shp - 6
IN THE MATTER OF AN ARBITRATION
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCE OF S. ROLIKOWSKI
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
The grievor, a machinist helper at the Company’s Ogden shops in Calgary, seeks four days’ pay in lieu of notice of a lay off which was effective October 23, 1967.
The facts of the case are not in dispute. As set out in the joint statement of fact the grievor was granted a leave of absence on account of illness from July 25 until December 31, 1967. On October 16, 1967, during the period when the grievor was still absent from work on account of illness, a notice was posted at the Ogden shops to the effect that on October 25, 1967, 400 positions would be temporarily abolished up to and including November 19, 1967. Having regard to his seniority, the grievor would have been affected by this notice of lay off had he been at work. The notice itself would appear to have been The material portion of this agreement is as follows:
23.16 When it becomes necessary to make a reduction in staff at seniority terminal at least 4 working days’ notice shall be given the men affected before reduction is made, and lists shall be furnished to the Local Committee and General Chairman.
The grievor reported to the Company on October 20, 1967, with a doctor’s certificate indicating that he was able to return to work. He, in fact, proposed to return to work on Monday, October 23, 1967. He was then advised that work would not be available for him because of the lay off above referred to. It is the Union’s position that this notice was not sufficient having regard to the provisions of article 23.16.
As has been noted, had the grievor been at work rather than on leave of absence during the period in question, he would have been affected by the reduction in staff and accordingly would have been entitled to the notice referred to in article 23.16. He was not, however, at work, but was on leave of absence and the leave which had been grated extended to a date beyond the duration of the lay off. Thus, by reason of the leave of absence, the grievor could not properly have been considered to have been affected by the reduction in staff. The notice which was given to employees who would be affected by the reduction did comply with article 23.16. In my view, it would be improper to conclude that the grievor’s sudden and early return from his leave of absence had the effect of rendering inadequate a notice which was perfectly proper at the time it was given. The grievor shortening the length of his leave of absence seeks to be in a better position with respect to notice of reduction in staff than employees who were actually at work. In my view, this is not justified by the collective agreement.
The Union relies on article 23.28 of the collective agreement, which is as follows:
23.28 For employees on leave of absence, vacation or absence because of illness or injury, the time limits specified in this Agreement shall begin on the date of the employees’ return to service.
There are a great many time limits affecting the rights of employees which are specified in the collective agreement and article 23.28 provides generally that these time limits do not begin to run against an employee during the time when he may be on leave of absence, annual vacation or absence because of illness or injury. It may be doubted whether the notice requirement imposed on the Company by article 23.16 is the sort of "time limit" referred to in article 23.28 and which would be expected to run against an employee. That article 23.28 does not refer to such time limits would appear to be made clear by the inclusion in the agreement of article 23.21 which is as follows:
23.21 Where an employee is on leave of absence, annual vacation, or absent because of illness or injury, the periods prescribed in Rules 23.17, 23.18 and 23.20, shall begin on the date of his return to service.
The periods prescribed in rules 23.17, 23.18 and 23.20 are periods during which persons who have been laid off may exercise certain rights. Article 23.21 makes it clear that these periods begin on the date of return to service off persons on leave of absence, on annual vacation or absent because of illness or injury. There would be no need whatever for the inclusion of article 23.21 if article 23.28 had the general meaning ascribed to it by the Union. The collective agreement, it will be seen, clearly protects the periods of time within which employees subject to lay off may exercise their rights. It does not, however, provide that an employee who was not entitled to notice at the time the notice was given, may make a claim for lack of notice when he returns to work unexpectedly. That is precisely this case and the claim is not one supported by the provisions of the collective agreement.
For the foregoing reasons, therefore, the grievance must be dismissed.
DATED this 24th day of October, 1972. (signed) J. F. W. Weatherill