AH – 32




(the "Company")



(the "Union")

IN THE MATTER OF THE GRIEVANCE RE Compensation for attendance as a witness at court





There appeared on behalf of the Company:

R. Abbot – Assistant Manager, Labour Relations

P. A. McDiarmid – Labour Relations Assistant

W. S. Hodges – Labour Relations Assistant

S. J. Goldenberg – Senior Agreements Analyst

C. R. Kelley – Assistant Labour Relations Officer


And on behalf of the Union:

C. Beckerton – General Chairman, Toronto

L. K. Abbott – General Chairman, Moncton

J. A. Pelletier – Secretary, Joint Protective Board

G. Gagnon – Acting General Chairman


A hearing in this matter was held at Montreal in February 1966.



AWARD — Case No. 1 — CÔTÉ

This matter concerns a claim by the Brotherhood that the grievor Mr. G. Côté, a motorman in the Express Freight Department at Montreal, was incorrectly compensated for attendance as a winess at court in Toronto, Ontario, on January 28, March 10 and September 3, 1965.

January 28 and March 10 were rest days for the grievor. September 3, 1964, was a regular work day for him.

For the days the grievor was not required to work the Company paid him on the basis of the actual hours he was "held" by the court as a witness. The first was for five and one-half hours, and this was at time and one-half. On the second day he was held by the court four hours. For this he was also paid four hours at time and one-half.

On September 3, 1964, for attendance at court on a regular working day he was paid eight hours at straight time.

Mr. Gagnon claimed the grievor should have been paid at time and one-half for the hours he was away from Montreal for this purpose on the first two dates, making a total of 38-1/2 hours. For the September 4 appearance, an additional sixteen hours was claimed.

For the Company Mr. McDiarmid described the attendance of the employee was at the request of the Toronto Police, for the purpose of identifying articles stolen from the Company that they had found in possession of one being tried in that City for that offence.

The Company representative told that the grievor had left Montreal on January 27, returning the next evening. January 28 being a rest day for the grievor, and because he had lost no time from his assignment, he was paid at punitive rates for 5-1/2 hours, the time held on the case in Toronto. In addition he received payment from the Company of $28.25 to cover expenses claimed.

Similarly on the next trip the grievor lost no time from his regular assignment. He was therefore paid at the punitive rate for four hours. In addition he received payment from the Company for $19.90 as expenses.

The grievor left Montreal on the evening of September 2 and returned the next evening. September 3 was a normal working day for him. Having lost a full day’s work from his assignment, he was paid for a full day under Article 19.1 at straight time rate. In addition he received as expenses from the Company $18.46.

The crux of Mr. McDiarmid’s argument was that the grievor had been paid strictly in accordance with the applicable provision of the agreement, namely, Article 19.

Under the heading ‘Attending Court ‘, Article 19 provides:

19 Employees who loss time by reason of being required to attend Court or Coroner’s Inquest or to appear as witnesses, in cases in which the Company is involved, will be paid for time so loss. If no time is lost they will be paid for actual time held with a minimum of two hours at time and one-half times the hourly rate. Necessary actual expenses while away from home terminal will be allowed when supported by receipts.

Mr. Gagnon referred the Arbitrator to Article 5.1 an 5.8, that he considered supported his reasoning. The first reads, in part:

5.1 Subject to the provisions of Article 4.4 time worked by employees on regular assignments continuous with, before or after the regularly assigned hours of duty shall be considered as overtime and paid for on the actual minute basis at one and one-half times the hourly rate …

Article 5.8 reads, in part:

5.8 Employees required to work on their assigned rest days shall be paid at one and one-half times the hourly rate with a minimum of two hours and forty minutes …

A study of these provisions shows that in Article 5.1 the governing element is contained in the words ‘time worked by employees on regular assignments.’ This could have no possible relation to what is required by a lawful authority requiring an employee to attend court.

Similarly in Article 5.8, Employees required to work on their assigned rest days, the word "work" is of governing importance.

It is a cardinal rule of interpretation that where the parties to an agreement have created a special provision to cover a particular situation, its terms and only its terms must prevail, unless it contains reference to other provisions.

The parties to this agreement have created Article 19 for the specific purpose of providing for payment of employees, not while they are working, but while they are required to attend Court or a Coroner’s Inquest. It is complete in itself, making no reference to any other provision in the agreement; its language is clear: if employees lose time because of such a requirement, they will be paid for time so lost. in the case of this grievor, the only time he lost in September by reason of having to go to Toronto, was one day. He was paid on that basis.

Article 19 then provides for the possibility that an employee would be required to perform this civic duty to testify as a witness on days when no loss of working time is involved. The words governing that situation are "If no time is lost they will be paid for actual time held, with a minimum …"

In my opinion the word "held" has been given a reasonable interpretation by the Company in this context as referring to time an employee is required to be in court for the purpose of testifying. The subpoena states when he must appear in court. He has no right to leave until granted permission by the Court.

Finding that Article 5.1 and 5.8 have no application because a special provision has been negotiated to cover court attendances, it is apparent that if the Brotherhood is to obtain what is sought by these claims, Article 19 would have to be extensively changed.

For these reasons I find the grievor was paid in accordance with the applicable provision, Article 19. This application must therefore be dismissed.

J. A. Hanrahan


AWARD — Case No. 1 — McGRATH

This matter concerns a claim by the Brotherhood that Mr. W.J. McGrath, a motorman in the Express Freight Department, Montreal, was incorrectly compensated for attendance at court in Moncton, New Brunswick on December 7, 8 an 9, 1964.

The facts disclosed a subpoena was served on Mr. McGrath requiring his attendance as a witness at the court in Moncton on Tuesday, December 8, at 10:30 a.m.

The grievor left Montreal at 8:30 Sunday, December 6, 1964. Saturday and Sunday were his normal rest days off duty. He returned to Montreal at 2:15 p.m. Wednesday, December 9, 1964.

This requirement meant the grievor was absent from his normal assignment on Monday, Tuesday and Wednesday. It was acknowledged he was paid on the basis of eight hours pay for each of the three days. In addition the Company reimbursed the grievor for his expenses resulting from the trip.

Mr. Gagnon submitted on behalf of the grievor that he was entitled to punitive overtime rates of pay for all hours away from Montreal, other than the 24 hours for which he was paid as described.

In this case Mr. Gagnon referred the Arbitrator to Article 5.1 and 5.6 of the agreement. The latter reads, in part:

5.6 Regularly assigned employees notified or called to work not continuous with, before or after their regular assigned hours …

In this matter Mr. McDiarmid submitted an argument similar to that in the matter concerning Mr. Côté.

As in the claim made by Mr. Côté, I must find Section 5.6 has no application to the problem represented in this claim. In it the governing words are "called to work". In answering a subpoena obviously an employee is not "called to work".

Realizing that Article 5.1 and 5.6 would not describe nor provide for the situation of an employee being required to testify in a court of law, the parties mutually created Article 19. That is the provision that must be searched for any benefit accruing to an employee who has to go to court.

The reasons given in Case No. 3 apply equally to this claim.

For these reasons it must be denied.

J. A. Hanrahan


COMMENTARY: There were two arbitration decisions rendered on this matter but they are included together because of the similarity of circumstances and uniformity of the Arbitrator’s decision. In both cases, Motormen from Montreal were subpoenaed by the Court at another location to appear as witnesses to show initial Company possession of goods in court cases involving theft. In both instances the employees sought compensation for all hours away from their home terminal. The Arbitrator supported the Company’s contention that while they should not suffer loss of earnings when held on normal working days, such employees should not receive any additional compensation. He also supported the Company in compensating such employees only for the actual time held by the Court on their normal rest days.