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IN THE MATTER OF AN ARBITRATION
RAILWAY ASSOCIATION OF CANADA
RAILWAY EMPLOYEES’ DEPARTMENT DIVISION NO. 4
RE:INTENT OF A RULE PROVIDING FOR BEREAVEMENT LEAVE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
P. Cutler and others
APPEARING FOR THE COMPANY:
T. W. Toward and others
A hearing in this matter was held in Montreal on July 27, 1970.
SUPPLEMENTARY AWARD OF THE ARBITRATOR
In the award in this matter dated March 31, 1970, it was held that certain provisions be added to the provision in the collective agreement relating to bereavement pay. As a result of the award, that provision now reads as follows:
Upon the death of an employee’s spouse, or any of his children, or either of his parents, or his mother-in-law or father-in-law, the employee shall be entitled to three days’ bereavement leave without loss of pay, provided he has not less than six months’ cumulative compensated service. It is the intent of this article to provide for the granting of leave from work on the occasion of a death as aforesaid, and for the payment of his regular wages for that period to the employee to whom leave is granted.
The substance of the award in this matter was the addition of the second sentence to the above provision, in accordance with the provision of the agreement that "suitable wording" be added to the bereavement leave clause "to explain its intent". In the reasons for the award are set out certain general observations and obiter dicta relating to the application of such a provision, and the award should be read in the context of the reasons given. The parties, in an effort to apply the provisions of the agreement as it now stands following the award, and in anticipation of certain grievances, have encountered difficulties, and have, by agreement, sought clarification of the award by the arbitrator. It is important to note that in these proceedings I have no jurisdiction to alter, amend or modify any of the provisions of the collective agreement, including the provision added by the award. The award itself is not in question. Further, in dealing with certain examples propounded by the parties in an attempt to clarify the matter, I make no determination of any particular grievance, as there is none before me. The purpose of this supplementary award is simply to give clarification in certain respects to the award issued on March 31, 1970, without altering that award in any way.
The parties appear to be agreed that there is a distinction between bereavement leave as such, and the pay which an employee may be entitled to receive with respect to such leave. Under the agreement an employee is entitled to "three days’ bereavement leave without loss of pay" in cases to which the provision applies. It may be (whatever the meaning of "three days’ bereavement leave"), that in some circumstances an employee may be granted or may be entitled to a leave of absence in excess of three days on the occasion of bereavement. This award does not deal with the matter of leave of absence as such, or with cases in which the employer may pay an employee on leave of absence, save only where payment is made pursuant to the bereavement leave provisions.
The crux of the matter now in dispute between the parties is this: does the reference to "three days’ bereavement leave without loss of pay" mean three consecutive calendar days or three consecutive working days? The agreement itself does not resolve the issue. In the award dated March 31, 1970, I stated my view that, subject to special circumstances, "three days’ bereavement leave" means a period of three consecutive days, and the parties seem not to disagree on that. I went on to state that "days" as it is here used refers to "working days" rather than calendar days. This proposition was not formally a part of the award, and may be regarded as obiter. It is my view, now as then, that the days referred to are indeed "working days", but it has become apparent that the application of the agreement language requires more clarification than that.
At the hearing of this matter, the parties referred, by way of examples, to a number of situations in which the three consecutive calendar days following the employee’s bereavement include vacation days, rest days, or statutory holidays. Before dealing with these, three preliminary observations may be made. First, it is my view that a precise definition of "day" need not be followed, it being sufficient to distinguish between "calendar" and "working" day in a general way. "Day" may be understood from the individual’s point of view, as comprising the 24-hour period following the commencement of his shift, the first shift of the day, or as the circumstances may require. Second, it is my view that there are substantial distinctions to be drawn for the purpose of this case between vacation days, rest days and holidays. Third, it is considered that the entitlement to bereavement leave arises upon the death of someone in one of the categories listed in the agreement. As noted in the earlier award, there may be cases where bereavement leave is indeed properly deferred for some time and the determination of such cases must await the event.
The first case propounded by the parties is this: An employee is on annual vacation up to and including a Friday. His mother dies on the Thursday afternoon. The employee’s assigned rest days are Saturday and Sunday. It was the Association’s position that such employee would be entitled to no payment under the bereavement leave provision. Friday, it is said, is part of his annual vacation; Saturday and Sunday are rest days. He is not required to be at work on Friday, Saturday or Sunday, and thus suffers no loss of earnings on these days.
If we have regard to three consecutive days following the death in this example, it will be seen that one of these is a working day the Friday – but the employee does not work that particular day because he is on vacation, and he is accordingly paid in respect of that day. Were he not on vacation, he would be entitled to bereavement leave with pay. Here, while he suffers the bereavement, he suffers no loss of pay. The following two days are not days on which he is required to work, and as the Association rightly points out, he suffers no loss of earnings for these days. But these would not have been working days in any event. It required no "leave" to be absent from work then. If such days are removed from consideration, then the Monday and Tuesday on which the employee would normally have worked are the second, and third consecutive days following bereavement. In my view he is entitled to bereavement leave with pay on these two days.
It would appear to be the Union’s position that an employee determines for himself the length of his "bereavement", and that in the example given, it might endure until the Wednesday following the end of his vacation, and that the employee would then be entitled to three days’ leave with pay. For the reasons given, I cannot accept this view. Bereavement is not a period of any particular duration, but is a continuing fact: the loss caused by the death of a relative or friend. Entitlement to bereavement leave arises, as has been seen, on the occasion of bereavement. Individual periods of mourning are matters of individual concern. In the example given, the employee was entitled to three days away from work without loss of pay. For the Friday, he was away and lost no pay. He would also, in my view, be entitled to be absent on the Monday and Tuesday, and to receive pay for these days.
The second case is this: An employee finishes work at 4:00 p.m. on a Friday. His son dies on Saturday afternoon. The employee’s assigned rest days are Saturday and Sunday. Monday is a Statutory holiday, on which the employee is not scheduled to work. Here, it was the Association’s position that the employee would be entitled to payment for one day only, the Tuesday. The death occurred on Saturday, and the Sunday and Monday were not days on which the employee was required to be at work. He suffered no loss of earnings for these days, and is, therefore, entitled to leave with pay on the Tuesday only.
In my view, the Sunday is not to be counted in the calculation of bereavement leave, for, as noted above, it is not a working day in any event, and no loss could have been suffered, nor leave required. The Monday, while not a scheduled working day, would have been such had it not been a holiday, and, as is the case of vacation days, was a day for which the employee was paid. That day, therefore, counts as a day of bereavement leave, but the employee is not entitled to any additional payment for it. He is entitled to leave with pay for the next two working days, namely Tuesday and Wednesday.
The third case is this: An employee finishes work at 4:00 p.m. on Friday. His father dies on Friday. The employee’s assigned rest days are Saturday and Sunday, with Monday being a statutory holiday on which the employee is not scheduled to work. It was the Association’s position that the employee is entitled to no payment in this case, as he suffers no loss of earnings. As in the preceding case, however, it is my view that the rest days, on which he could suffer no loss of earnings in any event, are not properly included in the calculation. The Monday, as in the previous example, is a day of leave for which he receives other compensation, and for which he is entitled to no extra payment. The next two working days are Tuesday and Wednesday, and, again, he is entitled to leave with pay on these days.
The fourth case is this: A mother with two sons who work in the same plant dies following their regular shift on Monday. Son No. 1 has assigned rest days on Saturday and Sunday. Son No. 2 has assigned rest days on Tuesday and Wednesday. It was the Association’s position that Son No. 1 would be entitled to leave with pay on the Tuesday, Wednesday and Thursday, and this is clearly correct. For Son No. 2, however, it is the Association’s position that he is entitled to leave with pay on the Thursday only, since he does not have earnings on the Tuesday and Wednesday.
For the reasons given, however, it is my view that the rest days are not properly to be considered days of "leave", and that the employee in this case is entitled to leave with pay on the Thursday, Friday and Saturday. The difference in the cases of the two brothers relates to their individual situations, and seems to me to be an immaterial consideration.
The fifth case is this: An employee’s mother dies in the night prior to commencement of the employee’s shift on Tuesday. The employee does not appear for duty on Tuesday. The employee’s assigned rest days are Saturday and Sunday. The Association’s position is that the employee is entitled to bereavement leave with pay on the Tuesday, Wednesday and Thursday, and this is clearly correct. The important matter, as the Association points out, is that the bereavement leave is to be computed as commencing with the first full day of absence from work.
From these examples, and from the foregoing general remarks, it will be seen that it is my view that the days on which an employee is entitled to bereavement leave are "working days" - that is, days on which, save for some particular provision to the contrary, he would have worked. The purpose of the bereavement leave provisions is to grant the employee leave on a certain number of such days in the event of bereavement, and to ensure that he loses no pay on that account. Thus, days of vacation and statutory holidays may be counted in the calculation of bereavement leave. Rest days may not. This may lead to anomalous situations in some cases, but that may be a necessary concomitant of a provision such as this.
The foregoing, given for the purpose of clarifying the award dated March 31, 1970, constitutes my supplementary award in this matter.
DATED AT TORONTO THIS 31st DAY OF MARCH, 1970.
(sgd.) J. F. W. Weatherill