BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J. H. Clark

M. McClenaghan

J. A. McGuire

J. E. Cameron

W. J. Plohman

A hearing in this matter was held in Montreal on April 11, 1975.

Rule 46.2 specifies the days with respect to which qualified employees are to be granted a holiday with pay. Labour Day is one of such days. Rule 46.4 is as follows:

The employees covered by this grievance were laid off as a result of the strike of another group of employees, which was called on August 23, 1973. It seems that all of the grievors met the requirements of subsections (a) and (c) of Rule 46.4; I assume that to be the case, no argument being addressed to that point. The central issue in the case is whether these employees met the requirements of article 46.4 (b).

In dealing with this issue I shall assume that September 3, 1973 would, in the normal course, have been a work day for each of the grievors. They would therefore be required to be available for duty on that day, to qualify for holiday pay. It may be noted that any requirement that they actually work on that day would require – except for unseen exigencies of the service – four days’ notice. The Union’s position is, that the grievors were laid off, and had not received the necessary notice of recall required by Rule 23.22. Rule 46.4 (b), it must be noted, does not apply in respect of employees who are laid off.

The Company’s response to this is twofold: first, that the Maintenance of Railway Operations Act, 1973, which became effective at 0001 hours on Sunday, September 2, 1973, required the grievors as well as other employees to resume the duties of their employment forthwith, and – that, for this reason and by reason of the Company’s efforts to recall employees, they could no longer be considered as laid off. Second, it is argued that in any – event each individual claiming holiday pay must show that the holiday fell during a period of his employment.

As to the first of these arguments, it is to be noted that he claim made is for holiday pay, a benefit provided for in the collective agreement and earned (subject to the qualifications set out in the agreement) by the employees’ attendance at work. As far as their status under the collective agreement is concerned, the grievors had been laid off, and at the time of the holiday had not yet been recalled in conformity, with the requirements of the collective agreement. It may be that, by failing to return to work promptly (as appears to have been the case) they were in violation of the Maintenance of Railway Operations Act, and perhaps subject to prosecution. It may be a well that, by virtue of the Act, they were under an obligation to report to work, and would be, subject to discipline for failure to do so. A failure to comply with such obligations, however, does not alter the effect or the incidence of the payment provisions, including the holiday pay provisions of the collective agreement. Even if it be considered that the grievors were no longer laid off, but were required to work, it will be seen that they were given neither the four days’ advance notice generally provided for, nor the notice contemplated for "unforeseen exigencies", which this may have been. In the result, the holiday pay may be considered as already having been earned by the grievors, and whatever consequences might follow from an unlawful failure to return to work pursuant to the Act and to the employer’s request, these did not include the divesting of rights already earned.

As to the second argument, while it may well be that an employee whose employment relationship has properly terminated could not expect to receive holiday pay in respect of a day coming after the termination of his employment, that is scarcely this case. As indicated above, the grievors here were on lay-off, and indeed met the qualifications necessary for holiday pay in such a case. I certainly do not disagree with what was said in Canadian Railway Office of Arbitration Case No. 104, where the issue was, as here, one of compliance with holiday pay qualifications. In this case, however, the grievors’ case seems to come clearly within the language of the collective agreement, and once their entitlement to payment has been established, their subsequent misconduct would not divest them of it.

Accordingly, the grievance is allowed. The employees in question should be paid the amount payable under Rule 46.7 as holiday pay at the time in question.

DATED at Toronto, ,this 26th day of April, 1975.

Arbitrator