AH – 381

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE MARIO D’AOUST

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

R. Skelly                                   - Counsel, Montreal

B. F. Weinert                             - Director, Labour Relations, Toronto

M. Mousseau                            - Terminal Manager, Lachine

M. Lapointe                               - Dock Co-Ordinator, Lachine

F. Guindron                               - Linehaul Dispatcher, Lachine

A. Belair                                    - Witness

And on behalf of the Union:

K. Cahill                                    - Counsel, Montreal

A. Dubois                                  - Divisional Vice-President, Quebec

M. Allard                                   - Local Chairman, Montreal

M. D’Aoust                                - Grievor

A hearing in this matter was heard in Montreal, Tuesday, 9 August 1994

AWARD

The Arbitrator accepts the claim of the Company that Mr. D’Aoust attacked a fellow employee, Mr. André Belair, during his shift on July 28,1993, hitting him in the mouth at least once. It is well established that such conduct is deserving of the most serious of discipline (see CROA 762, 1701, 1858 and 1922). However, one must take into consideration all of the pertinent elements to decide if the discipline corresponds to the conduct in question.

In the documents presented there are mitigating factors. The evidence establishes that for some time Mr. D’Aoust and Mr. Belair have not gotten along and that a personal quarrel has even evolved to a case before the small claims court. Furthermore, shortly before the scuffle between the two employees, Mr. Belair reported to his supervisor advising him that Mr. D’Aoust had backed up a truck on the grounds of the warehouse, which was not allowed. To Mr. D’Aoust what Mr. Belair did was for personal vengeance and not simple vigilance of the Company’s interests. It is undeniable that he felt extremely provoked by what Mr. Belair had done. Even if the Arbitrator accepts that Mr. Belair’s report to his supervisor was made in good faith, in the eyes of Mr. D’Aoust that act was the last straw. In this context, the Arbitrator deems that there was provocation and that the attack by Mr. D’Aoust constituted a spontaneous reaction, beyond his normal behaviour.

Given these factors, which in no way excuse the conduct of Mr. D’Aoust, and in light of the grievor’s unblemished discipline record, it seems appropriate to the Arbitrator to substitute a long period of suspension for the discharge of Mr. D’Aoust. Therefore, I order that the grievor be reinstated into his employment, without loss of seniority, and without compensation for wages and benefits lost. I remain seized of the dispute for the purposes of the implementation of the award, if necessary.

Signed at Montreal, 11 August 1994

(signed) MICHEL G. PICHER

ARBITRATOR