SHP - 31
IN THE MATTER OF AN ARBITRATION
BETWEEN
RAILWAY ASSOCIATION OF CANADA
(the "Company")
AND
RAILWAY EMPLOYEES DEPARTMENT, DIVISION NO. 4
(the "Union")
RE:
GRIEVANCES OF J. HAMILTON AND M.T. LAFRAMBOISE — VACATION ALLOWANCE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
M. McClenaghan
APPEARING FOR THE COMPANY:
A. Rotondo for the Ontario Northland Railway
A hearing in this matter was held in Montreal on January 14, 1976
AWARD OF THE ARBITRATOR
The joint statement of fact and of issue in this case is as follows:
JOINT STATEMENT OF FACT
On December 13, 1974, Carman J. Hamilton applied for retirement on pension. He had last worked December 11, 1974. Mr. Hamilton’s vacation credits earned in 1974 (25 days) were run out on the payroll. He was also allowed pay for three statutory holidays, Christmas Day, Boxing Day and New Year’s Day. His pension became payable on January 21, 1975.
Mr. M.T. Laframboise applied for retirement on pension on November 19, 1974. He last worked December 16, 1974. Mr. Laframboise’s vacation credits earned in 1974 (25 days) were run out on the payroll. He was also allowed pay for three statutory holidays, Christmas Day, Boxing Day and New Year’s Day. His pension became payable on January 24, 1975.
JOINT STATEMENT OF ISSUE
The Union submitted a policy grievance claiming that vacation payments constitute service and vacation allowance should have been made on the portion of vacation credits paid in 1975. The Union also claimed that on January 1, 1975, Mr. Laframboise qualified for an additional week’s vacation for 1974 service. In support of its position, the Union claimed a violation of Rule 47.1, Clauses (d) and (e). The Company denied the grievance.
Rule 47 deals generally with matters of vacation entitlement, and Rule 65.1 deals with the duration of the collective agreement. It is not necessary to set out those provisions in this award. The entitlement of the grievors to vacation pay, at the time in question is, in general, admitted. The question is as to the amount of such payment. Here, the grievors went on vacation from the time of their last day at work until they were taken off the payroll and went on pension.
Each of the grievors was entitled to 5 weeks of vacation in 1974, for their completed year of service in 1973. They were then entitled to vacation in respect of service in 1974. This would be covered by Rule 47.2 (a), which is as follows:
47.2 (a) An employee terminating his employment for any reason at a time when an unused period of vacation with pay stands to his credit shall be allowed vacation calculated to the date or his leaving the service, as provided for in Section 1, and, if not granted shall be allowed pay in lieu thereof.
At the times the grievors last worked in 1974, there were unused periods of vacation standing to their credit. They were allowed to take such vacations, and these lasted into 1975, as noted in the joint statement of fact. This vacation was in fact earned by reason of service in 1974. It is the Union’s contention that while the grievors were on vacation in early 1975 they were still in service, and thus became entitled to a further vacation benefit in respect of that year.
While on this last vacation the grievors were paid at the hourly rates then in effect (pursuant to Rule 47.2 (n)), and they had the benefit of the statutory holidays with pay that fell during that period. They were, then, treated as employees during that period, and I find that the employment relationship subsisted during that time. In my view, the grievors were "in service" until the time they actually retired from employment and went on pension, and not simply until their last day worked.
The Company’s contention is that this would involve "pyramiding" of vacation entitlement, by taking a period of vacation as a basis for calculating vacation entitlement. In my view, however, that is not what is involved. Vacation entitlement is based on service, and it is clear that, in most cases, vacation entitlements are based on years of "service" which include periods of vacation. What is at issue is the entitlement of the grievors to vacation for the time they were still in `service’ although they had ceased working. It is not a case of having vacation calculated twice in respect of the same period of service. That would be a form of `pyramiding’ and it would not be justified. Here, however, the grievors were entitled to a period of vacation in respect of their service, up until that service ended in January 1975. This is so even if they happened to be on vacation during the last part of their service.
For the foregoing reasons, the grievances are allowed.
DATED at Toronto, this 2nd day of February, 1976.
(sgd.) J. F. W. Weatherill
Arbitrator