Arbitrator overrules language in collective agreement about qualifying days for holiday pay
A recent arbitrator’s decision is of interest to organizations on two fronts — first, it provides a good example of a situation where holiday pay can be withheld because of the actions of an employee. Second, it highlights the importance of ensuring the collective agreement an employer signs reflects the wording of what was negotiated.
In Dresden Industrial v. U.F.C.W., Local 175, three union members filed a grievance over holiday pay. At issue was the number of hours work required the day before and the day after a holiday to entitle staff to holiday pay.
Dresden Industrial operates an auto parts plant in Ridgetown, Ont. The auto industry is highly integrated and operates on a just-in-time basis for the manufacturing and delivery of parts. Because of that employee attendance at work for the entire shift is important.
Since the assembly plants Dresden does business with are closed during the Christmas season, it closes its facility during the same period. The collective agreement provides for five paid holidays during that shutdown. It also states an employee must work both the day before and the day after the holiday in order to collect holiday pay. Those days are commonly known as “qualifying days” and are intended to discourage employees from taking additional time off to lengthen the holiday.
Michelle Simpson worked the day shift on Dec. 20, 2002 — her last shift before the holiday. But she arrived about one-and-a-half hours late without good reason. She said she knew when she arrived at work that she would lose all five days of holiday pay.
But during the shift on Dec. 20, Dresden reviewed its inventory position and decided it did not need to continue full production for the entire shift and looked for volunteers to leave early. Simpson asked if staying for the entire shift would improve her holiday pay situation and was told it would not. She left early.
The other two grievors, Ethel Bowers and Sandra Couture, worked the afternoon shift on Jan. 2, 2003 — their first shift after the holiday. There was a snow storm that evening and, since they both lived a considerable distance from work, they were concerned about driving home late at night. During their first break, at about 6 p.m., they checked the weather and decided they wanted to leave early.
They spoke with their lead hand, Phil Johnson, but he did not have authority to grant their request.Johnson went to the shift supervisor, Tom Giglione. Johnson said Giglione told him they did not have permission to leave early and if they did they would lose eight hours holiday pay, it would go against their attendance and there could be negative consequences. Johnson relayed that message to Bowers and Couture.
Giglione testified he told Johnson he would not give permission. He said they discussed what would happen if employees left without permission and told Johnson employees would possibly forfeit their holiday pay and it would have negative consequences against their attendance. Two other lead hands, who inquired about the same topic, said they were told by Giglione that employees leaving early would forfeit all their holiday pay, not just eight hours.
Dresden has an employee request form which employees wishing to leave early are required to complete and submit to a supervisor. After talking to Johnson, both Bowers and Couture completed the forms and submitted them to Giglione through Johnson. The printed form has a place for the supervisor to mark either “excused” or “unexcused.” Giglione did not approve their requests to leave early and marked both forms as unexcused.
What the collective agreement said
The relevant provision of the collective agreement states an employee must work “the last regular work day prior to” and “the first full scheduled work shift following” the holiday.
The employer said the parties had agreed to other language during the negotiations and asked the arbitrator to rectify it to reflect the true agreement. The employer claimed the agreed upon language was “the last scheduled full work shift prior to the holiday and the first scheduled full work shift following the holiday.”
But a representative for the union said he did not think he had ever agreed to that proposed language. The arbitrator could not be certain what had transpired and could not, therefore, rectify the agreement. But he could certainly interpret the existing language.
According to the language in the agreement, Simpson — the first grievor — was entitled to holiday pay, even though she arrived late and left early. As she worked the last day before the holiday and the full shift after, she met the conditions for receiving holiday pay.
As for the other two grievors — Bowers and Couture, they failed to work the first full scheduled work shift following the holiday by leaving early. So, they were not entitled to holiday pay under the agreement.
But Howard Snow, the arbitrator for this case, dismissed all three grievances even though Simpson’s seemed legitimate under the wording of the collective agreement.
Snow said the difference in the language between the requirements for the last day before the holiday and first day back didn’t make sense.
“The difference in language between the ‘last regular work day’ before and the ‘first full scheduled work shift’ after the holiday meant that the parties contemplated employees who worked for only part of the day before the holiday should receive holiday pay, whereas an employee was required to work the full shift after the holiday,” Snow wrote in his decision. “(But) that does not seem to be the normal meaning of this language. If the parties intended to require an employee to work only part of the day before the holiday, I would have expected them to have said so more clearly.”
Snow said the clear intent behind qualifying day provisions was to ensure employees do not extend the holiday by taking additional time off work the day before, or after, the holiday and interpreted the provision in the agreement as such.
The union argued in the alternative that the grievors were entitled to pay under the province’s Employment Standards Act. But Snow noted section 26(2) which states the employee has no entitlement if she fails, without reasonable cause, to work all of her last regularly scheduled day of work before the public holiday or all of her first regularly scheduled day of work after the public holiday.
Simpson did not work all of her last regularly scheduled day before the holiday and neither Bowers or Couture worked all of the first day after the holiday. Snow said Simpson offered no explanation for arriving late and did not have reasonable cause to miss the first one-and-a-half hours. As for Bowers and Couture, he said leaving early to avoid the possibility of driving home in a blizzard later in the evening did not amount to reasonable cause.
For more information see:
• Dresden Industrial v. U.F.C.W., Local 175, 2003 CarswellOnt 3493, [2003] L.V.I. 3395-2 (Ont. Arb. Bd.)
In Dresden Industrial v. U.F.C.W., Local 175, three union members filed a grievance over holiday pay. At issue was the number of hours work required the day before and the day after a holiday to entitle staff to holiday pay.
Dresden Industrial operates an auto parts plant in Ridgetown, Ont. The auto industry is highly integrated and operates on a just-in-time basis for the manufacturing and delivery of parts. Because of that employee attendance at work for the entire shift is important.
Since the assembly plants Dresden does business with are closed during the Christmas season, it closes its facility during the same period. The collective agreement provides for five paid holidays during that shutdown. It also states an employee must work both the day before and the day after the holiday in order to collect holiday pay. Those days are commonly known as “qualifying days” and are intended to discourage employees from taking additional time off to lengthen the holiday.
Michelle Simpson worked the day shift on Dec. 20, 2002 — her last shift before the holiday. But she arrived about one-and-a-half hours late without good reason. She said she knew when she arrived at work that she would lose all five days of holiday pay.
But during the shift on Dec. 20, Dresden reviewed its inventory position and decided it did not need to continue full production for the entire shift and looked for volunteers to leave early. Simpson asked if staying for the entire shift would improve her holiday pay situation and was told it would not. She left early.
The other two grievors, Ethel Bowers and Sandra Couture, worked the afternoon shift on Jan. 2, 2003 — their first shift after the holiday. There was a snow storm that evening and, since they both lived a considerable distance from work, they were concerned about driving home late at night. During their first break, at about 6 p.m., they checked the weather and decided they wanted to leave early.
They spoke with their lead hand, Phil Johnson, but he did not have authority to grant their request.Johnson went to the shift supervisor, Tom Giglione. Johnson said Giglione told him they did not have permission to leave early and if they did they would lose eight hours holiday pay, it would go against their attendance and there could be negative consequences. Johnson relayed that message to Bowers and Couture.
Giglione testified he told Johnson he would not give permission. He said they discussed what would happen if employees left without permission and told Johnson employees would possibly forfeit their holiday pay and it would have negative consequences against their attendance. Two other lead hands, who inquired about the same topic, said they were told by Giglione that employees leaving early would forfeit all their holiday pay, not just eight hours.
Dresden has an employee request form which employees wishing to leave early are required to complete and submit to a supervisor. After talking to Johnson, both Bowers and Couture completed the forms and submitted them to Giglione through Johnson. The printed form has a place for the supervisor to mark either “excused” or “unexcused.” Giglione did not approve their requests to leave early and marked both forms as unexcused.
What the collective agreement said
The relevant provision of the collective agreement states an employee must work “the last regular work day prior to” and “the first full scheduled work shift following” the holiday.
The employer said the parties had agreed to other language during the negotiations and asked the arbitrator to rectify it to reflect the true agreement. The employer claimed the agreed upon language was “the last scheduled full work shift prior to the holiday and the first scheduled full work shift following the holiday.”
But a representative for the union said he did not think he had ever agreed to that proposed language. The arbitrator could not be certain what had transpired and could not, therefore, rectify the agreement. But he could certainly interpret the existing language.
According to the language in the agreement, Simpson — the first grievor — was entitled to holiday pay, even though she arrived late and left early. As she worked the last day before the holiday and the full shift after, she met the conditions for receiving holiday pay.
As for the other two grievors — Bowers and Couture, they failed to work the first full scheduled work shift following the holiday by leaving early. So, they were not entitled to holiday pay under the agreement.
But Howard Snow, the arbitrator for this case, dismissed all three grievances even though Simpson’s seemed legitimate under the wording of the collective agreement.
Snow said the difference in the language between the requirements for the last day before the holiday and first day back didn’t make sense.
“The difference in language between the ‘last regular work day’ before and the ‘first full scheduled work shift’ after the holiday meant that the parties contemplated employees who worked for only part of the day before the holiday should receive holiday pay, whereas an employee was required to work the full shift after the holiday,” Snow wrote in his decision. “(But) that does not seem to be the normal meaning of this language. If the parties intended to require an employee to work only part of the day before the holiday, I would have expected them to have said so more clearly.”
Snow said the clear intent behind qualifying day provisions was to ensure employees do not extend the holiday by taking additional time off work the day before, or after, the holiday and interpreted the provision in the agreement as such.
The union argued in the alternative that the grievors were entitled to pay under the province’s Employment Standards Act. But Snow noted section 26(2) which states the employee has no entitlement if she fails, without reasonable cause, to work all of her last regularly scheduled day of work before the public holiday or all of her first regularly scheduled day of work after the public holiday.
Simpson did not work all of her last regularly scheduled day before the holiday and neither Bowers or Couture worked all of the first day after the holiday. Snow said Simpson offered no explanation for arriving late and did not have reasonable cause to miss the first one-and-a-half hours. As for Bowers and Couture, he said leaving early to avoid the possibility of driving home in a blizzard later in the evening did not amount to reasonable cause.
For more information see:
• Dresden Industrial v. U.F.C.W., Local 175, 2003 CarswellOnt 3493, [2003] L.V.I. 3395-2 (Ont. Arb. Bd.)
