AD HOC – 469

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Brotherhood")

RE: DISCHARGE OF DANIEL CHARLEBOIS

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

D. J. Wray – Counsel

John E. Platt – International Representative

Luc Couture – System General Chairman

K. W. Kearns – System General Chairman

Daniel Charlebois – Grievor

Appearing For The Company:

Susan Blackmore – Labour Relations Associate – Pacific Division

Roger K. MacDougall – Counsel

Sylvie Michaud – Business Partner – Human Resources – Pacific Division

Fran Metcalfe – Engineering Coordinator – Engineering – Pacific Division

Ron Nichol – Manager, S&C

A hearing in this matter was held in Calgary on Monday, 8 November 1999.

AWARD

The material before the Arbitrator confirms that Mr. Charlebois was discharged from his employment by reason of the accumulation of demerits, following the assessment of thirty demerits for reasons relating to medical documentation and a failure of communication with his employer with respect to unauthorized leaves.

It is common ground that the grievor was not in active service with the Company for a period of a number of years, by reason of a disabling injury. Following a settlement dated December 24, 1997 the grievor was to return to service, subject to certain medical restrictions. After an initial temporary assignment to the S&C Wiring Shop in Edmonton, Mr. Charlebois withdrew from service, claiming an aggravation of his injury. Thereafter, it appears that Mr. Charlebois completed the CROR rules classes in May of 1998. He was eventually required to provide medical documentation to support his absence from work following the completion of his rules on May 28, 1998. The Company maintains that it did not hear from the grievor for a substantial period of time into the summer of 1998, notwithstanding the sending of letters to him, including registered mail.

The grievor counters that he made a number of attempts to contact Dr. Rud, on behalf of the Company, to keep him advised of his condition, and had difficulty getting through to him. The first documented communication from the grievor appears to have been through his physician, Dr. Addison, received on September 9, 1998. Based on the grievor’s failure to communicate adequate medical documentation or information with respect to his circumstances, the Company convened a formal investigation on October 7, 1998. That resulted in the assessment of thirty demerits and the grievor’s discharge.

Upon a review of the respective positions of the parties and the facts of the case at hand, I am satisfied that there was a degree of negligence on the part of Mr. Charlebois, sufficient to render him liable to the assessment of discipline. Whatever his personal circumstances may have been, it is clear to the Arbitrator that he did not exercise the degree of diligence to be reasonably expected of an employee seeking to return to active work after an extremely lengthy absence. That said, however, there are mitigating factors which in my view do justify the grievor being given a second chance to return to gainful employment with the Company. Firstly, it would appear that the initial assignment given to him did cause him physical discomfort, and was arguably outside the ambit of the kind of work which he had been assessed as fit to perform. As noted by counsel for the Brotherhood, he was returning to work on the understanding that the work assigned to him would involve a certain degree of mobility, with alternating periods of sitting and standing. That is not the nature of the job to which he was in fact returned in the S&C Wiring Shop.

On the whole, in the Arbitrator’s view it is equitable in the circumstances to return the parties to the same position they were in as of the settlement of December 24, 1997. The Arbitrator therefore directs that the grievor be reinstated into his employment, subject to the terms of the settlement of December 24, 1997. I retain jurisdiction in the event of any further dispute between the parties having regard to the interpretation or implementation of this award.

Dated at Toronto, November 15, 1999

(signed) MICHEL G. PICHER

ARBITRATOR