AH 246
BETWEEN:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES,
LOCAL 6
(the ”Union”)
AND
BRITISH COLUMBIA RAILWAY
(the “Railway”)
(Janzen Arbitration)
Sole Arbitrator: H. Allan Hope, Q. C.
There appeared on behalf of the Employer:
Mary Saunders, Esq.
There appeared on behalf of the Union:
Robert Dhensaw
A hearing in this matter was held at Prince George, British Columbia, on the 12th and 13th days of June, 1985.
AWARD
I
The grievor in this dispute was dismissed on February 15, 1985 for failing to abide by what the employer saw as an extremely important safety rule. The grievor, Ron Janzen, was employed in a classification called a catenary maintainer, a highly skilled position which requires him to work with high voltage electricity. The railway operates a rail system in the province which includes a branch line consisting of something in excess of one hundred miles of electrified territory. Electrical power is supplied to running equipment from an overhead powerline called the overhead catenary system (OCS). The OCS, when energized, contains 25, 000 volts.
The fundamental safety precaution for employees working on or near the OCS is the obtaining of what is called ”electrical protection”. It was a failure to obtain electrical protection that led to the dismissal. The incident in question occurred on January 21, 1985 when the grievor was working at a location in electrified territory called Wolverine Tunnel. His failure to obtain adequate electrical protection resulted in the OCS being re-energized without his knowledge.
It is not clear on the evidence whether the grievor and the OCS crew were actually working on the OCS at the time it was re-energized or whether their work had been completed. In any event, they had a manual safety device, called a ground, in place at the material time. In the result, when the line was re-energized the ground caused the system to “trip out”, resulting in it being de-energized. It was not re-energized again until the safety of the grievor and the crew had been assured and the ground had been removed.
The clear implication is that the grievor was dismissed because the railway concluded that his actions were deliberate. The union position is that his failure to obtain adequate protection arose by inadvertence and due to a misunderstanding on the part of the grievor. In order to understand the dispute, it is necessary to understand how electrical protection is obtained and supervised. I turn now to that aspect of the facts.
II
Electrical protection (called EP) is taken out to ensure that sections of the line which require maintenance are de-energized to protect employees and equipment from the danger inherent in high voltage electrical power. The task of de-energizing and re-energizing is under the control of a central facility called the power bureau. The bureau is located in North Vancouver, and controls electrification over the entire system. An official in the power bureau, called the power coordinator, grants EP’s. Protection is given in response to a request to de-energize a portion of the line which is made by an employee working in the field who is authorized to take out EP’s.
If the request for an EP is granted, it is communicated orally and recorded in the bureau on a form called an “electrical protection authorization”. Copies of authorizations are kept on file at the bureau. The field employee receiving the EP fills in a form and retains it in an “EP Book”. Those records disclose the time, date and location of every EP granted and the name of the employee receiving it.
Employees become qualified to receive an EP when they are designated as such by the railway. Only employees with a Class “A” ticket are eligible to receive an EP. An employee obtains a Class “A” ticket by successfully completing a three-day course of instruction dealing with procedures and safety regulations in electrified territory. Included in that course are detailed instruction on the procedures to be followed in obtaining EP’s. At the material time the grievor was the holder of a Class “A” ticket and was on the list of employees qualified to receive EP. The supposition is that he knew how to obtain an EP. It is clear that he did not take one out in the events leading to his dismissal.
The grievor was one of the first qualified employees hired for the OCS, a system which is a relatively recent addition to the railway network. He is a journeyman lineman, having obtained his qualifications in the electrical construction industry. He had approximately fourteen months seniority with the railway at the time of his dismissal. The grievor was conceded to be a well qualified and safe worker by all management employees giving evidence who had knowledge of him. He had not been the subject of any discipline prior to his dismissal. In fact, the dismissal of the grievor was the first initiative of any kind taken by the employer with respect to safety infractions on the OCS. In particular, there had been no prior discipline or dismissals imposed on any employee for alleged breaches of safety rules associated with the OCS.
The grievor worked actively in the electrical construction industry from 1978 until he commenced employment with the railway in 1984. The only evidence called indicates that he has a good safety record generally and that he had not given his prior employers any cause to impose discipline upon him or to correct him on matters of safety. In addition to that evidence, one can fairly conclude from the facts that a person working with high voltage electricity who flouts safety precautions will have a short career. The evidence was that the grievor has had an accident-free work history and that he had, prior to the incident, demonstrated a decent respect for safety requirements.
The grievor admitted that he did not obtain adequate protection but insisted that he was of the understanding that he had adequate protection on the day in question. In particular, the grievor said se thought that he was working “under the protection” of Allan Hanson, the foreman of a section gang working in the general vicinity of the grievor and the OCS crew at the material time. Some further explanation of the concept of electrical protection is necessary to understand the issues raised by that assertion.
As stated, only an employee with proper authorization can obtain an EP. The first step in obtaining an EP is for a qualified employee to contact the power coordinator, either by two-way radio or by land line. The employee identifies himself and indicates the section of line for which he wishes to obtain an EP. The bureau has the capacity to shut down power on all or any section of the line. In addition, each section is independently controlled in the field by a device called a “motor operated disconnect” (MOD). The section of line which includes 50-Mile Tunnel and Wolverine Tunnel is controlled by MOD 98.
The process for obtaining an EP is set out in a memorandum which is circulated to employees. The memorandum contemplates that employees will be required to make applications for an EP before 10 p.m. on the day prior to the effective date of the request. However, the clear implication is that procedures have matured and that an EP is routinely extended coincidental with the request. Mr. Hanson, for instance, obtained his EP on January 21, 1985 immediately prior to commencement of his work in 50-Mile Tunnel.
An EP can be granted to an employee directly from the power bureau in a process called an extension. In the extension process, an employee who has been granted an EP for a particular section can extend his EP to another employee. The right to receive an EP extension is subject to the same limitations as those imposed with respect to taking out an EP. The same process is followed in obtaining an extension, except that the employee holding the EP contacts the power coordinator with respect to the extension. In the case of an extension the bureau records it in the same manner as an EP and both the employee granting it and the employee receiving it record it in their EP Books.
The apparent purpose of an extension is to accommodate the overlapping of EP requirements and prevent any possible confusion when power is being restored to the section. The only basis upon which an employee can be working in electrified territory is with an EP, an extension of an EP, or , as previously mention, “under the protection” of the holder of an EP or an EP extension. This dispute revolves around the practice of employees working “under protection”.
All employees, whether or not they are qualified to receive an EP or an AP extension, can work in electrified territory under the “protection” of the holder of an EP or extension if the holder agrees to extend protection to them. There is no procedure defined for how an employee is to obtain “protection” but the implication in the evidence is that an employee wishing protection must approach the employee holding an EP or and extension and obtain that employee’s express consent to the applicant employee working under the holder’s protection.
If an EP or EP extension holder agrees, he becomes responsible to ensure the safety of all employees working under his protection. In particular, it is his responsibility to see that employees working under his protection have cleared electrified territory safely before he returns his EP or EP extension and power is restored to the particular section.
III
On the day in question it was open to Mr. Hanson to grant the grievor an extension of his (Mr. Hanson’s) EP because the grievor was qualified to obtain an EP or receive an extension. But it is clear that the grievor did not seek an EP extension on his own behalf. In addition, as noted, it was open to Mr. Hanson to permit the grievor and the remainder of the OCS crew to work under his protection on the occasion in question. There is no dispute that Mr. Hanson did in fact extend protection to the OCS crew while they were working in 50-Mile Tunnel. The difficulty arose with respect to whether Mr. Hanson consented to extending his protection when the OCS crew moved to Wolverine Tunnel, which is located a few miles distant from 50-Mile tunnel and out of eyesight or voice range from it.
The day in question the grievor was functioning as OCS crew leader in a classification called “man-in-charge”. Initially the OCS crew did not expect to be working in electrified territory. Mr. Hanson, expected to be working in electrified territory with a four-man section gang and it was for that reason that he took out his EP. Mr. Hanson had a brief discussion with the grievor on the morning of the day in question, January 21, 1985, and was told the OCS crew would not be working in electrified territory. Mr. Hanson, who has no electrical expertise, intended to have the section gang performing routine maintenance duties in 50-Mile Tunnel. He so informed the grievor.
The grievor, having advised Mr. Hanson that he did not intend to have the OCS crew working in electrified territory, changed his mind and apparently decided to take advantage of the fact that Mr. Hanson was taking out an EP. It should be noted that employees working on the line also require protection against trains and that Mr. Hanson intended to obtain the necessary train clearance that day. That protection is called a block clearance by the parties. It is a clearance to work on the track obtained by the employee from a railway official called the train dispatcher. It prevents train traffic from intruding into the section in which the work is being performed.
After the grievor learned the Mr. Hanson intended to take out an EP and block clearance for the section which includes 50-Mile Tunnel and Wolverine Tunnel he decided to do a brief repair job in 50-Mile Tunnel, being the repair of a device called a cantilever, and then proceed to Wolverine Tunnel to continue a routine maintenance task involving the washing of OCS insulators.
Having made that decision the grievor took the OCS crew on a speeder and header toward 50-Mile Tunnel. He was at the entrance when he was met by Mr. Hanson and the four-man section gang. The grievor informed Mr. Hanson that he had “five minutes work” to do in the 50-Mile Tunnel. Apparently he did not tell him that he intended later to wash insulators in Wolverine Tunnel. Mr. Hanson agreed to have the grievor and the OCS crew work under his protection while in 50-Mile Tunnel. He was not asked to extend it with respect to Wolverine Tunnel. Hence, one question raised is whether the protection continued to apply after the OCS crew left 50-Mile Tunnel. Before dealing with that question, I will detail the remaining events surrounding the incident.
Mr. Hanson, as stated, took out an EP for the day in question. He followed the usual practice of informing the power bureau of the section for which he wanted an EP. The bureau granted the EP and disconnected the breaker for the section. The bureau then instructed the grievor to disconnect MOD 98. Mr. Hanson, following prescribed procedure, did so, and then locked and tagged MOD 98 in the open position to prevent the power from being restored inadvertently. He then commenced the installation of protective grounds designed to short out the system if it was re-energized by mistake.
The evidence is not clear but, the discussion between Mr. Hanson and the grievor at the entrance to 50-Mile Tunnel took place at some stage during those events. The details of the conversation were not given but it is common ground that Mr. Hanson agreed to have the OCS crew perform its “five minute” task in 50-Mile Tunnel under his protection. At some stage he also agreed to “come and get” the OCS crew at Wolverine tunnel when it was “time”. By that Mr. Hanson meant that he would come and inform the OCS crew before he surrendered his block clearance. He had no idea that the grievor was relying on his EP to work at a site some miles away and well beyond contact with him. Not only was the OCS crew well out of Mr. Hanson’s sight at Wolverine Tunnel, but the rock configuration made the usual medium of communication, being two-way radio, a doubtful resource which was frequently subject to interference. The conclusion of the railway on those facts was that the grievor knew he and the other crew members were working without protection in Wolverine Tunnel and that he deliberately took a chance in failing to take out the necessary EP or extension. It was in response to that conclusion that he was dismissed.
IV
Operations in electrified territory are governed by a specific set of instructions called the “Electrified Territory Operating Instructions”, which are part of the process of certification of the system by the Ministry of Transportation and Highways. To ensure compliance, every employee receives a copy of the instructions in booklet form. The grievor acknowledged familiarity with the instructions and further acknowledged that he was obligated as an employee to comply with them.
The employer did not rely on breaches of the operating rules as a reason for dismissal in its letter of termination, (which will be set out later), but it is clear that the grievor was in breach of them. The real question in the first instance is whether he acted deliberately in failing to comply with the instructions or whether he was operating under a misunderstanding. At this point it is convenient to point out that the grievor, by his own admission, was in breach of the instructions, whether or not he was acting deliberately. He said, in effect, that he knew he was not in compliance with the instructions even though he did not realize that he and his crew were not under the protection of Mr., Hanson.
The union suggested that Mr. Hanson was at fault for failing to anticipate that the grievor would continue to consider itself under his protection. But the operating instructions contain an express requirement which is frequently repeated that all matters involving electrical protection be communicated clearly between the employees affected and repeated back to ensure complete understanding. Mr. Hanson and the grievor were contemporaries at the material times in that Mr. Hanson was a section foreman and the grievor, who frequently served as foreman of the OCS crew, was functioning as crew leader at the material time. However, as between the two men, the grievor possessed the electrical expertise and should not have assumed that Mr. Hanson would automatically extend protection to him when he was working at another location. Nothing was said to Mr. Hanson to indicate that understanding and nothing in the circumstances would compel him to anticipate that the grievor would fail to comply with the operating instructions.
In any event, when it was approaching time for the train to arrive, Mr. Hanson returned his EP to the power bureau. When the section was re-energized it was immediately tripped out, obviously by the ground installed by the OCS crew at Wolverine Tunnel. Mr. Hanson then took steps to try and contact the grievor by radio to determine his status.
I interject to note that the employer called evidence to indicate the possibility of a malfunction of the ground and that there is an imminent danger involved in removing grounds if it occurs during the precise time the line is being energized. The employer invited me to conclude that the element of risk was enhanced by those facts and that the conduct of the grievor should be seen as more serious that the bare facts implied. However, I must observe that there was no evidence to indicate that the grounding devices in use on the day in question were not in full working order and effective. It would be wrong for me to speculate that the last-ditch safety device selected y the employer to protect employees was prone to failure or was ineffective. One must presume a potential for failure in any mechanical device but I cannot assume from the evidence that the OCS crew or any member of it was in imminent danger of being killed by reason of a propensity for the grounding devices to fail. The danger to the crew in this dispute is found in the fact that its members were left with the ground as their only remaining protection and that they were not aware that the power may be restored while they continued to work.
Returning to the facts, when the power was restored in response to Mr. Hanson’s return of his EP, it was tripped. It is obvious that is was tripped by the grounding device put in place and left there by the OCS crew. The evidence was that such an unintentional grounding out of the power was not an extraordinary occurrence. Other employees occasionally left grounds up when power was being restored, with the result that the power was tripped. In fact, the grievor himself had left a ground up on one previous occasion in similar circumstances.
After the system had tripped out the grievor and Mr. Hanson succeeded in making radio contact. Mr. Janzen reported that he had a ground still in place. In a written statement made later in a formal investigation Mr. Hanson said that he told the grievor by radio; “Ron you didn’t ask me to work on the line”. He said that he later spoke to the grievor in person. Mr. Hanson said with respect to that later conversation; “When Ron came to talk to me he said that he thought I knew that they [the OCS crew] were in there [Wolverine Tunnel]. I told him; ‘No, I didn’t.’. Then we discussed electrical protection extensions and [I] asked why he didn’t receive one from me. He said that he was too busy”.
In his evidence Mr. Hanson said that the discussion recorded in his written statement did not take place face to face as he had reported. He said that he and the grievor were talking about the tripping out incident on an open radio channel which is tape recorded to preserve a record of discussions. He told the grievor to switch to a channel which is not monitored and the discussion took place on the incident. Mr. Hanson recalled that in that conversation he said to the grievor, “You didn’t ask me to protect you on the line.” Mr. Hanson quoted the grievor as replying , “I thought you knew we were there.” he said that he then replied, “I did not know”’ and that he then asked the grievor why he had not taken out an extension. He quoted the grievor as replying that he was in “too much of a hurry - too busy”. The grievor’s recollection was substantially the same as Mr. Hanson except in one particular. He said he did not indicate to Mr. Hanson that he had not taken out an EP extension because he was too busy. He said that it had always been his understanding that he and the crew were under the protection of Mr. Hanson while in Wolverine tunnel as they had been earlier in 50-Mile Tunnel.
After the power was restored, the railway took no further action with respect to the incident. Apparently Mr. Hanson did not himself report the circumstances to more senior management. For his part the grievor, that same evening, reported to his own supervisor Gordon Helgeson, the roadmaster for the OCS, that he had left a ground in place and had tripped out the system. He did not tell Mr. Helgeson about the incident between himself and Mr. Hanson with respect to the status of his electrical protection. The grievor insisted he was not trying to deceive or mislead Mr. Helgeson. He considered the misunderstanding to have been resolved and he did not perceive it as having the grave implications later attributed to it by the railway. The railway’s view was that his failure to mention it was evidence of a lack of candor on the part of the grievor and hence a lack of trustworthiness in a position where the railway perceived a need for absolute trust.
Mr. Helgeson made a note of the grievor’s account of the incident but took no further action. Several days later, when he became aware of facts that satisfied him that the grievor had been without electrical protection while he was engaged in washing insulators, Mr. Helgeson launched an investigation pursuant to the discipline provisions of the collective agreement. That investigation led to the taking of the statement from Mr. Hanson, as well as statements from the grievor and, presumably, the various other persons associated with the incident.
The date upon which Mr. Helgeson learned of the events was not given in evidence. It was no later than January 28, being seven days after the event, because the grievor was informed by letter that day that there would be a formal investigation. The manner in which Mr. Helgeson became aware of the facts was not given in evidence. In any event, the investigation was conducted and the grievor was dismissed. The decision to dismiss him was made by F. E. Kimbal, the assistant chief engineer of the engineering division. The letter of dismissal reads as follows:
I have reviewed the statement which was taken on February 5th, 1985 in connection with the investigation into a trip on the line, January 21, 1985 which is more specifically described as “working on the OCS without Electrical Protection.” You have demonstrated a very careless disregard for the OCS system and for the instructions regarding electrified territory. In performing the work that you did without taking out Electrical Protection, you place you crew’s lives in jeopardy. For you responsibility in this incident, I am assessing your service record with 60 demerits which brings your accumulated total to 80 demerits, and in accordance with company policy, is cause for dismissal being in excess o f60 demerits. Please return all company property in your possession to you Roadmaster.
It can be seen from that letter that the reasons given for the dismissal do not include specific reference to a breach of the operating instructions or a lack of candor or trustworthiness. I am satisfied that the failure to specify those factors in the letter of dismissal does not prevent the employer from relying on them within the principles discussed by Prof. Laskin, as he then was, in Re U.S.W. and Aerocide Dispensers Ltd. (1965), 15 L.A.C. 416 @pp.426-27. But is does indicate that the employer, while considered the actions of the grievor deliberate, did not place great stress on the issue of a lack of candor. That impression carried through in the evidence of Mr. Kimbal. He did not volunteer lack of candor as a reason for his decision. In response to questioning he added it was a reason but placed no emphasis upon it.
The significant component of the allegation of a lack of candor, in addition to the failure to inform Mr. Helgeson of the precise events, consisted of an analysis in argument of the statement of the grievor. The record of the formal investigation of the incident, which was conducted by Mr. Helgeson on February 5, 1985, reveals that the grievor was asked if he had obtained an EP on January 21 and the grievor answered; “Yes, I must have taken it [an EP]”. The grievor then checked hi “E.P.book” and discovered there was no record of an EP or an extension at that location for that day. Later in the questioning the grievor indicated that he had taken an “extension” from Mr. Hanson. It was clear from the evidence that no formal extension had been taken from Mr. Hanson. The final exchange on that aspect of the issue was recorded as follows in the account of the investigation:
Q11 On January 21, 1985 what were you duties?
A11 Had to straighten a cantilever in the 50 mile tunnel and I had to clean insulators in the Wolverine tunnel.
…………………………………………………………………………………………………..
Q12 Does this work require an Electrical Protection?
A12 Yes.
Q13 Did you obtain an Electrical Protection from Allan Hanson of anyone else?
A13 No
Q14 Why did you not take an Electrical Protection from Allan Hanson or anyone else?
A14 I did not take one because I figured I was working right in the 50-mile tunnel and Allan Hanson was there and he had Electrical Protection.
In his evidence Mr. Janzen said that obtaining EP’s , EP extensions and working under an EP holder’s protection were routine circumstances for catenary maintenance men. He said that during the investigation, because of the passage of time, he had some initial difficulty sorting out in his mind the particular facts involved on the occasion in question. He said, in effect, that over the course of the questioning, he recalled the circumstances as they were reflected in his final answer. His explanation in the final series of questions has the same thrust as his answer to Mr. Hanson immediately after the incident when the grievor told Mr. Hanson, in effect, that he believed that he and his crew were under Mr. Hanson’s protection while working in Wolverine Tunnel. In short, his ultimate explanation in the investigation was in accord with his immediate explanation when the incident occurred.
I am not able to place the same significance on the events which was given to them by the employer. I note by way of aside that if the grievor set abut deceiving the employer, he was extremely clumsy in his attempt. Dealing first with his answers in the investigation, the grievor was quite obviously aware that his EP book would disclose whether he had obtained an EP or a formal extension on the occasion in question. In addition, it is clear that he would have known that the power bureau maintains an independent record of all AP’s and extensions. It would be pointless for the grievor to say he had obtained an EP or an extension if his intention was to disguise the true facts. Uncovering such a deception would be a simple matter of reviewing readily available documentation. The transcript and the circumstance of the investigation are consistent with the explanation given by the grievor that he had some initial difficulty recalling the precise sequence of events.
Turning back to the telephone call to Mr. Helgeson on the evening the incident occurred, the perception of the employer was that the grievor had deliberately sought to mislead Mr. Helgeson by failing to mention the misunderstanding between he and Mr. Hanson. A legitimate first question to ask is - if the grievor was seeking to withhold the circumstances from the employer - why did he bother calling Mr. Helgeson in the first place? The only supervisory source of knowledge of the employer with respect to the incident was Mr. Hanson. The grievor had no basis for assuming that Mr. Hanson would fail to inform the employer fully with respect to the facts. The events support a finding that he considered that leaving a ground in place was something that needed reported but that the misunderstanding between he and Mr. Hanson was not something that loomed in his mind.
If he was bent on deceiving the employer, he need never have reported anything to Mr. Helgeson and left it to Mr. Hanson to explain circumstances. Mr. Hanson had full knowledge of the circumstances and there was no basis in the evidence for the grievor concluding that he would suppress those facts. When the evidence is reviewed in its totality, it supports the explanation of the grievor that he was under the mistaken impression he was operating under the protection of Mr. Hanson. I cannot find in the circumstances evidence which satisfies me that the grievor was attempting to deceive the railway at any stage of the proceedings.
The railway further urged that the grievor had demonstrated evasiveness and a lack of candor at the hearing itself. I respectfully disagree with that analysis. The grievor readily conceded that his actions were wrong and that he had been in breach of the operating instructions. The only point upon which he resisted the issue was with respect to whether his actions were deliberated or inadvertent. On that latter point he remained adamant. He persisted in his statement that he believed that he was acting under the protection of Mr. Hanson at the material time. To a significant degree it was that refusal to agree that he had acted deliberately that formed the basis of the submission that the grievor was evasive in his evidence.
In my view there is an inherent improbability that an experienced tradesman accustomed to dealing with high voltages would deliberately expose himself and his crew to the risk of death in order to avoid a routine safety precaution which he had executed on numerous occasions and which he knew could be accomplished in a very brief time. That conclusion cannot be reconciled with the reality of the 25, 000 volts carried in the line and the knowledge of the grievor that being exposed to that level of voltage without adequate precautions would result in certain death.
The theory of the employer was that the grievor simply took a chance - but that view was denied by the grievor and is based on supposition. It is an act which cannot be reconciled on the objective facts as something an experienced employee would do. The less likely a disputed event is perceived in the realm of ordinary experience the greater the burden imposed in establishing that it probably occurred. See: Re Induism Ltd. and United Cement, Lime and Gypsum Workers International Union, Local 488 (1979), 20 L. A. C. (2d) 87 (M. G. Picher) @ pp. 89-90. There was nothing in the background of the grievor to indicate any propensity for so bizarre a disregard for his life and the lives of his crew. The only rational explanation is the one afforded by the grievor, that he understood himself to be under the protection of Mr. Hanson. There is support for the explanation of the grievor to be found in the fact that the grievor asserted it to Mr. Hanson immediately after the incident occurred. That explanation is more in accord with the circumstances than the inference urged by the employer.
V
Accepting that the employer failed to establish on a balance of probabilities that the grievor acted deliberately in his failure to follow the required procedures, does the admitted conduct of the grievor constitute just cause for dismissal? In reviewing a dismissal in British Columbia arbitrator is bound to apply the principles set out by the Labour Relations Board in its decision in Wm. Scott and Company Limited and Canadian Food and Allied Workers Union, Local P-162, [177] 1 Can. L.R.B.R. 1 (Weiler). On p.5 of that decision the board said:
… arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
In this dispute the union conceded that the grievor was in breach of an important safety rule a set out in the operating instructions. In particular, the grievor acted contrary to Paragraph 3.3(A) of the instructions, which reads as follows:
3.3 Working With Catenary Repair Unit
A. The class A employee must obtain the necessary authorization from the Power Coordinator for the work to be performed. This authorization must be duly recorded and repeated to the Power Coordinator. In addition, the Class A employee must obtain protection from the Train Dispatcher.
The operating instructions contain other requirements having to do with the obligation of employees who both give and receive electrical protection. The general requirement is that all instructions given must be repeated back to ensure there is a clear understanding. The grievor was in breach of that aspect of the operating instructions. He took no steps to ensure that there was a clear understanding between himself and Mr. Hanson.
I find that the conduct of the grievor, in failing to ensure that he had a complete understanding with Mr. Hanson, amounted to misconduct deserving of discipline. I conclude further that it was a serious offence deserving of a significant penalty. If, for instance, the employer had succeeded in establishing that the conduct was deliberate, there would be no question of whether dismissal was an appropriate response. Even in the absence of prior warnings or prior discipline, deliberate exposure of the crew to the dangers of 25, 000 volts would compel dismissal.
I agree with the submission of the employer that it has an obligation to provide a safe working environment and that where the environment included high voltage electricity the burden of that duty increases proportionate to the risk. In support of its proposition the employer relied on the decision of Prof. Owen Shime in Re Slater Steel Industries ltd., Burlington Steel Division and U.S.W., Local 4752 (1975), 8 L.A.C. (2d) 135. On p. 137 Prof. Shime said:
After considering the arguments, I am of the view that both the employer and the employees have a duty to ensure that the work environment is safe and apart from the collective agreement, that duty is imposed by statute, Industrial Safety Act, 1971, Vol. 2, c. 43, and amendments thereto; see particularly ss. 24, 26 and 27; see also Re U.E.W., Local 524 and Canadian Gen’l electric Co. Ltd. (1963), 13 L.A.C. 302 (Bennett), at p.303), and by the ordinary rules of negligence (Re Lumber & Sawmill Workers, Local 2693, and Great Lakes paper Co. Ltd. (1964), 15 L>A.C. 97 (Lane)), which requires that persons in a work environment take reasonable care for their own safety and the safety of others.
Here the risk created by the failure of the grievor to follow proper procedures was significant, despite the presence of the ground and the fact that it functioned properly. It must be presumed that the elaborate procedures devised to prevent an accidental energizing of the line while there are employees in proximity to it are necessary and that the grounding device, even though it functioned, must be seen as a last resort. A failure to take adequate precautions accelerates in its seriousness in proportion to the potential consequences. Here the gravest possible consequences are at issue.
The evidence supports a finding of a high degree of carelessness on the part of the grievor in circumstances where he frankly admitted that he should have known better. In the absence of mitigating factors that level of carelessness would itself sustain dismissal, even though not deliberate. However, I am of the view that there are factors present which mitigate against sustaining dismissal as an appropriate penalty.
Before turning to my reasoning support of that conclusion, I note by way of aside that I reviewed decisions to which my attention was directed which support the principle that an employer is entitled to dismiss an employee as a first response to misconduct consisting of unsafe practices. In each of those cases, however, the arbitrator found that the conduct was deliberate or that it occurred with respect to an employee who lacked an ability to meet sage standards of operation due to some physical impairment. Neither circumstance applies in this dispute and the cases are distinguishable on their facts. In my view, as stated, the conduct is deserving of discipline but dismissal is an excessive response because of mitigating factors.
VI
The position of the Union was that even if the failure to adhere to proper safety practices did amount to conduct deserving of discipline, a warning was appropriate. The union view was that even a suspension must be seen as excessive in the circumstances. The union emphasized two points in that regard. The first was that the grievor had no prior record of discipline in his employment history which, while short, was long-term in the context of the OCS operation, and that he had acquired a good reputation with respect to safety during his period of employment. The second point made by the union was an extension of the first. It was stressed, as was previously noted, that the railway had not previously imposed any discipline on any employee for unsafe practices or breaches of the operating instructions in electrified territory.
It is correct, as the union submitted, that arbitral jurisprudence acknowledges an expectation that a system of progressive discipline will be followed. The arbitral jurisprudence anticipates that an employer will take proper steps to inform an employee that particular conduct will place his employment in jeopardy. In Wm. Scott the board addressed that subject as follows on p. 3:
Because the employer is now entitled to escalate progressively its response to employee misconduct, there is a natural inclination to require that these lesser measures be tried out before the employer takes the ultimate step of dismissing the employee, and thus cutting him off from all of the benefits associated with the job and stemming from the collective agreement.
The expectation that the employer will apply a progressive and escalating approach to the use of discipline in response to serious safety infractions was addressed by the arbitrator in Re Eastern Canadian Greyhound Lines Ltd. and Amalgamated Transit Union, Local 1415 (1982), 7 L.A.C. (3d) 279 (Prichard). The arbitrator first acknowledged the application of the principles of progressive discipline. On p.282 the arbitrator said:
At the outset of our consideration of this question we want to state that we subscribe to the concept of progressive discipline. That is, we believe that industrial discipline should have a corrective emphasis and that, as a general proposition, a series of escalating penalties is most likely to be consistent with this corrective objective: Re North York General Hospital and Canadian Union of General Employees (1973), 5 L.A.C. (2d) 45 (Shime).
He went on to point out that arbitrators have concluded, despite the principles of progressive discipline, that it is appropriate to respond more strongly as a first response to serious misconduct. For that reason he concluded that it was appropriate to commence discipline in a serious case involving a safety infraction with a suspension rather than a warning. In that dispute the arbitrator saw the circumstances as requiring more than a warning and supporting the use of a suspension as a first act of discipline. On p. 283 he said:
The authorities cited above make clear that while as a general proposition a disciplinary warning is an appropriate first penalty, it is not always so, and that in certain cases a suspension is appropriate as the first penalty…
In that case the facts disclosed that the grievors had committed a serious safety infraction involving the operation of public buses. The infraction was deliberate and risked the safety of the buses operated by the grievors and the passengers they carried. The arbitrator rejected the submission that the absence of prior misconduct required that the employer commence its discipline with the imposition of a warning. In Re Smithrite Disposal Ltd. and Service Employees International Union, Local 244 (1978), 19 L.A.C. (2d) 87 (Bird), Mr. Bird, reduced a dismissal to a suspension for a serious safety infraction involving a fatal accident. In doing so he noted that grievor had no current discipline record. However, he concluded that the infraction, even though a first infraction in terms of the grievor’s admissible discipline record, justified the imposition of a lengthy suspension because of the serious implications of the failure of the grievor to employ safety practices appropriate for the circumstances.
I must reject the submission of the union that the employer was obligated to commence discipline in the circumstances before me with a written warning. The implications were sufficiently serious to justify a stiff penalty. Discipline serve at least two primary functions. One is the basic remedial impulse of progressive discipline which is aimed at informing an employee of the standard of conduct and performance required and of the consequences of a failure to maintain a proper standard. In that setting the use of punitive discipline is seen as incompatible with the remedial objective of progressive discipline.
However, in more serious acts of misconduct, particularly those where an employee can be expected to know that the conduct is wrong, discipline of a punitive nature is justified as a means of achieving deterrence against repetition of the conduct by the particular employee involved and deterrence against its imitation by other employees. In some cases deterrence is the overriding concern. I addressed that same subject in a prior arbitration between these parties. In British Columbia Railway and Canadian Union of Transportation Employees, Local 6, (1983) 8 L>A.C. (3d) 233, I cited Prof. Adams in E.B. Eddy Forest Products Ltd. and Lumber & Sawmill Workers Union, February 24, 1978, unreported, on p. 248 for the following proposition:
… on the other hand, some forms of conduct are so serious and so fundamentally opposed to the requirements of a productive work-force that an overriding concern for general deterrence may well be justified. In these situations boards of arbitration had to decide whether the concept of progressive or corrective discipline must give way to an approach that will impress upon members of the work-force the seriousness of misconduct. In these cases then, and this grievance is one of them, the issue is one of determining the extent to which the employer’s interest in general deterrence should properly override the aforementioned principle that discipline should be corrective.
It would be difficult to find an offence which more particularly invites that reasoning than a circumstance where an employee is careless or negligent in a manner which exposes himself and other employees to a risk of death. While I am of the view that a penalty less than dismissal should be substituted, I am of the view it should be a significant penalty.
I repeat my view that the conduct of the grievor, in the absence of mitigating factors, would constitute just cause for dismissal. Here the factors of mitigation include a perception that the incident was isolated and was a departure from the usual conduct of the grievor. The evidence was that the grievor had a food safety record and a good attitude towards safety. In addition, there was no previous pattern of discipline on the grievor or other employees which spelled out the gravity the employer attached to safety infractions in electrified territory. Finally, it was clear that the grievor had learned from the experience and, in my view, there is no likelihood that the conduct will be repeated. In short, I am satisfied that the grievor will be able to resume and maintain his previous good record.
In my view the circumstances invite the imposition of a significant period of suspension. To achieve that result I propose that the grievor be reinstated with no compensation. He has been off work since February 15, 1985, a period in excess of four months and thus his reinstatement without compensation fill amount to something in excess of a four-month suspension. That penalty should be sufficient to drive home to the grievor the necessity to maintain proper vigilance in following the procedures dictated for operating in electrified territory. In addition, it should be sufficient to deter similar laxity on the part of other employees.
Before leaving the dispute I must note that the grievor was removed from the list of those qualified to take out EP’s. That step was taken before the grievor was dismissed. It seems clear enough that the employer has a right to determine who will be placed on the qualified list. It seems equally clear that the employer can remove employees from the list in proper circumstances. There may be circumstances where removal from the qualified list will amount to an act of discipline. However, it is not necessary for me to address that issue in this dispute. The facts make it clear that the grievor was removed from the list because his competence was placed in doubt. It did not relate to his dismissal and the question of when removal from the list will amount to an act of discipline, in the sense of threatening continuity of employment, should be postponed until circumstances exist where that issue is squarely raised.
The railway submitted that reinstatement of the grievor would be awkward by reason of the fact that his absence from the qualified list would inhibit the tasks to which he could be assigned and , in addition, the railway was reducing its complement of catenary maintenance men, leaving a circumstance in which there are no vacancies into which to reinstate him. Neither of those facts can operate to deny the grievor the right to be reinstated to his employment. The reinstatement of an employee who has been dismissed always creates some measure of difficulty for the employer.
The decision to remove the grievor from the authorized list, if it is to result in the grievor’s loss of his employment, would have to be addressed in the context of dismissal for cause. In short, the employer cannot elect to deprive the grievor of his authorization in response to perceived misconduct and then rely on his absence or authorization as a basis for dismissal unless it is prepared to defend that result as a dismissal within the meaning of s. 93 of the Labour Code. In the result, the grievance is granted in part. The grievor is ordered reinstated without loss of seniority effective the first regular work day following the receipt of this award by the railway, but he is denied compensation.
Dated at the City of Vancouver, in the Province of British Columbia, this 15th day of July, A.D., 1985.
H. ALLAN HOPE, Q. C. - Arbitrator