CASE-NO : AH097
DATE : 20/05/76
PARTIES : CN CNRPA
PROVINCE OF QUEBEC
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION
GRIEVANCE: M.A. Desormiers, discharged.
J. Edmond Gagnon, Attorney
Counsel for Canadian National
Pierre N. Dufresne
50 Place Crémazie, Suite 406
Montreal, Quebec 20 May, 1976
The undersigned sole arbitrator was appointed on or about 18th March 1976 by the Honorable John Monro, under the provisions of the Canada Labour Code and the Collective Agreement entered into by both parties.
An arbitral session was held at Montreal on 17th May 1976 when representatives of both parties declared themselves in accord to recognize the mandate of the undersigned and, for all practical purposes, the grievance procedures covered by the Collective Agreement had been respected and consequently, the grievance could be heard on its own merit.
The parties, moreover, declared themselves in accord to recognize that the undersigned had the power to maintain, reject or modify the disciplinary action taken against the plaintiff.
The grievance presented in a letter dated 12 December 1975, and introduced as Ehxibit P.2, reads as follows:
"91 McComber Street
12 December 1975
Mr. W.C. Skelly
Chief, CN Police
935 De la Gauchetiere St.
This letter is in connection with the discharge of Constable A. Desormiers, taking effect the 2nd of December 1975.
Through the Association, Constable A. Desormiers refuses to accept the penalty and formally denies the accusations advanced.
Nevertheless, as stipulated in Article 14.14 of Collective Agreement 29.1, we are progressing this grievance at Step 3 with the hope that you revise your initial decision after reviewing the facts surrounding your accusations and consequently suggest that Constable Desormiers be immediately reinstated with all titles and privileges he formerly enjoyed before his discharge".
(Signed) André Léger - President
The notice of discharge dated 3 December 1975 bringing forth this grievance has been deposited under Exhibit P.1 and reads as follows:
For having feigned illness by reporting sick during hours of work on 1st November 1975 at 2000 hours, on 16th November 1975 at 0030 hours, and on 22nd November 1975 at 2030 hours. Having worked for another employer during the balance of your normal assigned working hours. Having accepted sick pay knowing that you were gainfully employed somewhere else".
(Signed) P. Danylewich
Superintendant, CN Police
During the arbitral session held on May 17th 1976, the following facts were admitted or submitted as evidence.
1. On November 1, 1975, the plaintiff was scheduled by this employer (CN)to work
between 1500 hours and 2300 hours. Around 2030 hours, under the pretext of
illfeeling due to influenza, the plaintiff left his work and, the same night, went to work
for the Queen Elizabeth Hotel (Place Ville Marie) from 2300 to 0300 hours the
Evidence submitted established that the plaintiff received his full salary for the period
scheduled to work by his employer in addition to wages earned at the Queen Elizabeth.
2. On November 15th, 1975, the plaintiff was scheduled to work by his employer (CN)
from 2300 to 0700 hours on 16 November 1975. He worked no more than half an
hour then asked his superior officers, Messrs. Cornford and Rivet, to absent himself to
go to the Royal Victoria Hospital because he was in pain as a result of a boil on his leg.
Around 0230 hours this 16th of November, he proceeded to the Hotel (Place Ville
Marie) to assist other policemen on duty until 0345 hours.
Evidence submitted established that he was remunerated by his employer for all time
scheduled to work (2300 hours the 15th of November till 0700 hours the 16th of
November) that is, paid sick time in addition to remuneration by the Hotel for services
rendered between 1900 hours the 15th of November till 0315 hours the same night.
3. On November 22, 1975, when the plaintiff was scheduled to work from 1500 to 2300
hours at his Employer’s place (CN) he left work between 2100 and 2200 hours,
pretending "he was not feeling well" in order to go to work at the Hotel (Place Ville
Marie) and be remunerated from 2300 hours and 0330 hours the same night of 22 to
23 November 1975.
4. The type of work the plaintiff was performing at Hotel Queen Elizabeth consisted of
recruiting and scheduling some fifteen (15) policemen from his Employer (CN) outside
of their normal hours of work.
5. There is no rule or regulation prohibiting the plaintiff from working elsewhere during
his off-duty hours "moonlighting".
6. The disciplinary record of the plaintiff consisted of, at the time of the grievance, ten
(10) Demerit Marks for his responsability in a patrol car accident and a verbal
reprimand concerning his department on duty when dealing with a suspect at Central
7. There is no provision or penalty provided in the Collective Agreement concerning the
case under review.
8. Article 157 of the Canada Labour Code states as follows:
"157. An arbitrator appointed pursuant to a collective agreement or an arbitration
a) shall determine his or its own procedure, but shall give full opportunity to the
parties to the proceeding to present evidence and make submissions to him or
b) has, in relation to any proceeding before him or it, the powers conferred on
the Board, by paragraphs 118(a), (b) and (c);
c) has power to determine any question as to whether a matter referred to him
or it is arbitrable; and
(i) he or it determines that an employee has been discharged or
disciplined by an employer for cause, and
(ii) the collective agreement does not contain a specific penalty for the
infraction that is the subject of the arbitration.
has power to substitute for the discharge or discipline such other penalty as
to the arbitrator or arbitration board seems just and reasonable in the
circumstances. R.S., c.L-1, s. 157; 1972, c.18, s.1."
DECISION AND MOTIVE
IN CONSIDERATION OF THE ABOVE, the undersigned Arbitrator concludes that the Employer, under the circumstances, had sufficient grounds to discharge the plaintiff, moreso due to the nature of his work as a policeman who is employed for the preservation and maintenance of the public peace or for the service or execution of civil process.
FOR THE REASONS CITED ABOVE, the Arbitrator declines the grievance on all grounds.
Sentence rendered this twentieth (20th) day of May 1976.