AD HOC 462

IN the MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Union")

re: DISCHARGE GRIEVANCE OF “P”

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

D. J. Wray – Counsel

John E. Platt – International Representative

Luc Couture – System General Chairman

K. Kearns – System General Chairman

Appearing For The Company:

Ken Peel – Legal Counsel

Kristin R. Taylor – Legal Counsel

Alan E. Heft – Manager, Labour Relations

Frank O’Neill – Labour Relations Associate – Great Lakes

Al Turner – Asst. District Engineer – Champlain District

Frank Bourque – Engineering Officer – Champlain District

A hearing in this matter was held in Toronto on January 8, 1999.

AWARD

The facts in relation to this discharge arbitration are not in dispute. In light of the sensitive nature of the facts the grievor shall be referred to as “P”. The Dispute and Joint Statement of Issue filed at the hearing reads as follows:

DISPUTE:

As per Form 780, dated March 24, 1997, S&C Technician “P” was discharged for “Failure to protect your assignment and for your absence without authorization since November 22, 1996.”

JOINT STATEMENT OF ISSUE:

The Union contends, that the discipline assessed was unwarranted and excessive.

The Company denies the Union’s contentions

The grievor is a long service employee, hired by the Company on January 15, 1973. At the time of his termination he held the position of a Signals & Communications Technician at Gordon Yard in Moncton. On October 29, 1996 “P” advised his supervisor, Mr. Jerry Wilkins, that he was turning himself into the police to face charges of sexual assault. He then asked to be asked to be able to use his vacation entitlement, a request which was granted, with the entitlement to expire on November 22, 1996.

It is common ground that subsequently the grievor pleaded guilty to three charges of indecent assault on male minors arising out of incidents which occurred between 1970 and 1972, 1971 and 1973, and 1978 and 1980. Additionally, he pleaded guilty to two charges of sexual assault on male minors for incidents between 1988 and 1990 as well as in 1996. On January 17, 1997 “P” was sentenced to serve a two year term in a federal penitentiary. While his criminal defence lawyer advised the Company in writing of the outcome of his criminal trial, no formal request for a leave of absence was made on his behalf either by the grievor, his legal counsel or his Union. The only indication which the Company received with respect to the prospect for the grievor’s future was the estimate of his lawyer that he would be eligible for release after eight months, or in September of 1997. In fact, “P” served the full two years of his sentence, part of that time in a half-way house facility.

On February 11, 1997 the grievor wrote to Engineering Officer Frank Bourque, advising of his circumstances and requesting a leave of absence until September 20, 1997. Following that notification the Company conducted a disciplinary investigation, including an interview of “P” at the Springhill Correctional Institute on March 5, 1997. The purpose of the investigation, as specified in the notice to “P”, was to inquire into his failure to protect his assignment and to be absent without authorization since November 22, 1996. During the course of the investigation “P” fully disclosed his circumstances, and acknowledged that he had not requested a leave of absence prior to his letter of February 11, 1997. Following the investigation, on March 24, 1997 the Company gave written notice to the grievor that he was discharged effective immediately. The Union now seeks the grievor’s reinstatement.

The general principles which govern the entitlement to reinstatement of an employee who is absent from work by reason of incarceration were touched upon in CROA 2714, an award involving Canadian Pacific Limited and the Brotherhood of Maintenance of Way Employees dated March 15, 1996. In that case the Arbitrator commented as follows:

This Office has long recognized that incarceration for a criminal offence is, of itself, not necessarily grounds for the termination of an employee’s service, where there are substantial mitigating factors of significance. In CROA 1934 the general principles to be applied were described as follows:

The issue in the instant case is whether the Company was entitled to discipline Mr. Miller because of his unavailability for work during his incarceration. I am satisfied that it was. The issue then becomes whether, in light of all the factors to be considered, a measure of discipline short of discharge is appropriate. In assessing that question a number of factors must be weighed. Among them are the impact, if any, on the employer's operations and interests arising out of the grievor's criminal conviction, as well as the grievor's length and quality of service. The principles that apply were expressed in the following terms in CROA 1645, which also involved the discharge of an employee convicted and incarcerated in relation to a fatality:

As is implicit from the cases, there can be no automatic presumption that conviction for a serious criminal offense, including subsequent incarceration, are necessarily inimicable to the continuation of an employment relationship. In this, as in any matter of discipline, each case must be assessed on its own merits, with close regard to a number of factors, including the nature and circumstances of the offense, efforts at rehabilitation, the nature of the work performed by the employee, the length of an employee's service and the quality of his or her disciplinary record and prior criminal record, if any. Obviously, careful consideration must be given to the reinstatement of any employee who is absent without leave due to incarceration for a serious criminal offense, having particular regard to the need of the Company to provide, and appear to provide, a public service consistent with the highest standards of safety and integrity in its employees. Those considerations should not be compromised or placed at risk. On the other hand, great care should be taken not to overreact and unduly sever the career of an employee of long-standing and good service when the evidence establishes, on the balance of probabilities, that there is no real jeopardy to the Company's legitimate interests.

A review of the cases cited above discloses that arbitrators require that an employee seeking the benefit of a tribunal’s discretion to order their reinstatement into employment should, at a minimum, be forthcoming with a clear account of the circumstances leading to their incarceration, their prior criminal record, if any, as well as any evidence which might be persuasive with respect to their rehabilitation. It is also noteworthy that in some cases long service has been considered an important element in the balancing of equities, as for example, in CROA 1645 and CROA 1934 where both grievors had twenty-one years’ good service with the employer.

In support of the grievor’s claim for reinstatement the Union submits that he has been at all times open and forthcoming with the Company, stressing that he turned himself into the police, and has sought to benefit from rehabilitation for his condition as a paedophile through the entire period of his incarceration, which apparently ended in December of 1998. Without minimizing the gravity of the sexual offences of which the grievor was convicted, counsel for the Union submits that “P”’s off-duty conduct is, in light of his subsequent rehabilitation, not to be viewed as ruling out his continued employment. In that regard he relies on the principles expressed in CROA 2714. He further urges the Arbitrator to consider conditional reinstatement, making no request for compensation, and suggests that the grievor might be made subject to a condition of pursuing ongoing rehabilitation.

Counsel for the Company argues a substantially different position. Firstly, he submits that the factors governing an incarcerated employee’s entitlement to reinstatement, as related in CROA 2714, substantially militate against the grievor in the case at hand. While the Company accepts that the grievor is a long term employee of prior good service, it notes with concern that there was at least one incident in the grievor’s past which involved sexual impropriety on Company premises. The unrebutted representation of counsel for the Company is that in July of 1976 “P” made an improper sexual proposition to a young male employee, inviting him to engage in a homosexual act for the payment of $10.00. The employee, a fifteen year-old apparently engaged in student employment, reported the overture to his father, who was the crew dispatcher. It appears that the crew dispatcher and service centre control clerk confronted the grievor, who immediately apologized and assured them that nothing similar would happen again. The matter progressed to the attention of the area plant supervisor who then interviewed the grievor and accepted his assurance that such an incident would not recur. Armed with the knowledge that the grievor’s sexual dysfunction was not in fact controlled over the years, the Company now questions the advisability of the grievor working in a largely unsupervised position within its operations.

The Company makes further submissions with respect to the facts. Firstly, it notes that the grievor’s conviction and sentencing were noted in the local press at the time of the incident. Secondly, the Company stresses that to have granted “P”’s request for a temporary leave of absence would have put it to considerable hardship. By the Company’s unrebutted account, the training of a replacement for “P” would have involved a considerable cost in both time and money. It does not appear disputed that qualifying a new candidate for an S&C technician position would have involved some fifty-seven days in formal course training. That would be combined with on-the-job experience requiring some fourteen to sixteen months to complete. In the circumstances counsel for the Company submits that it was impracticable for the Company to consider granting the grievor’s request for a leave of absence, and that it had ample justification to terminate his services by reason of his failure to protect his assignment in the circumstances disclosed.

On a close review of the record, unfortunately, the Arbitrator is compelled to agree with the Company. Notwithstanding the excellent efforts of the Union in its pleading of “P”’s case, the record is devoid of any medical or professional opinion which would confirm that he has achieved substantial control of his condition as a paedophile, or that there is any basis for a positive future prognosis. The grievor’s condition gave rise to a prior incident, albeit many years ago, involving a male minor who was also an employee. The handling of that incident with tolerance and compassion, and the grievor’s assurances at that time that his conduct would be controlled, suggests a treatment consistent with notions of progressive discipline. Unfortunately, “P” has failed grievously to control his condition as an acknowledged paedophile, with resulting serious harm to others as well as himself.

The Arbitrator must bear in mind the record of the prior incident, the gravity of the offences for which the grievor was convicted, and the fact that as a signals and communications technician he works largely alone and unsupervised, utilizing a Company vehicle provided for his exclusive use. In light of these factors, the reluctance of the Company to consider his reinstatement is understandable. I am satisfied that the Company did not violate the collective agreement in denying the grievor’s request for a leave of absence. As the grievor’s position was one of some considerable skill and training, his temporary replacement would have occasioned a degree of expense and dislocation which would have visited undue hardship upon the Company. Regrettably, this is a case in which the Arbitrator can see no basis upon which to reverse the decision of the Company, whether in respect of the denial of a leave of absence or the decision to terminate the grievor’s employment.

For all of the foregoing reasons the grievance must dismissed.

Dated at Toronto, January 18, 1999

(signed) MICHEL G. PICHER

ARBITRATOR