THE QUESTION
I have been granted sabbatical leave from my university. In addition to conducting research, I want to give some real thought to whether I want to return next year. During my sabbatical, I get 85 per cent of my pay, which is great. However, according to our collective agreement, if I don't return after my sabbatical, not only would I be required to pay back the 85 per cent (which is fair), but also the remaining 15 per cent that I never received. Can they claw back pay that they never disbursed?
THE FIRST ANSWER
Daniel Lublin
Partner, Whitten & Lublin Employment Lawyers, Toronto
You are probably responsible to repay the additional 15 per cent. A collective agreement is a binding contract between you and your employer. It is similar to any other employment contract, except that it was negotiated on your behalf by your union and applies to all of the employees in the bargaining unit. When you accept employment in a unionized position, you agree to work under the terms of the collective agreement in place.
Repayment of a defined amount of money is generally an acceptable contractual consequence when you are given a clear benefit during an employment leave of absence, such as a sabbatical, with advance warning that, if you do not return, you have to repay that amount or more. However, to ensure you are interpreting your collective agreement correctly, you should consult with your union representative.
There are instances where repayment clauses in contracts are viewed as a penalty and will not be upheld by courts or labour arbitrators who deal with union disputes. Mostly, this is where the clause is not tied to any reasonable pre-estimate of damages for non-compliance and is considered unfair. However, that does not appear to be the case with your collective agreement.
THE SECOND ANSWER
Kyle Couch
President and CEO, Spectrum Organizational Development Inc., Toronto
Sabbaticals are especially effective in a field such as academics where mental fatigue can be part of the job. What a great way to recharge, renew and refocus, all while being paid. They should not, however, be used to re-evaluate your employment with your current employer. If you choose to use it for that, be prepared to pay it back.
Your employer offers sabbaticals as a way of keeping you longer term. They expect you to come back with new energy and passion, and in your case, fresh research. While you are away, they are going to have to hire someone. This temporary placement will cost the university time and money. Therefore, it is no wonder that you must repay your salary, in full, if you choose not to return.
Considering your time away will be on your own schedule, they can afford to reduce your pay to 85 per cent, which is generous. However, freedom isn't free, so if you move on, there is an "added fee" of 15 per cent.
If you want to use the time to think, do it first, before you start research. That way, if you move on, your recoverable salary will be minimal, and you may even receive a hiring bonus from your next employer.
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