ah369

 

 

IN THE MATTER OF AN ARBITRATION

 

 

B E T W E E N :

VIA RAIL CANADA INC.

(the "Corporation")

- a n d -

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND

GENERAL WORKERS UNION OF CANADA (CAW-CANADA)

(the "Union")

 

 

RE: LEVEL OF DISCIPLINE ASSESSED M. HARLING

 

 

SOLE ARBITRATOR : M. G. Picher

 

APPEARING FOR

THE UNION : A.S. Wepruk - National Coordinator, Montreal

M. Harling - Grievor

 

APPEARING FOR

THE COMPANY : D.S. Fisher - Senior Advisor & Negotiator,

Labour Relations, Montreal

 

 

 

 

A hearing in this matter was held in Montreal, Monday, 8 January 1996.

 

 

 

 

 

AWARD OF THE ARBITRATOR

 

This grievance concerns the assessment of a suspension of thirty days against the grievor, Ms. M. Harling. The basis of the discipline is outlined in the Dispute and Joint Statement of Issue filed at the hearing, which reads as follows :

 

Dispute

The quantum of discipline assessed to Ms. M. Harling.

Joint Statement of Issue

Following the receipt of a customer complaint, Ms. Harling attended a formal investigation concerning an incident that occurred on August 18, 1994.

Ms. Harling was assessed a 30-day suspension without pay for "improper behaviour when dealing with customers on August 18, 1994".

At that time, her discipline record was clear.

The Union acknowledges that Ms. Harling may have erred in judgement but argues that the discipline assessed was excessive. The Union believes that demerit marks would have been more appropriate given the circumstances.

The Corporation declined the grievance. The Corporation asserts that given the nature of its business, positive attitudes and appropriate behaviour towards its passengers are imperative.

Certain of the facts giving rise to this grievance are not in dispute. The grievor, an employee of thirty-five yearsí service, was on duty as a Senior Station Attendant, at the information desk in Montrealís Central Station on the night of August 18, 1994. Late in her shift she was involved in an encounter with some four persons, at least two of whom were passengers on Train No. 68, which arrived from Toronto at 22:46 hours. It appears that the two female passengers presented themselves to Ms. Harling when they found themselves unable to recover their baggage from the baggage room which, it is agreed, was closed according to schedule at 20:45 hours. It seems that staff at Union Station at

 

 

 

Toronto who handled their baggage outgoing had advised them that they could put their bags on an earlier train and retrieve them from the baggage room at Montreal upon arrival. In fact, according to normal routine, the baggage room was closed and locked as of 20:45 hours.

According to a letter of complaint filed by the customers with the Corporation, while the customers were inquiring of Ms. Harling as to whether they could have access to their baggage, a baggage handler was seen leaving the adjacent baggage room. By their account, when they asked him to open the room to let them have their bags, he stated that it was after 11:00, and that his tour of duty ended at 11:00 hours, whereupon he left.

There is some divergence in the evidence as to what next transpired. The letter of complaint suggests that the grievor did nothing to help the passengers and simply left. It is common ground that she could have obtained keys to the baggage room from her locker, and given access to the baggage room to the two passengers, but that she did not do so. According to her account, however, the passengers in question were abusive towards her. She also states that during the course of the conversation she explained to them that they could call VIA Supervisor Sabourin the following morning, and that he would arrange to have the baggage delivered to their homes by messenger.

It does not appear disputed that after the grievorís conversation with the passengers was completed, and she had left, they noticed that the door to the baggage room was open, and a janitor was at work inside. They then entered the baggage room and recovered their own baggage. The janitor, who had natural concerns about the removal of baggage without proper authorization, notified CN Police and the two passengers were subsequently detained by the police to answer questions about their possession of the baggage, until they were finally released at or about midnight.

The first matter to be resolved is the conflict with respect to the alleged facts. It is significant, in the Arbitratorís view, that the only evidence advanced by the Corporation is in the nature of hearsay evidence, being a single page from what appears to be a multiple page letter of complaint filed by the passengers. While there is no dispute that the women in question were frustrated in attempting to recover their luggage from the baggage room, there is evidence from both the grievor and Mr. Marcel Goudreau, a redcap who was present at the time, to establish that in fact the grievor did relate to the passengers that they could, by means of a telephone call the following day, have the bags sent to their homes. That explanation does not appear in the letter of complaint. To the extent that the

 

 

 

grievorís explanation is essentially unrebutted by any direct evidence, bearing in mind that direct evidence is generally to be preferred to hearsay, there is reason to be concerned as to whether the letter of complaint might somewhat overstate the case. Moreover, while the anger and frustration experienced by the passengers is understandable, it appears it was, to some extent, fueled by their perception that a baggage attendant declined to help them, and was further aggravated by the detaining of the passengers and their subsequent questioning by CN Police. Neither of those events, however, were of the grievorís doing, although arguably the police involvement would have been avoided had she obtained the keys to the baggage room and released their luggage. It does not appear disputed that Ms. Harling could have done so, and might have claimed overtime had it been necessary for her to stay beyond her finishing time of 11:30 hours. It also appears clear that the passengers were mistaken as to the identity of the person they believed was a baggage room attendant. In fact it was Mr. Goudreau, who was then working as a red cap and, it appears, would not have had authority to release their luggage. Moreover, Mr. Goudreau denies entirely having stated to the passengers that he was simply leaving as his shift had ended.

On balance, where the evidence of the grievor, and that of Mr. Goudreau differs from the account of events related in the hearsay letter of complaint, the Arbitrator is compelled to prefer the evidence of Ms. Harling and Mr. Goudreau. Moreover, their evidence appears to have been recounted in a fair and credible manner. In the results, I am satisfied that there was an unhappy discussion between the grievor and the passengers in question, that she did inform them that their luggage could be delivered to their homes the following day and that, for reasons which she best appreciates, although she could have obtained her own keys and released the luggage to the passengers, Ms. Harling failed to do so. As noted above, that failure lead to the women in question taking their own luggage without authorization and becoming subject to an unfortunate encounter with CN Police.

The Union does not dispute that, in the circumstances, some degree of discipline was justified. There does not appear to be a good answer as to why Ms. Harling did not make the effort to obtain the keys to the luggage room and let the passengers have their bags. Accepting, as I am prepared to do, that the passengers were less than polite towards the grievor, in a business that is highly dependant on customer satisfaction for its success, it is necessary to provide the fullest service to all customers, even though some may seem to be less deserving. Moreover, even allowing for a degree of impatience, if not rudeness, on the part of the passengers, the grievor should have appreciated the frustration which they felt, in

 

 

 

 

light of the misleading information which was provided to them by the Corporationís own staff at Toronto. They were plainly not advised that the baggage room would be closed at the time of their trainís arrival in Montreal, and indeed were given entirely contrary information. Moreover, as one of the passengers resided some two hours from Montreal, the uncertain prospect of the baggage being delivered later, or having to return to collect it, would only compound their frustration.

The sole issue in the case at hand is the appropriate measure of discipline. The Union submits that a thirty-day suspension is unduly harsh in the circumstances. When regard is had to the incident itself, and to the grievorís prior service and disciplinary record, the Arbitrator is compelled to agree. Ms. Harling, who is fifty-five years of age, and who is now retired, had some thirty-five yearsí service at the time of the incident in question. In those many years of service she had received only one written reprimand by way of discipline, apparently relating to a flaw in her uniform, an incident which occurred some ten years ago. For practical purposes, the grievor is an exemplary employee with a virtually unblemished record over more than three decades of service. It is not disputed that during that time she received a number of positive commendations for the quality of her service to the passengers of the Corporation and its predecessor railway.

These mitigating factors are impressive. The Arbitrator does, however, appreciate the gravity of the incident as it is perceived by the Corporation. In the employerís view, in my opinion correctly, there is substantial jeopardy to the reputation of the Corporation arising from an incident such as that related above. Even allowing for the fact that the passengers may have been less than polite towards her, the grievor could, with little inconvenience to herself, have taken very simple steps to release their baggage to them. Her failure to do so is not adequately explained in her own account of the incident. By Ms. Harlingís own explanation, she told the passengers that if they had come to her directly upon the arrival of Train 68 she "could normally open the baggage room to give them their baggages". For reasons which she best understands, however, the fact that the passengers waited some forty minutes after the arrival of their train before coming to her, and their rudeness, prompted her to do nothing to help them in that regard. Notwithstanding the grievorís good and long service, the Arbitrator is compelled to agree with the Corporation that her conduct in that regard was inexcusable.

While it is true that long service, and particularly a positive disciplinary record, are factors which can have a considerable bearing on a penalty, it is also axiomatic that a good, long service employee does not, by reason of that service,

 

 

 

have a licence to commit a serious disciplinary infraction. I am satisfied that the case at hand does disclose a serious error, and that notwithstanding the grievorís prior record, a reasonably serious degree of discipline was justified. I do not, however, share the Corporationís view, having particular regard to the quality and length of Ms. Harlingís service, that a one month suspension, involving as it does a substantial loss of revenue to the grievor, was justified for the incident in question. In my view, while it was not inappropriate for the Corporation to consider a suspension as a means of discipline, a suspension of five days would more appropriately be within the range of discipline suited to the incident, given the grievorís extraordinary prior record.

For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the discipline assessed against the grievor be adjusted to a five-day suspension, with the grievor to be compensated for the difference in wages and benefits between the duration of suspension and the suspension of thirty days assessed by the Corporation. The Arbitrator retains jurisdiction with respect to this matter should there be any dispute with regards to the interpretation or implementation of this award.

 

DATED at Montreal, this 12th day of January 1996.

 

 

 

 

 

_____________________________

Michel G. Picher - Arbitrator