SHP - 12
IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCE OF J. E. KERR
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
M. McLenaghan and others
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on April 10, 1975
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF FACT
On January 8, 1974, Mr. J.R. Kerr applied for a leave of absence for a six month period to enter into other employment. On January 22, 1974, the Company notified Mr. Kerr that his application had been declined.
JOINT STATEMENT OF ISSUE
Mr. Kerr claims that by refusing to grant him a leave of absence the Company has violated Rule 15.3. The Company does not agree.
Rule 15 in its entirety, is as follows:
15.1 When the requirements of the service will permit, employees will be granted leave of absence, not to exceed 90 days, with the privilege of renewal by consent of the Management and Committee.
15.2 Any employee engaging in other employment whilst on leave, except with consent of Management and Committee, shall be considered out of the service.
15.3 The arbitrary refusal of a reasonable amount of leave to employees when they can be spared, or failure to handle promptly cases involving sickness or business matters of serious importance to the employee, is an improper practice and may be handled as unjust treatment under this Agreement.
It will be seen that the leave which was requested by the grievor was for a period longer than that contemplated by Rule 15.1. Even apart from any consideration of the "requirements of the service", then, it was not a leave to which the grievor would be said to be entitled under Rule 15.1. Further, it was a leave for a purpose which would generally be contrary to Rule 15.2, failing the consent necessary under that section. Rule 15.3 is a general provision against arbitrary refusals of "a reasonable amount of leave". I do not think that can be read as extending the period set out in Rule 15.1 as the maximum for which, when possible, leave will be granted, nor does it somehow offer any special relief against the prohibition on taking other employment (without consent) set out in Rule 15.2. A six-month leave of absence to take other employment is simply not the sort of request which was contemplated in Rule 15.
The parties have also referred to a memorandum of understanding dated June 7, 1955, and which reads in part as follows:
When an employee asks for leave of absence to enter other gainful employment, such leave will be limited to a six months’ period and will be granted only when concurred in by the General Manager and the General Chairman of the organization affected.
This rule not to apply when it conflicts with the provisions of any schedule rule.
The leave which the grievor requested was of a sort which it was contemplated might be granted under that policy. It goes beyond what might be expected under the collective agreement, whose provisions have been noted above, but there is no necessary conflict with those rules. While the leave the grievor requested might have been granted under that policy, it could only be given when concurred in by the appropriate Union and Company officers. Here, the concurrence of the General Manager was not forthcoming. Clearly, there is no obligation on the Company to grant such leaves. The only obligation which might be said to arise from the memorandum would be to consider each request and not to discriminate unfairly as between employees. At the time in question, the Company may have contemplated some, gradual reduction in the work force, so that it might be thought the grievor could be spared. It was the Company’s view, however, perhaps because a process of attrition was occurring, that the grievor would be required during the time in question. This view is supported by the fact that certain overtime was required after the grievor left, and some employees were set up to carman’s duties. It has not been shown that, in the particular circumstances existing at the time, the Company was unwilling to grant the grievor’s request for reasons which amounted to unfair discrimination. It would appear that the last time an employee was granted a leave of absence pursuant to the article of the memorandum above referred to, was in 1962. In 1974 another employee was granted leave related to outside business, but that leave came only within the scope of Rule 15. There has been no violation of that rule with respect to the grievor who, it may be noted, absented himself from work in any event, knowing that leave had been refused.
For the foregoing reasons the grievance is dismissed.
DATED at Toronto, this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill