ARBITRATION AWARD

(THE COMPANY)

AND

(THE UNION)

ARBITRATOR: Harvey Frumkin

APPEARING FOR THE COMPANY: R. Bateman

Human Resources Officer

P. E. Marquis

Labour Relations Officer

R. Morissette

Assistant Manager

Rail Traffic Control Centre

APPEARING FOR THE UNION: Alan Owens

National President

R.C.T.C.

Philippe Wojtowiez

System Chairman

Frank Swenor

Local Chair

A hearing of this matter was held at Toronto on January 20, 1995

The dispute submitted to arbitration takes the form of an appeal against the assessment of twenty demerits to the record of Rail Traffic Controller R.C. Wearing for what the Company characterizes as her unacceptable attendance record during the period August 1, 1992 to October 30, 1992. The joint statement of issue filed by the parties is to the following effect:

The background circumstances out of which the grievance arises are as follows. Ms Wearing joined the Company as a student operator in the month of April 1985. On September 4, 1989, she was promoted to the position of Rail Traffic Controller and was assigned in that capacity until October 28, 1992, at the Toronto Rail Traffic Control Centre working on a relief basis.

The attendance record of Ms Wearing, invoked by the Company in support of its action, has been documented as follows:

The Company maintains that Rail Traffic Controller R.C. Wearing did not have good and sufficient cause for the greater number of her absences over this period for which absences no credible explanation was provided. It added that two prior instances of discipline for timekeeping related incidents appear in her record so that the measure of discipline imposed was clearly called for.

The Union for its part contends that all of the absences identified by the Company were justified in terms of Ms Wearing's medical condition over the relevant period as well as by reason of urgent personal matters. It points out that Ms Wearing was involved in a number of motor vehicle accidents prior to July 22, 1992, which left her with chronic neck and back pain. As a result Ms Wearing had difficulty in sleeping so that she was frequently unable to report for work in an alert and fully rested condition and in consequence unable to discharge her duties in a safe and efficient manner. The Union referred, as well, to a kidney infection which Ms Wearing contracted during this period which necessitated some of the absences identified.

The Arbitrator accepts the Union's contention that Ms Wearing does indeed suffer from chronic neck and back pain which, as her medical record (received at the Rail Traffic Control Centre on July 22, 1992) indicated, may require that she take some time off occasionally as a result of that condition. The Arbitrator accepts as well that the absence of Ms Wearing, on the days of October 5, 6 and 7, 1992, were clearly justified by reason of a kidney infection necessitating hospitalisation.

This said however, the Arbitrator is not at all satisfied with the explanations provided by Ms Wearing for her record of absence generally, over the period in question and believes that discipline was in order.

Ms Wearing booked off sick on the days of August 10, August 27, September 13, September 20, September 27, October 3, October 5, October 6, October 7 and October 21, 1992. On the days of October 5, 6 and 7, 1992, she was unable to report for work due to a kidney infection. On all of the remaining days other than August 10th and October 3rd, 1992, she states that she was not fit to report for work because of her chronic back and neck condition. Her absences of August 10, and October 3, 1992, were ultimately explained by her in terms of a need to consult her lawyer for purposes of a pending litigation.

The Arbitrator would have difficulty in taking issue with the justification for the absences of Ms Wearing on the days of August 27, September 13, September 20, September 27 and October 21, 1992, on which days she booked off sick due, ostensibly, to her chronic back and neck condition. The Company did not inquire further into the reasons for these absences at the time each occurred and only raised the issue of their justification at a subsequent time. The Arbitrator has difficulty, however, in reconciling the reasons for absence ultimately provided by the Grievor for the days of August 10, and October 3, 1992, with a just and sufficient cause for these absences.

Initially Ms Wearing booked off sick on these two days of August 10, and October 3, 1992. At her interview on November 9, 1992, she again attributed these absences to her chronic condition. Ultimately, when challenged to provide more concrete proof to justify these, she acknowledged that they were taken for purposes of enabling her to consult her attorney. Quite independently of the fact that Ms Wearing booked off sick on the days of August 10, and October 3, 1992, when it appears that she was not sick, the Arbitrator is at a loss to understand why Ms Wearing would have had to absent herself from work on those days both of which followed or preceded two days of rest during which Ms Wearing would have been available to attend to any personal business. In this regard the day of August 10, 1992, which was a Monday, preceded two days which qualified as rest days for Ms Wearing during which her attendance at work was not required while the day of October 3, 1992, a Saturday, was preceded by two days which also qualified as rest days for Ms Wearing.

Thus there emerges a clear element of misrepresentation on Ms Wearing's part and in the Arbitrator's view, abuse, at least with regard to the absences of August 10 and October 3, 1992. The Arbitrator views such misrepresentation and abuse in a serious light because of the particular circumstances of Ms Wearing, circumstances of an employee who, because of a chronic medical condition, would be required to absent herself from work far more frequently than would other employees. It is this factor which, as far as the Arbitrator is concerned, imposed upon Ms Wearing an obligation to be forthright, vigilant, responsible and certainly not abusive on the matter of attendance at work. If Ms Wearing expected the Company to accept her assertions of illness justifying absence at face value and to tolerate a far higher than normal level of absence it would most certainly have been incumbent upon her to refrain from taking liberties or resorting to abuse by improperly seeking to justify an absence in terms of her condition. As far as the Arbitrator is concerned this is precisely what Ms Wearing did in this case. In the process she placed into question the justification for a number of absences which occurred over the relevant period whose authenticity the Company could quite reasonably suspect given that all of these absences, without exception, followed or preceded rest days.

For this reason the Arbitrator is unable to take issue with the Company's position that Ms Wearing's discipline record, which contains other occasions of timekeeping related incidents, does not reflect the record of a responsible and dedicated employee. Ms Wearing had already been assessed ten demerits for failing to protect an assignment on May 5, 1992, so that more severe discipline would have been in order to address instances of abuse occurring during a period of a high level of absenteeism. In the circumstances the Arbitrator can see no basis for intervention.

The grievance is accordingly dismissed.

Montreal, January, 25th, 1995

Harvey Frumkin - Arbitrator