AH - 181
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the “Company”)
AND
THE CANADIAN PACIFIC POLICE ASSOCIATION
(the “Association”)
IN THE MATTER OF THE GRIEVANCE OF Constable P. J. LeBlanc
Sole Arbitrator:
J. D. O’Shea, Q.C.
There appeared on behalf of the company:
D. W. Flicker
There appeared on behalf of the Union:
Robert Skelly
A hearing in this matter was held at Montreal, Quebec, on the 23rd day of March, 1982.
This matter arose and came on for hearing under the provisions of the collective agreement between the parties which continued in effect to December 31, 1981. The relevant provisions of the collective agreement read:
6.05 Except as otherwise provided in Article 6.04 duty rosters covering two week periods will be posted and will show employees’ tours of duty of reporting locations, starting times and rest days, except for those employees whose tours of duty are designated as relief, in which case only the rest days will be shown. Where starting times are shown on the duty roster, they shall be the same for each regular work day between an employee’s rest days, except that this will not apply to relief positions, nor will it apply when the duty roster must be adjusted due to additions or deletions of staff. Duty roster will commence at 0001 hours on Sunday up to and including 2359 hours on the second Saturday thereafter and will be posted forty-eight hours in advance of the commencement of the two-week period. Upon request, District Representatives will be supplied with a copy of duty rosters posted in their respective Districts.
6.06 Employees may be taken from their tours of duty as shown on the duty roster to meet the demands of the service and in case of emergency or special assignments such as derailments, etc., and shall be returned as soon as possible to their assigned tours of duty shown on the current roster.
6.09 Except where employees are taken from their tours of duty as provided in Article 6.06, when starting times are to be changed, at least twenty-four hours’ notice will be given the employee affected.
6.10 Notwithstanding the provision of Article 6.09 hereof the starting times or shifts of employees whose tours of duty are designated as relief may be changed to meet the requirements of the service except that no relief employee shall have his shift changed more than twice in a given week. Wherever possible an employee will be informed not later than the end of his previous tour of duty as to any such changes.
7.01 Except as otherwise provided, time worked on proper authority on any day in excess of eight hours, exclusive of meal period, shall be considered overtime and paid on the actual minute basis at the rate of time and one-half.
7.02 Except as otherwise provided, time worked in excess of forty straight-time hours shall be considered as overtime and paid for at the rate of time and one-half.
7.03 In the application of Articles 7.10 and 7.02 punitive overtime rates will not be paid where an employee moves from one assignment to another through the exercise of seniority or in instances of shift rotation pursuant to Article 6.03 or for the purpose of an employee’s changing shifts when working in relief service, as provided for in Article 6.10, or when an employee moves from a laid-off list.
7.04 There shall be no overtime on overtimes neither shall overtime hours paid for, other than hours not in excess of eight paid for on holidays or for changing shifts, be utilized in computing the forty hours per week, nor shall time paid for in the nature of arbitraries or special allowances such as attending court, deadheading, travel times, etc., be utilized for this purpose, except when such payments apply during assigned working hours in lieu of pay for such hours, or where such time is now included under existing rules in computations leading to overtime.
7.05 Employees shall not be required to suspend work during regular hours to equalize overtime.
7.06 Except as otherwise provided in Article 7.01, employees notified of called to perform work not continuous with, before or after, the regular work period shall be paid for a minimum of three hours at time and one-half, and if held on duty in excess of three hours, time and on-half shall be paid on the minute basis.
7.07 For the purpose of calculating hourly rates, weekly rates shall be divided by forty. Fractions of one-half cent and over shall be as one cent; fractions of less than one-half cent shall be dropped.
7.08 Except in the application of Article 6.09, if an employee is called in advance of his regular starting time, he shall be paid for all time worked in advance of and continuous with his regular starting time at the rate of time and one-half on the minute basis with a minimum of one hour at time and one-half.
7.09 Employees required to work in excess of two hours’ overtime continuous with their regular tour of duty shall be allowed a twenty-minute meal period as soon as practicable without loss in pay.
Rest Days
9.01 Employees shall be assigned tow rest days during each calendar week. Such rest days shall be consecutive as far as possible and shall not be split except where it is necessary to meet the Company’s operational requirements and that otherwise working an employee at overtime rates would be involved.
Article 10
Disciplinary Hearings
10.01 No employee shall be disciplined or discharged until he has had a fair and impartial hearing and his responsibility is established. Except as otherwise provided in Article 10.04 an employee will not be held out of service in excess of ten working days, pending the holding of a hearing. Such hearing shall be held as soon as possible and where suspension is involved, not later than twenty-five working days from the date suspension unless otherwise mutually agreed.
10.02 An employee shall be given an advance notice of five working days of such hearing and be advised in writing of the time, place, and subject matter of such hearing. An employee may have a fellow employee or a member the Association present to assist him. The employee shall be furnished with a copy of his statement and copies of all evidence taken at the hearing and shall be present during examination of any witness whose testimony may have a bearing on his responsibility. He may offer rebuttal evidence thereto.
10.03 When suspension pending the holding of a searing is involved, the employee will be given advice in writing within five working days of his suspension as to the reasons for such suspension.
10.04 A decision shall be rendered within fifteen working days from the date of the hearing. Pending the rendering of such decisions, the employee will be held out of service only where the circumstances are considered sufficiently serious to warrant such action. The employee will be furnished with a copy of the decision in writing.
10.05 If the employee considers the decision rendered is unjust, an appeal in writing may be made in accordance with the Grievance Procedure. Where demotion in grade or rank, suspension or dismissal is the discipline, the appeal may commence at Step 3 of the Grievance Procedure within fourteen calendar days from the date that he is advised of the decision in writing.
10.06 If, in the final decision, the charges against an employee are not sustained, his record shall be cleared of the charges; if suspended or dismissed; he shall be returned to his former position and reimbursed for wages lost; less any earnings derived from outside employment during the period so compensated; if the investigation was away from home, he shall be reimbursed for reasonable travel expenses upon presenting receipts.
10.07 Any employee appearing before a disciplinary hearing shall be given the option of using the language (English or French) in which he can express himself most fluently.
Grievance and Arbitration Procedures
Grievance
11.01 Any dispute respecting the meaning, interpretation, application , administration or alleged violation of the provisions of this agreement or when an employee claims that he has been unjustly dealt with in respect thereof, may be dealt with in the following manner:
11.04 Step 3
If the grievance is not settled at Step 2, the Association may appeal the decision in writing, giving the reason for the appeal to the Chief of the Department of Investigation within twenty-eight calendar days following receipts of the decision in Step 2. The Chief will render a decision in writing giving his reasons for the decision within twenty-eight calendar days following his receipt of the appeal.
11.11 Arbitration
Failing settlement of a grievance at Step 3 of the Grievance Procedure, it may them be referred by either party to a single arbitrator in accordance with the following procedure for the final and binding settlement without work stoppage.
11.14 The parties will provide the arbitrator with a Joint Statement of Issue. This Joint Statement of Issue shall contain the facts of the dispute and reference to the specific provision of provisions of this agreement where it is alleged that the agreement has been violated. In the event the parties cannot agree upon such Joint Statement each party shall submit a separate statement to the arbitrator in advance of the date of the hearing and shall, at the same time, give a copy of such statement to the other party.
11.16 The decision of the arbitrator shall not add to, subtract from, modify, rescind or disregard any provision of this collective agreement.
11.17 The arbitrator shall hear the parties and allow them to present all pertinent evidence and shall render a decision in writing with all reasonable diligence after completion of the hearing within thirty calendar days thereafter. His decision shall be final and binding.
The grievor, P.J. LeBlanc was hired as a Police Constable by the Company on April 1, 1960 and was covered by the provision of the collective agreement at all relevant times. Prior to the incidents, which lead to the grievance in this matter, the grievor had no disciplinary notations on his record. The grievor was a police officer within the meaning of the Railroad Act and also a peace officer under the Criminal Code.
At the hearing, the parties signed and filed the following Statement of Issue:
Statement of Issue
Statement of Fact
Constable Peter Leblanc worked from august 30 to September 7, 1981. On September 5, 1981, at 21:30 hours, he was requested by Sergeant G.H. Thomson to work overtime from his regular shift ending at 23:00 hours until relieved by the Constable scheduled to commence the next shift scheduled at 01:00 hours, September 6. He declined to do so.
On Labour Day, September 7, 1981, at approximately the same hour, he was again requested by desk Constable W. Clayton , to work overtime after 23:00 for the same reason. He declined to do so.
On October 13, 1981, he was advised in writing that he was suspended without pay for ten (10) working days (October 14 to October 25, 1981) for insubordination in that he had refused to execute overtime hours on the aforesaid September 5 and 7, 1981.
Statement of Issue
The Union and the grievor, Constable Leblanc, contest the disciplinary measure on the grounds that:
The Company contends the discipline was validly imposed.
For the Company: For the Union:
Superintendent Secretary
During the period in question, the grievor was employed on the afternoon shift at the Tormon freight shed in the City of Montreal. The Tormon freight shed normally operates from 7:00 a.m. to 4:00 p.m. A large variety of valuable consumer goods are processed through the freight shed from trucks to railways freight cars for transshipment. Prior to 1980, the Company had assigned Constables to the Tormon freight shed only during times when employees were working in the freight shed. However, following a series of break-ins during the nighttime hours, which involved both theft and vandalism, the Company decided that it was necessary to provide police coverage for the Tormon freight shed on a twenty-four hour basis. The Tormon freight shed is a very large complex and is considered to be a high risk area because of the type of goods that are transshipped through the freight shed.
The evidence established that Constable Harrison, who would normally relieve the grievor at the conclusion of his shift, had sustained an injury on August 28, 1981 and was on sick leave at the time of the incidents in this matter. Since Constable Harrison was not available to relieve the grievor at 11:00 p.m., the Company decided to have one of its relief Constables, who was scheduled to commence duty at midnight, take over the Tormon freight shed duties from the grievor. However, the relief Constables, who have no prescheduled duties, report to Windsor Station in Montreal from where they are re-assigned as required. It takes about on-half hour to travel from Windsor Station to the Tormon freight shed. Accordingly, the Company anticipated that the grievor would have been required to work one and one-half hours overtime while waiting for his relief to arrive.
On September 5, 1981, the grievor’s regular shift was scheduled to end at 11:00 p.m.. However, at about 9:30 p.m., he was contacted by Sergeant Thomson and was asked to work overtime following the conclusion of his shift. The grievor advised Sergeant Thomson that he had other commitments and he refused the overtime assignment on September 5, 1981 and, accordingly, booked off at 11:00 p.m.
Since the grievor’s replacement did not arrive at Tormon freight shed until about 12:30 a.m. on September 6, 1981, there was no police coverage for the freight shed for about one and one-half hours.
Again, on Monday, September 7, 1981 (Labour Day) at about 9:30 p.m., Sergeant Thomson, who was in a patrol car at the time, relayed a message to the grievor through Constable Clayton who was assigned to the desk that evening. Sergeant Thomson again directed the grievor to wok overtime following the conclusion of his shift for the same reasons that were given on September 5, 1981. The grievor again refused the assignment and booked off at 11:00 p.m.
On September 15, 1981, the grievor received the following notice of a disciplinary hearing:
In accordance with Article 10.02 of the Collective Agreement between Canadian Pacific Limited and the Canadian Pacific Police Association, you are hereby advised that a Disciplinary Hearing, at which you are to be present, will be held in the office of Inspector - personnel L. Lecavalier, Windsor Station, Montreal, Que., at 1600 hours, Monday, 5 October 1981.
This hearing is in connection with two allegations that you were insubordinate in that you disobeyed lawful orders by refusing to perform overtime duties at 2300 hours on 5 September 1981 and also at 2300 hours on 7 September 1981, after having been properly instructed to do so.
At this hearing , you may be assisted by an accredited member of your Association of by a fellow worker.
The minutes of the disciplinary hearing reveal that the above facts were established and that both Sergeant Thomson and Constable Clayton’s reports of the incident were presented and copies were given to the grievor. Both Sergeant Thomson and Constable Clayton were produced as witnesses at the disciplinary hearing, however, the grievor elected not to cross-examine either of them or to offer any evidence which might have rebutted their reports.
However, when counsel for the company attempted to introduce the reports of Sergeant Thomson and constable Clayton at the arbitration hearing in this matter, counsel for the Union strenuously objected to the introduction of these reports since neither Sergeant Thomson nor Constable Clayton were available to testify or to be cross-examined by the Union’s counsel. It was the Union’s position that it was the duty of the arbitrator to hear all of the evidence and make his determinations based upon the evidence that he heard. At the hearing, I ruled that I would reserve my decision on the probative value to be attached to the two reports but that I would allow the reports to be introduced as exhibits in these proceedings because, whether factual or not, the reports form part of the basis for the Company’s decision to suspend the grievor. However, after giving further consideration to the matter, I find that these reports are also admissible as evidence to prove the contents of the reports. Although the reports may be treated as evidence at an arbitration hearing since they formed part of the record of the proceedings which lead to the arbitration hearing in view of the provision of Article 10 of the collective agreement, the reports may be rebutted by other evidence. However, as in this case, where the author of a report is produced as a witness and is subject to cross-examination by the grievor or his representative at the disciplinary hearing contemplated by Article 10, and where no attempt is made to rebut the evidence contained in the report, it is reasonable to find that the report is factual and is a reliable account of what is reported, in the absence of credible evidence which may de adduced to the contrary at the arbitration hearing. In the instant case, no such evidence was adduced by the grievor either at the disciplinary meeting or the arbitration hearing.
Sergeant Thomson’s report which is dated September 10, 1981, reads:
Subject: Relief of Constable P. Leblanc Tormon Shed.
Sir:
On September 4th, 5th, 6th, & 7th Constable P. Leblanc was on duty at Tormon Shed from 1500 to 2300 hours and had to be supplied a relief from H.Q. on all four dates due to his regular relief being on sick leave. On September 4th no notification was given to Constable Leblanc by myself or by Office Constable W. Clayton. Constable Leblanc was booked off duty by the Office Constable at 2300 hours without him seeing his relief as Constable Lefebvre was booked for that duty leaving H.Q. at 0001 hours on the 5th inst. On September 5th Constable Leblanc was instructed by me to remain on duty at Tormon until relieved when I visited him at 2120 hours and he replied you told me but they reply don’t need a relief. Once again a relief was sent from H.Q. commencing at 0001 hours 6th inst. Being Constable L. Cartwright.
On September 6th he was relieved at 2300 hours by Constable Y. Beauchamp assigned to the Special Patrol until a relief could be provided from H.Q. for the remainder of the Shift. Constable Leblanc to remain on duty at Tormon until relieved. Upon my arrival at H.Q. at 2305 hours I checked the Telephone call sheet and noticed that Constable Leblanc had booked off at 2300 hours. I asked Constable Clayton about this and he replied that Leblanc had told him he had other commitments. Constable J. Sevigny detailed for ST. Luc Yard 0001 hours on the 8th inst. was sent to Tormon to relieve him.
Constable Clayton’s report which is dated September 11, 1981 reads:
Subject: Constable P. Leblanc booking off duty at 2300 hours, after being advised to remain on duty until relieved.
Sir:
At 2130 hours, September 7th, 1981, while on duty in the Police Office, I received a telephone call from Duty Sergeant G. M. Thomson, instruction me to advise Constable P. LEBLANC, on duty at Tormon Assembly, and due to finish work at 2300, to remain on duty until relieved by the St.Inc Constable who commences duty at 0001 hours, September 8th, 1981.
I immediately advised Constable Leblanc of the Sergeants instructions, and he acknowledged same, booking off duty at 2300 hours for his own personal reasons.
The grievor also submitted the following statement to the Company on September 10, 1981:
MONTREAL, September 10, 1981.
CP.POL.AR.MTL
From: Constable P. LeBlanc
Date : SEP 81 10: 13
To: Superintendent J. G. Collins
Sir:
This report is submitted as per instructions from Inspector L. Lecavalier. The requests concerns my refusal to work overtime at Tormon Assembly on the 4th, 5th, 6th, and 7th, of September, 1981.
On September 4th, I terminated my shift at 2300 hours, no demand for overtime was requested.
On September 5th, at 2200 hours Sergeant G. N. Thomson requested me to work overtime. I said at this late hour I could not, as I had made prior commitments and booked off duty at 2300 hours.
On September 6th, I terminated my shift at 2300 hours, no demand for overtime was requested.
On September 7th, at 2130 hours Constable W. CLAYTON requested me, from instructions by Sergeant G. M. Thomson to work overtime. Again, at this time I could not and terminated my shift at 2300 hours.
On October 13, 1981, the grievor received the following notice of suspension:
Please refer to Disciplinary Hearing held in the office of Inspector - Personnel L. Lecavalier on 5 October 1981, in connection with two allegations that you were insubordinate in that you disobeyed lawful orders by refusing to perform overtime duties at 2300 hours on 5 September 1981 and also at 2300 hours on 7 September 1981, after having been properly instructed to do so.
In accordance with Article 10.04 of the Collective Agreement, you are hereby advised that the allegations are sustained and discipline is that you will be suspended from duty, without pay, for a period of ten workings days, that is from 14 October to 25 October 1981, inclusive. Your personal staff record will be marked accordingly.
The Union appealed the suspension to Mr. Legault, the Chief, by letter dated October 19, 1981, which reads:
Dear Mr. Legault:
This has reference to the ten day suspension, without pay, given to constable Peter Leblanc, Montreal, for the period October 14th to October 25th 1981, inclusive. This suspension is based on the allegation that he disobeyed lawful orders by refusing to perform overtimes duties at the termination of his shift at 2300 hours, September 5th and again at 2300 hours on September 7th 1981.
On the first date, September 5th, constable Leblanc had worked eight hours overtime in the week, (August 30th to September 5th inclusive) and had he remained on overtime as ordered, he would have been in violation of the Canada Labour Code, Division 1, “Hours of Work”. This was therefore, an unlawful order.
O the second date, September 7th, constable Leblanc was working on a General Holiday, “Labour Day”, and believed that once again he had performed the maximum allowable hours in the week, September 6th to 12th inclusive. Also, on this occasion he did not receive orders from a Duty Sergeant to remain on overtime duty beyond 2300 hours, but received them directly from the Office Constable at Windsor Station.
Constable Leblanc has been an employee of the Company for over twenty-five years and has a clear record for all of those years. He has never refused to work overtime in times of need, emergencies, etc, and has no intention of doing so in the future. Certainly the two aforementioned instances’ cannot be considered “Emergency Situation” when on September 4th and 6th 1981, he was sent home without a relief and/or request to remain overtime. On the two above mentioned dates, the situation was identical to that of September 5th and 7yh 1981.
It is the Associations’ position that the ten day suspension, without pay, amounting to eight hundred and thirty-eight dollars $(838.00) is excessive to the point of being unbelievable. Even a “Caution” in this instance would have to be considered as too severe..
It is our position therefore, that Constable Leblanc be reinstated with full pay for the period he was suspended and that his personal staff record be cleared of same.
Mr. Legault responded to the Union’s appeal by letter dated November 3, 1981, which reads:
Dear Sir:
This will acknowledge receipt of your letter dated October 19thm wherein you appeal for removal of discipline of 10 days suspension without pay assessed against Constable J.P. Leblanc, account insubordination in that he disobeyed orders by refusing to work overtime on September 5th, 1981 and also on September 7th, 1981.
As I understand your appeal, it is the Union’s position that; 1( the orders given Constable Leblanc to work overtime were unlawful; 2) there was no emergency situation which required coverage at Mr. Leblanc’s location; 3) he was not ordered to work overtime on September 4th and 6th, dates on which you allege the situation was identical to that on September 5th and 7th; 4) in view of Mr. Leblanc’s service and record no discipline should have been issued.
In order for you to make a proper evaluation of this case, I would like to provide you with the complete facts. First, in respect of the Union’s allegation that the orders given Constable Leblanc were “unlawful”, I must disagree. The Canada Labour Code, Section 2:1, allow as an employer to cause an employee to work in excess of maximum hours in unforeseen circumstances, which was the situation on both September 5th and 7th. In any event, at the time he refused to work overtime Constable Leblanc simply declined to give any reason for his refusal and certainly there is no mention made then of the Canada Labour Code. As well, while you intimate that Constable Leblanc knew he would be working in excess of maximum hours on September 7th he had only worked 15 hours in that calendar week and this excuse just won’t stand scrutiny.
In respect of September 4th and September 6th, you allege that the situation on these days was identical to September 5th and 7th which is not correct. Firstly, neither on September 4th of September 6th was Constable Leblanc ordered to work overtime and this is the most important consideration. In addition, while Constable Leblanc may feel that he was not relieved on September 6th he was in fact relieved 10 minutes prior to the completion of his shift. Arrangements were made on that date to have Constable Y Beauchamp, Special Patrol, cover Tormon and he arrived at 2250, leaving at 0130. In respect of September 4th, due to an error, there was no coverage between 2300 and 0035, and this was not the fault of Constable Leblanc and for that reason there were no charges made in respect of this date, However, Tormon is a sensitive area and departmental policy is to provide priority protection at that point.
It is clear from the record of the disciplinary hearing that Constable Leblanc did in fact refuse to obey the orders to work overtime and he provided no acceptable reason at that time. Constable Leblanc simply looked booked off duty for personal reasons saying that he had other commitments. This was an act of insubordination, a most serious charge when one considers that a Constable occupies a position of trust and must be relied upon. In this care it appears that Constable Leblanc took it upon himself to determine whether or not police coverage was required at Tormon on the nights in question but that is not his prerogative. It is up to the department to ascertain what coverage is required and how it should best performed. If Constable Leblanc felt that the order he refused to obey was either unlawful or unfair, he should simply have performed that order and filed a grievance. It is to be noted that there was no danger to Constable Leblanc’s safety inherent in the orders he was given.
In reviewing this case I have taken into account constable Leblanc’s twenty-one and a half years of service with this Department. Certainly the service he performed in the past is appreciated but in a situation where there is direct insubordination such as this, it must be clearly understood by all concerned that the Department cannot function and provide the protection required if individuals take it upon themselves to determine whether or not their services are required. Accordingly I must decline your appeal to have the suspension lifted and the disciplinary notation removed from constable Leblanc’s record.
The evidence established that work rosters are prepared on a weekly basis commencing at 0001 hrs on Sunday. The starting times may vary in accordance with the location where the work is to be performed. Constables who are scheduled to work “relief as required” have no rostered starting times but may be assigned as required in accordance with the provisions of Article 6.10 of the collective agreement. The rosters are posted for two week periods in accordance with the provisions of Article 6 and the employees are entitled to two rest days each calendar week, otherwise overtime must be paid, in accordance with the provisions of Article 8.01.
It was the grievor’s evidence that during the week which commenced Sunday, August 30, 1981, the grievor had a scheduled day off on august 30th, however he worked eight hours on august 30th at overtime rates as well as his regular scheduled five days work from September 1, 1981 to September 5, 1981, inclusive. Accordingly , when he completed his shift on Saturday 5, 1981, he had worked a total of forty-eight hours that week. He testified that he refused the September 5, 1981 overtime assignment because he had made a prior commitment. He also testified that on September 7, 1981, he was tired because he had worked eight of the previous nine days.
It was also the grievor’s evidence that he was not asked to work overtime on September 4 and September 6, 1981, even though the same situation prevailed because of Constable Harrison’s absence and that no one replaced him at the conclusion of his regular shift on those days. However, It was the Company’s evidence that while Sergeant erroneously failed to make provision for the interim coverage between the end of the grievor’s shift on September 4th and the time when the relief Constable reported to the Tormon freight shed at about 12:30 a.m. on September 5, 1981, Sergeant Thomson had arranged for a Constable in a patrol car to provide interim relief on September 6, 1981. The records show that the patrol car arrived at Tormon freight shed at 10:50 p.m. on September 6, 1981 and departed at 1:30 a.m. on September 7, 1981, when the relief officer arrived.
The Company argued that the grievor, as a police officer, was in a position of trust and was responsible for the protection of the Tormon freight shed which was a high risk area. The Company further argued that the grievor failed to properly discharge his duties when he refused to obey Sergeant Thomson’s orders on September 5, 1981 and September 7, 1981, to remain on duty until his relief arrived.
The Company also argued that overtime is compulsory under the provisions of Article 7 of the collective agreement and therefore the grievor was guilty of insubordination when he refused to comply with the overtime assignments.
The company further argued that under Section 34 (1), part III of the Labour Code, Canada, 1966 - 67 c. 62 s. 30, as amended, the company was permitted to exceed the forty-eight hour work week contemplated by the Labour Code since the grievor’s duties constituted emergency work because it was essential to protect the equipment and the plant at the freight shed and because of the unavailability of the relief Constable which the Company characterized as an unforeseen and unpreventible circumstance.
The Company therefore argued that even if the grievor believed that he could properly challenge the work assignment, he should have performed the assignment and grieved since there was no question concerning his personal safety, the lawfulness of the assignment or his capacity to perform the assigned work.
While the Association asserted that the September 5, 1981 overtime assignment was contrary to the Canada Labour Code because it entailed work in excess of forty-eight hours that week, it was the Company’s position that the issue was not entirely clear because of the provisions of Section 34 (1) of the Code and therefore the grievor should have performed the overtime assignment and grieved since a police department must be run on lines of authority.
The Association argued that in view of the provision s of the Canada Labour Code and the fact that the grievor had worked forty-eight hours during the week beginning Sunday, August 30, 1981, the Company had no right to insist that the grievor work any additional hours. While overtime may be compulsory for overtime assignments up to a total of forty-eight hours work in a week, in view of the provisions of the Canada Labour Code, any overtime work in excess of forty-eight hours must be performed on a voluntary basis, in the Association’s view.
The Association also argued that since the Company knew that Constable Harrison was absent on sick leave since August 28, 1981, there was therefore no unforeseen or unpreventible circumstance which the Company could not have dealt with in a timely fashion by re-scheduling one of the relief Constables in accordance with the provisions of Article 6.10 of the collective agreement so that his starting time would coincide with the end of the grievor’s shift. Since the Company failed to reschedule a relief Constable, it was the Association’s position that the grievor should not be punished for the Company’s lack of planning when he refused to work overtime on September 5, 1981 or September 7, 1981. The Association also pointed out that the grievor was not advised how long the overtime assignments would last and in view of the number of hours that he had worked during the nine days prior to September 7, 1981, it was reasonable for him to refuse the September 7, 1981 overtime assignment because he was tired.
Finally, the Association argued that the evidence failed to indicate that any emergency actually existed at the time overtime was refused. While the Association acknowledged the importance of a police officer’s work, it argued that it could know be said that there is a continuing emergency for police officers at all times that they are on duty, twenty-four hours a day, otherwise the overtime restrictions in the Canada Labour Code would have no application to police officers.
Having considered all the evidence and the representations of the parties, I find that the grievor refused to obey the direction to work overtime on September 5 and September 7, 1981. I also find that his refusal created a break of one and one-half hours duration in each case in the police coverage of the Tormon freight shed. I find, however, that while the two incidents may appear, at first glance, to be almost identical, there is a real and substantial difference between the September 5 and the September 7 incident in view of the provisions of the Canada Labour Code and the fact that at the time the grievor’s shift ended on September 5, 1981, he had completed forty-eight hours work that week.
I find that the restrictive provisions of Part III of the Canada Labour Code are applicable to the employees covered by the collective agreement in this matter. While the Company had the right to determine that twenty-four hour police coverage was required at the Tormon freight shed, I find that no real emergency existed within the meaning of Section 34 of the Code at the conclusion of the grievor’s regular shift on September 5, 1981. There was no accident or urgent and essential work that had to be done to machinery, equipment or plant within the meaning of ss. (a) or (b) of Section 34 (1). Indeed, while the grievor may have been able to provide police protection to the plant, his duties did not require him to work on the machinery, equipment, or the plant. Again, I find that the circumstances were not unforeseen, since the Company was aware that Constable Harrison had been off since August 28, 1981. I also find that the period between August 28, 1981 and September 5, 1981 allowed the Company sufficient time to make alternate scheduling arrangements which would have avoided any necessity for the grievor to be assigned overtime, contrary to the purpose and intent of the Canada Labour Code. In any event, the grievor’s refusal to work the overtime assignment did not involve any serious interference with the ordinary work of the Tormon freight shed. While there was a potential danger of a break-in when there was no police coverage, the fact is that there was no evidence of any real anticipation that a break-in would occur. I therefore find that Section 34(1) of the Canada Labour Code provides no relief to the Company in this case. Although the Company argued that the grievor should have complied with the assignment and grieved, I cannot accept that argument in the circumstances, which prevailed on September 5, 1981. Had the grievor been in error in his belief that he was not required to work, he would have had to accept responsibility for his refusal to perform the work. However, I find that he was not in error with respect to his refusal to work overtime on September 5 since such overtime would have been excess of the forty-eight hour limit under legislation. I accordingly find, for the reasons set out in Re: Kimberly-Clark of Canada Ltd. and United Papermakers and Paperworkers, Local 256, 3 L.A.C (2d) (Brown) and Re National Starch and Chemical Co. (Candad) Ltd. and Canadian Union of Distillery Workers, 11 L.A.C. (2d) 288 (Rayner) that the Company was not justified in its decision to suspend the grievor for his refusal to work overtime on September 5, 1981.
I now will deal with the September 7, 1981 incident. Since the work week commenced on Sunday, September 6, 1981, the grievor had only worked sixteen hours by the time his shift ended on September 7, 1981. The direction to work overtime on September 7 therefore did not contravene the purpose and intent of the overtime provisions of the Canada Labour Code. Even though I accept the grievor’s statement that he felt tired, I find that that did not justify the grievor’s refusal to perform the work assigned. Although he may not have known precisely how long the assignment would last, he knew he would be relieved. I also find that his experience should have indicated to him that the duration of the overtime would not extend to any unreasonable extent but would likely be in the area of one and one-half hours. Although he was not informed how long the assignment might last, it must be recognized that he did not make any inquiries about the matter but merely advised that he was refusing the assignment. While the assignment was relayed through Constable Clayton, the grievor acknowledged that he knew the assignment had actually been made by Sergeant Thomson. In view of the compulsory nature of the overtime provisions which are set out in Article 7 of the collective agreement, employees must be prepared to expect minor inconveniences when such assignments are directed, unless the assignments are contrary to the provisions of the Canada Labour Code,
I therefore find that the grievor’s refusal to work overtime on September 7, 1981 constituted willful insubordination which justified discipline. Since the grievor was in a position of trust and had sworn an oath to carry out his duties as a police officer, I find that his refusal to obey the direction, which I find was properly given, constituted a serious breach of conduct.
However that may be, since I find no just cause for discipline with respect to the September 5, 1981 incident, I find that I should exercise my discretionary authority under Section 157 (d) of Part V of the Canada Labour Code and substitute a lesser penalty in this case. Since the Company had imposed a two week suspension for the two alleged offences, I find that the suspension should be reduced by one week since the evidence established that only one offence took place.
My award, therefore, is that the grievor’s record should be amended to show that he was not guilty of any offence when he refused the September 5, 1981 overtime assignment. I further award and direct that the disciplinary penalty be reduced to a period of one week for the September 7, 1981 offence and I therefore direct that the Company reimburse the grievor for all wages and other employment benefits which he may have lost during the week he was improperly suspended.
Should the parties experience any difficulty implementing this award, a further hearing will be convened at the request of either party to deal with the amount of compensation owing to the grievor and I specifically retain jurisdiction for this purpose, on the agreement of the parties, in order to complete my award.
DATED AT TORONTO THIS 31st DAY OF MARCH, 1982.
SOLE ARBITRATOR