The grievor, Pierre Jobin, who entered the service of the Company on December 1, 1975, was discharged as a result of an incident which occurred on August 20, 1978. At the time of this incident, the grievor had already accumulated 45 demerit points in other similar instances. The discipline imposed for the incident on August 20 brought Mr. Jobin in excess of a total of 60 demerit points. He was then discharged pursuant to established procedure as set forth in the Employer’s Supervisors Manual, which provides, in pertinent part, "A net total of 60 demerit marks against a record of an employee will mean dismissal from Company service".

At the hearing, the Union claimed that the discipline imposed in the final or culminating incident leading to the dismissal of the grievor was too severe, and that as a result the grievor should be reinstated. In support of this contention, the Union submitted evidence that the behaviour of the grievor was no different from that of employees on other shifts who were not disciplined. The Union also contended that the supervisor who caused the grievor to be disciplined for this incident might have been biased against him. On the other hand, the Company contended that the culminating incident was serious enough to warrant severe discipline regardless of the evidence tendered by the Union, pointing out that by his own admission the grievor knew he was in grave jeopardy at the time of the incident and expected to be discharged.

On a review of the evidence and contentions of the parties we conclude that the grievance must be dismissed. The culminating incident was serious enough to warrant imposing the penalty of discharge. The imposition of this penalty does not appear to have resulted from any bias or prejudice on the part of supervisory personnel against the grievor.

The facts are as follows. The Employer operates a telegraph service with offices in Quebec City. This office not only provides a telegraph service for the area surrounding Quebec City, but also provides French language services to the whole of Canada. If a person in any part of Canada wishes to send a telegram in French his call is routed through this office. The service operates 24 hours a day, 7 days a week. There are 3 shifts of operators to handle calls coming into this office. There are 6 to 8 operators on the day shift ; 3 operators on the afternoon shift ; and 1 operator on the night shift.

The operators on the day and afternoon shifts work a full 8 hours with 1/2 hour off for lunch and two 15 minute rest periods. The night shift, however, is different. The evidence indicates that because there is only 1 operator on the night shift and it is necessary to have him man the telephones at all times, the night shift operator works only 7 hours per shift, upon the understanding that he may eat his lunch in the office during a 1/2 hour rest period.

The grievor worked the night shift from about January, 1977 until his discharge on August 20, 1978. The testimony at the hearing indicates that at some point between 1:45 a.m. and 2:10 a.m. on August 20, 1978, the grievor left his post at the telephones in the office and drove his car to the scene of an accident which had occurred some distance away on Champlain Blvd. in Quebec City. (Apparently, a CN Policeman, Eugene Tasse, came into the office to use the telephone and in the course of so doing, informed the grievor that this accident had occurred, in which two persons were killed. According to the grievor this piqued his curiosity, and he could not resist going to the scene to have a look). The grievor did not return to the office until approximately 3:00 a.m.

When the grievor absented himself, he was unaware that his actions were being observed by his supervisor, Mr. P. Gagne. Mr. Gagne had been watching the grievor from his own car in the parking lot. After the grievor left, Mr. Gagne waited in his car until about 2:30 a.m. ; thereafter, he went into his own darkened office from which he was able to view the telephone room through a glass partition. At about 3:00 a.m. the grievor returned. He did not notice the presence of Mr. Gagne. The latter then telephoned the grievor from his own office and asked him where he had been. The grievor, thinking that Mr. Gagne was calling from his own home, did not tell the truth. He stated that he had been on his lunch break and had been back in the office for 20 minutes. He told Mr. Gagne that if he had attempted to call him previously, he must have dialed the wrong number. Mr. Gagne then confronted the grievor and suspended him from duty.

On August 22, 1978, at 2:30 p.m. the grievor attended a meeting with Mr. Gagne in which Mr. Gagne handed him a written notice that he was discharged as of August 20, 1978. This meeting was also attended by Mr. Ian Stones, the Acting Chairman of the Union and Jean Paul Dorval, a co-worker of the grievor.

The above letter of discharge stated that the grievor’s services were no longer required by the Company because of his "absence from work between 1:45 a.m. and 2:58 a.m. on August 20, 1978, the saturation point in your performance and behaviour at work. On 11-30-77 and 02-13-78 15 and 30 demerit marks were credited to you for the same reasons".

The two previous incidents cited in the letter of discharge were as follows. On November 30, 1977, the grievor was assessed with 15 demerit points because he was absent without authorization on October 23, 1977. It was the position of the Employer at that time that the grievor absented himself from work 12:10 a.m. to 3:30 a.m. Although the grievor protested in a letter that he had not been gone for such a long period of time, he did not grieve the imposition of this discipline. On February 13, 1978 the grievor’s record was assessed with another 30 demerit marks. The letter imposing this discipline on the grievor stated that it was being imposed "for failing to protect the telegraph service on December 26, 1977, January 22, 1978 and the 27th of January 1978. These incidents have been added to your record". In each case, the grievor had absented himself from his place of employment without permission, thereby leaving no one to answer the telephones and relay telegraphic messages. Again, the grievor did not grieve the imposition of this discipline.

Throughout the period of time embraced between the date of the first imposition of discipline and of the date of discharge, Mr. Gagne sought to have several talks with the grievor in an attempt to impress upon him the necessity of remaining in the telephone room during the night shift. These informal attempts to reason with the grievor were confirmed in the testimony of Mr. Gagne and of the grievor. The evidence further confirms that at the time of first imposition of the discipline (November 30, 1977) the grievor was well aware that he was not to leave the telephone room during his shift. In a letter to Mr. Gagne which was received by the latter on October 26, 1977, the grievor, inter alia, stated :

"I agree that I had no right to leave the building to pick up lunch . . . "

The Company submittted that upon this evidence, it was justified in discharging the grievor. Referring to the Culminating incident Doctrine, which permits an employer to take into account the past record of an employee in imposing discipline where the latter persists "in misconduct of the same type",* the Company argued that the persistence of the grievor in absenting himself from the night shift despite efforts at correction through lesser discipline and interviews justified imposition of the penalty of discharge.

The Union, however, argued that the imposition of the discipline of discharge was too severe because the grievor was doing no more than employees on the day and afternoon shifts admittedly did, i.e. absent themselves for a short period of time to obtain lunchs from fast food restaurants or cash pay cheques, etc. The Union also contended

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*Brown & Beatty, Canadian Labour Arbitration, at p. 371

that Mr. Gagne was biased against the grievor. In support of this contention, the Union pointed out that in the culminating incident, Mr. Gagne had gone to the trouble of spying on the grievor from his car in the parking lot, and later from his office. Evidence was also tendered that Mr. Gagne had placed early morning calls to the office in an effort to determine whether the grievor was present. There was also evidence that Mr. Gagne had asked the CN Police to watch the grievor and report whether he was in the office at all times during his shift.

We are, however, unconvinced by these contentions that the grievor was unjustly discharged. As to the first point, the evidence was undisputed that on the night shift it was necessary for the operator to be on the premises at all times because he was the only one there. The evidence was also uncontraverted that in view of this requirement the employee on the night shift was accorded special concessions such as a shortened shift and permission to eat lunch in the telephone room. The evidence is undisputed that the grievor knew that he was required to stay on the premises. He admitted this to be true. As a result, it appears to be unavailing to attempt to support a contention of unfairness upon comparison with other shifts where the presence of other employees makes the temporary absence of one employee less critical.

On the second point raised by the Union, we do not think that the evidence supports an inference of bias against the grievor on the part of Mr. Gagne. At most, Mr. Gagne was a zealous supervisor. It is clear from the evidence that Mr. Gagne only began to watch the grievor more closely in response to repeated complaints that were directed to him that for some reason or another telephone calls were not being answered during the night shift. In view of the fact that the grievor was untruthful with Mr. Gagne on previous occasions regarding the reason why telephone calls were not being answered on the night shift, it was not unreasonable for Mr. Gagne to attempt to determine for himself, as supervisor, the precise nature of the activities of one of his employees. Any inference of bias is further negated by the fact that Mr. Gagne had undertaken to have several informal chats with the grievor in an effort to induce him to recognize the importance of being in the telephone room at all times during the night shift, and thereby induce the grievor to mend his ways.

We are convinced beyond reasonable doubt that the grievor was discharged for just cause. All attempts at correcting the grievor’s misconduct through the imposition of lesser discipline, etc., had failed. The grievor was caught repeating the same conduct for which he was previously disciplined and thereafter repeating his established pattern of

lying to his supervisor about the absence. He obviously had learned nothing from the previous efforts of the Company to induce him to change his pattern of behaviour. At the time of the culminating incident, the grievor knew he was in jeopardy. He even testified that he lied to Mr. Gagne on this occasion because he was sure that he was at fault and with the previous two incidents on his record he was sure that he would be fired.

The grievance is dismissed.

DATED in London, Ontario this 29th day of October 1979.

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R. J. Roberts, Chairman

I concur ______________________________________

John P. Sanderson, Q.C., Company Nominee

I do not concur ______________________________________

William Walsh, Union Nominee