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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 -l- 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: r c. ; -2 - 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 . ~ - 3 - , 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 -4- - 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, -5- 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 . -7- 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: . -8- 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 -9 - 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 - 10 - 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 - 11 - 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. - 12 - 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 . I - 13 - 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) - 14 - 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 . . .., - 15 - 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 - 16 - "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 < . . . . . . ._. ‘; ..,. . .i~ : ~’ y,: _ - 17 - 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: - 18 - 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