AH - 186












(the “Company”)








(the “Union”)








SOLE ARBITRATOR:                     J.F.W. Weatherill



There appeared on behalf of the Company:

                                F.R. Shreenan



And on behalf of the Union:

                                J.E. Platt



A hearing in this matter was held at Montreal, Quebec, on December 17, 1982.



                The Joint Statements of fact and of issue in this matter are as follows:


Joint Statement of Fact


Signal Maintainer J.J. Jenkins’ record was assessed 30 demerits for desertion of Company service, June 29, 1981.  Mr. Jenkins was dismissed for the consumption of alcohol while subject to duty on June 29, 1981, resulting in damage to Company equipment as a result of a motor vehicle accident.


Joint Statement of Issue


The Union contends Mr. Jenkins was unjustly dealt with due to his dismissal for, allegedly, consuming alcohol while subject to duty;  that the 30 demerit marks for, supposedly, deserting Company service are unwarranted.


It is the Company’s position that, based on the evidence adduced at the investigation, discipline assessed Mr. Jenkins was just and warranted.



                Although in the joint statements the parties are at issue on the merits of this case, the union’s presentation at the hearing (on the instructions of the grievor), went only to certain procedural questions, namely the sufficiency of the notice of hearing and the alleged refusal of a right of cross-examination of witnesses.  The union did not seek to refute the company’s case on the merits.


                As to the merits, it is clear from the material before me that on the day in question the grievor did, for no really satisfactory reason, “take the afternoon off”.  Further, although the grievor denied it at the investigation, I find on the material before me that the grievor spent the bulk of that afternoon in a tavern, where he consumed several beers.  He was subsequently involved in an accident while driving a van leased by the company.  In subsequent court proceedings, the grievor pleaded guilty to a charge of driving without due care and attention on that occasion.


                In the circumstances, I would consider that the “desertion” of service should be viewed simply as an aspect of the undoubted offense of drinking while on duty.  The circumstances of the offense may aggravate it, or justify a more severe penalty than might otherwise have been imposed.  To leave one’s duties in order to spend the afternoon drinking in a tavern, and then to be involved in an accident with a company vehicle is, of course, a most serious matter and would justify a very severe penalty.  That would, I think, in the case of a person having a responsible position such as Signal Maintainer, include discharge.  It may be noted that the company had offered the grievor the benefit of it’s program relating to alcohol problems, but the grievor denied having any such problem.  The severity of the penalty was not argued in this case.  On the merits, then, I would conclude that the company has established just cause for its action in this case.


                As to the procedural questions, these are based on the terms of article 12 of the collective agreement.  That article is as follows:




12.1  An employee shall not be disciplined or dismissed without having had a fair and impartial investigation and his responsibility having been established.  An employee may, however, be held off for such investigation for a period not exceeding five days and when so held off shall be notified in writing of the charges against him.


12.2  When an investigation is to be held, the employee will be notified of the time, place and subject matter of such hearing.  He may, if he so desires, have a fellow employee and/or an accredited representative of the Brotherhood present at the hearing and shall be furnished with a copy of his own statement and, on request, copies of all evidence taken.


12.3  All material and necessary witnesses must be notified to appear.  An employee shall have the right to be present during the examination of any witnesses whose evidence may have a bearing on his responsibility or be accorded the right to read the evidence of such witness and offer rebuttal thereto.


12.4  If the final decision decrees that the charges against an employee were not sustained the record shall be cleared of the charges;  if suspended or dismissed, the employee shall be returned to his former position and paid for all time lost less any earnings derived from employment during the period so compensated.


                It is the union’s contention that the requirements of that article were not met in two respects.  First, it is said that proper notice of the charges was not given.  Second, it is said that the grievor was not given the right to cross-examine witnesses.


                The grievor was given notice as to the time and place  of the hearing, which was deferred until he was well enough to attend.  When asked if he had been properly notified he stated that he had not, and when asked for particulars of that, he referred to article 12.2.  He was then asked if he had not been given copies of the evidence, and he replied that he had just been given such evidence.  At the hearing of this matter, certain of the union’s representations were directed to the matter of the specificity of the notice in respect of the charges against the grievor.  It was argued that the penalties imposed on the grievor could not properly follow an investigation of his “activities and conduct” in connection with the accident.


                In my view, the notice of hearing given the grievor was a proper one, and sufficiently set out the subject matter of the hearing.  The grievor’s conduct immediately preceding the accident is a very material part of the events leading to the accident itself.  It would only be after investigation that the company would be expected, in many cases, to formulate precise grounds of discipline.  The grievor knew what the investigation was about, and it does not appear that any of the questions put came as a surprise, or dealt with any other matter than the grievor’s “activities and conduct” - of which his drinking in a tavern was a part - during the period preceding the accident itself.  In my view, there was nothing unfair or inadequate about the notice given, and the requirements of article 12.2 were met.


                Part of the evidence presented to the grievor was the statement of the lady, a part-owner of the establishment, who had served the grievor in the tavern.  That statement was not made at the investigation itself, and so that witness was not available for cross-examination then.  Article 12.3 does not require that such a person be present at an investigation and indeed the company would be unable to require the attendance  of persons not its employees.  The collective agreement does require, as an alternative to the employee’s presence during the examination of the witness, that the employee “be accorded the right to read the evidence of such witness and offer rebuttal thereto”.  The grievor was accorded that right.  He read the witness’ statement, and he appears to have denied it.  That witness, it may be noted, was present at the hearing of this matter.  The grievor does not appear to have indicated any desire to cross-examine the witness on any specific point.


                In fact, then, the requirements of article 12.3 were also met in this case.  The investigation was a fair one, and the company came to certain conclusions on which it based its decision to discipline the grievor.  As I have noted above, it is my view that the company has shown just cause for its action.  The merits of the case, it will be recalled, were not put in issue at the hearing.


                For the foregoing reasons, the grievance is dismissed.


DATED AT TORONTO, this 4th day of January,1 983.