(the “Company”)
















ARBITRATOR:                                Michel G. Picher




            Michael Restoule                Manager – Labour Relations

            Tom Burton                         Chief Mechanical Officer

            Ken Duquette                      Labour Relations Officer

            Trevor Prescott                   Superintendent – Equipment Maintenance




            Brian Stevens                     President – CAW Local 103

            Brian Kelly                           Chief Steward

            Dan Ciesla                            Committee Person



A hearing in this matter was held in Toronto on November 20, 2000.






            This grievance concerns the claims of employees for continued Company benefits, including the payment of their pension plan contributions, while they were laid off.  The Union maintains that the Company wrongfully deprived the employees of continued benefits during the course of a lay off in July 1999, contrary to the Employment Security and Income Maintenance Agreement (ESIMA).  The Company maintains that there was no such entitlement during the time the employees were effectively laid off, and in receipt of employment insurance and SUB-Benefits.


            The nature of the dispute is reflected in the Joint Statement of Fact and Issue file at the hearing, which reads as follows:


On July 29, 1999, the company laid off thirty-five(35) employees represented by C.A.W. Local 103, account of a Labour dispute at the Kidd Creek Mine in Timmins.  The company advised those employees unable to hold work that all benefits including Pension Plan contributions would cease as of July 31, 1999.


The Union filed a grievance contending that under Article 7A of the Employment Security and Income Maintenance Agreement (E.S.I.M.A.) those employees unable to hold work, were “Waiting Status” employees.  As such were entitled to continue to be in receipt of all company benefits including Pension Plan contributions, until such time as the company finds a position for them to fill.  The Union requested that the affected employees be made whole, including the continuation of all company benefits and Pension Plans.


The company contends that the employees were indeed laid off and, in accordance with the Employee Benefit Plan Supplemental Agreement and the Regulations of the ONTC Contributory Pension Plan, all health and welfare benefits and Pension Plan contributions cease upon layoff.  The company denied the grievance.




            As can be seen from the Joint Statement, it is the position of the Union that the employees who could not hold work were placed on “Waiting status”.  On that basis it submits that they were not laid off and remained entitled to the payment of benefits from the Company.


            It is not disputed that the grievance at hand relates to employees who, because of the loss of work at the Kidd Creek Mine by reason of a strike, were removed from their jobs and placed on lay off benefits under Article 7A of the ESIMA.  It is not disputed that to be entitled to the sub-benefits provided within the ESIMA the employees must claim employment insurance benefits.  On that basis the Company submits that they must be considered laid off, and not entitled to the continuation of any further benefits.


            The Union’s claim in respect to the employees being on “Waiting status” is based on the language of Article 7A.3(iv) of the ESIMA which reads, in part, as follows, concerning the obligation of an employee to fill vacancies as a condition of retaining employment security, and the eventuality of there being no vacancy:


            (iv)       there being none, unless eligible for job protection under Article 7, be placed in a “waiting” status until such time as a vacancy occurs within his/her classification on the seniority territory, or as per Clauses (i), (ii) and (iii) above.  During this period the employee’s U.I. benefits (subject to U.I. approval) and/or outside earnings, will be supplemented to a level equal to 80 percent of his/her weekly base pay continuing until such time as a position is found for the employee in accordance with the foregoing.



            The Arbitrator is not persuaded by the position advanced by the Union.  As appears from the foregoing, it is clear that an employee who is placed on “Waiting status” within the terms of Article 7A.3 of the ESIMA is, notwithstanding that status, a laid off employee.  That seems eminently clear by reason of the fact that the employee on “Waiting status” must, by definition, be eligible to receive employment insurance benefits, benefits which are, of themselves, conditional upon he or she being in a laid off position.  When the entitlement to such benefits occurs, the article provides for the payment of a supplement to a level equal to 80% of the employee’s normal weekly based pay.  In my view there is no operative distinction, therefore, between laid off status and waiting status.  At best, the concept of waiting status as reflected in the foregoing provision is simply a way of describing the circumstance of an employee waiting for recall to a vacancy.  There is plainly nothing inconsistent between waiting status and laid off status when the language of subparagraph (iv) is read within its context.


            A review of the provisions of the Employee Benefit Plan Supplemental Agreement lends substantial support to the position of the employer.  Appendix I of that agreement, entitled “Eligibility Qualification and Pay Direct Provisions” contains provisions under the heading “Direct Payment Provisions, Termination of Insurance and Continuation of Insurance”.  Paragraph (1) provides for the cessation of Group Life, Accidental Life and Dismemberment and Weekly Indemnity Benefits.  Paragraph (2) deals with Extended Health, the Extended Healthcare Plan, Vision Care and Dental Coverage.  It expressly provides that those coverages are to be terminated in cases of lay off.  The Pension Plan contains similar restrictions.  Regulation 12.02 of the Plan narrowly defines the circumstances in which an employee who is not in active employment can “buy back” pensionable service, for example for periods of disability under a Worker’s Compensation scheme or under other approved leaves of absence for the purposes of maternity or parental leave.  There is no provision for the continuation of pensionable service during a period of lay off.


            In the result the Arbitrator is persuaded of the correctness of the position of the Company, which is that employees in receipt of SUB-benefits under Article 7A of the ESIMA are laid off, quite apart from whether they can be described as in a “Waiting status” for the purposes of the Plan.  The Union has addressed the Arbitrator to nothing in the provisions of the ESIMA, the Employment Benefit Plan Supplemental Agreement or the Contributory Pension Plan which would support its Union’s position that benefits, beyond the strict benefits of the ESIMA, or pension entitlements, are to continue during a period of lay off.  For these reasons the grievance must be dismissed.


Dated at Toronto this 30th day of November 2000.





                                                                        Michel G. Picher