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A tale of two vacations

Dealing with requests for annual vacation time by employees is a
managerial task that goes along with being an employer.  Generally, the
scheduling of employee vacation time goes off without a hitch but there
are occasions when the employer and employee butt heads over the issue.

When employers consult an employment lawyer for advice on this topic,
the question posed is usually something like, "Do we have the authority
to decide when an employee can take her vacation?"  To the chagrin of
the client, employment lawyers will tend to answer that question with a
response to the effect of, "Yes, and no".

The authority to approve, or reject, a request for vacation time clearly
falls within the traditional sphere of management's rights (to use a
term borrowed from the unionized employment context).  This authority
flows from the legal recognition that the employer must have the ability
to effectively manage its workplace.

The employer's management authority is not, of course, without limits.
It cannot impose workplace changes which alter a fundamental aspect of
the employee's terms of employment - doing so would be courting a claim
of constructive dismissal.  An example of such a change would be a
substantial, unilateral reduction in the employee's wages.

There are, however, many decisions made by management on a day-to-day
basis which are not so significant as to amount to a constructive
dismissal.  In some instances, the courts have said that such management
decisions or directions must be both lawful and reasonable.  

All such decisions need to be considered in light of the particular
circumstances of the situation.  Simply following a blanket rule that it
is the employer's decision to make, regardless of the circumstances, is
a recipe for litigation.

In the vacation context, the challenge faced by employers often occurs
when they want to revoke a previously agreed vacation or if they simply
don't want to approve it to begin with.  In those instances, the dispute
can escalate to the point where one party or the other chooses to treat
the employment as being at an end.  

When that happens, a civil action for wrongful (or constructive)
dismissal damages likely isn't far behind.  Two recent court decisions
serve as examples of the way that courts will respond to these exercises
of managerial discretion.

In Ontario, Watson sued her employer, Summar Foods Ltd., when the
employer told her she couldn't take a previously scheduled vacation.
Watson had received approval for the two-week vacation earlier in the
year and had booked airline tickets to Barbados.  

A month or so before the vacation, the employer told her she couldn't be
away for two weeks because her designated replacement could no longer
cover for her.  She was told her vacation could be reduced to one week
and that Summar Foods would pay the cost of changing her airline

Notwithstanding Summar Food's directions, Watson decided to take the
two-week vacation as planned.  She returned to find that Summar Foods
was treating the employment as at an end and had taken the position
that, by going on the unapproved vacation, she had quit her job.

In Saskatchewan, Gonzalo requested vacation time during her employer's
seasonal busy period.  Her employer, Moores The Suit People Inc., had
previously established a vacation "black out" period during the busy
season from November to January.

As a result, Moores repeatedly rejected Gonzalo's requests for the
vacation time.  It went one step farther, telling Gonzalo that if she
departed for vacation during the black out period, her employment would
be terminated.

Gonzalo went ahead with her planned trip to Chile and, upon return,
discovered her employment had been terminated for just cause reasons.

In Watson's case, the Ontario court found that she had been wrongfully
dismissed by Summar Foods.  The court found that, while willful
disobedience of a lawful and reasonable direction will justify summary
dismissal, Summar Foods' late demand that she change her vacation plans
was not reasonable.  The court determined that it was unfair to expect
her to change the vacation plan which had previously been approved and,
as a result, awarded her 12 months of pay in lieu of notice.

In Gonzalo's case, the court found that Moores' policy about the
vacation blackout period was known to Gonzalo and that it had been the
company's practice for a substantial period of time.  Moores had
provided Gonzalo with a clear and reasonable warning about the impact on
her employment of her taking the unapproved vacation.  As a result,
Moores' summary dismissal of her was upheld.

These two decisions demonstrate that applying a blanket rule (that the
employer gets to decide when an employee can, and can't, take a
vacation) can get the employer into costly legal trouble.  The key for
management is to take into account the circumstances of a particular
situation and to exercise its discretion in a way which is reasonable in
all the circumstances.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to