New Brunswick (Board of Management) v. Foreman et al., (1998) 204 N.B.R.(2d) 56 (CA)

• Judge: Hoyt, Rice and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 03, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 204 N.B.R.(2d) 56 (CA)

N.B. v. Foreman (1998), 204 N.B.R.(2d) 56 (CA);

    204 R.N.-B.(2e) 56; 520 A.P.R. 56

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1998] N.B.R.(2d) TBEd. SE.004

Her Majesty the Queen in Right of the Province of New Brunswick as represented by the Board of Management (applicant/appellant) v. Sheila Foreman and the Canadian Union of Public Employees and its Council of Hospital Unions (respondents/respondents)

(197/97/CA)

Indexed As: New Brunswick (Board of Management) v. Foreman et al.

New Brunswick Court of Appeal

Hoyt, Rice and Turnbull, JJ.A.

September 3, 1998.

Summary:

Foreman worked as a full-time nursing assistant until 1992. She was laid-off and then recalled as a part-time cook. Foreman had accumulated sick leave as a full-time employee under the existing collective agree­ment. A new collective agreement took effect in 1996. Part-time employees were not entitled to paid sick leave under the new agreement. Her employer froze her earned paid sick leave. Foreman fell ill and was denied her frozen sick bank credits. An adjudicator held that the employer could not freeze Foreman's sick leave and directed payment of compensation. The Board of Management sought judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, dismissed the application. The Board of Management appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Labour Law - Topic 9360

Public service labour relations - Judicial review - Decisions of adjudicators - Deci­sions which alter or amend the collec­tive agreement - Foreman worked as a full time employee until 1992 - She was laid-off and recalled as a part time employee - She had accumulated sick leave as a full time em­ployee under the collective agree­ment - Under a new collective agreement, part-time employees were not entitled to paid sick leave - Foreman's employer froze her earned paid sick leave - Foreman fell ill and was denied her frozen sick bank credits - An adjudicator held that the em­ployer could not freeze Foreman's sick leave and directed payment of compensa­tion - The Board of Manage­ment asserted that the adjudicator's inter­pretation amended the new collective agreement - The New Brunswick Court of Appeal rejected the assertion.

Labour Law - Topic 9577

Public service labour relations - Collective agreement - Pay, severance pay and expense allowances - Sick leave - Foreman worked as a full time nursing assistant until 1992 - She was laid-off and recalled as a part time cook - She had accumulated sick leave as a full time employee under the collective agreement - Under a new collective agreement, part-time employees were not entitled to paid sick leave - Fore­man's employer froze her earned paid sick leave - Foreman fell ill and was denied her frozen sick bank credits - An adjudicator held that the employer could not freeze Foreman's sick leave and directed payment of compensa­tion - The Board of Manage­ment's judicial review application was dismissed - The New Brunswick Court of Appeal held that the reviewing judge was correct in according judi­cial deference to the adjudi­c­ator's decision and dismissing the judicial review application - See para­graphs 10 to 18.

Labour Law - Topic 9577

Public service labour relations - Collective agreement - Pay, severance pay and ex­pense allowances - Sick leave - Foreman worked as a full time nursing assistant until 1992 - She was laid-off and recalled as a part time cook - She had accumulated sick leave as a full time employee under the collective agreement - Under a new collective agreement, part-time employees were not entitled to paid sick leave - Fore­man's employer froze her earned paid sick leave - Foreman fell ill and was denied her frozen sick bank credits - Fore­man grieved, asserting that the change in her employment category did not deprive her of her earned sick leave - An adjudica­tor agreed - The Board of Management argued that the adjudicator failed to limit his determination to the interpretation of the new collective agree­ment - The New Brunswick Court of Appeal rejected the argument - The issue encompassed both collective agreements - See para­graphs 10 to 12.

Labour Law - Topic 9629

Public service labour relations - Collective agreement - Management rights - Sick leave - [See first Labour Law - Topic 9577 ].

Counsel:

C. Clyde Spinney, for the appellant;

Susan D. Coen, for the respondents.

This appeal was heard on February 11, 1998, before Hoyt, Rice and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On September 3, 1998, Turnbull, J.A., delivered the following decision for the Court of Appeal.