Employer denies bereavement leave after death of worker's ex-spouse

‘Strained, ungrammatical reading’ unacceptable: Arbitrator

When her former husband of 24 years died, a Saskatchewan worker wanted time off the attend the funeral.
Even though they had been divorced for six years, Sheila Koller, who had two sons with her ex-husband, requested bereavement leave from her employer, the Saskatchewan Health Authority.
Koller took time off work from Nov. 5 to 8, 2012, after her husband passed away on Nov. 4.
She wanted to use the time off from the bereavement provision of the collective agreement, which allowed employees “four (4) regularly scheduled consecutive working days in the event of death of an employee’s spouse.”
But the employer refused because it wasn’t Koller’s husband who died, but rather her ex-husband. She was forced to use vacation and statutory holiday days off instead.
The union, the Canadian Union of Public Employees (CUPE), Local 5430 grieved the decision and requested Koller have her vacation and statutory holiday days restored into their respective banks.
It argued that the provision in the collective agreement could have been used to grant Koller time off. The phrase “or someone with whom they have had an equivalent relationship” should have been relied upon, said CUPE.
Even though the marriage was over, said the union, the couple’s twin sons meant they were still bound together in a family bond and, therefore, Koller’s relationship to him was equivalent to that of a current spouse. 
But the employer countered and said that unless the collective agreement included the prefix “ex” in front of spouse, it cannot be used to grant leave. The bereavement clause should only be used for persons who are actually married at the time of death, it said.
Because she was no longer a spouse, said the Saskatchewan Health Authority, Koller was no lonoger in an “equivalent relationship” any longer.
Arbitrator Neil Robertson agreed and dismissed the grievance. “While it was certainly appropriate for the employer to grant leave to (Koller) to attend the funeral and attend to the needs of her family upon the death of her ex-husband and father of their children, the employer was justified in denying bereavement leave.”
“The union has failed to satisfy the onus of proof to show that the employer breached the collective agreement in failing to grant bereavement leave to (Koller) upon the death of her ex-husband,” said Robertson.
The union’s argument was not compelling enough to force a positive decision in Koller's favour, according to the arbitrator.
“I also considered whether clause 30.05(a) could be read to include an ex-husband as ‘an employee’s spouse… former… or someone with whom they have had an equivalent relationship’, by applying the word ‘former’ to ‘someone with whom they… had… the ‘relationship’ (of spouse). I do not believe such a strained and ungrammatical reading is reasonable and I reject such a construction,” said Robertson.
“If the parties did intent to extend bereavement leave to former relationships, that could have been easily stated, as was done for ‘former guardian.’ I am not prepared to imply such an improbable interpretation and application of this provision.”
Reference: Saskatchewan Health Authority and Canadian Union of Public Employees, Local 5430. Neil Robertson — arbitrator. Jolene Horejda, Tracie Nielsen for the employer. Gary Day, Linda Vancuren for the employee. May 4, 2018.

To read the full story, login below.

Not a subscriber?

Start your subscription today!