©b59r AD HOC 140
©u42rIN THE MATTER OF A GRIEVANCE INVESTIGATION
©u42rPURSUANT TO SECTION 112 OF THE B.C. LABOUR
©u17rCODE IN A DISPUTE
BETWEEN: THE BRITISH COLUMBIA RAILWAY COMPANY (Hereinafter Referred
To As "The Company")
AND: THE UNITED TRANSPORTATION UNION, LOCALS NO. 1178 AND 1923
(Hereinafter Referred To As The "Union")
Section 112 Investigator: Brian Foley
Appearing For-The Company: D. Pysh, D.Sawchuk, A. Shannon
Appearing For The Union: C. Mulhall, R. Sharpe
Date of Meeting With The Parties: October 21, 1983 at Vancouver,
Date of Written Report: October 28, 1983
ISSUE: Policy Grievance - Pay Entitlement Of Employees Withheld From
Service Pending A Disciplinary Hearing
By agreement between the Company and the Union, the undersigned was
appointed under Section 112 of the B.C. Labour Code to investigate
grievances and make written recommendations to the parties for their
resolution. In September 1983, the parties requested a
recommendation with respect to the pay entitlement of employees
withheld from service by the Company pending a disciplinary hearing.
A meeting with the parties was held in Vancouver on October 21, 1983.
At this meeting, the parties agreed that the grievance investigator
was properly constituted and had the jurisdiction to deal with the
matter in dispute. In addition, the parties agreed that the
investigator's recommendations would be final and binding.
The Company's disciplinary procedure is based on the demerit points
system. Before any disciplinary action is taken by the Company, a
hearing is held to determine if discipline should be imposed. That
approach is set out in Clause 107(b)(iv) of the collective
agreement. That clause provides as follows:
" An employee will not be disciplined or dismissed until a
fair and impartial hearing has been held and until the
employee's responsibility is established by assessing the
evidence produced and no employee will be required to assume
this responsibility in his statement or statements. A
hearing shall be held and the employee advised in writing of
the decision within 15 days time from the time the report is
rendered, except as otherwise mutually agreed."
In some circumstances, when the Company becomes aware of an alleged
offence by an employee, the Company decides to withhold the employee
from service until a hearing has been held pursuant to Clause
107(b)(iv). The period between the date of the employee being
withheld from service and the finalization of the hearing process
generally ranges from a few days to two weeks. In such cases, the
employee is not paid his regular salary while the hearing process is
pending. The Union argues that the employee is in fact being
"disciplined" when he is withheld from service without pay. In the
Union's view, it is a violation of Clause 107(b)(iv) to impose any
penalty on the employee until the hearing process has been concluded.
The Company argues that withholding an employee from service is not a
disciplinary measure and the action is specifically covered by the
provisions of Clause 107(b)(vi). That clause provides as follows:
" An employee is not to be held off unnecessarily. Layover
time will be used as far as practicable. An employee who is
found blameless or an employee called by the Railway as a
witness, will be reimbursed for time lost, in accordance with
Part (a) of this Article."
The Company points out that if an employee is found blameless
following-the hearing process, he is reimbursed for all time he was
held out of service without pay.
The parties are agreed that the Company is entitled to withhold an
employee from service if the alleged offence is of such a nature that
he cannot reasonably be continued in service until his guilt or
innocence is determined --- they are agreed that some alleged
offences such as the use of intoxicants on duty, gross
insubordination, theft, etc. substantially undermine the employee's
effectiveness in the work environment and the problem cannot, in some
circumstances, be met by anything other than withholding the employee
from service. The parties are also agreed that there must be good
and sufficient cause for withholding an employee from service - the
action of withholding from service must be seen to be a reasonable
and defensive course of action in the circumstances at hand --- it is
a serious action which should only be used in exceptional
However, the Union argues that an employee who is withheld from
service is entitled to continue to be paid until the hearing process
pursuant to Clause 107(b)(iv) is completed. The Union argues that it
is unfair and unreasonable to impose a financial penalty upon an
employee (i.e., by withholding him from service and discontinuing his
salary) until it has been determined as a result of the hearing
process whether or not discipline is to be imposed upon him. The
Union submits that Clause 107(b)(iv) is clear on its face and can
only mean that an employee must be paid for all time he is held out
of service up to and including the day of the hearing and until the
decision respecting discipline has been rendered by the Company. In
support of its argument the Union refers to the "guarantee"
provisions contained in Articles 201, 212, 308 and 401; it is the
Union's view that these articles do not permit the reduction of
salary now imposed on employees by the Company when employees are
withheld from service.
The Company does not agree that withholding an employee from service
pending the hearing process under Clause 107(b)(iv) is a disciplinary
action. Rather it is submitted that disciplinary action is only
taken once the hearing process has concluded --- until the hearing
takes place and its results are assessed by the Company, discipline
cannot and is not imposed. The Company argues that the wording under
Clause 107(b)(vi) leads one to the conclusion that employees held out
of service will not be paid during the period they are held out of
service --- emphasis is placed on the provision that an employee who
is found blameless as a result of the hearing process will be
"reimbursed for time lost".
Finally, the Company argues that the Union is attempting to achieve
through arbitration what it was unsuccessful in achieving in past
rounds of negotiations.
It is a generally accepted principle that discipline can only take
place after "a proper assessment of all the pertinent factors
involved in the alleged offence" (©u21rRe Northern Foodmarts, 20 L.A.C.
214; Godin; 1969). That point was also made by arbitrator
Hanrahan in ©u16rSperry Gyroscope, 17 L.A.C. 426; 1966:
" The imposition of penalties by management is a
quasi-judicial function that must be undertaken with an
awareness of all important factors that would make sure
action appears reasonable in an impartial review."
Clause 107(b)(iv) of the collective agreement in the present case
prescribes the means for "a fair and impartial hearing" before
discipline is imposed. That being the case, the action by the
Company of withholding an employee from service pending the
finalization of the hearing process under Clause 107(b)(iv) cannot be
considered discipline within the terms of the collective agreement.
Rather, it might well be termed a non-disciplinary suspension from
service in that it suspends final judgment as to whether discipline
should be imposed pending the outcome of the hearing process.
If I Consider Clause 107(b)(iv) by itself in isolation from the other
provisions of the collective agreement, the union's argument would
certainly be persuasive. Clause 107(b)(iv) is silent as to whether
employees should continue to be paid when held out of service and,
considering that clause in isolation, I might be led to the
conclusion that it is only fair, just and reasonable to continue an
employee's salary until the company decides whether or not discipline
However, clause 107(b) cannot be considered in isolation from the
other provisions of the collective agreement, specifically clause
107(b)(vi). It is my responsibility to interpret the collective
agreement as a whole, to give meaning to a collective agreement
provision by assessing the wording in terms of all the provisions in
the entire collective agreement.
In my view, the reference in clause 107(b)(vi) to the fact
that an employee found blameless 'will be reimbursed for time lost"
must lead to the conclusion that employees withheld from service are
denied salary when so withheld.
Reading 107(b)(iv) and 107(b)(vi) together, I have concluded that the
company is entitled to deny salary payment to an employee withheld
from service. Whether that the Company has the right to take that
action pursuant to the terms of the collective agreement. In
reaching this conclusion, I have also considered the union's argument
that the "guarantee" provisions included in a number of articles do
not permit the reduction of salary imposed when employees are
withheld from service. I cannot agree with the union's arguments in
this regard. there is no tie-in between the guarantee articles and
the provisions of clause 107(b)(iv) and 107(b)(vi). I would
recommend that the union's grievance be denied.
All of which is respectfully submitted.
Dated at Vancouver, British Columbia, this 28th day of October, 1983.