BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Bryan E. Williams

There appeared on behalf of the Company:

Mary Saunders

And on behalf of the Union:

Terry Robertson

A hearing in this matter was held in North Vancouver on June 26, 1981.

This arbitration was held on June 26, 1981 in North Vancouver, B.C. It was agreed at the outset that the arbitrator was properly appointed and had jurisdiction to hear evidence under oath and make a final decision binding on the parties.

The matter in dispute is that the grievor, Surinder S. Kahlon. bid for the position of Trackliner Operator on Bulletin No. 371. This position was awarded to an employee of less seniority.

The issues are as follows:

(a) Was the grievor eligible to bid on Bulletin No. 371 on about April 21, 1980.

(b) Was the Grievor entitled to be awarded the position bid for.

1. The Grievor commenced employment with the Railway on June 28, 1976.

2. The Grievor was granted a leave of absence from December 10, 1979 to February 10, 1980 followed by annual vacation from February 11, 1980 to February 27, 1980.

3. By letter dated February 7, 1980, the Grievor advised the Railway, in writing, that due to illness he would not be able to return to his position for about a month.

4. On March 10, 1980 the Railway wrote Mr. Kahlon advising him his request for an extension to the approved leave of absence was denied.

5. The Grievor did not report for work or contact the Railway again until April 21, 1980.

6. When the Grievor reported for duty on April 21, 1980, he produced a medical certificate from his doctor. At that time, he was instructed to report to the Railway’s medical officer in Prince George.

7. On April 21, 1980 the Grievor applied for the position of Track line Operator under Bulletin No. 371. This position was awarded to an employee less senior to the Grievor on May 5, 1980.

8. The Railway’s medical officer certified the Grievor fit for work on April 25, 1980. The Railway informed the Grievor that he would not be allowed to return to work until they had received verification from the Grievor’s doctor regarding the authenticity of the medical certificate presented on April 21, 1980 confirming Mr. Kahlon’s illness between February 1980 and April 1980.

9. The Railway received a medical certificate from a doctor in India on May 26, 1980, confirming the medical certificate presented by the Grievor April 21, 1980.

10. After the Railway received the second medical certificate, the Grievor was allowed to return to work and did so June 6, 1980.

11. Subsequent to Bulletin No. 371 and after the Grievor returned to work another trackliner job was posted and the Grievor failed to bid upon it.

12. All steps in the Grievance Procedure have been complied with.

1. The Railway submits that Mr. Kahlon was absent without leave and subjected himself to termination of employment under Article 9.10 of the collective agreement. At the time the job was posted Mr. Kahlon had ceased, by way of his own actions, to be an active employee of the Railway and had not been reinstated. He was consequently ineligible for the job posted. Alternatively the Railway submits that Mr. Kahlon lacked an essential qualification for the position posted, that is, the status to report to work in that position as soon as work commenced. The requirement or qualification is confirmed by Article 8.10 which requires a successful applicant to move to the position without undue delay.

2. Secondly the Railway submits that Mr. Kahlon had an obligation. to mitigate any damages he may have suffered by bidding upon other comparable positions and that he failed to do so. The Railway, therefore, submits that Mr. Kahlon is not entitled to any compensation as a consequence of his not gaining the job he sought.

It is submitted that the railway is estopped on this arbitration from raising the issue of the grievor’s alleged absence without leave. In Exhibit "A" a letter dated September 12, 1980 from Mr. A.T. Shannon, Manager of Operations for B.C. Rail , to Mr. Wayne Carkner, an agreement was confirmed that the Kahlon grievance would be broken down into two separate grievances.

The first grievance was referred to at Page 2 of Mr. Shannon’s letter as "the claiming of lost wages while suspended from April 21, 1980 to June 6, 1980." Mr. Shannon proposes a settlement of this period of time in the amount of $1,255.80 leaving only step 2 of the grievance to be further processed. This proposal was accepted by the Union in Mr. Carkner’s letter of October 10, 1980 Exhibit "B". It is apparent that the period of time from April 21, 1980 to June 6, 1980 is the period of time that the company alleges that Mr. Kahlon was absent without leave.

It is respectfully submitted that it is not now open to the railway to argue that Mr. Kahlon was absent without leave having resolved the grievance and paid Mr. Kahlon his lost income during the period. In addition to this, it was clearly the position of the railway that the status of Mr. Kahlon was that of under suspension from April 21, 1980 until June 6, 1980 until such time of confirmation of his disability was received from his Doctor.

It is submitted that the railway’s position with respect to Mr. Kahlon was a purported placing him on suspended status pending the receipt of information from his Doctor in India. Unfortunately the railway failed to comply with Article 11.1 which states: "no employee shall be suspended (except for investigation), disciplined or discharged until he has had a fair and impartial investigation and his responsibility established."

Notwithstanding the company refusing to accept Mr. Kahlon back on April 21, 1980 the company did not purport to treat him as terminated but rather told him to stay home until his excuse had been investigated. Unfortunately there was non-compliance with Article 11.1 and accordingly his suspension was contrary to the collective agreement due to the failure to hold a fair and impartial investigation.

In conclusion, the railway elected here to not treat Mr. Kahlon as terminated but to suspend him pending the checking out of his medical certificate. The effect under the collective agreement of this action was as follows:

1. Mr. Kahlon was not terminated by reason of his absence without leave.

2. Mr. Kahlon was not under suspension because no investigation was ever held.

3. Accordingly Mr. Kahlon was wrongfully refused the right to work by the company at the time that he bid for the position of trackline operator under Bulletin No. 371 on April 21, 1980.

The railway has submitted in the alternative that Mr. Kahlon lacked an essential qualification for the track liner position in that he lacked the status to report to work in that position. It is respectfully submitted that this is quaint Hibernian logic. If the railway, as they have admitted, refused to allow Mr. Kahlon to return to work April 21, 1980 contrary to the collective agreement it was accordingly the actions of the company which precluded Mr. Kahlon from reporting to work for the trackliner position without undue delay. It would be absurd to hold that the company having acted wrongfully can then utilize that refusal to allow Mr. Kahlon to return to work as an argument against granting him the trackliner job for which he was fully qualified and was the senior man.

In respect to the second submission of the railway it is respectfully submitted that the grievor, Mr. Kahlon, did do everything which was reasonable to mitigate his damages. On the 6th of June, 1980, as soon as Mr. Kahlon was cleared for work by the railway, he bid and was accepted for the position of section foreman at the Fontas South Section on the Fort Nelson extension. He worked at this position until August 11, 1980 when he was awarded a temporary position of machine operator helper under Bulletin 375. On the 20th of June, 1980 Mr. Kahlon through the union filed a grievance in which the union stated that the railway was in violation of Article 8.7 of the collective agreement. The final sentence of the grievance stated: "I also request that he (Mr. Kahlon) be allowed to report to his position as trackliner operator as soon as possible."

It is submitted on behalf of the grievor that the measure of damages suffered by Mr. Kahlon due to the breach of the collective agreement in the failure to appoint him to the trackliner position is the difference between the gross income of the junior employee awarded the position, Mr. T.M. Santos, and the gross income of Mr. Kahlon from June 6, 1980 until November 6, 1980. During this period Mr. Santos earned $28,541.64. Mr. Kahlon earned $19,664.42. Accordingly it is submitted that Mr. Kahlon is entitled to compensation from the railway due to their breach of Article 8.17 of the collective agreement in the amount of $8,877.22.

It is submitted by the Union that it is clear that Mr. Kahlon was entitled as the senior fully qualified employee to be appointed to the trackliner job rather than Mr. Santos on the 6th of June, 1980. If this finding is made it is submitted that the measure of damages is the difference between what Mr. Kahlon would have earned had he been treated properly in accordance with the collective agreement and what Mr. Santos, the junior employee, earned in the same position. Mr. Kahlon took every step to mitigate his damages by accepting a foreman’s position and then a machine operator helper’s position during the period. It was not incumbent on him to bid on any other trackliners positions in order to minimize the responsibility and damages by the railway.

Evidence indicated that the parties agreed to divide the grievance into two grievances. The first grievance involved the question of the grievor’s status between April 21, 1980 and June 6, 1980. The second grievance involved the question as to whether or not the grievor was entitled to be awarded the position he bid for on April 21, 1980.

The Company took the position that the grievor was absent without leave and had subjected himself to termination therefore he was ineligible for the job posted. Alternatively the Company submitted that the grievor lacked an essential qualification in that he was not in a position to report as soon as work commenced.

The Union took the position that the grievor was not terminated but was suspended from service and therefore, is entitled to any lost wages incurred by his suspension. The evidence indicates that the grievor was held out of service from April 21, 1980 to June 6, 1980 while the authenticity of the medical certificate was verified. After the Company received the second medical certificate the grievor was allowed to return to work. A settlement for lost wages was made which in effect settled the first grievance.

This brings us to the question:

(a) Was the grievor eligible to bid on Bulletin No. 371 on April 21, 1980.

(b) Was the grievor entitled to be awarded the position bid for.

There is no evidence that the grievor was terminated under Article 9.10 when he reported for duty on April 21, 1980. In fact he was instructed to report to the Company’s medical officer in Prince George. The grievor was certified-fit for work on April 25, 1980 but was not allowed to return pending verification of his illness between February and April 1980.

I cannot accept the Company’s alternate argument that the grievor was not eligible to bid on the job because he could not report to work "without undue delay" when he was not allowed to return to work.

It is therefore only reasonable to conclude that the grievor was eligible to bid on Bulletin No.371 and was entitled to be awarded the position bid for.

In the matter of damages, the grievor is entitled to the difference in gross earnings between the junior employee awarded the position and the grievor’s gross earnings for the period from June 6, 1980 until November 6, 1980. The amount of compensation which the grievor is to receive is to be calculated by the parties.

It is so awarded.

DATED AT Langley, B.C. this 25th day of July 1981.