Court upholds NWT special leave decision in favour of nurse

A Northwest Territories Supreme Court judge has upheld a ruling that the territorial government cannot prorate special leave pay for part-time healthcare practitioners. 

Justice Louise Charbonneau found an earlier arbitrator’s ruling in favour of the Union of Northern Workers was not “unreasonable.” Her written decision was released on Wednesday.

The case was brought to an arbitrator after a nurse employed by the territorial government applied for special leave when she was getting married. While she worked 12-hour shifts, the government said she was entitled to be paid only for a 7.5-hour workday for each day of leave, to reflect her part-time status. 

Both the nurse and union filed a grievance challenging the government’s interpretation of the collective agreement.

The arbitrator concluded healthcare practitioners are entitled to be paid for 12 hours for each day of special leave. She said this amount is not subject to proration based on an employee’s part-time status. 

The arbitrator said that’s because special leave is already inherently prorated as it is earned based on the hours an employee is paid – and part-time employees work fewer hours.

She noted while the collective agreement refers to other benefits being subject to proration for part-time employees, that does not include special leave.

The government took the case to the Northwest Territories Supreme Court to have the arbitrator’s decision quashed. The GNWT argued it was unreasonable due to “serious errors and reasoning gaps.”

‘Hardly unreasonable’

Justice Charbonneau disagreed.

She wrote that her decision was not based on whether or not she agreed with the arbitrator, but whether the arbitrator’s decision and the path she followed to make it were reasonable. 

“The arbitrator’s finding that a day of special leave represents the number of hours where the employee would actually have been at work and been paid for, had she not taken the leave, can hardly be said to be unreasonable,” Charbonneau wrote.

During the arbitration case, the manager who administers special leave at Stanton Territorial Hospital said the same approach to special leave had been used for part-time employees for several years and had not previously been challenged.

In the supreme court case, the government argued this evidence was not properly taken into account by the arbitrator when she was assessing the merits of the union’s grievance.

Charbonneau disagreed, saying the arbitrator had referred to the evidence “at some length” in other parts of her decision. 

“It would be unrealistic to suggest that the arbitrator, having just referred to the evidence, was not still cognizant of it when she turned to the merits of the grievances,” she wrote. 

The government also argued the arbitrator’s decision leads to inequity because healthcare practitioners who take special leave will be paid for more hours per day of leave than other government employees.

The union, however, argued the government’s interpretation of the collective agreement would lead to greater inequity. It said that’s because shift workers would get fewer paid days away from work than other employees.

Judge Charbonneau agreed with the union. She noted the arbitrator’s decision will not increase the number of hours healthcare practitioners are paid each year, as special leave may only be taken on a day when an employee is scheduled to work. 

“This type of leave is not a ‘bonus’. It is a means whereby an employee is permitted to attend to personal and often very emotional matters instead of being at work, without suffering financial consequences,” Charbonneau wrote. 

Finally, the government argued that the arbitrator wrongly dismissed the importance of a section of the collective agreement it said was central to the issue of proration.

Charbonneau concluded while the government’s interpretation of this section was not unreasonable, neither was that of the arbitrator.

“There is nothing to suggest that the arbitrator overlooked or misunderstood the GNWT’s interpretation of the agreement. She simply did not agree with it,” the judge wrote.