HomeMy WebLinkAbout1983-0730.Pullano.84-10-04730183
IN THE MATTER OF AN ARBITRATION
Under .
THE CROWN EMPLOYEES COLLECTIVE BAR&INING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (R. 3. Pullano)
and
Griever
Before:
The Crown in Right of Ontario ’
(Ministry of Correctional Services) Employer
E. 8. Jolliffe, Q.C. Vice-Chairman
S. Dunkley Member
M. 07oole ‘Member
! For the Criivor:
For the Employeri
HearIngr June 22,1984
M. Wysocki
Grievance Officer Ontario Public Service Employees Union ,:
P. Radley
Staff Relations Officer
Ministry of Correctional Services
I
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DECISION
. ,
Mr. R.J.Pullano, a Correctional Officer 2 at the Niagara
Detention Centre, presented the following grievance on October 26,
1983 :
I was refused my entitled bereavement leave for my shift on
Ozt 10, 1983 and forced to take a stat holiday.
The grievor requested:
lbat I receive my 8 hrs lieu time back and that my bereave-
ment day be granted.
Article 48.1 of the applicable collective agreement
provides as follows:
48.1 An en@oyee who would otherwise have been at work
shall be allowed up to three (31 days leave-of-absence with
pay in the event of the death of his spouse, mother, father,
mother-in-law, father-in-law, son, daughter, brother,
sister, son-in-law, daughter-in-law, sister-in-law, brother-
in-law, grandparent, grandchild, ward or guardian.
At the Board's hearing in respect of this matter the I
parties began by filing a 'Statement of Fact," Exhibit 2, on which
they were in agreement. The relevant facts are set out in the
following paragraphs:
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1. The griever is employed as a Correctional Officer 2 at
the Niagara Detention Centre.
2. The griever's classification is assigned to schedule
4.7 and his normal hours of work are forty (40) hours
per week and eight (8) hours per day.
3. The griever was scheduled to work the 2300-0700 hours
shift on Cctober 9 and 10, 1983.. October 10, 1983 was
Thanksgiving Day, a holiday.under Article 47. 'Ihe
griever was scheduled regular days off on October 11,
12 and 13, 1983.
4~. Cm October 9, 1983, the.grievor's father died. 'Ihe
, griever called the Niagara Detention Centre and spoke
with Mr. Miller, Shift Supervisor, headvised Mr.
Miller of his father's death, and requested bereavement
leave for October 9 and 10, 1983.
5. The griever did not work on October 9 and 10, 1983 I
6. (XI Cctober'll, 1983, .the griever called Mr. C. Hill,
Deputy Superintendent and he was informed by Mr. Hill
that he was granted bereavement leave for October 9,
1983, and that he would be marked as a "stat. on a
stat." for Cactobar JO, 1983.
7. lbe gi-ievor received eight hours regular pay for
Cctober 9, '1983, and holdiay pay (i.e. 8 hours regular,
pay) for October 10, 1983.
The employer's position was explained in a reply to the
I
grievance given by Mr J.A. Wallen, Regional Personnel Adminis-
trator, on November 20, 1983, Exhibit 3. He said, .in part:
You were not denied bereavement leave for Oct. 10,
1983. For attendance recording purposes, you were recorded
as having a "station a stat." Article 19, Holiday Payment,
would apply to any situation in which the employee either
worked on a statutory holiday or whose regular days off were
scheduled on a statutory~holiday. Should an employee meet
neither of these conditions, then Article 19 would simply
not apply.
:
Y
provisions are the following:
19.1
19.2
‘~,;I
~ . . .
19.3
19.4
. ~
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In Article 19, referred to by Mr. Wallen, the relevant
Where an employee works on a holiday included under
Article 47 (Holidays) he shall be paid at the rate of
tw3 (2) times his basic hourly rate for all hours
worked with a minimum credit of seven and onequarter
(7-l/4), eight (81 or the number of regularly
scheduled hours, as applicable.
In addition to the payment provided by section 19.1,
an employee shall receive either seven and one-
quarter (7-l/4) or eight (8) hours pay as applicable
at his basic hourly rate or compensating leave of
seven and one-quarter (7-l/4) or eight hours as
applicable, provided the employee opts for
compensating leave prior to the holiday.
When a holiday included under Article 47 (Wo1iday.s)
coincides with an employee's scheduled day off and he
does not work on that day, the employee shall be
entitled to receive another day off.
Any compensating leave ac-lated under sections
19.2 and 19.3 may be taken off at a time mutually
agreed upon. Failing agreement, such time off may be
taken in conjunction with the employee's vacation
leave or regular day(s) off.
From the Statement of Fact it is clear that if the
griever had worked his shift on October 10 (as scheduled) then
19.1 above would have applied and he would have been paid at
"double time." He did not work on October 10, due to his father's
death on October 9. Thus 19.1 really does not apply.
Similarly, 19.2 deals with an employee who actually
works on a holiday (as in 19.1) and therefore does not apply to
MI-. Pullano's case. This is so because 19.2 begins with the words
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i .
.;
"in addition to the paymentprovided by section 19.1..."
Further, 19.3 does. not apply because the holiday,
October 10, did not coincide with "a scheduled day off," Mr.
Pullano having been scheduled to work on October 10;
The compensating leave referred to in 19.4 is leave
accumulated under 19.2 and 19.3. As they do not apply, it is clear
that 19.4 also does not apply.
Apparently the grievor was deeply shocked by the sudden
death of his father on the morning of Sunday,' October 9. He had
been scheduled to work the night shift of October 9-10 and October
3
10-11. Naturally, he telephoned Sergeant J. Miller, supervisor
of the day shift. This was recorded briefly in the log: "Mr.
Pullano' not available for 11-7 shift - bereavement leave. Mr.
Rafferty casual replacing him." The fact that Monday would be a
holiday received no mention. A more detailed report, Exhibit 6,
was made to ~Deputy Superintendent Hill later in the day, as
follows:
Mr. Pullano called me at approximately 0800 hr. this
morning to inform me that his father had passed away at 0630
hrs. today while in the Niagara Falls.hospital.
Mr. Pullano had just completed a 11-7 shift this
morning and was scheduled to~work tWo more 11-7 shifts. ,.
I informed Mr. Pullano, after checking the schedule,
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that he would not have to report back for duty until the 14
Cct 83 on the 7-3 shift.
Mr. Brown, casual officer, will replace,Mr. Pullano
this evening on the 11-7 shift and I have left a memo for
sst. Charette to ask Mr; Rafferty, casual, to cover the
Monday 11-7 shift as I was unable to reach him this shift.
Should Mr. Rafferty be unavailable then I will make
other arrangements for casual replacement prior to Monday
evening.
Although not scheduled to work again until Friday,
October 14, the grievor called Mr. Hill on Tuesday, October 11 to
explain that he might not be able to work on Friday because the
funeral director was uncertain whether the funeral of Mr.
Pullano's father could be held before Friday. Mr. Hill mentioned
the possibility of "compassionate leave" under Article 54.1. He
also said bereavement leave had been granted for October 9, but
not October 10. According to the grievor, he was so upset that he
merely said "Fine 41 However, he later applied in writing for
bereavement leave on both October 9 and 10. One, but not both,
was granted and he has been paid accordingly, i.e. straight time
for a holday not worked. He thought this unfair in the circum-
stances.
Mr. John Hildebrandt, Superintendent of the Niagara
Detention Centre since 1980, was away on vacation during the week
of October 10. He had instructed supervisors that in cases of
emergency in the immediate family,leave should be granted and
reported to either the Deputy Superintendent or the . senior
.
Assistant Superintendent.. At a briefing on Monday, October 17, he
Was told of Mr. Pullano's bereavement and the problem about
October 10.
According to Mr.Hildebrandt, he dealt with the matter at
once: "I made clear to Mr. Hill that if an employee was scheduled
to work but did not work on a holiday, he would be recorded' as
having received his statutory holiday on the. statutory holiday.
It was the same as if he called in sick on the holiday --- there
would be no sick debit but he would be recorded,as having taken
the holiday. After that meeting I met with ,Mr. Pullano,~ who
explained the circumstances. Isaid he could not.be ?given two
concessions on the same date. The~cpllective agreement prohibited
pyramiding. I never had a, problem this way before, but it has
arisen in connection with sick leave.."
In argument on behalf of the grievor, Ms. Wysocki made
the following submissions. The griever, under Article 48 of the
agreement was "entitled" to both days, October 9 and 10, as
bereavement 'leave. He had been "retroactively" told not to report
for work on those two days. Under. Article 47 the was also
"entitled" to "statutory holidays," one of,them being Thanksgiving
Day, October IO in 1983. He had other rights under Article 19.2,
which were "separate and apart" from rights under 19.1. As all
such rights were differently created in different clauses of the
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agreement, they were not barred by Article 21, which provides that
"there shall be no duplication or pyramiding of any premium
payments or compensating leave....."
For the employer, Ms. Radley said the griever had
received the day off on October 10 and pay at straight time, all
he was entitled to receive under Article 47. His claim under
Article 19 was barred by Article 21. The griever had not brought
his case within the provisions of the agreement.
For some years there have been differences of opinion in
both public and private sectors as to the meaning and effects of
language such as that which appcars in Articles 19, 21, 47 and 48
of the agreement between Management Board of Cabinet and Ontario
Public Service Employees Union.
Both counsel cited a series of cases which may or may
not have a bearing on the issue arising in this case. These will
receive comment hereafter.
The private sector experience relating to bereavement
leave has been reviewed in the second edition of Brown & Beatty,
"Canadian Labour Arbitration, at pages 623 to 625, as follows:
It has been said that the prpse underlying a paid
period of bereavement leave is:
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I, . . . to provide an employee with time off without loss
of pay to gather together with relatives at a time of
personal tragedy for mutual comfort, to assist fin ,makrng
arrangements for the funeral of the deceased and for the
immediate and after care of the deceased's survivors,and to
enable the employee to bear his grief privately without
inmediate exposure to the comparative harshness of his
working .environmnt. Dwinion Glass Co. Ltd (1973), 4
L.A.C. (2d) 345 (Johnston7 at p. 353, cited mth approval in
~lcan Smelters & Chemicals Ltd. (1982) 5 L.A.C. (3d) 83
'(hope); Gray Forgings & Stampings Ltd. (1980) 27 L.A.C. (2d)
61 (Shime): Scherer G.C. Ltd. (1975), 10 L.A.C. (2d) 401
(Kruger); Cutboard Marine Corp of Canada Ltd. (1976) 11
L.A.C. (Zd) 142 (Ferguson)."
Within that general framework, and in c-on with their
approach to most fringe benefits, arbitrators have said that
bereavement leave orovisions must be construed strictly,
DC
Ford Motor Co. of Ca.--- -_-
Younq Sprinq & Wire Corp. 0
185 (Reville); Hamilton.Gea
Gazette Printinq Co.'Ltd. ,(1969) 20 L.A.C. 379 (Sylvestre);
)minion Glass Co. Ltd. (1967) 18 L.A.C. 334 (Hanrahan);
,ad;r I.td. (1966) 17 L.A.C.415 (Reville);
f Canada Ltd. (1964) 15 L.A.C.
r &Ma_cbine Co. (1963) 14 ,L.A.C.
76 (Hanrahan) and should not be applied so'as to permit the
pyramiding of benefits. 'Itus, w&&e an agreement provided
that an employee was entitled to.bereavement leave of so
mw 'Qxking days"; or when his Qbsence &S necessary to
make arrangements for the funeral", or that such leave shall
te "without, loss of wages", or that the employee will ba
compensated for time lost at his regular 'rate 'of pay,
arbitrators have held that an employee on vacation is not
entitled to bereavement pay, City of Toronto (1981) 2 L.A.C.
(M) 61 (E!eatty); Reqional micipalitv of %dbury (3.979) 23
L.A.C. (2d) 46 (Hinnegan); District of Ccouitlarr (1978) 18
L.A.C.. (2d) 73. (Larson); Gnifin Division of Keepriqht
Products, L.A.N. March, 1974 (Gorsky); Windsor Utilities
Corn> (1971) 23 L.A.C. 268 (Palmer). F$ virtue of such
language, these arbitrators have assumed that the benefit
provided is intended as an indemnity to ensure ,the employee
has time off to be with his family, a circumstance which, by
virtue of his vacation, he would already enjoy. Conversely,
if entitlement to bereavement leave dependedonly on a death
occurring in the griever's immediate family, and the
agreement said nothing about either the time of the death or
how it was related to the work schedule of the employee, for
most arbitrators the result would be otherwise, AlCaIl
Snelters & ChemicalsLtd. (1982) 5 L.A.C. CM) 83 (f66
Lafarge Concrete Ltd. CISEIO) 27 L.A.C. (2d) 429 (MXoll):
Solar Furniture Ltd. (1977) 16 L.A.C. (2d) 273 (H.D. Brown);
Mirnesota Mining & Mfg of Canada Ltd. (1972) 24 L.A.C. 242
palmer) Cane&an Forest Products Ltd. (1973). 3 L.A.C. (2D)
.
a
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3 (Wilson). Even in these circumstances, however, one
arbitrator has suggested that the days which are claimed for
the bereavement leave ought to be reasonably related to the
death or funeral which gives rise to the claim, Central
Precision Ltd. (1977) 16 L.A.C. (2dl 29 (kdams)~
another has suggested that whenever the parties use the word
"leave" to describe this particular benefit, it trust be
assumed they intended the payment to be made only to
employees who were working at the relevant time and not to
persons who were already off work and able to attend to
their personal affairs, Gray Forgings & Stampings Ltd.
(1980) 27 L.A.C. (2d) 61 (Shime); Province of Cntario (1977)
16 L.A.C. (2d) 307 (Shime); Cf. Alcan Smelters & Chemicals
Ltd. (19821 5 L.A.C. (33) 83 (Fbce). In much the same
spirit, another arbitrator held that unless the agreement
expressly so provides, an employee is not entitled to be
paid bereavement leave at premium overtime rates when one of
the days on which the employee was on such leave was a day
he was scheduled to work at such rates, Governors of
Miversity of Toronto (1973) 3 L.A.C. (2dl 26 (Hinnegan).
Indeed even where a letter of understanding agreed to by
the parties specifically allowed employees on vacation to
claim for bereavement pay with respect to a death which
occurred during that period, arbitrators have differed as to
whether an employee who is absent on sick-leave when the
death occurs should also be entitled to any or some part of
the bereavement leave, RCA Ltd. (1973) 2 L.A.C. (2d) 143
(Raynet-); cf. RCA Ltd. (1972) 1 L.A.C. (2dl 281 (Simmons).
It is also said by Brown & Beatty at p. 626
. . . However, where the agreement stipulates that an
employee 'may ba excused" General Spring Products Ltd.
(1971) 23 L.A.C. 71 (Palmar), or that where "absence is
necessary", Hamilton Gear & Machine Co. (19631 14 L.A.C. 76
(WanrahanJfor 'up to a specified numbor of days", Province
of titario (19771 16 L.A.C. (2d) 307 (Shime) and also Young
Spring & Wire Corp. of Canada Ltd. (19641 15 L.A.C.185
(Reville) for the reason that a meer of an employee's
ifrunediate family has died, other arbitrators have held it to
be within the employer's discretion to determine the amount
of bereavement leave that should be granted, and that a
decision effected under such a provision should not be
interfered with so long as it was made in good faith.
Thus it becomes apparent that entitlement to bereavement
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leave is not as simple as appears at first sight. Not without
significance is the provision in Article 48 of the OPSEU agreement
that "an employee who would otherwise have been at work shall be
allowed up to three (3) days leave of absence with pay....." (The
underlining is ours). Nevertheless, bereavement leave itself is
not the real issue in this,case. The leave granted to the griever
for his shift of October 9-10 was unquestionably bereavement
leave. .Later, leave in respect of the October lo-11 shift was
withheld because October.10 was a holiday. The griever's claim
for premiums'is that were it not for his father's death on October
9 he would have worked the October lo-11 shift and was therefore
"entitled" to bereavement leave and the pay he would "otherwise"
have earned if he had worked. In his grievance, he said his
bereavement leave should be granted and that he should receive
"my 8 hrs lieu time back." The latter assertion is obviously based
on Article 19.2and the former on Article 48.
Ms. Wysocki referred to threecases decided by the
Grievance Settlement Board:'
Parsons 81/78 (R. Prichard, M. Gibb and R. Cochrane) was
heard and decided early in 1979. The griever claimed that he was
entitled to 28 hours' pay for working an eight-hour shift on a
holiday (January 2, 1978) due to the combined effect of Article 9
(which at that time provided for' statutory holidays) and Article
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19 . which was then very similar to the present Article 19 except
that 19.1 provided for time and one-half, not double time. The
employer said he was ent.itlcd to only 20 hours' pay. The Board's
unanimous view was that the qrievor, by working on a holiday, had
earned eight hours' pay pursuant to 19.2 and 12 hours' pay under
19.1, a total of 20 hours. In doing so, the Board held that
entitlement to holiday pay is fixed by Article 19 --- not by
Article 9, which is now Article 47. The grievance failed, but Ms.
Wysocki emphasizes certain remarks made at page 8 of the decision.
These are difficult to understand because the griever had actually
worked on a holiday and his'grievance raised no issue as to the
entitlement of an employee who has not worked on the holiday. -
With great respect, the remarks quoted below seem to be obiter
dicta, not necessary for the purpose of deciding the grievance of
Mr. Parsons, who had been required to work on January 2:
nle interpretation that Article 19.2 covers all
employees and not just employees who are required to work on
statutory holidays is supported not only by the language of
Article 19.2 itself but also by the totality of Article 19.
A careful examination of Article 19 reveals that same of its
provisions are clearly applicable to persons who do not work
on statutory holdidays. For example, Article 19.3 expressly
states that it is applicable to an employee who "does not
work on that day'. Therefore, in our opinion, there is no
reason to restrict the application of Article 19.2 to
employees who work on statutory holidays merely as a result
of the introductory words in the article. In our view, the
better interpretation of Article 19 is that it is a
relatively ccmprehcnsive code of entitlement of holiday pay
dealing with both persons who are required to work and those
not required to work on statutory holidays. Seen in this
light, the interpretation we have given Article 19.2 is
entirely consistent with the totality of Article 19.
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Martin 434/81 (R.J. Delisle and D.B. Middleton, with
H.L. Robinson dissenting) was decided on February 3, 1982. The
griever, who had been scheduled to work on Easter Monday,. was
disabled by a heart attack the previous week and remained absent
for some weeks under the Short Term Sickness Plan in Article 51.
His claim for the holiday preimium was not upheld by the majority,
having regard particularly to Cooper 145/77 (Swan) and also the
pyramiding clause in Article 21. Dissenting at length, Mr.
Robinson said that Article 21 was not relevant and that.Cooper had
been wrongly decided. He said also that the key clause was
Article 51, not Article 19. He quoted Mr. Shime's statement in Re
Bell and North York General Hospital and O.N.A. 27 L.A.C. (2d) 64
that "both the sick leave and the holiday pay are earned benefits"
and that "such payment for separate purposes are not duplications
and do not require an express articles in that regard." In the
present case Ms. Wysocki relies on the reasoning in Mr. Robinson's
dissent. It may be pointed out, however, that bereavement leave
--- if discretionary --- his not an "earned benefit" in the same
sense as sick leave is. The words "up to three days" suggest that
bereavement leave is --- at least in part --- discretionary.
Charbonneau 544/81 (P.G. Barton and T. Traves, with D.B.
Middleton dissenting) was decided on November 29, 1982. Ms.
Radley said it has been taken to judicial review, but we have no
knowledge of the result. After being injured at work on April 7
the griever received W.C.B. benefits (under'Article 53) and was
.
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unable to work on two statutory holidays, April 17 and 20, which
happened to be "regular working days" under his schedule. At
least three weeks in advance he had indicated in writing that he
wanted "time off" --- 1.e. compensating leave under 19.2 ---
instead of cash. The employer paid him at straight time for the
two holidays --- or "stats on stats," as Mr. Hildebrandt would
call them. There was a Ministry policy that "if a statutory
holiday falls within the first three months of a W.C.B. award,
the employee will be deemed to have taken the holiday on the day
it occurred and he will not receive a lieu day." However, the
majority in Charbonneau held that Article 21 did not apply, that
19.1 did not apply because the griever did not work "on the day in
question," that the griever was entitled to his regular salary
under Article 53, that he was entitled to 8 hours' pay or a lieu
day under 19.2, and that "because the gricvor indicated in advance
that he wished the lieu days he is entitled to those days and the
grievance is allowed..." The majority agreed in part with Mr.
Robinson's dissent in Martin. As previously mentioned, Mr.
Middleton dissented, contrasting the majority decision with the
reasoning in Cooper, Parsons and the majority in Martin.
I" support of her argument, Ms. Radley referred to a
group of other cases decided by the Grievance Settlement Board.
Fournier 86/76 (D.M. Beatty, V.P. Harrris and H. Simon)
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was decided May 8, 1977. Mr. Simon concurred with "the findings
on the main issue," but not with a collateral ,finding. The
grievor.'s husband died while she was on vacation. She claimed the
employer ought to have granted three days of bereavement leave in
additionto her vacation leave. Her grievance failed because, as
the Board sa~id , she was not a person who, at the. time of the
bereavement, "would otherwise have been at work.." Obviously' the
facts were very different from the facts in the present case.
Cameron 124/77 (G.W. Adams, V.P. Harris and D. Anderson)
decided in 1978, was also's case in which the facts were very
different,' and a variety of different issues a.rOSE. The parties
had agreed that the issues before the Board were the following:
Does the collective~agreement require that the employer pay
(a) a shift premium under Article 11 for the same hours of
work for which an overtime premium is payable under Article
13?
and
(b) a shift premium under Article 4 for the same hours of
work for which a statutory holiday premium is payable under
Article 19?
These questions of course.led to arguments about, the
application of Article 21.and its prohibition of "pyramiding" or
the duplication of premium payments. In particular it was
contended by the employer that Article 19 amounted to "a complete
description of the monies or compensating leave owing for work on
.
. ..,
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a holiday and contained no reference to shift premium payments."
In construing Article 21 the Board reviewed Morin 14/77 as well as
many cases in the private sector, all of which are now cited in
the second edition of.Brown & Beatty. Little was said about
Article 19, but the Board held that "in agreeing to Article 21.1
the parties did not believe the concurrent payment of a shift
premium and overtime pay to involve a duplication or pyramiding of'
premium payments." The Board also decided that "the second
question must be answered affirmatively provided the griever is
scheduled to work the number 'of hours that would normally
constitute a shift." The Cameron case is enlightening for its
extensive review of earlier authorities and for its analysis of
Article 21, but it has little application to the present case
because Cameron was said to have worked a full shift and also
overtime on one or more holidays; on the other hand, here we know
that the griever did not work the holiday on which he was
scheduled to work.
Cooper 145/17 (K.P. Swan and A.Reistetter, with S.R.
Hennessy dissenting) was decided on December 2, 1980. The gricvor
began his work as scheduled on a holiday, but continued for only
2.75 hours, after which having become ill, he followed medical
advice and did no more work that day. He received premium pay
under 19.1 for the 2.75 hours and eight hours' pay under 19.2, but
claimed eight hours instead of 2.75 under 19.1. The issue was
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"whether the "minimum credit" provision of Article 19.1 applies to
an employee who leaves early due to illness." -The issue in the
present case is of course entirely different because the grgevor
here was not,at work on October 10 and has no claim whatever under
19.1. Cooper has been cited, however, because of an observation
on the last page that: "In the case of illness on a holiday, an
employee under this agreement simply, receives holiday pay, and
that is how Mr. ,Cooper was treated .once' he left work." In
dissenting, Mr. Hennessy said that "in a situation in which the
employee was not to blame for the absence, a minimum of eight
hours' pay at straight time was contemplated by the parties.."
Birse 338/83 (J:W. Samuels, F.D. Collom Andy J. Morrow)
decided on December 1, 1983, represented an entirely different
problem. The griever had been on sick leave in March, but was
scheduled to work Good Friday and Easter Monday. On being cleared
by his doctor March 31, he duly notified supervision that he would
,be at work the next day, Good Friday, but was told to take both
Good Friday and Easter Monday as holidays. In a previous case,
McCormick 386/81, the griever failed to win premium holiday pay
because he had. received a week's notice, th~at he would not be
working as scheduled. Article 10 of the argreement called for at
last 120 hours' notice of a change in scheduled working time. In
Birse t.he Board decided there had been no change in scheduled
shifts and decided "with great reluctance" that the grievor was not
entitled to a premium for time not actually worked. Reference was
< . . . . . .
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..,.
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~’ y,: _
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made to a similar result in Ferguson, 78/82 and the explanation of
the basis for holiday premiums which appeared some years ago in
B&, 116/78. The Board also expressed the feelingthat because
of the short notice given the employer had "violated the spirit of
Article 19.1, though not the letter."
Adams, 511/e
was decided recently
3 (R.L.Verity, S. Dunkley and W.A. Lobraicol
, May 10, 1984, with the same counsel
representing the parties as in this case: The issue, however, was
whether there had been adequate notice of a "change in the
schedule" as contemplated by Article 10.1. Following Ferguson and
Birse the Board held there was no guarantee that work at premium
pay will always be available and that the cancellation of holiday
work did not constitute a change in shifts scheduled to be worked.
Moreover, there “a.5 nothing in the agreement prohibiting
management from ordering an employee to take a day off --- a day
for which he would receive eight hours' pay.
The foregoing review of G.S.B. cases has been undertaken
because there seem to have been some misunderstandings about the
interpretation of Article 19. In brief, it has gradually become
clear that the Article provides premiums for work performed on a
holiday, but (with one exception) no.premium for those who receive
a paid holiday and do no work that day. The only exception is in
19.3:
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When a holiday included under Article 47 (Holidays)
coincides with an employee's scheduled day off and he does
not work on that day, the employee shall be entitled to
receive another day off.
We do not think it necessary to review other cases cited
by Ms. Radley, all of which involved bereavement leave: U.A.W --
Local 200 and Ford Motor Co. (1966) 17 .L.A.C. 415 (Reville
C.C.J.); Governors of University of Toronto and S.E.V. Local 204
(1973) 3 L.A.C. (2dl.26 (Hinneganl: Ontario and O.P.P. Association
(1977) 16 L.A.C. (2dl 307 (Shimel; Hamilton Board of Education and
O.S.S.T.F., Dist. 8 (19831 10' L.A.C.'(3dl 126.
In the present case the griever was not initially
ordered to "take the holiday." Instead, he applied for
,bereavement leave, which was granted in respect of two scheduled
shifts, those of October 9-10 and October 10-11. It was later
that management decided that the second of those two shifts should
be'considered a paid holiday, a "stat on a stat."
It
may be thit the griever,. suffering from shock and
distress, thought himself entitled to three days of bereavement
leave. In the result he received only one. There was, however,
no need for leave on Tuesday, Wednesday and Thursday, October 11,
12 and 13, 'which were scheduled days off. It must not be over-
looked that Article 48 provides for bereavement leave of "up to
- 19 -
three days" --- not necessarily three days. It was made clear in
Fournier, supra, that an employee not scheduled to work (as when
on Vacation1 is not entitled to leave under Article 48. If the
grievor in this case had been obliged to attend his father's
funeral on a scheduled work-day, the employer would have been
morally unjustified in refusing bereavement leave. That did not
happen.
The questions arising here must be answered as follows:
(1) The grievor did not qualify for premium pay under
19.1 for the simple reason that he did not work on his holiday
shift scheduled to commence at 11 p.m. on October 10. Regardless
of the reason, he did not "work on a holiday included under
.;. :;: :
Article 47."
(2) The grievor claims “my 8 hrs. lieu time," a claim
obviously based on 19.2. But 19.2 follows immediately after 19.1
and begins with the words "In addition to the payment provided by
Section 19.1..." There cannot be an addition to the payment
provided by 19.1 unless there was in fact a payment due under
19.1. To hold otherwise would mean that all employees would be -
entitled to premium pay or a lieu day whether they worked on the
holiday or not. This would place them all on a footing of
equality (so far as 19.2 is concerned) with those obliged to work
on a holiday instead of enjoying it. It is impossible to believe
- 20 -
that this was really the intention of the parties. What they
intended was that those who could not get the freedom to celebrate
a holiday would receive instead‘ (and in addition to the premium
pay in 19.1) either pay for one shift or another day off.
As previously. mentioned, 19.3. is an exception
specifically defined: if.the holiday falls on'a scheduled day
off, the employee gets another day off; It was not suggested to
this Board that the griever falls within that exception.
(3) The employer was obliged to grant bereavement leave
of "up to three days." In granting one only, the employer was
within its rights in the circumstances. Those circumstances were
that the griever was not required to work his shift of October lo-
ll, a holiday shift, ' and received eight hours' holiday pay in
respect of that shift, while the next three shifts were on
scheduled days off which did not coincide with the holiday.
\
It “a.3 entirely proper for representatives of the
parties to draw attention, as they did, to previous cases in the
private sector aswell as those within the jurisdiction of the
Grievance Settlement Board. It wouldhave been noted, however,
that not one of them bore a close factual resemblance to the '!
facts in this case. Moreover, few of them were concerned with
bereavement. It is worth keeping in mind that bereavement leave
.,
‘. .
- 21 -
is not an "earned benefit" in the sense that sick leave and
vacation leave are earned. It is a very special category, being
designed in appropriate circumstances specifically to relieve the
distress of an individual and his or her family, caused by a
painful and sometimes unexpected loss.
There can be sympathy with the highly emotional state in
which the employee found himself in the period following October
9. Nevertheless his claim cannot be brought within the provisions
of 19.1, 19.2 or 19.3. For the reasons heretofore given, the
grievance fails and must be dismissed.
DATED this 4th day of October, 1984 at Rockwood, Ontario.
EBJ:sol