AH 107













SOLE ARBITRATOR:          J.F.W. Weatherill


A hearing in this matter was held at Montreal on September 25


J. McGuire for the company


R. Skelly  for the Association




In this grievance the grievor seeks payment of holiday pay in respect of Christmas Day, 1979.  The grievor was not scheduled to work, and did not work on that day.  He met the general requirements for holiday pay as set out in article 12.03.01 and 13.03.02 of the collective agreement.  It is the company’s position, however, that the grievor was not “available for duty on that day, and so did not meet the requirements of article 12.03.02.  It is the union’s position that the grievor was available for duty, and that he is entitled to holiday pay.


Article 12.03.02 of the collective agreement provides as follows:


12.03.02          Must be available for duty on such holiday excluding vacation days.  A regularly assigned employee who is required to work on such general holiday shall be given advance notice of four calendar days except for unforeseen exigencies of the service in which case he will be notified not later than the completion of his shift or tour of duty immediately preceding such holiday that his services will be required; (this clause  12.03.02 does not apply in respect of an employee who is laid off or suffering forma a bona fide injury nor who is hospitalized non the holiday or who is in receipt of, or who subsequently qualifies for weekly sickness benefits because of illness on such holiday) and




            It is the company’s contention that the grievor was not available for duty on the day in question because he is was sick.  The exception to the requirement of availability does not apply because the grievor’s absence was not such as to qualify him for weekly sickness benefits, and because he was not hospitalized.  If in fact the grievor was sick – and I think the same result would follow if he had simply told the company he was sick – on the day in question, then he did not meet the requirement of availability, and was not entitle to payment.


At the material times the grievor, a Constable in the company’s Department of Investigation, was assigned to the Montreal Terminal’s rotating duty roster.  He was scheduled to work from 0800 to 1600 on December 22; and from 0001 to 0800 on December 23 and December 24, and it appears that he did work that shift on those days.  He was then scheduled to work from 0001 to 0800 on December 24; to have December 25 and December 26 off; to work from 0001 to 0800 on December 27; to have December 28, December 29 and December 30 off; and to work from 1000 to 1800 on December 31.


At about 2135 on December 23, the grievor telephoned the company to advise that he had the gripe, and that he would be unable to work the 0001 to 0800 shift on December 24.  The message was record by the company in a “sick report”.  The grievor did not specifically advise the company as to his return to work, but simply reported that the would be unable to work on that particular shift.


The grievor next contacted the company on December 26, during the course of the day.  The company’s report of this call ( it is entitled “sick report” but is on a different form from that used in respect of the previous call), is that the grievor “reported fit for duty”.  Those words are part of a printed form, and do not represent a particular note made by the person who received that call.  The grievor’s evidence is that he called at that time to find out what his next tour of duty was.  He was on relief and was, he said, only entitled to find out his shift the night before.  The view that the grievor did not call in to report fit for duty but rather simply to find out what his shift was is not a contradictory one, and is quite consistent with his having booked sick for one particular shift.


Certainly the fact of the grievor’s having “booked sick” in respect of December 24 would raise a question as to his availability for work on the days following.  Just as one cannot usually predict in advance that one will be sick on a given day, so too one often cannot say with any assurance that being sick, one will be well on a certain day – although some types of illness which he expected to endure, and had not indicated he would likely be absent for more than one shift.  Any inference that he would continue ton be sick on the following days could not reasonably be said to be a probable one, in these circumstances.  The company was not justified in concluding that the grievor was not available for work on December 25.  It may be noted that in another region, the company specifically advised employees that they must advise the office with respect to each day of absence, and that if notice is not received, it would be understood that the employee would return to work as scheduled.  No such specific instructions appear to have been given the grievor, but it is difficult for the company to maintain that the assumption therein is not a reasonable one.


While there may well be cases where an employee reports sick, and where it is proper to conclude that he will not return to work for some time, any such conclusions must be justified in the circumstances.  In the instant case, I do not think it was appropriate to conclude that the grievor was not available for duty on December 25.


In the circumstances of this case, it is my conclusion that the grievor did meet the requirements of article 12.03.02, and that he was entitled to holiday pay in respect of December 25, 1979.  It is my award that he be paid accordingly.


DATED AT TORONTO, this 21st day of October 1980.