ARBITRATOR UPHOLDS EMPLOYER’S DENIAL OF BEREAVEMENT LEAVE REQUEST

The Ontario Nurse’s Association grieved on behalf of one of its full-time nurses that the Employer had improperly denied the grievor’s bereavement leave request.

The grievor’s Grandfather had passed away on August 2, 2008. A funeral was held on August 7, 2008. The grievor was off for two (2) days on bereavement leave to attend at the funeral.

The grievor returned to work on August 10 and subsequently submitted a request for a third day of bereavement leave to attend at a second memorial service. The leave was requested for August 22, a day on which the grievor was scheduled to work the night shift. The memorial service was to be held on the morning of August 23

At the hearing, the grievor testified that she required August 22 as bereavement leave because “if she was required to work the night shift she would only get two hours sleep prior to attending at the memorial service”. She indicated that this lack of sleep would result in her “feeling sick” during the service which would already be “an emotional experience

The Hospital argued that the third day of requested bereavement leave was not requested to accommodate “religious and cultural diversity” (as required under Article 11.05 of the ONA Central Collective Agreement which provides that nurses be “granted flexibility to distribute their bereavement leave over two (2) occasions not exceeding three (3) days in total in order to accommodate religious and cultural diversity.”), but was for health/sleep reasons.

The Hospital further argued that the grievor had requested leave on August 22, rather than the day of the memorial service, August 23, a day on which she was not scheduled to work.

In reaching his decision, Arbitrator Joseph Rose noted that there was no dispute between the parties that the grievor was entitled to bereavement leave for up to three (3) consecutive working days in conjunction with the date of her Grandfather’s funeral. The issue remaining, however, was whether the grievor was able to split that bereavement leave in the circumstances.

The Arbitrator points out that Article 11.05 is intended to provide flexibility in distributing bereavement leave and more particularly, to allow for the splitting of a leave into two (2) occasions, not exceeding three (3) days in total, subject to the need to accommodate religious and cultural diversity. In this instance, the Arbitrator was not persuaded that the situation before him fell within the ambit of “religious and cultural diversity” as required. The Arbitrator concluded that the reasons the grievor gave for requesting August 22 off rather than August 23 (the date of the memorial service), was for “personal reasons mainly, that she required sufficient sleep to be functional to attend the memorial service".

The Arbitrator was ultimately unable to accept the Union’s expansive definition of “cultural diversity”, which included health or personal reasons. The concept put forward by the Union was simply too broad.

Ultimately, the grievance was dismissed.

Concluding Remarks

Where a nurse seeks to split her bereavement leave over two separate occasions not to exceed three (3) days, it is incumbent upon that nurse to establish that the second occasion for bereavement leave is required for, at the very least, cultural or religious reasons. This does not extend to include personal preference, health reasons or shift convenience.

Furthermore, Employers may consider taking the position that a request for a split bereavement leave must be related to both culture and religious reasons, as the terms “religious” and “cultural diversity” are used conjunctively in the relevant Article. This was an issue raised by the Employer before Arbitrator Rose but left undecided.