AD HOC 252

AWARD

The parties agreed I was properly constituted as an arbitrator under their collective agreement with jurisdiction to hear and determine the issue in dispute. in this case the Union seeks the reinstatement of Mr. E.R. Kittle, the grievor, who was discharged August 12, 1986 for alleged absence without leave, from June 1, 1986 until August 12, 1986.

The letter of discharge reads as follows:

On July 30, 1986 you were sent a registered letter. The contents of this letter outlined the history of your being “Absent Without Authority” since June 1, 1986. In this regard, a copy of a self-explanatory understanding between the Railway and the United Transportation Union is enclosed.

You have refused to proceed with two hearings to date, one scheduled for June 10, 1986 and a second for July 9, 1986 indicating you were unable to arrange representation for these hearing dates. Attempts made to contact you through registered mail have been refused delivery at your residence and attempts to contact you by telephone have been unsuccessful. It should also be noted that you have not at any time made an attempt to offer the Railway any reason for your failure to “book on” for service on June 1, 1986, and for your subsequent absence from service since that date.

It is the view of BC Rail that we have provided you with every opportunity to explain your being “Absent Without Authority” since June 1, 1986, and your failure to do so leaves us with no other option other than to terminate your services with BC Rail effective June 1, 1986.

BACKGROUND

The grievor had been employed by the Railway since 1962.

In 1980 he sustained a back injury which kept him off work.

In January, 1984 the grievor sought to return to work. The Railway disputed his ability to return. Following more than two years of discussions between the Union, the Union’s solicitor and the Railway, the parties finally reached agreement May 8, 1986 to place the grievor back into service. That agreement reads as follows:

1. Effective June 1, 1986, subject to Mr. Kittle passing the appropriate Rules Examination, he will be returned to unrestricted service and with no adverse documentation on his record.

2. An amount of $35,000 will be paid to Mr. Kittle with respect to all claims made by the United Transportation Union or by Kittle and his counsel.

3. Mr. Kittle’s return to service and the payment of $35,000 to Mr. Kittle shall be the finalization of all the issues in dispute in this matter.

As well, the grievor received the following letter May 12, 1986 advising him of the requirements to book on service:

This will confirm your conversation with Dennis Sawchuk on May 12, 1986 wherein your return to service by June 1, 1986 was discussed.

During your conversation with Mr. Sawchuk your rules requirements, the payment of $35,000 to yourself and the date of your return to active service was confirmed. Regarding your rules requirements it was agreed that you will either pick up an A book from the Terminal Supervisor at Quesnel or from Dennis Sawchuk in the next few days when you pick up your settlement cheque. When you have completed your A book you will contact the Rules Department for your A oral.

Regarding the payment of $35,000, you advised Dennis that you did not wish this money to be pensionable earnings and, therefore, it was agreed that a cheque will be issued to you for $35,000, less the applicable income tax deduction.

It is our expectation that you will have met your rules requirements, enabling you to “book on” for service no later than June 1, 1986. If you are ready for service prior to June 1, 1986, it would be in order for you to book on ahead of the June 1st date.

If you have any questions regarding this letter, please do not hesitate to call me.

The grievor testified that he booked on for duty on May 31, 1986 to cover himself for June 1, 1986, but did not report for work on June 1, 1986. In fact, he never did return to work.

The grievor testified that he experienced dizziness on his return from Vancouver to Quesnel on May 22, 1986 and that he “did not know the proper process to follow or how to deal with the Railway because of the problems he had had with his previous back injury.”

The Railway scheduled an internal hearing on June 7, 1986. The grievor attended and requested an adjournment so he could have his Union represent him. The adjournment was granted for 30 days. The grievor testified he attempted, on several, occasions, to contact Mr. Mulhall, Chairman of the Union, and was unsuccessful.

He attended another hearing into the matter on July 9, 1986 and asked Mr. Brodie, the Railway’s Terminal Supervisor in Quesnel, to contact Mr. Mulhall. Brodie told him it was up to him (the grievor) to contact Mulhall. The grievor refused to proceed in the hearing due to the fact that he was not accompanied by a Union representative.

The grievor finally contacted Mulhall in late July, 1986 and advised Mr. Mulhall of his problems with hearing and dizziness.

Mr. Brodie scheduled another internal hearing for August 7, 1986 and advised the grievor by letter, which read:

In a letter sent to you on May 12, 1986, signed by Mr. J.C. Trainor, Manager, Operations & Maintenance, you were requested to “book on” for service no later than June 1, 1986. This request was in accordance with an agreement between Brian Foley and Clyde Mulhall.

You did not appear for duty on June 1, 1986, and as a result you were deemed to be “Absent Without Authority”. You were formally requested to attend a hearing on June 10. On June 10, you requested a postponement on the basis that you were unable to arrange representation. A second hearing date of July 9, 1986, was arranged and you again refused to proceed with the hearing as you did not have representation.

You are hereby requested to attend a hearing to be held on August 7, 1986, at the BC Rail Terminal Building in Quesnel, B.C. at 1400 O’clock. A full hearing will be held regarding your being “Absent without Authority” since June 1, 1986.

In the event of your absence or unwillingness to proceed, the full hearing will nevertheless proceed and appropriate action then taken as a result.

Mr. Brodie’s evidence reveals that receipt of the letter advising of the hearing of August 7, 1986 was refused at the grievor’s residence.

The hearing of August 7, 1986 was conducted in the grievor’s absence, following which the decision to terminate was made by the Railway.

POSITION OF THE RAILWAY

Counsel for the Railway argues that the agreement reached with the Union (set out above) dated May 8, 1986, imposed a duty on the grievor to report for work on June 1, 1986.

Mr. McArthur also asserts that the grievor’s behaviour in failing to complete his A book is evidence of both his tardiness and his disregard for any obligation to attend at work.

Counsel also asserts that at no time did the grievor offer any explanation for his absence to the Railway.

I was strongly urged by Mr. McArthur to consider the arguments and medical statements submitted on the grievor’s behalf by his Union and doctor between 1984 and May 8, 1986, with respect to his ability and fitness to return to full duty as a trainman. Mr. McArthur argued that it is not now open to the Union or the grievor to argue at this point that the grievor was unfit to return to work on June 1, 1986.

POSITION OF THE UNION

While acknowledging that the grievor had an obligation to attend work and, in the alternative, to notify his employer if he could not do so, Counsel for the Union argued that this case has special circumstances which provide a reasonable explanation for the grievor’s failure to attend at work on June 1, 1986.

Mr. Pidgeon argued that the grievor has had a hearing problem since December, 1984, but had no problems between that time and the dizzy spells he experienced shortly before his scheduled return to work on June 1, 1986. The grievor did not know what to do about this problem until he spoke to his Union representative, Mr. Mulhall. Thus, the Union felt this to be a reasonable explanation of the grievor’s behaviour.

Counsel for the Union argued further that the Railway is prohibited from discharging the grievor under Article 107(b) of the collective agreement.

I was also urged by Counsel to refer the grievor to a hearing specialist, have him examined, and if, after such examination, he is found to be fit to return to work, I ought to order his return to work at a specified time in the future with no back pay.

The issues to be determined are those in Re William Scott:

1. Has the grievor given just and reasonable cause for some form of discipline by his Employer?

2. If the answer to question #1 is yes, was the discipline imposed an excessive response under all of the circumstances?

3. If the answer to question #2 is yes, what alternative measure should be substituted as just and equitable?

CONSIDERATION OF EVIDENCE AND SUBMISSIONS

In order to put this case into context it is necessary to briefly summarize some of the factual background concerning the grievor. It will be recalled that between 1984 and 1986 the grievor and his representatives presented the Railway with numerous medical opinions which, in the end, persuaded the Railway to agree to put the grievor back into service on June 1, 1986. As part of the settlement referred to above, the grievor was paid $35,000 as settlement of all claims arising out of his previous grievances.

Based on that experience with the Railway, I find it extremely difficult to accept the grievor’s evidence that, upon experiencing the dizzy spells in late May, 1986, he did not know what to do.

Surely a man of his years knew enough to phone the Railway (at the very least) and advise of his absence and the reasons therefor. Moreover, the grievor, although not participating in the hearings scheduled for June 7 and July 9, did meet with representatives of the Railway to request the adjournment of his hearing, yet did not, on either of these occasions or any other occasion, advise the Railway of the reasons he did not report for work on June 1, 1986.

In this situation, it was incumbent upon the grievor to notify the Railway of his absence and the reasons for such absence. Failing to do so subjected him to discipline.

In the result, I find the grievor did give cause for discipline.

The next question is whether the discipline imposed was excessive under all of the circumstances.

In answering this question an arbitrator’s evaluation of the Railway’s decision to discharge must be especially searching so that a reasoned decision can be made as to whether the employment relationship is restorable.

I am satisfied that, in this case, there was an onus on the grievor to apprise his employer of his ear condition which first occurred in December, 1984. In particular, I find that the grievor should so have informed the Employer if it had the potential to affect his balance or judgement in carrying out his duties as a trainman.

Between 1984 and 1986 the grievor had insisted he was capable of returning to work as a trainman. He finally won that point and settled with the Railway with respect to the conditions of his return to work. According to his evidence, when he then experienced his dizzy spells again, he did not tell his employer.

These events cause me to question the grievor’s credibility and conduct between May 8th and June 1st for a number of reasons.

Firstly, he was well aware that he was required to write his A book prior to returning to work on June 1, 1986, but did not pick up his book from the Railway until May 29th. This conduct is even more puzzling when, by all accounts, it takes at least two to three days to complete the A book test.

On the one hand, he said he booked on and off on May 31st in order, he said, to protect himself on June 1st. Yet, on the other hand, he did not see fit to report his dizziness to the Railway.

Thirdly, his not accepting the letter of notification for the August 7th hearing, in my view, under all of the circumstances, is inexcusable conduct on his part. In particular, when one considers that he had been away from work since June 1, 1986 and had not given any reason to the Railway for his absence.

Finally, I will deal with the Union’s submission that the Railway was prohibited from disciplining the grievor because he was not given a hearing under Article 107(b).

Without setting out Article 107(b) in detail, it is sufficient to say that it is designed to provide a fair hearing for an employee for when discipline is being contemplated in order that all of the facts may be flushed out before discipline is imposed.

Under normal circumstances, this submission of the Union would have considerable merit; but in this case three hearings were scheduled to investigate why the grievor had been absent. With regard to the last hearing, the notice to attend was refused at his residence.

To give credence to the Union’s submission that the grievor cannot be discharged until he has been given a hearing, in the circumstances present in this case, would be to countenance his right to stay away from work and still maintain his employment by continuing to delay an investigative hearing.

This, in my view, was not intended by the parties when they negotiated Article 107(b).

In light of the foregoing, I find, in all of the circumstances of this case, that discharge was not an excessive response. The grievance is dismissed.

It is so awarded.

Dated at Vancouver, British Columbia this 20th day of June, 1988.

(signed) VINCENT L. READY

ARBITRATOR