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IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE GASTON JONES

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

R. Skelly                                   - Counsel, Montreal

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

R. St. James                             - Regional Director, Maintenance, Montreal

And on behalf of the Union:

K Cahill                                     - Counsel, Montreal

A. Dubois                                  - Divisional Vice-President, Quebec

M. Allard                                   - Local Chairman, Montreal

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

AWARD

From the evidence before the Arbitrator, it is not denied that Mr. Jones suffered from a medical condition which caused him to be absent from work from November 18, 1993. Given Mr. Jones’ discipline file and the correspondence sent to him, the Arbitrator considers that this is clearly a matter of discipline. I do not believe that the Company violated the terms of the collective agreement concerning the necessity of holding a disciplinary investigation, given the practice agreed to between the parties concerning the application of article 7.3.10 of the collective agreement in similar cases. When Mr. Jones did not respond to the written requests from his supervisor, Mr. St. James, to provide an explanation for his absences before December 6, 1993, he effectively risked the loss of his employment.

There are, however, mitigating factors in the file which justify a reduction of the discipline. Firstly, around November 21, Mr. Jones’ wife communicated by telephone to his supervisor that Mr. Jones was absent because of illness. I accept fully the position of the Company to the effect that the employer had a right to a fuller explanation. But a second telephone call from Mr. Jones, from Valleyfield, on November 27 or 28, was not sufficient, in that in that conversation with Supervisor Marcellin the grievor made no mention of the state of his health. However, on December 7, 1993, prior to the discharge of Mr. Jones, his supervisor, Mr. André Marcellin, was in possession of complete medical documentation which covered the period of his absence.

In light of Mr. Jones’ prior discipline record concerning absenteeism, the Company had cause to impose a serious measure of discipline for Mr. Jones’ flagrant failure in his obligation to provide information to his employer concerning the reason for his absence from November 18 to December 7, 1993. However, given the mitigating factors, the Arbitrator deems it appropriate to reduce the discipline.

For these reasons, the grievance is allowed, in part. The Arbitrator orders that Mr. Jones be reinstated into his employment, without loss of seniority and without compensation for wages and benefits lost. However, the reinstatement of Mr. Jones will not be effective until after he presents a medical certificate confirming that he is fit to return to work. The Arbitrator remains seized of the dispute if the parties cannot agree on the implementation of the award.

Signed at Montreal, 11 August 1994

(signed) MICHEL G. PICHER

ARBITRATOR