AH - 125
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
THE BROTHERHOOD OF RAILWAY, AIRLINE AND SHIP CLERKS (inter alia)
IN THE MATTER OF THE GRIEVANCE OF R.W.ELSTON
SOLE ARBITRATOR: J.F.W.Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Montreal, Quebec, on the 10th
day of February, 1983
This case involves a claim for reinstatement of the net credit value of the claimant’s lay-off benefit entitlement upon his recall to work. the parties agreed that a similar claim, that of R.J. Bosman, would be resolved in accordance with the decision in this case.
This matter was submitted to the Administrative Committee for adjudication pursuant to article 4 of the Job Security Agreement. The Committee was unable to reach a decision and the question was subsequently referred to the undersigned as a referee pursuant to article 3.10 of the agreement.
The Dispute and Joint Statement of Fact and Issue in this matter are as follows:
Reinstatement of the net credit value when recalled to work
JOINT STATEMENT OF FACT
CP Express employee R.W. Elston was laid off on August 16, 1979. While laid off and receiving weekly lay-off benefits pursuant to Article 5.3 (c) of the Job Security Agreement, Mr. Elston was recalled to work to fill the following temporary vacation relief vacancies:
September 12 - October 4, 1981 - 3 weeks
May 29 - June 20, 1982 - 3 weeks
His weekly lay-off benefits were stopped for the above-mentioned periods and continued on the same basis as before the recalls without any waiting period when the temporary assignments were completed.
JOINT STATEMENT OF ISSUES
The Brotherhood contends that Mr. Elston’s recalls to work are termination of one lay-off and the commencement of another; and that pursuant to Clause 3 of Appendix C of the Job Security Agreement, each time Mr. Elston returned to work, he should have been credited with the accumulated lay-off benefit weeks he had to his credit at the time he again became laid off.
The Brotherhood also contends that the maximum period of two years stipulated in
Clause 12.2 of the Job Security Agreement during which Group Life Insurance is to be
continued is also renewed for the same reason that is, it considers each resumption of lay-
off to be a new and separate lay-off
The company denies the claim.
The claimant was hired by the company on August 20, 1943. He was employed as a Clerk at Brandon, Manitoba, when he was laid off. He was then entitled to benefits pursuant to article 5.3 (c) of the Job security Agreement. The article (together with article 5.3(c), to which it refers) is as follows:
(b) Employees with TWENTY OR MORE YEARS of cumulative compensated service:
(i) A weekly layoff benefit for each complete week of seven calendar days laid off following the seven-day waiting period referred to in Article 5.1 of an amount that, when added to unemployment insurance benefits and/or outside earnings in excess of those allowable under unemployment insurance for such week, will result in the employee receiving 80 per cent of his basic weekly rate at time of layoff (hourly-rated employees 40 X the basic hourly rate; seasonal and spare employees, 80 per cent of average weekly earning over the eight weeks preceding layoff).
(ii) During any week following the seven-day waiting period referred to in Article 5.1 that an eligible employee is not eligible for unemployment insurance benefits account eligibility for such benefits having been exhausted or account such employee not being insured for unemployment insurance benefits for each complete week of seven calendar days laid off of an amount that when added to outside earnings will result in the employee receiving 80 per cent of his basic weekly rate at the time of layoff (hourly-rated employees 40X the basic hourly rate; seasonal and spare employees, 80 per cent of average weekly earnings over the eight weeks preceding layoff).
(c) Subject to the provisions of Article 10 and Appendix “B” employees who at the time of layoff have twenty or more years of cumulative compensated service are entitled to, for each period of layoff, weekly benefits as calculated in Article 5.3 (b) for the following maximum periods:
Maximum Period For
Which Weekly Benefits
Years of Cumulative Payable for Each Period
Compensated Service of Layoff
20 years or more but
less than 25 years 3 years
25 years of more but
less than 30 years 4 years
30 years or more 5 years
Thus, the claimant was entitled to weekly benefit payments, related to his basic weekly rate at the time of layoff (that is, as a Clerk), for a maximum of five years. After having been laid off, the grievor was recalled to work on two occasions to provide temporary vacation relief, as set out in the Joint Statement. The issue to be determined is whether or not, on being recalled to those temporary assignment, the claimant “returned to service after termination of layoff” within the meaning of clause 3 of Appendix “C” to the Job Security Agreement. If he did, then upon such return to service the claimant, having completed 12 years cumulative layoff benefits and on returning to layoff at the conclusion of his temporary assignment, would be entitled (subject to a waiting) to full layoff benefits, again for a maximum of five years and now, it would seem at the (in this case higher) rate of the position least filled.
Clause 3 (together with clause 4, which I consider material), of Appendix “C” is as follows:
3. An employee who at the beginning of the calendar year has completed 12 years of
cumulative compensated service and subsequently receives weekly benefits due to layoff in accordance with the provisions of Article 5 of this Agreement shall, upon return to service after termination of layoff, be credited with the accumulated layoff benefit weeks he had to his credit at the time of layoff.
4. Except as provided in Clause 3 of this Appendix, an eligible employee who is laid off,
and whose layoff benefit credit is reduced die to weekly layoff benefit payment being made during the period of layoff in accordance with Article 5 of this agreement, will, on recall, accumulate, layoff benefit credits with the above provisions of this Appendix.
It would, in my view , be simplistic to say that the claimant was laid off, recalled, and than laid off again, although there is a sense in which it would be true. The question before me, however, is one of determining whether or not there was a “termination of layoff”, having regard to the particular language of this agreement.
The agreement, quite clearly I think, contemplates situation in which a laid-off employee, entitled to and receiving benefits under the Job Security Agreement, returns to work and yet retains laid-off status and indeed receives laid-off benefits while, at the same time, receiving pay at his hourly rate for work performed. Thus, article 5.5 (b) of the agreement provides as follows:
(b) Temporary recall for less than five working days.
An employee who has qualified for accordance with Clause 1 of Appendix ”B” will not have his weekly benefit payment reduced for any claim week during which he returned to the service temporarily for less than five working days.
The effect of this provision is surely that the brief temporary return to service there contemplated is simply an episode in the course of a layoff. when, at the end of the temporary work, the employees is a gain laid off, he returns to the same “layoff”, for which no new notice need be given. Article 5.5(b) continues the weekly benefit payments during such period, even although the employee concerned is in fact working. It may be concluded that without such provision, weekly benefits would have ceased while the employee was working. It may also be argued that the provision assumes that the temporary recall is simply an interruption of or episode in one continuing layoff. It might be thought to follow that where an employee is temporarily recalled for more than five days, his continuing lay-off status remains, although entitlement to lay-off benefits would cease during the period for which the employee received wages.
Such is, in essence, the company’s position in this case. The claimant “returned to the service temporarily”. although for a period of more than five days. He was paid for his work, but he did not receive lay-off benefits. When the work ended, the lay-off continued. Benefits were again paid, without any waiting period, and the length of time for which such benefits would be paid was extended by the length of the “interruption”.
Although, for some reasons already given, I do not agree with the union’s contention that a recall to work even for a day is a recall in every sense of the term and constitutes a termination of layoff, thus creating a fully reconstituted benefit entitlement the following day, it remains to be considered whether or not temporary recalls of more than five days - or at least those involved in the instant case - involve “termination of layoff” within the meaning of clause 3 of Appendix “C”.
It should be noted, parenthetically, that I am here concerned only with a truly “temporary recall, known to be such as the time the assignment is made. The case of an employee recalled for regular work in the usual way but then suddenly laid off again is a different one. In the instant case the claimant was, in accordance with the collective agreement between the parties, called for a vacation relief assignment of precisely limited term, and the recall was properly described as “temporary”.
It is not necessarily the case that a “temporary” recall is one of less than ninety days duration. Clause 1(b) of appendix “B” to the Job Security Agreement is as follows:
(b) For weekly layoff benefit payment, a continuous waiting period of seven days in the period of layoff will require a new seven-day waiting period in order to establish eligibility for weekly layoff benefits, except that once an employee has been on layoff for more than seven days, and is recalled to work for a period of less than ninety calendar days, such employee will immediately become eligible for weekly layoff benefits upon layoff within such ninety days. An employee may claim weekly layoff benefits under this paragraph pending expiration of the 30-day waiting period provided in paragraph (c) in respect of severance payment;
That clause refers to a second “layoff” within a period of ninety days of recall. The waiver of waiting period there provided for would apply whether the recall had been temporary or indefinite. The period of ninety days might perhaps be of assistance as a benchmark in determining the outer limits of what might be called a temporary recall, but that is not a matter which need be decided in this case. in particular, I express no opinion as to the company’s contention that ninety calendar days would not be a termination of layoff.
In the instant case, the assignment to which the claimant was entitled to be recalled and was recalled was, as I have found, a “temporary” one properly so called. being one of more than five days, weekly benefits would be reduced for its term. At all times, however, it was clear that the claimant would still be laid off at the end of the temporary work. It would , I think, be incorrect to say that on his filling the temporary vacation relief vacancies in question here the claimant “returned to work after termination of layoff” within the meaning of clause 3 of Appendix “C” to the Job Security Agreement. Thus, the claimant’s recall to such work is properly described as an interruption of a continuing layoff. The conclusion of that interruption did not constitute a new layoff and did not extend the claimant’s layoff benefits beyond what they had been at the time the assignment began.
For all of the foregoing reasons, the claim is dismissed.
DATED AT TORONTO, this 7th day of March, 1983.