The Manitoba Government and General Employees Union

Family Leave Guidelines

Purpose and Process

The purpose of the Family Related Leave Guideline is to provide some clear and general guidelines for the proper interpretation and application of Article 32:01 (from the Manitoba Employees' Master Agreement). - Family Related Leave for human resources, managers/decision makers, shop stewards and employees.

The initial onus is on the employee to provide sufficient information such that a reasonable consideration of the request would establish that the three conditions of 32:01 have been met.

No two FRL requests are alike and there should not be any significant concern about setting Department or Government wide precedents when discretion is exercised under Article 32 since the facts are almost always going to be different. If there were two or more situations that were identical, a proper exercise of discretion would require some consistency.

This should not be an adversarial process. In order to execute a fair and reasonable exercise of discretion in these circumstances, all relevant considerations must be canvassed and employees should provide the necessary information either initially or when questioned.

Understanding the Family Related Leave Article

The FRL Article states that an employee is "entitled up to five (5) days of leave with pay in each fiscal year." The wording clearly indicates that there is no entitlement to the full five (5) days automatically. A proper exercise of discretion could, based upon the circumstances, come to the conclusion that only a portion of what is requested is truly necessary. Conversely, if an employee requests five (5) days for FRL and the manager feels that the request does meet the requirements of FRL but only for a lesser amount of time, there is no basis for denying the request entirely. This would be an improper exercise of discretion. Instead, the manager should approve the amount of FRL time that is reasonable and appropriate.

A FRL request also might not be limited to a full day. There might be situations where several hours on one day or on several days might suffice to meet the necessity and such a request would not be improper so long as it met the other requirements of the article.

The Article employs a number of terms which we will attempt to assist in defining:

1. "Family" can be interpreted fairly broadly and is not restricted to immediate family. Common-law and same-sex partners defined by legislation are included.

2. "Responsibilities" The appropriate test for a proper exercise of discretion of family responsibilities is that a reasonably acting employer would see in the circumstances that the situation required the grievor’s absence from work. However, a "responsibility" is not synonymous with an emergency.

3. "Real" is basically the same thing as ‘genuine and concrete’.

4. "Immediate" is not limited to temporal immediacy (although in many cases that might be the situation) but does require that the "responsibility" must be reasonably related to the event giving rise to the necessity of fulfilling the responsibility.

5. "Unavoidable" This term must be interpreted using common sense. Important for the decision maker not to be too subjective by imposing his or her own personal standard or family experience. What is required is an objective evaluation of all the factors involved including the subjective state of mind of the employee so long as it falls within the parameters of reasonableness.

Article 32:01 (b) states that a family responsibility "could not be reasonably accommodated by some other person or in some other way or at some other time." What the decision maker is looking for is some demonstration that the employee has made reasonable (not perfect) attempts to fulfill his/her work obligations but it is simply not reasonably possible in the particular situation. Again, the decision maker/manager should not have impossible expectations - anything might be possible - but the test remains reasonableness. The number of other family members, the personal circumstances of those individuals, the particular resources available etc. are only a few of the factors that might be considered in terms of whether the employee has attempted to make reasonable efforts to make the absence avoidable and, therefore, not necessary. Managers should not expect the impossible from an employee but it is also not fair for the employee to make absolutely no effort themselves or at least to turn his/her minds to whatever reasonable possibilities there may be.

Article 32:01 (c) declares that "the amount of leave intended to cover the period until appropriate alternate arrangements can be made." The decision must be made depending on the individual’s circumstances. Again, the specific circumstances, when considered objectively, should lead to a proper exercise of discretion.

Final Comments

There is not always a "correct" answer or decision but the decision must be made with consideration of all of the factors, be based upon knowledge of the facts of the situation, and be approached with an open mind.

The FRL Article recognizes certain social realities and the fact that there may be situations which do not neatly fall within other more specific provisions of the Collective Agreement.

It recognizes that there are some situations in which it would be unfair to require the employee to use vacation or other banked time but it also sets a limit on the obligation of the Province to employees honestly caught in the type of unfortunate situations which the Article contemplates.