AD HOC 412

AWARD

The following is the dispute and statement of issue as described in the brief filed at the hearing by the Union:

DISPUTE:

The assessment of 20 demerits to CanPar employee T. Doyle, Toronto, Ontario

STATEMENT OF ISSUE:

On February 9, 1988, the employee was involved in a motor vehicle accident.

On February 10, 1988 a company supervisor held an interview with the employee, recording all questions and answers. This interview was held without the employee having the right of a Union Representative present. On March 10, 1988, the Company held a second interview and 20 demerits were assessed.

The Union contends the Company has violated Article 6 of the Collective Agreement and requested the 15 demerits be removed from the employee’s record.

The Company denied the Union’s request, contending only one interview was held.

The material discloses that on February 9, 1988 the grievor was involved in a motor vehicle accident with a passenger vehicle. On the same day Mr. Doyle duly filled out an accident report, following normal procedures. The following day, on February 10, 1988 the grievor’s supervisor held an interview with him, during which he recorded all of the questions put to the grievor as well as his answers. The report prepared by the supervisor took the form of a “Follow-Up Accident Report”. Subsequently, on March 10, 1988, the Company held a formal investigation, as a result of which the grievor was assessed 20 demerits with respect to the accident. It is common ground that at the first interview with his supervisor the grievor did not have Union representation, although he did on the occasion of the second interview.

It does not appear disputed that information gained by the Company during the first interview of the grievor was admitted and used for the purposes of the second interview and investigation. Among other things, the first interview contained a statement by the grievor to the effect that he could have waited until the car which he struck had stopped and waved him on, or alternatively, he could have pulled out first, causing the car to stop, as a means of avoiding the accident. The report of the first interview reflects a statement on the part of the grievor that the lesson learned was that he should not have taken a chance on the other driver.

The Union asserts that the Company violated the protections of the grievor under the collective agreement in respect of formal investigations leading to discipline. Specifically it asserts a violation of article 6 of the collective agreement which provides, in part, as follows:

6.1 An employee may only be disciplined or dismissed for just cause.

6.2 Whenever an employee is to be interviewed by the Company with respect to his work or his conduct in accordance with Article 6.1, an accredited union representative must be in attendance. In the event an accredited representative is not reasonably available, a fellow employee, selected by the employee to be interviewed, shall be in attendance. Nothing herein compels an employee to answer any questions.

6.3 Failure to comply with Article 6.2 shall render any conclusion null and void, and any statements at such interview inadmissible at any subsequent proceedings.

By way of background the Union’s representative explained, without contradiction by the Company’s representative, that until recently accidents were treated differently for the purposes of assessing discipline. Under the prior procedures an accident committee was constituted, being comprised of two members of management and one union representative. Following the filing of a written accident report the employee would then be interviewed by the accident committee, as the result of which a recommendation with respect to the imposition of discipline would be made. As the accident committee included a union member, the procedure was seen as being consistent with the requirements of article 6 of the collective agreement.

The joint safety committee procedure has been discontinued. As the instant case reveals, under the present practice an employee files an accident report, following which he is interviewed by a supervisor. The Company’s spokesperson explains that the initial interview, which may sometimes involve a re-enactment of the accident, takes place very soon after the accident when the events are still fresh in the employee’s mind.

This grievance must turn upon an interpretation of the meaning and intention of article 6 of the collective agreement. In the Arbitrator’s view it is clear from the wording of article 6.1 that when management knows, or has reason to know, that an employee’s conduct or performance may give rise to discipline or discharge, any interview conducted by the Company in furtherance of obtaining information in that regard must conform with the procedural requirements of article 6.2. Accidents are, not surprisingly, not an uncommon occurrence in the day to day operation of the Company’s business. It appears undisputed that for a number of years, since the conception of CanPar, the Employer has maintained a published guideline with respect to suggested demerits relating to some fourteen types of possible accidents. For example, opening a left door into oncoming traffic is described as deserving of fifteen demerits while skidding on an icy surface is rated at ten demerits. The policy directive issued within the Company, as revised in November of 1985 contains the following notation:

Demerits assessed only after a complete investigation into the circumstances involved in each accident.

It appears from the foregoing that as a general matter when the Company is advised that an accident has occurred there is, at the very least, a distinct possibility that discipline may result. That reality is further reflected in the form utilized by the supervisor in the instant case during his initial interview of the grievor entitled “Supervisor Follow-Up Accident Report”. It contains three portions to be answered by the employee. The first question is “Driver’s Comments on How Accident Occurred”. The second is “Driver’s Comment on: How Accident Could Have Been Avoided” while the third is “What Will They Do In The Future to Avoid Similar Accident”.

Depending on the factual circumstance, the questions so framed have the potential of being self incriminatory. An employee venturing a statement on how an accident could have been avoided or what, in future might avoid a similar accident, plainly risks making statements that can be taken as constituting an admission of fault. In the normal course such statements or answers may naturally conduce to a position of discipline.

That, indeed, is what happened in the instant case. One month following the initial interview, the Company purported to convene a formal investigation pursuant to the terms of article 6 of the collective agreement. At that time the chief evidence relied upon by the Company was the Supervisor’s Follow-Up Accident Report.

In the Arbitrator’s view, the interpretation of article 6 advanced by the Union in the instant case is more compelling than that argued by the Company. It is not disputed that in the past an employee who filed an accident report was not subjected to a personal interview by any member of management without the involvement of some union representation. In the case of the joint accident committee, that representation was built into the composition of the three person panel conducting the inquiry. Given the frequent connection between accidents and discipline, coupled with the practice of the parties under the accident committee system, it appears to the Arbitrator that the parties have traditionally recognized that inquiries into the circumstances of accidents generally involve an interview with respect to an employee’s work or conduct which may involved the imposition of discipline or discharge within the meaning of article 6. While such an interview may result in the exculpation of an employee, it is clear that at the outset of the interview the supervisor cannot know that with any certainty. Moreover, given that the Follow-Up Accident Report form being filled out during the interview specifically asks the employee questions directed to what he or she did that was wrong, it is difficult to accept the suggestion that the interview is wholly unrelated to the assessment of discipline.

Nor, in the Arbitrator’s view, is it unduly onerous to expect the Company to comply with the requirements of article 6 during the course of an initial interview conducted shortly after an accident has occurred. Article 6.2 can be complied with by adhering to fairly minimal norms. No notice period is required within article 6, as a result of which the interview may be conducted as early as the Company may wish.

The protections of the employee will be respected if he or she is allowed to have a union representative or fellow employee in attendance at the interview. Nor does proceeding in that fashion necessarily force the Company to make a hurried determination. As long as the requirements of article 6 are observed, it may for legitimate reasons which are not abusive, constitute a supplementary investigation at a later time should there be a need to do so.

For the reasons related above, the Arbitrator is satisfied that the terms of article 6 were intended by the parties to apply in the circumstance of an employee being interviewed with respect to the circumstances of an accident, particularly when the employee’s own judgements and actions are being questioned. Such questions are clearly likely to elicit information which renders the employee liable to discipline, as happened in the instant case. I therefore find that the Company violated article 6 of the collective agreement by failing to provide to the grievor the opportunity to have union representation, or the assistance of another employee, at the time of the initial interview by his supervisor on February 10, 1988, with respect to the circumstances of his accident on February 9, 1988. By virtue of the provisions of article 6.3, the Company’s failure to observe the requirements of article 6.2 must be taken as rendering the discipline assessed against the grievor null and void. The statements taken by the supervisor at the initial interview were inadmissible, both in the subsequent interview and in these proceedings. As the Company obviously could not disregard the incriminating statements obtained during the first interview, the purported holding of a formal investigation a month later, at which the report from the initial interview was tabled, cannot be seen as curing the deficiency in the procedures followed, or undoing the violation of article 6 disclosed in evidence.

For the foregoing reasons the grievance must be allowed. The demerits assessed against Mr. Doyle shall be removed forthwith from his record. The Arbitrator retains jurisdiction in the event of any dispute between the parties with regard to the interpretation or implementation of this Award.

DATED AT TORONTO, this 22nd day of February, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR