BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

D. M. Lanthier – Labour Relations Officer, Winnipeg

G. Blundell – Manager, Labour Relations, Edmonton

L. M. Quilichini – Manager Rail Traffic Control Centre, Edmonton

And on behalf of the Union:

Peter Taves – National Vice-President, Winnipeg

Philippe Wojtowiez – System Chairman, Montreal

Maurice Boucher – Local Chairman, Montreal

A hearing in this matter was held at Montreal on September 22, 1993.

The dispute in the present case concerns the severity of the discipline assessed against Train Dispatcher Ms. Gail J. Rutkowski of Prince George, British Columbia, for violation of Time Table Special Instructions Manual Block System Regulations, Items 2.2, second paragraph, 2.14(c) and 2.16(d).

The Joint Statement of Issue submitted by the parties is to the following effect:

The background facts and circumstances out of which the grievance arises are straightforward. Ms. Rutkowski was first engaged by the Company as a student Operator in Prince George, British Columbia, on February 3, 1987. On March 11 of that year she assumed the post of Operator at Prince George. In August of the following year she began working as a student Train Dispatcher and on January 6, 1989, was promoted to the post of Relief Train Dispatcher also at the Prince George, B.C., office.

On April 4, 1990, Ms. Rutkowski, while on duty as a Train Dispatcher, issued Clearance No. 526 to Train Extra 5416 West to proceed from Longworth to Hutton without restrictions. She had, however, already cleared the same stretch of track to Train Extra 5004 West by way of issuance of Clearance No. 525. In point of fact, Train Extra 5004 West was still travelling along the same stretch of track cleared for Train Extra 5416 West when Clearance No. 526 issued.

Upon investigation it was determined that Ms. Rutkowski erroneously recorded Train Extra 5004 West as having gone by the stretch of track cleared for Train Extra 5416 West at Hutton at 2323 hours, when in fact Train Extra 5004 West had passed Longworth at that time and was still travelling along the particular stretch of track toward Hutton. The error committed is explained by Ms. Rutkowski in her statement, as follows:

Quite fortuitously, the conductor of Train Extra 5004 West picked up the issuance of Clearance No. 526 on his radio and immediately questioned it, whereupon, Ms. Rutkowski, recognizing the error, immediately rescinded the clearance. The potential for serious consequences was thus avoided.

It is also in evidence that on November 19, 1989, Ms. Rutkowski while on duty as a Train Dispatcher at Prince George, was involved in another incident in which she was in violation of the Uniform Code of operating Rules (UCOR) (REV 62) Rule 211, for which she was assessed twenty demerit marks. That particular violation, as well, also concerned a matter of clearance procedures.

The form of discipline selected by the Company to deal with the violation appears in the decision to discipline which issued on April 24, 1990, as follows:

As appears from the disciplinary notice, the Company imposed a suspension of twenty-one days duration without pay upon the Ms. Rutkowski, coinciding with time out of service pending investigation. It also subjected Ms. Rutkowski to a disciplinary demotion by restricting her from working in the position of Train Dispatcher for a period of two years reckoning from the date of its decision and at the same time extended that restriction to the position of "SMI", Operator at Prince George.

The position of the Union is that the discipline imposed was too severe for the circumstances. It points out that for Ms. Rutkowski to have remained with the Company at Prince George, given the restriction imposed, she was obliged to accept a position of Classified Labourer within another collective agreement on July 18, 1990. She continued to work in that position until she was able to resume her duties as Train Dispatcher following expiry of the restriction on April 26, 1992. In the interim, as a result of the twenty-one day suspension, the lapse of time incurred until Ms. Rutkowski assumed the position of Classified Labourer, a lay-off to which she was subjected while in that position and the wage differential, the financial impact of the suspension and demotion, equated to a loss of earnings of $38,602.60.

The Company, for its part, points out that Ms. Rutkowski was interviewed for a position of Transportation Operator at Edmonton, but declined. Had she accepted that position the financial impact of the demotion upon her would have been the considerably lesser sum of $12,060.72.

In assessing the appropriateness of the discipline selected by the Company, it is to be observed that the discipline, in effect, is threefold. It consists firstly of a suspension, secondly of a disciplinary demotion in the form of removal of the Grievor from her position of Train Dispatcher for a period of two years, and lastly, a restriction from occupying another position, that of "SM" Operator at Prince George for a like period.

Suspension is a common form of discipline to which employers may resort when dealing with employee misconduct. Demotion as a form of discipline, on the other hand, is not generally available to an employer nor is it appropriate for all cases. Its use will be limited to the case where demotion can serve as a corrective by removing an employee from his position for a time where the collective agreement does not prohibit such a course. Thus demotion will be an available form of discipline where, by reason of an employee’s blameworthy conduct, he has failed to perform his job to standard. This principle is stated in Canadian Labour Arbitration, Brown & Beatty, Third Edition, page 7-115, item 7:3544, as follows:

Moreover, as between the parties, demotion as a form of discipline has long been recognized as an appropriate manner for dealing with blameworthy conduct associated with job performance. In a number of cases the right of the Company to discipline by way of demotion where the misconduct identified goes to the root or essence of job performance has been recognized. In the decision of CP Rail and Rail Canada Traffic Controllers (CROA 1299), the arbitrator states:

Again, in another case involving a Train Dispatcher {CP Rail and Rail Canada Traffic Controllers (CROA 1697)} the arbitrator, in refusing to modify a decision to discipline by way of demotion, expressed the following view:

In this case Ms. Rutkowski had committed a serious violation of Company regulations regarding clearance procedures. The error was due to inadvertence on her part. Hers was a position which carried with it a high degree of responsibility requiring the highest standard of care. The position of Train Dispatcher is a very sensitive one, so that where employee misconduct takes the form of unsatisfactory job performance, particularly where inadvertence and carelessness are involved, disciplinary demotion will represent an appropriate response.

Thus, from the Arbitrator’s perspective, it is difficult to take issue with the conclusion of the Company that demotion as a form of discipline was appropriate for the circumstances. The temporary demotion would ensure non-recurrence and heighten over time Ms. Rutkowski’s awareness of the importance of high levels of concentration and care in the discharge of the duties of a Train Dispatcher.

The Company did not stop at imposing a demotion however. In addition, it restricted Ms. Rutkowski from assuming the position of "SM" Operator at Prince George, notwithstanding that her demotion was to the position of Operator. The Company sought to justify the restriction in terms of its assertion that the "SM", operator at Prince George operates the centralized traffic panel controlling train and yard movements to both the Fraser Sub and the B.C. Rail Interchange. The incumbent in the position would interact on the radio with train crews and would be involved as well in the issuing of train orders to crews. Thus, the Company felt that Ms. Rutkowski should not be retained in a position which involved duties in the nature of the ones assumed by the "SM" Operator, which duties it assimilated in significant measure to those of the Train Dispatcher.

While a detailed comparative analysis between the positions of Train Dispatcher and "SM" Operator, Prince George, was not submitted, there is sufficient before the Arbitrator to conclude that there were pertinent duties and responsibilities inherent in both positions which bore significant resemblance to one another. This being the case, it could be argued that the very same reasons which justified Ms. Rutkowski’s removal from the position of Train Dispatcher by way of disciplinary demotion served to justify her exclusion from the position of "SM" Operator at Prince George.

Demotion operates as much to remove an employee from particular duties and responsibilities as it does to remove that employee from a particular position or classification. Thus it will be permissible for an employer, when imposing a disciplinary demotion upon an employee, to identify other positions from which that employee will be restricted where these other positions include duties and responsibilities not dissimilar from those of the position from which the employee has been demoted. To be sure, the duties and responsibilities of the positions to which the restriction is applied must be similar to those with which the incompetence or inadvertence of the employee has been associated. The important consideration is that the object of disciplinary demotion is to remove an employee for a time from the performance of duties and responsibilities, be those comprised within the position from which he is being demoted or comprised within some other position, by reason of inadequate discharge of those duties and responsibilities as a result of blameworthy conduct.

For these reasons, the Arbitrator believes that there existed justification for the temporary removal of Ms. Rutkowski from the position of Train Dispatcher by way of disciplinary demotion and for the corresponding restriction imposed regarding the position of "SM" Operator at Prince George. As regards the restriction, the observation is to be made that the Company offered Ms. Rutkowski at the time, another position of operator at the Edmonton office, which presumably was less sensitive, an initiative which in the Arbitrator’s view would be indicative of the authenticity of the concerns which the Company expressed.

But although the Arbitrator concurs in the form of discipline selected and in the general approach adopted by the Company, it is unable to rationalize the need for imposing as lengthy a temporary demotion as the Company did, with the object of the form of discipline selected. This would be particularly so given that the Company made no provision in its decision for periodic review of Ms. Rutkowski’s performance. Temporary demotion is a unique form of discipline. Like suspension, it is designed through its punitive character to avoid repetition of the blameworthy conduct which it is intended to address. But it involves as well a subtle additional dimension in the sense that it is aimed at improved job performance where blameworthy conduct undermining that job performance is amenable to a corrective response. It would follow, therefore, that after a time the corrective dimension which the disciplinary demotion incorporates disappears and the measure becomes strictly punitive and no longer in keeping with the object of this particular form of discipline.

In the present case the Arbitrator has great difficulty with the length of time which the Company attached to the disciplinary demotion and accompanying restriction. If the issue was Ms. Rutkowski’s competence, purely and simply, the appropriate course would have been administrative action in the form of removing Ms. Rutkowski from her position and allowing her to compete for other available positions according to her rights. The Company, however, characterized Ms. Rutkowski’s inadvertence of April 4, 1990, as blameworthy conduct which could be corrected by discipline and chose to proceed by way of disciplinary demotion. This being the case, it should have limited the period of demotion to what was reasonably necessary to achieve the intended purpose. The Arbitrator believes that a disciplinary demotion of two years duration was far more than was necessary to achieve such intended purpose given the evidence presented, particularly in view of the fact that no provision was made for periodic review of Ms. Rutkowski’s suitability to resume her duties as Train Dispatcher.

While the assessment is somewhat arbitrary, the Arbitrator believes that a temporary demotion of one year would have been more than ample to address the Company’s concerns. Such a period would give Ms. Rutkowski sufficient time and opportunity to appreciate the sensitive nature of the responsibilities of Train Dispatcher and of the high level of care, attention and concentration that the position demands. All considered, the Arbitrator is of the view that the discipline to which Ms. Rutkowski was subjected was excessive, so that compensation to that extent will be in order.

In assessing the compensation to which Ms. Rutkowski is entitled, the Arbitrator has taken into account her refusal to accept a position of Operator at Edmonton, notwithstanding that the relocation which would have been required would have involved a significant degree of inconvenience for her. There were no corresponding positions available which she could assume at Prince George and she cannot hold the Company for the consequences of her failure to accept the Company’s offer of the position of Operator that was available. Given that the Arbitrator’s assessment of the appropriate penalty would have been a temporary disciplinary demotion of one year’s duration, Ms. Rutkowski’s loss had she accepted the position of Operator at Edmonton over the fifty-five week period following what should have been the twelve month period of temporary demotion, amounts to $6,751.09 computed as follows:

It is unnecessary for purposes of remedy to deal with the suspension. This is because Ms. Rutkowski, by reason of the fact that she declined the Company’s offer of the position of Operator at Edmonton, found herself without a position and was not able to relocate herself until July 18, 1990, and so would have received no remuneration in the interim, regardless of whether the three week period following the incident is treated as a suspension or as part of the period of temporary demotion.

For the foregoing reasons, the grievance is maintained in part; the disciplinary demotion of Ms. Rutkowski is reduced from two years to one year, the one year to reckon from the effective date of demotion, namely April 5, 1990; the Company is ordered to pay to Ms. Rutkowski the sum of $6,751.90, representing the amount of damages to which she is entitled in the circumstances, and this without interest.

MONTREAL, October 1, 1993