AH - 187
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN SIGNAL AND COMMUNICATIONS UNION
IN THE MATTER OF THE GRIEVANCE OF J. RIDSDALE
SOLE ARBITRATOR: J.F.W. Weatherill
And there appeared on behalf of the Company:
And on behalf of the union:
A hearing in this matter was held at Montreal, Quebec, on April 14, 1983.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
1. Relieving Signal Maintainer J. Ridsdale was dismissed from Company Service on August 5th, 1982, for violation of Rule S Maintenance of Way Rules and Instructions, and violation of Rule G of U.C.O.R.
JOINT STATEMENT OF ISSUE
1. The Union contends Mr. Ridsdale’s dismissal for allegedly violating Rule S, Maintenance of Way Rules and Instructions and, allegedly violating Rule G of the U.C.O.R., is unwarranted and excessive.
2. The Company contends that the discipline assessed Mr. Ridsdale was just and warranted
There is no very significant dispute as to the facts. The grievor is an employee of some eight years’ service, and has a clear record. At the material times he was working as a Relieving Signal Maintainer at Glacier, some 45 miles east of Revelstoke. He lived at salmon arm, some 55 miles west of Revelstoke.
The grievor’s assigned working hours were from 0630 to 1530, Monday to Friday. On the weekend which was to begin on Friday, July 16, 1982, the grievor was to be subject to call, although this did not require him to remain at Glacier. On the day in question, he left Glacier between 1415 and 1430, about an hour before the end of his regular shift. While there is no corroboration of this, I accept the grievor’s statement that he worked during the lunch hour that day, and so had put in a regular day’s work by the time he left.
The grievor was anxious to get to Revelstoke in order to do his banking, there being no bank in Glacier. He said that it was customary for employees to leave Glacier early on Fridays, and particularly on paydays, in this way. The company was, in a general way, aware of this state of things.
The grievor did not, however, seek permission to leave in advance of the end of his regular shift on the day in question. He did not (and even on the grievor’s understanding of the matter, this ought to have been considered vital), advise the dispatcher, or nay other appropriate person, of the fact of his leaving the area. The grievor intended to notify the signal office of his whereabouts later (he said “I would have eventually, I guess”), but he did not do so at any material time.
Rule S of the Maintenance of Way Rules and Instruction is as follows:
Employees must not, without permission, absent themselves from duty during prescribed hours, exchange duties with others or engage substitutes.
The grievor was in violation of this rule and was properly subject to discipline therefore. In view of all the circumstances, however, I would not consider that a very severe penalty would be appropriate in this particular case.
After his arrival in Revelstoke on the Friday afternoon, the grievor did his banking, telephoned his wife, and then joined other employees in a tavern, he was still “on duty” in the sense that it was not yet 1530. In the grievor’s own mind, however, he was off duty, having put in his day’s work. While the grievor was subject to call over the weekend, he had not been called at the time. Had he gone into the tavern a few minutes later for a beer, there would have been no question of any violation of the rules.
Rule G of the U.C.O.R. is as follows:
The use of intoxicants or narcotics by employees subject to duty or their possession or use while on duty is prohibited.
In the instant case the grievor was, if at all, “on duty” only in a technical sense. When all of the circumstances of the case are considered, it is clear to me that, while there may have been a violation of Rule “G”, it was of minor nature (this is not at all to detract from the importance of Rule “G”, or to suggest that a very heavy penalty would not be appropriate in cases of substantial violation).
While there may have been a violation of rule “G” it was not, in this case, a substantial one, and no severe penalty was called for.
It may also be said that the company did not comply with respect to the requirements of article 12 of the collective agreement as to the notice of investigation to be given to the grievor. The grievor was willing to continue with the investigation nevertheless, apparently in the belief that serious discipline would not be involved. I do not believe that the company officials concerned sought to mislead the grievor in this respect, nor do I consider that in this case any miscarriage of justice occurred (in terms of the statement produced). I do not consider that in the circumstances of this case the investigation should be considered a nullity.
While I find that the grievor was subject to discipline, it my view that the offenses committed were not very substantial ones (in their particular circumstances), and that severe discipline was not justified. There was not sufficient cause for the discharge of the grievor in this case. He is entitled to be reinstated, and while he was subject to some penalty, it is my view that it would be most appropriate not to assess demerit marks, but to reduce the period of time for which the grievor is entitled to compensation. I do not thereby conclude that an equivalent suspension would not thereby conclude that an equivalent suspension would have been justified as a penalty in the first instance.
For all of the foregoing reasons, the grievance is allowed in part. It is my award that the grievor be reinstated in employment forthwith, without loss of seniority, and that he be compensated for any loss of regular earnings for the period from September 1, 1982, until the date of his reinstatement.