AH – ???
PROVINCE OF NOVA SCOTIA
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS, HOTEL DEPARTMENT
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, LOCAL 662
IN THE MATTER OF THE GRIEVANCE OF W. J. McMASTER
ARBITRATION BOARD: Judge R. Clifford Levy Chairman
Mr. A. William Cox Company Nominee
Mr. J. K. Bell Union Nominee
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held.
I have read the majority report of the Arbitration Board in which the views of the Chairman Judge R. Clifford Levy and the Company appointee, Mr. A. William Cox, are set out.
I find that I am unable to concur in the majority report for the following reasons:
(1) No evidence was offered by witnesses called by the Company which substantiated that McMaster had been drinking on duty.
(2) Witnesses appearing for McMaster gave evidence that they had observed McMaster during his tour of duty and there was no indication that McMaster had been drinking or showed the effects of drink.
(3) The Company has not been able to show that McMaster had failed to carry out his responsibilities insofar as performing his work.
(4) Witnesses for McMaster testified that during their contact with him on the shift in question that he was carrying out his work duties without any sign of impairment.
(5) The basis of the majority report hinges on the evidence given by Messrs. Blaie and Murchy, Chief Engineer and Assistant Chief Engineer respectively, who testified that they detected a strong smell of alcoholic beverages on McMaster’s breath.
I cannot accept that the evidence given in this case warrants the extreme penalty of dismissal and I cannot share the views of my colleagues on the Board that this case should be decided on the basis of evidence where "the burden on the employer is not the criminal standard beyond a reasonable doubt, but is the civil standard of the burden of probabilities". I am aware that this opinion is taken from a decision of the British Columbia Supreme Court (Peters Ice Cream Co. Ltd. V. Milk Sales Drivers and Dairy Employees Union, Local 464 (1961) 34 W.W.R. 575.
Under present day conditions, discharge of employees, particularly those over the age of forty and who have worked in the service of a single employer for a lengthy period of time, is tantamount to "economic execution", inasmuch as such an employee may find it next to impossible to secure subsequent employment. In view of these grave consequences, it is my opinion that a case of discharge should be based on something more tangible than "the civil standard of the burden of probabilities".
The majority report contains the proposition that an Arbitrator or a Board of Arbitration is powerless to hand down a decision of compromise, or to vary or alter the penalty inflicted unless specific provision is set out in the collective agreement, and in this instance, refers to a decision of the Supreme Court of Ontario (Sudbury Mine Mill & Smelter Workers Union and Falconbridge Nickel Mines Ltd. (1952) 3 Lab. Arb. Cases 1186 at 1190, 1191.
The majority report also refers to an arbitration case involving Oland & Sons Ltd. and United Brewery Workers, Local 361 (1960), and also quotes the opinion of A.W.R. Carrothers "Labour Arbitration in Canada" page 94 in support of their position that Arbitration Boards have no discretionary power to lessen or change a penalty imposed by an employer, unless provided for under the terms of the collective agreement.
Notwithstanding the legal opinions set out above, I feel that in the matter of labour relations that each case of disciplinary action, including discharge, must be considered on the basis of its individual acceptance or recognition of the intent and meaning of the terms of the collective agreement.
During the Arbitration hearing, Counsel for McMaster indicated that, while the collective agreement did not specifically provide for the discretionary powers of the Arbitration Board to lessen or alter the penalty imposed by the employer, nevertheless it was the Union’s position that their understanding of the intent and meaning of the collective agreement involved did not preclude such discretionary action by the Arbitration board.
Representatives of the Company did not contest this point and, in the absence of any contest, it indicated their acceptance of such discretionary powers taken by the Arbitration Board in the case in dispute. It appeared that this was not contrary to their interpretation of the intent and meaning of that section of the collective agreement dealing with the procedures and powers of an Arbitration Board.
Again I would like to stress that in the matter of labour relations, each case must be considered on the basis of the indicated understanding of the intent and meaning of the terms of the collective agreement, and I feel that the majority report overlooks this important point.
At no time did the employer raise the question of that Board’s discretionary powers being limited, and I therefore must attach significance to the silence of the employer following the interpretative opinion placed on the powers of the Arbitration Board by the employee’s Counsel during the hearing.
The specific charge laid by the employer against McMaster was "that while on duty as Maintenance Man on Friday September 27th, you had been drinking and were relieved of your duties by the Chief Engineer at 11:15 P.M.". Since the Board heard no direct evidence which supported the employer’s charge that McMaster had been drinking while on duty, I, therefore, do not concur in the majority decision which upholds the dismissal of McMaster.
Signed at Halifax, N.S., March 19, 1964
(signed) J. K. BELL