AD HOC 162

AWARD

The undersigned was appointed as arbitrator in this matter by the Honourable the minister of Labour upon application of the parties. The matter is properly before me for determination pursuant to the collective agreement in effect between the parties.

The issue in this case is concisely set out in the following statement, agreed to by the parties:

On October 27, October 29 and November 3, 1969, Train Dispatcher J.H. Quigg, Saint John, N. B., violated Rule 4, Paragraph 2 of the Uniform Code of Operating Rules through the issuance of three incorrect train orders, one on each of the above dates. For his failure in this regard, he was debarred permanently from the position of Train Dispatcher. The Union contends that this penalty was too severe and that Quigg be reinstated forthwith as a train dispatcher with full seniority rights, but without monetary restitution. The Company contends that the penalty was not too severe.

Rule 4 of the Uniform Code of Operating Rules, admittedly violated by the grievor, reads as follows:

Each time table, from the moment it takes effect, supersedes the preceding time table, and its schedules take effect on any subdivision at the leaving time at their initial stations on such subdivision; but when a schedule of the preceding time table corresponds in

NUMBER

CLASS

DAY OF LEAVING

DIRECTION

INITIAL and TERMINATING STATIONS

with a schedule of the new time table, a train authorized by the preceding time table will retain its train orders and assume the schedule of the corresponding number of the new time table.

Schedules on each subdivision date from their initial stations on such subdivision. (emphasis added)

Not more than one schedule of the same number and day shall be in effect on any subdivision

NOTE: “Day of leaving” is the day of the week the schedule authorizes a train to leave its initial station any the subdivision.

The violation of Rule 4 seems to have arisen as a result of the grievor’s failure to notice, or at least bear in mind, a change in the Company’s timetable of trains which became effective immediately prior to the time in question. Train No. 60 provides regular service between McAdam and Fredericton. For several years, under previous timetables, Train No. 60 has been scheduled to leave McAdam at midnight. In the new timetable effective Sunday, October 26, 1969, it was shown as due to leave Mcadam at 23.45 hours, that is before midnight.

The train orders involved here were directed to the operator at Lancaster for delivery to Extra 8481 West (or to other trains, as appropriate in each instance). The extra train ran from St. John to Mcadam, and it was necessary for the crew of that train to know whether Train No. 60 had reached Fredericton junction, before proceeding beyond that point. Unless otherwise advised, it would be necessary for the conductor of the extra train to check the train register at Fredericton Junction, to determine whether Train No. 60 had reached that point. The necessity for this was obviated by advising the crew of the extra train, prior to their arrival at Fredericton Junction, that Train No. 60 had reached that point. This was the quite proper purpose of the messages sent by the grievor.

In the case of the message to Extra 8481 west, sent on Monday, November 3, 1969, at 08.01 hours, it stated that “No. 60 due to leave McAdam, Monday, November 3rd has arrived at Fredericton Jct.” The second paragraph of Rule No. 4 provides that “ Schedules on each subdivision date from their initial stations on such subdivision.” Thus, the Train No. 60 to which the grievor meant to refer in his message was the one due to leave McAdam at 23.45 on Sunday, November 2nd, and not on Monday, November 3rd. It seems that on at least one of the occasions in question, Train No. 60 was late leaving McAdam, and it may have been that it did in fact depart on Monday, November 3. The leaving time is recorded on the train sheet. But however this may be, the fact is that it was scheduled to leave on Sunday, November 2. The grievor misdescribed the train in the message, which was sent, and in so doing violated Rule 4. The incidents in each case are similar, and involve the same violation of the Rule.

It will be noted that the substance of the message was correct. The Train No. 60 whose arrival at Fredericton Junction was of concern to the crew of Extra 8481 West had in fact arrived at Fredericton Junction, and the same was true in the other cases. No particular danger would appear to have been caused by the messages in question. It is the Company’s position, however, that these errors were of such a nature as to reveal the grievor’s incompetence to perform the job of Train Dispatcher, and to justify its action in permanently debarring him from it.

There can be no doubt, as the Company urges, that accuracy in the formulation and transmission of train messages is of the utmost importance in the job of Train Dispatcher. While the grievor’s errors in the instances in question may not have created any substantial immediate hazards, they were nevertheless errors in an area where accuracy must be maintained. Errors of this sort could, in my view, be grounds for discipline, and might also, as here, be the occasion for a review of the grievor’s fitness to carry out his duties.

Demotion, it has been held, is generally improper as a form of discipline: Tecumseh Products, 19 L.A.C. 180. Here, of course, while discipline might also be justified, the question is whether the grievor was in fact able, or could be relied on, to perform his work properly. The commission of errors, or a reduction of efficiency, however, does not necessarily cry out incompetence or inability to perform: see the DeHavilland case, 19 L.A.C. 198. The question is whether the grievor could meet the reasonable requirements of his job, and in the case of a job with responsibilities, such as those of a Train Dispatcher, it is also whether he could be relied on to meet those requirements.

As to the grievor’s ability to perform his work, there is no doubt. He has been employed by the Company since 1947, becoming an Assistant Agent on April 1, 1948, and an Operator on December 3, 1948. He has been qualified as a Dispatcher since January 23, 1961. He has passed the necessary written and oral examinations and has the necessary certificate. Indeed, it was not suggested that he was not capable of performing the work. It is the Company’s case, in essence, that the grievor had not cultivated the habit of paying attention to duty. In support of this contention, the Company relied not only on the three incidents of misdescription referred to in the parties’ joint statement, but also on an incident which occurred in 1966, when the grievor failed to deliver two train orders to Train No. 908 at Megantic. In that case, the grievor was also debarred from acting as Train dispatcher, although he was subsequently reinstated by the Company on its own motion in 1967.

It may be that, because the instant case relates only to the matters set out in the joint statement, the earlier matter ought not to be referred to. Even if the earlier matter is considered, however, it is my view that these incidents, while giving cause for discipline, are not sufficient justification for the determination that grievor could not be relied on to do his job properly. The misdescription of Train No. 60 does not appear to be as serious a matter as the outright failure to deliver messages. In the circumstances of this case, it must be described as an error of detail. I do not suggest it was a trivial matter, for in this context it was not, and was quite properly regarded very seriously by the Company, as it should be by the grievor. It does not, however, “cry out incompetence”, even though it raises that issue.

For the foregoing reasons it is my conclusion that it was not proper permanently to debar the grievor from the position of Train Dispatcher. He is entitled, therefore, to be reinstated in that classification forthwith, and I so award. Having regard to all the circumstances, however, no award as to compensation will be made.

DATED AT TORONTO, THIS THIRTIETH DAY OF JULY, 1970.

(signed) J. F. W. WEATHERILL

ARBITRATOR