When Wayne Nesbitt’s mother-in-law died, the family decided to have an informal gathering at the family home to mark her passing, rather than a formal service at a church or funeral home. A few days later at her home, family members, including Nesbitt and his son, gathered around the urn containing her ashes to exchange stories and reminiscences about her life and to share a meal in her honour.
Nesbitt took three days off work as bereavement leave expecting he would be paid despite the fact the collective agreement said such leave would attract pay only if the bereaved employee attended a funeral.
At least that is how the Welland, Ont. employer, Canada Forgings interpreted the agreement, which provided three days of paid leave in the event of the death of an in-law “provided (the bereaved employee) attends the funeral.” The company said the event was not a funeral, and therefore Nesbitt was not entitled to paid leave.
Nesbitt insisted that the event was the equivalent of a funeral and went to the union with his grievance.
The union argued that the occasion was tantamount to a funeral. The family planned an occasion to mark the death of a family member and the fact that they did so informally without “benefit of clergy,” as it were, did not nullify its intent.
However, the union also suggested that if the arbitrator found it was, strictly speaking, not a funeral, the agreement should be construed as saying that leave should be denied only when there was a funeral but the employee could not or would not go to it.
For its part, the company stood by what it agreed was unconventional wording. The only time it said employees could receive paid bereavement leave without attending a funeral would be if a parent died and they could not get to the funeral. Then they could receive one day’s paid leave.
This did not cover the situation in this case. The death was an in-law’s, not a parent’s, and there was no funeral. The company argued that a funeral involved a ritual undertaken at the time of cremation or burial of the remains of the deceased. No announcement of funeral arrangements of this sort had been published in the death notice in the local newspaper. The get-together, held at a later date, was just a memorial and hence, not covered by the terms of the collective agreement.
Not only that, but even if the arbitrator found that attending a funeral was not mandatory, the leave was taken too long after the death to constitute a bereavement leave for which the employee could expect to be paid.
In reply, the arbitrator found that four days was not excessive especially in view of the fact the much of that time had been taken up with discussions around the grievor’s eligibility for paid bereavement leave.
The arbitrator ruled in Nesbitt’s favour. He said following the definition of “funeral” too closely had led to a result which was “an affront to common sense.”
He noted that funerals are frequently held in the absence of the remains of the deceased as, for example, when an avalanche or drowning prevents the recovery of the body.
Individuals, he said, “should not be treated differently with respect to bereavement pay based solely on the timing of the interment.”
Not only that, but he said that the definition of “funeral” had to be in keeping with our pluralistic society in which there are not only many different religious and spiritual practices but also many people who “have no formal religious affiliation.”
Replying to the employer’s concern that a wake in a pub months after the event could be construed as a funeral and therefore qualify for paid leave, the arbitrator found the scenario far-fetched. The components of the gathering in question characterized it as a genuine — if unconventional — funeral. It was the only family event commemorating the death; it was held only days after the death; the deceased’s ashes were present; and the attendees undertook to deliberately reminisce about their loved one.
For more information: Canada Forgings Inc. and the Canadian Autoworkers Union, Local 275, Ontario Arbitration Board decision, Barry Stephens — Sole Arbitrator, Jan. 2, 2005.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports. CLV Reports are weekly newsletters that report on collective bargaining and other issues in labour relations. Lorna can be reached at
(416) 298-5141 ext. 2617 or [email protected].
Nesbitt took three days off work as bereavement leave expecting he would be paid despite the fact the collective agreement said such leave would attract pay only if the bereaved employee attended a funeral.
At least that is how the Welland, Ont. employer, Canada Forgings interpreted the agreement, which provided three days of paid leave in the event of the death of an in-law “provided (the bereaved employee) attends the funeral.” The company said the event was not a funeral, and therefore Nesbitt was not entitled to paid leave.
Nesbitt insisted that the event was the equivalent of a funeral and went to the union with his grievance.
The union argued that the occasion was tantamount to a funeral. The family planned an occasion to mark the death of a family member and the fact that they did so informally without “benefit of clergy,” as it were, did not nullify its intent.
However, the union also suggested that if the arbitrator found it was, strictly speaking, not a funeral, the agreement should be construed as saying that leave should be denied only when there was a funeral but the employee could not or would not go to it.
For its part, the company stood by what it agreed was unconventional wording. The only time it said employees could receive paid bereavement leave without attending a funeral would be if a parent died and they could not get to the funeral. Then they could receive one day’s paid leave.
This did not cover the situation in this case. The death was an in-law’s, not a parent’s, and there was no funeral. The company argued that a funeral involved a ritual undertaken at the time of cremation or burial of the remains of the deceased. No announcement of funeral arrangements of this sort had been published in the death notice in the local newspaper. The get-together, held at a later date, was just a memorial and hence, not covered by the terms of the collective agreement.
Not only that, but even if the arbitrator found that attending a funeral was not mandatory, the leave was taken too long after the death to constitute a bereavement leave for which the employee could expect to be paid.
In reply, the arbitrator found that four days was not excessive especially in view of the fact the much of that time had been taken up with discussions around the grievor’s eligibility for paid bereavement leave.
The arbitrator ruled in Nesbitt’s favour. He said following the definition of “funeral” too closely had led to a result which was “an affront to common sense.”
He noted that funerals are frequently held in the absence of the remains of the deceased as, for example, when an avalanche or drowning prevents the recovery of the body.
Individuals, he said, “should not be treated differently with respect to bereavement pay based solely on the timing of the interment.”
Not only that, but he said that the definition of “funeral” had to be in keeping with our pluralistic society in which there are not only many different religious and spiritual practices but also many people who “have no formal religious affiliation.”
Replying to the employer’s concern that a wake in a pub months after the event could be construed as a funeral and therefore qualify for paid leave, the arbitrator found the scenario far-fetched. The components of the gathering in question characterized it as a genuine — if unconventional — funeral. It was the only family event commemorating the death; it was held only days after the death; the deceased’s ashes were present; and the attendees undertook to deliberately reminisce about their loved one.
For more information: Canada Forgings Inc. and the Canadian Autoworkers Union, Local 275, Ontario Arbitration Board decision, Barry Stephens — Sole Arbitrator, Jan. 2, 2005.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports. CLV Reports are weekly newsletters that report on collective bargaining and other issues in labour relations. Lorna can be reached at
(416) 298-5141 ext. 2617 or [email protected].
