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The Ontario government has legislated a number of unpaid leaves employees can take including a personal emergency leave of 10 days.
However, the Ontario Divisional Court recently ruled that if you have paid leave that can be taken in the same circumstances, the additional unpaid leave you can take will be reduced by the number of available paid days off.
The Communications, Energy and Paperworkers Union asked an arbitrator whether IKO Industries violated their collective agreement and the Employment Standards Act by counting absences for paid bereavement leave as part of the 10 emergency leave days per year that the statute provides to employees.
The arbitrator sided with the employer and agreed that once an employee took five available days of paid bereavement leave in a year, there were only 5 unpaid emergency leave days available to that employee for the balance of the year.
On appeal, Divisional Court Justice Kent confirmed that the arbitrator’s decision was correct, citing the policy and interpretation manual published by the Ministry of Labour. The policy manual says the same approach applies with respect to workplace injuries. For example, if an absent employee claims Workplace Safety and Insurance Act benefits, he is, in effect designating the absences as personal emergency leave.
In addition to personal emergency leave, the Employment Standards Act provides employees with job protection for a variety of other unpaid leaves including pregnancy leave, parental leave, family medical leave, organ donor leave, reservist leave and effective July 1, 2012, family caregiver leave of up to eight weeks.
The legislation and the Ministry of Labour’s policy and interpretation manual should be consulted for more details about the duration of these leaves and how they are administered.