holidays", followed by the duty of
the employer to give effect to this choice except
where operational requirements make it impracti
cal to do so, and then followed, in the case of
refusal, by a notification in writing to the
employee giving the reasons for refusal.
Counsel then submits that in this case, the
employer predetermined the issue of "alternative
recognized holidays" by Dr. LeClair's directive of
April 14th, which amounted to a blanket refusal
before even one single request had been received
from an employee and further failed to comply
with Article 25.01(k) by not giving reasons for the
refusal.
In my view, it is not correct to say that reasons
for refusal were not given to the employee, Mr.
McCormick. I think that reasons were given, those
reasons being the ones set out in Dr. LeClair's
directive of April 14, 1978, repeated in the super
visor's letter and attachment of May 8, 1978 and
repeated once more in the memorandum of May
26, 1978 from the Deputy Minister. In any event,
this alleged irregularity is of no moment in so far
as these proceedings are concerned since the com
plaint which was dismissed by the Board was
directed exclusively against Dr. LeClair's direc
tive, not against the employer's refusal to accede to
Mr. McCormick's request.
Furthermore, the complaint herein by the appli
cant union, which was dealt with by the Board,
makes no mention in that complaint of a failure to
give reasons (see Case, pp. 1 and 2).
Counsel's other submission of error in law
relates to the "determination in advance of
request" of the question of "alternative recognized
holidays".
It seems clear from the evidence that there was
an advance determination by the employer based
on the employer's view that the granting of a
choice of holiday for employees in this group
would be "operationally impossible" for the rea
sons explained in Dr. LeClair's directive of April
14, 1978. Counsel for the applicant did not argue
that the Board should have found that, in making
that decision, the employer had acted arbitrarily,
in bad faith or for irrelevant or improper motives.
He argued that the Board should have found that
Dr. LeClair had violated the arbitral award in
sending his directive because the award did not
contemplate that the employer would make a deci
sion of general application in respect of a group of
employees. According to counsel, the arbitral
award provided that the employer was to consider,
on their respective merit, all the individual
requests of the employees for a choice of holiday
and determine, in each case, whether the request
was to be granted.
I do not agree with that position. In my view,
the arbitral award clearly gives the employer the
right to determine, as a prerogative of manage
ment, whether the choice of a holiday made by an
employee is compatible with "operational require
ments". The employer's duty to consider the
employees' requests and answer them does not
preclude it from deciding in advance to reject all
the choices except those of one particular day if
there exists a situation which, in its view, makes it
operationally impossible to give effect to all those
other choices.
I am therefore of the view that the Board did
not err in holding that the employer had complied
with Article 25 of the collective agreement as
modified by the arbitral award. Accordingly, I
would dismiss the application.
* * *
PRATTE J.: I agree.
* * *
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.