SHP - 5
IN THE MATTER OF AN ARBITRATION
RAILWAY EMPLOYEES' DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCES OF J. STRATTON, G. MOODIE, A. OPALUK, H. KRAUSE, S. GUYDA AND W. APPLER
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
APPEARING FOR THE COMPANY:
J. A. McGuire
A hearing in this matter was held at Montreal on October 12, 1972.
AWARD OF THE ARBITRATOR
In this grievance the grievors seek to be paid holiday pay for Boxing Day, December 26, 1969.
Boxing Day is a general holiday for which provision is made in the collective agreement in effect between the parties. The qualifications for holiday pay are set out in section 2 of the agreement dealing with general holidays and by those provisions, in order to qualify for pay for any one of the specified general holidays, an employee
(a) must have been in the service of the company and available for duty for at least 30 calendar days;
(b) must be available for duty on such holiday if it occurs on one of his work days excluding vacation days if notified prior to completion of his shift or tour of duty immediately preceding such holiday that his services will be required;
(c) must be entitled to wages for at least 15 shifts or tours of duty during the 30 calendar days preceding the general holiday…
In the instant case it is acknowledged that the grievors met the requirements set out above in (a) and (c) but it is the Company's position that they did not meet the requirements of (b) above.
The grievors were notified prior to completion of their shift or tour of duty immediately preceding the holiday that their services would be required for the holiday. The Union made much of a requirement in the collective agreement to the effect that holiday work should only be required when absolutely essential to the continuous operation of the railway. Whether or not the requirement that the grievors work on Boxing Day 1969 complied with that provision is not a question which I find it necessary to determine in this case× The fact is that the grievors were notified in a timely fashion that their services would be required on the day in question. The only matter which remains to be determined for the purposes of this case is whether they were "available for duty on such holiday".
The grievors did not advise the Company that they would be unable to report (in which case they would of course not have been entitled to the holiday pay), but indeed demonstrated their "availability" by reporting for work. Each of the grievors left work, however, during the course of the day before completion of his complete shift. Four of the grievors requested and were grated permission to leave the premises due to their being ill. Two of the grievors requested and were granted permission to leave because of the illness of members of their family. In no case is the bona fide of the reasons given in question. Of course, where an employee says that he is ill and seeks permission to leave on that ground, the employer has little real alternative but to grant such permission. Where, however, the employer is sceptical as to the truth of the employee's assertion (and in the circumstances of this case there would be grounds for such scepticism in at least some of the cases), then the employer might quite properly require the employee to produce some justification in the form of a doctor's certificate or otherwise for his leaving. In the case of employees leaving on personal grounds, the employer may judge for himself at the time whether or not such grounds reasonably justify a employee's leaving early. Where, as in the instant case, the employer concurs in the employees leaving early, it seems unfair for the employer subsequently to assert that the employee was not "available" for work.
Had the employees not been advised that their services would be required on the day in question, it seems no question would have arisen as to their "availability". Although they would still of course have had to have been "available" in order to comply with the requirements of subsection (b) set out above, in the instant case the employees were as available as any other employee could normally be expected to be and they demonstrated that availability by reporting to work. It has not been shown that at the material times, that is the time of notice and the time of reporting to work, the grievors knew that they would not in fact be able to work during the time for which their services were required. If this had been the case then it could properly have been said that the grievors were not indeed "available" within the meaning of the provision. The requirement is one of availability for duty and not one of actual completion of any particular period of work.
In my view, in the circumstances of this case, the grievors have brought themselves within the requirements of the collective agreement. They are entitled to payment for the holiday and I so award.
DATED this 24th day of October, 1972. (sgd.) J. F. W. Weatherill