Arbitrator orders GNWT to keep offering Covid-19 leave

An arbitrator says the NWT government must reinstate Covid-19 leave, a special form of leave that doesn’t count against employees’ usual allowance.

Janet Alexander-Smith said the GNWT was wrong to stop offering Covid-19 leave to employees from April 1, 2022, when the NWT’s public health emergency related to the pandemic ended.

The decision, published on December 30, is similar to a separate arbitrator’s ruling in early November regarding Covid-19 leave offered by the GNWT to teachers.

Alexander-Smith was asked to rule after the Union of Northern Workers filed a grievance in May last year.

The dispute centred on how to interpret an agreement between the union and GNWT in May 2021 that created new forms of leave for territorial government workers who were unable to attend work for reasons related to Covid-19, such as sickness or isolation.

The agreement in effect became part of the collective agreement between the union and GNWT, which does not expire until the end of March this year. (The terms of that collective agreement may extend well beyond March – new collective agreements can take years of negotiation, during which the terms of the last expired agreement are maintained.)

Alexander-Smith’s ruling directs that Covid-19 leave must “remain in effect throughout the currency of this collective agreement” and that “affected employees be made whole” for any related benefits.

The full effect of the decision was not immediately clear.

For example, there was little detail setting out whether – and how – the GNWT will now re-examine employees’ leave since April 2022 and reassign any leave associated with Covid-19. How will that be assessed, and what might the outcome be?

Approached for comment on Friday morning, the NWT government had not provided a response by Sunday nor indicated whether it would seek to appeal either or both of the recent decisions regarding Covid-19 leave. The Department of Finance, which controls human resources for all GNWT departments, said it was working on a response.

The Union of Northern Workers said president Gayla Thunstrom was out of the office and would be expected to comment on the ruling in the next week, on her return.

GNWT ‘accepted union’s wording’

Covid-19 leave at the GNWT was a way of recognizing the pandemic’s additional impact on staff, ensuring they could take leave for infection with Covid-19 or during isolation periods without affecting their regular sick leave or vacation allowance.

The territorial government has maintained that Covid-19 leave was only supposed to be a thing during the NWT’s public health emergency associated with the pandemic.

But the union argued – and Alexander-Smith agreed – that nothing in the May 2021 agreement, known as a letter of understanding or LOU, suggested Covid-19 leave would end when the public health emergency ended.

The wording of the agreement – on which the arbitrator’s ruling hinged – was as follows:

“In recognition of the unprecedented impact of the Covid-19 pandemic and subsequent public health orders issued by the Chief Public Health Officer of the Northwest Territories, the parties agree that Covid-19 related sick leave and special leave will no longer draw from employees’ existing sick leave and special leave banks.

“The employer has introduced new Covid-19 paid sick leave and new Covid-19 special isolation leave codes. Time previously entered as sick leave or special isolation leave due to Covid-19 will be reinstated in employee’s respective leave banks.”

During a hearing in the summer of 2022, the Union of Northern Workers said it had drafted that wording. Alexander-Smith, summarizing the union’s evidence in her written ruling, said the union argued its wording had been “accepted by the employer without inquiry, concern, objection, restriction or amendment … without seeking to limit its scope in any way.”

The territorial government said that the mention of “subsequent public health orders” in the agreement’s wording meant a public health order had to be in effect for Covid-19 leave to be an option.

Alexander-Smith concluded: “I am persuaded that, based upon the plain and ordinary meaning of the words used in the LOU, this grievance must succeed.

“The reference to ‘and subsequent public health orders’ … does not reasonably translate into a mandatory prerequisite that there must be public health orders in effect in order for members who are impacted by Covid-19 to access the new Covid leave codes set out in the LOU. That is not the bargain negotiated by these sophisticated parties as set out in the LOU.”

The arbitrator did, however, dismiss the union’s charge that the GNWT had acted in bad faith. The union alleged the territory had “wilfully ignored the agreed wording” in ending Covid-19 leave when the public health emergency was lifted.