Q: I would like to take leave to resume my studies. What are the eligibility criteria for education leave under my collective agreement?
Under the EC Collective Agreement, an application for education leave without pay must meet the following criteria (article 23.01a):
1- a recognized institution;
2- additional or special studies;
3- in a field of education in which special preparation is needed;
4- to enable the employee to fill his or her present role more adequately;
5- to undertake studies in a particular field in order to provide a service which the Employer requires or is planning to provide.
The TR Agreement lists the following criteria (article 21.16a):
1- an academic or professional institution;
2- additional or special study;
3- to improve professional skills;
4- to enable the employee to perform his duties more adequately;
5- directly related to the needs and interests of the Employer.
In the Library of Parliament Collective Agreement, the criteria are as follows (article 21.01):
1- a recognized institution;
2- a field of education in which preparation is needed to fill his/her present role more adequately;
3- studies in a particular field in order to provide a service which the Employer requires or is planning to provide.
Q: What is a recognized institution?
Treasury Board describes what constitutes a recognized institution as follows:
“Usually ministries or departments of education within each province and territory can provide lists of recognized post-secondary institutions within their jurisdictions.
Learning could also occur outside of Canada and the relevant Canadian consulate would be able to provide information on eligible institutions.
The Canadian Information Centre for International Credentials lists all recognized institutions in Canada along with relevant provincial and territorial contacts and links.
For additional information on what is considered a recognized learning institution, please consult: http://www.cicic.ca/510/fact-sheet-no-5.canada and http://www.cicic.ca/500/education-systems.canada.
The following sources may also provide guidance:
- registered CEGEPs, colleges and universities
- any provincially registered public school board or any private learning institution that has received recognition, including any learning institution listed by HRSDC
- the Canadian Information Centre for International Credentials.”
Q: If the studies I wish to undertake meet all of the criteria set out in the applicable Collective Agreement, could the Employer still refuse to grant me education leave without pay?
The wording of the LoP, EC and TR agreements is such that the Employer enjoys considerable discretion when it comes to approving education leave without pay (e.g., “An employee may be granted education leave without pay...”). However, the Employer’s discretionary authority in this matter is not absolute and cannot be used arbitrarily, in a discriminatory manner or in bad faith. Such discretion therefore must not give rise to a clearly absurd or foreseeable decision.
We strongly recommend that you check your department or agency’s internal guidelines, if any, for more-detailed conditions that may be applicable to the granting of this type of leave, and that you check past practices in this regard within your department or agency.
Q: Senior management has made it a policy to systematically refuse applications for education leave. Is this legitimate?
Adopting an inflexible approach transforms discretionary authority into a rule applicable to all cases. Rigid direction in the form of a policy would therefore eliminate the Employer’s discretion, which is predicated on an open-minded examination of the specific individual circumstances leading up to the application for such leave.
The underlying intent of the relevant article of the applicable Collective Agreement is clear: to provide for the possibility of education leave. A blanket decision by management to refuse to allocate funds for education leave or to systematically deny applications for education leave would be equivalent to bad faith according to jurisprudence, since the result would be foreseeable and would thus be contrary to the very meaning of discretionary authority.
Q: What is the duration of education leave?
CAPE’s three collective agreements call for education leave for periods of up to one year, which can be renewed by mutual agreement (article 21.01 of the LoP Agreement; article 23.01 of the EC Agreement; article 21.16a of the TR Agreement).
Q: Does the Employer have to pay me an allowance during my education leave?
The EC (article 23.01b), TR (article 21.16b) and LoP (article 21.06) agreements state that an allowance in lieu of salary, or for the reimbursement of tuition fees in the case of the LoP, could be added to education leave. Such an allowance would be for “up to 100% of the employee’s basic salary.” Thus the maximum allowance is specified, but no minimum has been set. The employer has discretionary authority over what percentage is offered.
While the EC Agreement states that an employee “shall receive” an allowance, thus requiring the payment of an allowance, however minimal it may be, the TR Agreement states that an employee "may receive” such an allowance, thus leaving the decision on whether or not to provide an allowance up to management. Like any other decision, however, it cannot be made arbitrarily or on the basis of discrimination or bad faith (see Salois v. Treasury Board (Correctional Service), 2001 PSSRB 88). The LoP Agreement, meanwhile, pre-defines for the employee’s benefit the conditions for reimbursement of tuition fees at the rate of 50%, 75% or 100%.
In all cases, any grant, bursary or scholarship amounts received by the employee could be deducted from the amount of the allowance. Make sure to read carefully the terms and conditions applicable to your collective agreement on this subject.
Q: Selection criteria are identified in my department or agency’s internal guidelines on education leave. Can I file a grievance if the Employer fails to respect those criteria?
Your department or agency’s internal directives are used to guide the actions of workers but are not set out in the Collective Agreement; consequently, they cannot form the subject of an adjudicable grievance. However, you are free to file a non-adjudicable internal complaint to management, or seek any other internal form of redress that may be specified in the directive at issue (see Ewen v. Treasury Board (Correctional Service), File: 166-02-34755, 2006).
LoP, EC and TR collective agreements.
Disclaimer: Material contained on this page is intended for general information purposes only. It is not intended as professional
counsel or legal opinion. Any analysis or interpretation contained herein should not be considered to be CAPE’s final analysis or
interpretation and is subject to change. It is not binding on CAPE. Every case is highly fact-specific and, as a result, the outcome of
any particular case will vary depending on the unique facts and legal issues involved.