Formality Found Lacking in Bid for New Holiday

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Money and time off work for holidays are naturally important to employees, so when Queen Elizabeth II died and the Prime Minister commented on the importance of mourning her passing, unions and employees alike saw an opportunity for gains to be made. This was a pure question of interpretation, and the dispute in [2023] O.L.A.A. No. 43 was resolved in the employer’s favour based on the language of the collective agreement and the arbitrator’s determination of what a “proclamation” is.

Background

The case dealt with two grievances: a union one and one on behalf of an employee, a cook in a long-term care home. The grievances alleged that after the Queen died on September 8, 2022, the collective agreement required the employer to recognize September 19, 2022, the National Day of Mourning, as a paid holiday for all employees in the bargaining unit.

The collective agreement article dealing with holidays said, “The following days will be recognized as paid holidays: ”followed by a list of days including Easter Monday, Canada Day, Thanksgiving Day and Christmas Day. At the bottom of the list was a catch-all phrase, “and any other day proclaimed as a holiday by the Federal, Provincial or Municipal Government.”

This contract language put the spotlight on the nature of the statements the Prime Minister, his office and other bureaucrats made following the Queen’s death. Did they amount to a proclamation of a holiday?

What the arbitrator said

The arbitrator said a proclamation could mean many different things, but in this case, the best definition comes from the dictionary, describing an official announcement or a formal declaration. It requires a degree of formality and a statement of government policy that goes beyond a mere announcement. The arbitrator noted that not every statement-even of the Prime Minister-rises to this level.

In the present situation, following the Governor General’s direction, a proclamation was published in the Canada Gazette requesting that the people of Canada set aside September 19, 2022, to honour the memory of the Queen. Despite it being a proclamation, conspicuously missing from the Order in Council was any mention of a holiday.

The arbitrator reviewed a tweet and a press release of various governmental actors leading up to the proclamation referred to a holiday for core federal government employees, but none of them rose to the required level of “formality and gravitas” to count as a proclamation.

In the end, what remained was a proclamation of a day of mourning for core government employees, but not of a holiday. The arbitrator concluded his analysis by distinguishing other cases the parties cited, noting that the present situation was different from the recent creation of the National Day for Truth and Reconciliation, which resulted from a legislative amendment and signalled a clear intention to create a public holiday.

Had the government done the same here, the arbitrator said, the result might have been different. The government could have indicated that the holiday would apply to people who are not its employees, but it didn’t do that. To allow the grievance would give an overly broad meaning to “proclamation”, reducing it to “states”, “notifies” or “indicates.” Something more is required to rise to the level of a proclamation, and that something more is a degree of formality or a clear statement of government policy and intent, even if it’s not done by legislative amendment. In the end, the grievance had to be dismissed.

Key takeaways

A proclamation is something more than a statement, so employers with similar collective agreement language to that, in this case, will be able to rely on this decision when forced to argue against expanding the list of holiday entitlements.

While the case stopped short of saying that only legislative amendments pass the threshold, such a change would likely meet the test of a proclamation, but anything that is sufficiently formal is likely to suffice.