AH - 147
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
THE CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT, AND GENERAL WORKERS
AND IN THE MATTER OF A CLAIM FOR SEPARATION ALLOWANCE FOR MR. T. O’GRADY UNDER SECTION F.2 OF THE SPECIAL AGREEMENT
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 on April 17, 1985.
Such is, however, the award that must be made. While the company’s rejection of the application was based on the wrong principle, that does not mean that proviso (b) has no application, nor that the grievor is relieved from meeting its requirements. While the agreement of October 16 gave certain rights of assignment to employees who were not then qualifies, proviso (b) required, in effect, that such employees be capable of becoming qualified, given appropriate training. That issue is still open in this case. Any dispute as to the propriety of a determination made with respect to the grievor’s suitability and adaptability, as well as any dispute as to the amount of compensation to which the grievor may be entitled if it is determined and that he ought to have been given the assignment, may be brought before me for ultimate determination.
It is, subject to the foregoing, my award that the company assign the grievor as Service Manager, and, provide and necessary training, subject to its determination of his suitability and adaptability to perform the duties of the position.
TORONTO, this 2nd day of November, 1982.
The Dispute and Joint Statement of Issue in this matter are as follows:
Claim for separation allowance for Mr. T. O’Grady under Section F.2 of the Special Agreement.
JOINT STATEMENT OF ISSUE
On April 12, 1984, Mr. O’Grady, a VIA On-train employee, applied for and was granted early retirement
under the terms of article F (Separation Plan) of the Special Agreement.
The monthly separation allowance is based on the employee’s years of service and on the amount of
company pension, as outlined in article F.2.
When VIA took over the passenger-related service, Mr. O’Grady transferred from CP Rail to VIA and his
years of service with CP Rail were included in and made continuous with his years with VIA.
Prior to being hired by Canadian Pacific Railway (as the company was then known) in Montreal on May 4,
1954 the grievor had worked for Canadian Pacific Steamships in England.
The issue to be determined is whether or not past service by Mr. O’Grady on Canadian Pacific Steamships
should have included in the calculation of years of service that determine the percentage level of the monthly separation allowance contained in Article F.2 of the Special Agreement
The Brotherhood contends that Mr. O’Grady transferred from Canadian Pacific Steamships to Canadian
Pacific Railway and therefore the time spent aboard ships should have been recognized in the calculation of years of service at CP Rail.
The Corporation understands that Mr. O’Grady joined Canadian Pacific Railway on May 4, 1954 as a new
employee and was not allowed any credit for his previous employment with Canadian Pacific Steamships. While he was employed with CP Rail, Mr. O’ Grady had never been allowed credit for his service with Canadian Pacific Steamships. Upon transfer to VIA, he was given credit by VIA for all service which had been recognized by CP Rail.
For this reason, the Corporation contends that it was correct in not including the years of service with
Canadian Pacific Steamships in calculating Mr. O’Grady’s service for the purposes of a separation allowance.
There is no question as to Mr. O’Grady’s general entitlement under article
F, the separation plan, of the Special agreement, nor as to his right to include service with Canadian Pacific, his predecessor employer, for the purpose of determining his years of service within the meaning of article F.2. Article F.2. is a follows:
F.2 an employee defined in Article F.1 (a) or F.1 (b) above shall
receive a monthly separation allowance until the age of 65 which, when added to
his company pension, will give him an amount equal to a percentage of his
average annual earnings over his best five-year period, as defined under the
pension rules, in accordance with the following formula:
Years of Service Percentage
at Time Employee Amount as
Elects Retirement Defined Above
35 & over 80
25 or less 60
The employer has calculated Mr. O’Grady’s years of service as starting in
1954, when he joined Canadian Pacific Railway. The union contends that Mr. O’Grady’s years of service began in 1948, when he joined Canadian Pacific Steamships.
There is no substantial dispute as to the facts. The grievor did indeed
enter the service of Canadian Pacific Steamships in 1978, at which time he was based in England. He continued in that service until 1954. At one time there appears to have been the suggestion that this was “casual” employment, but the material before me indicates that it was “regular” employment within the context of steamship operations. At the hearing of the instant case, the company did not advance the proposition that the grievor’s employment with Canadian Pacific Steamships had been casual in any significant sense.
Mr. O’Grady’s employment with Canadian Pacific Steamships ceased on
April 16, 1954. The grievor had been a good employee, and it appear that his superiors in the steamship company did not wish him to leave. In October of 1983, however, the grievor had arranged for employment at the Banff, however, he called at the offices of Canadian Pacific Railway and spoke to an officer of the Sleeping, dining, and Parlour Car Department, who at once offered him work in Windsor Station, pending placement on a train.
The Canadian Pacific Railway employment form indicates that Mr. O’Grady entered the service of that company on May 4th, 1954. He entered service as a new employee of the railway, and was subject to a period of probation. The employment form records the grievor’s previous service with Canadian Pacific Steamships, and notes that his reasons for leaving was “to be transferred to Canadian Pacific Railway”.
Some time later, Mr. O’Grady raised a question as to his service with Canadian Pacific Steamships, apparently with view to securing recognition of that service for the purpose of pension benefits under that company’s pension plan. One of the issues in that respect appears to have been that of the “casual” nature of the grievor’s employment with Canadian Pacific Steamships. It would appear to have been the company’s conclusion at that time that the grievor had not been a casual employee, and that he met the conditions for pension coverage, provided that his engagement with Canadian Pacific Railway in May, 1954 were considered as a transfer. It was the determination of the trustees of the CP Ships Provident Fund and pension Plan, however, that they could not accept that Mr. O’Grady had continuous service, or that he was transferred from CP ships to CP Rail in May, 1954. The Trustees did not, therefore, accept liability for a pension to the grievor.
The question decided by the Trustees with respect to an application to a Fund and Plan administered by them may be similar to, but it is not the same as, the question before me, which arises under the Special agreement, which was not in existence in 1974, when the Trustees’ decision was made. A decision as to the number of “years of service” the grievor may have accumulated for the purposes of article F.2 of the Special Agreement would appear to be quite different from a decision as to the grievor’s entitlement to benefits under the Canadian Pacific Companies (Europe) Pension Plan, and apparently different decisions in that regard are not necessarily inconsistent.
I was not referred to any definition of “service” or “years of service” in the Special agreement, although it may be noted that in clause (ii) of the Preamble, the Agreement is said to apply to “all employees who have two or more years of cumulative compensated service”. I do not here decide any question as to the effect of any substantial “break in service”, since in the instant case, while there would not appear to have been any “formal” transfer of the grievor from one Canadian Pacific Company to another (there is no evidence as to the nature of requirements of any such transaction), the substance of what occurred amounts, I find, to an effective transfer in an everyday sense. Certainly the company’s own officers described it that way, on more than one occasion. Those were informal descriptions, but they were correct.
It was the grievor’s intention at all material times to work for a Canadian Pacific company. He at no time sought employment with any other company, and the period of time which elapsed between his signing off with Canadian Pacific Steamships and his signing on with Canadian Pacific Railway is accounted for by the time it took him to move from one continent to another. Throughout that period of time he had a promise of employment from Canadian Pacific Hotels. While for some purposes (as, for example, the attribution of vicarious liability to the company), it might be correct to say that the grievor was not an employee of Canadian Pacific during this hiatus, for the purpose of the application of article F.2. of the Special Agreement it is my view that there was no substantial or significant break in the grievor’s employment, that his cumulative compensated service dates from 1948 and, in particular, that his “years of service” within the meaning of article F.2 date from that time.
In terms of the issue before me as put by the parties, I hold that past service by Mr. O’Grady on Canadian Pacific Steamships should have been included in the calculation of years of service that determine the percentage level of the monthly separation allowance contained in article F.2 of the Special Agreement.
DATED AT TORONTO, this 6th day of May, 1985.
J. F. W. Weatherill,