Heard at Montreal, Tuesday, May 12, 1981

Concerning

and

Claim of Locomotive Engineer W.D. McClurg, Toronto, for General Holiday pay, Good Friday, April 13, 1979.

Locomotive Engineer W.D. McClurg was absent due to illness from November 23, 1978 until August 31, 1979, the effective date of his retirement.

A general holiday, Good Friday, occurred on April 13, 1979 and Locomotive Engineer W.D. McClurg submitted claim for general holiday payment in the amount of 416 miles at passenger rates under Article 112.3(a) of Agreement 1.1.

The Company declined payment of the claim.

There appeared on behalf of the Company:

R. Birch – System Labour Relations Officer, Montreal

M. Delgreco – Regional Labour Relations Officer, Toronto

P. L. Ross – Coordinator Transportation – Special Projects, Montreal

J. M. Letwin – Assistant Superintendent, Capreol

And on behalf of the Brotherhood:

P. M. Mandziak – General Chairman, St. Thomas

J. B. Adair – Vice-President, Ottawa

F. Carmichael – Local Chairman, Belleville

W. D. McClurg – Grievor

Article 112.3(a), (b) and (c) of the Collective Agreement are as follows:

The grievor was, at all material times, an "employee" of the Company. He did not commence a tour of duty on the holiday in question. He had completed 30 days of continuous employee relationship. He was therefore qualified for a holiday with pay on Good Friday, 1979, provided he came within either Clause (a) or Clause (b) of Article 112.3

In the circumstances of the instant case, there is no question of the grievor’s coming within Clause (b) as he was, by reason of illness, not available for duty on the holiday, nor was he available for duty on the days before or after the holiday. The issue in this case is whether or not the grievor met the requirements of Article 112.3(a) of the Collective Agreement.

The requirements of Article 112.3(a) may be met, as I read the provisions of that Article, in one or the other of two ways. First, an employee may be "available for duty on the holiday". It is clear that in this case, by reason of his illness, the grievor was not available for duty on the holiday Second, an employee is excepted from the requirement of availability for duty and so will be entitled to a holiday with pay, if he comes within the somewhat complex class of persons then described in Article 112.3(a). This class of persons consists of (i) those who suffer from a bona fide injury or are hospitalized on the holiday; and (ii) those who are in receipt of or subsequently qualify for weekly indemnity benefits because of illness on the holiday. The grievor, in a general way, came within group (ii) above described, in that he was in receipt of weekly indemnity benefits (by reason of illness) on the holiday.

The exception from the requirement of availability on the holiday, however, involves not merely being injured, hospitalized or in receipt of weekly indemnity benefits, but also requires being "entitled to wages for at least 15 shifts or tours of duty during the 30 calendar days immediately preceding the general holiday". The grievor did not meet this requirement, did not therefore come within the exception to the general provisions of Article 112.3(a) and thus, not meeting the other requirements of Article 112.3, was not entitled to pay for the holiday.

It is to be noted that the grievor, who had not worked for some considerable time when the holiday occurred, was in fact in receipt of weekly indemnity benefits for the period which included the holiday.

It was argued that Clauses (a) and (b) of Article 112.3 deal with different situations: under each provision the employee must, in general, be available for duty on the holiday. Under Clause (b), the employee must also be available for duty or commence a shift on the day before and the day after the holiday. Under Clause (a), the sick employee is excepted from that requirement. Clause (a), however, is not as general as that: the sick employee is exempted from the strict requirement of attendance or availability on the "qualifying days" where he has in fact worked a certain amount of time (15 shifts or tours of duty) during the period (30 calendar days) immediately preceding the holiday. There is no inconsistency between these provisions, and the Collective Agreement is not, as was argued "unworkable". The grievor simply does not meet the requirements for holiday pay set out in the Collective Agreement.

For the foregoing reasons, the grievance is dismissed.