AH – 415

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE M. BOHNERT

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Brian F. Weinert – Manager, Labour Relations

And on behalf of the Union:

John Bechtel – Vice General Chairman

John Crabb – Vice General Chairman

A hearing in this matter was held in Toronto on February 13, 1989.

AWARD

JOINT STATEMENT OF ISSUE:

The Union forwarded the grievance to Step 1 of the grievance procedure at which time the Company saw fit to reduce the 40 demerits to a quantum of 20 demerits. The grievance was furthered to Step 2 of the procedure, where the Company reduced the discipline a further 5 demerits to the present quantum of 15 demerits.

The Company maintains that the reduction of 25 demerits in this case was a significant removal and further, that the 15 demerits still present seems to be fair and progressive given the circumstances.

The Union contends that the 15 demerits is still excessive considering the particulars of the case in question.

The facts are relatively straightforward. It is common ground that on March 8, 1988 the grievor was instructed by his supervisor to drive a vehicle from the Company’s Port Coquitlam, B.C. terminal yard to the Victoria Ferry Dock when the trailer’s payload rate was in excess of the legal limit. It is not disputed that it would have been a violation of the law for the grievor to proceed with the load. It also appears that his supervisor, being instructed that the trailer was overweight, told Mr. Bohnert to proceed and that the Company would pay any fine that might result. The grievor nevertheless refused to carry out the instructions so given.

The grievor was effectively disciplined by the Company for refusing to violate the law as directed. It was his own opinion that it was both illegal and unsafe to drive the vehicle based upon the trailer’s overweight. It also appears that the grievor’s own driving record would have been prejudiced in the event of a traffic violation charge, as records of individual driver’s offences for being overloaded are maintained by provincial transportation authorities, with adverse consequences in the case of excessive accumulation.

It is well established that in general an employee is required to “work now – grieve later” when he or she objects to a directive given by the employer. However, an exception to the rule arises where the instruction requires the employee to do something which is plainly unsafe or unlawful. The rule was stated in the following terms in CROA 1785:

It is well settled that, as a general matter, an employee is bound to carry out the instructions of his or her superior … There are, however, exceptions to the general rule. Where, for example, the employee has reasonable grounds to believe that the directive of his or her supervisor jeopardizes safety or involves a violation of the law, refusal to carry out a supervisor’s directive may be justified or, to put it differently, such refusal will not sustain the imposition of discipline for just cause.

See also CROA 50, 1422 and 1759.

In the instant case, the grievor had a bona fide belief that it was unsafe for him to proceed with the overweight trailer. Whatever the merits of that opinion may have been, it is beyond dispute that it would have been unlawful for him to do so. In the circumstances the Arbitrator has no alternative but to conclude that Mr. Bohnert was justified in refusing to follow the instruction of his supervisor, and that the Company cannot assert that it had just cause to impose discipline upon him for refusing to do something which was unlawful.

For the foregoing reasons the grievance must be allowed. The demerits assessed against the grievor shall be removed from his record forthwith. I retain jurisdiction in the event of any dispute between the parties relating to the interpretation or implementation of this award.

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

(signed) MICHEL G. PICHER

ARBITRATOR