Interpretation of the term incapacity in certain collective agreements

October 18, 2004

The purpose of this bulletin is to provide departments and organizations with the interpretation of the term “incapacity” as it relates to the recovery of unearned vacation and sick leave taken by employees prior to termination of employment.

The term “incapacity” is found under the “Leave General” Article of the following collective agreements:

• The Program Administrative Services (PA);
• The Operational Services (SV);
• The Technical Services (TC);
• The Foreign Service (FS); and
• The Correctional Services (CX).

This Article states:

• In the event of termination of employment for reasons other than incapacity, death or lay-off, the Employer shall recover from any monies owed the employee, an amount equivalent to unearned vacation and sick leave taken by the employee, as calculated from the classification prescribed in the employee’s certificate of appointment on the date of the termination of the employee’s employment.

The term “incapacity” in these collective agreements has the same meaning as the term “disabled” in the Public Service Superannuation Act which is defined as: incapable of pursuing regularly any substantially gainful employment.

An employee subject to one of the above-mentioned collective agreements, who qualifies for a medical retirement, is considered incapacitated and therefore is not required to reimburse the Employer for unearned vacation and sick leave on termination of employment.

Departmental Compensation and Staff Relations managers should direct any questions that they may have to the appropriate departmental corporate official who, if need be, can contact the Pay Administration Section.

Original signed by

Reginald A. Giekes
Acting Director
Pay Administration Section
Management Policy and Labour Relations