AH – 503
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
RE: LOCOMOTIVE ENGINEER TRAINING SELECTION
GRIEVANCE RE INTERVIEW PROCESS – SCOT E. MATHESON
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE BROTHERHOOD:
Scott Chamberlain – Legal Counsel, Ottawa
J. L. Shields – Legal Counsel, Ottawa
John Tofflemire – General Chairman, Oakville
APPEARING FOR THE CORPORATION:
E. J. Houlihan – Senior Manager, Labour Relations, Montreal
Melanie Bastien – Labour Relations Officer, Montreal
APPEARING FOR THE OBSERVER:
Frank O’Neil – Labour Relations Associate, CNR, MacMillan Yard
A hearing in this matter was held in Montreal on November 29, 2000
AWARD OF THE ARBITRATOR
The record discloses that Mr. Matheson failed four of a possible sections of the locomotive engineer training interview. He registered fifty of a minimum fifty-nine points on section A, “Decision making skills / ability to work under minimal supervision”. He registered thirty-one out of a minimum thirty-three points for section B, dealing with stressful situations. Mr. Matheson scored thirty-three of a necessary thirty-four points on team work and customer services criteria and, finally, registered twenty-nine out of a minimum thirty-one in ability to respond in emergency situations. Upon a review of the interview document, the Arbitrator is satisfied that the grievor should be adjusted upwardly in three circumstances, but that the adjustments in question do not place him in a pass situation.
I award Mr. Matheson a further six marks for section A, as he was not advised that the time taken to respond would be awarded marks. That would result in a final mark of fifty-six out of a minimum of fifty-nine for section A. I would also assess a further four marks in his favour under section B, question 2, as he could not be expected to know the new delegation of responsibilities with respect to train journals. That would place him in a pass situation for that portion, with thirty-five points, two more than the minimum thirty-three.
I would also adjust Mr. Matheson’s score upward in section C, attributing a further five marks for question number 3. I must agree with the Brotherhood’s representative that the two possible answers to that question are arguably mutually exclusive, and it becomes unfair to expect an employee to respond that he or she would both assist a passenger with baggage and hand them over to a red cap, and also answer separately that they would assist the passenger with their baggage into the station. A reasonable person responding to the question would, I think, be satisfied that either course would be acceptable, and that it would not be necessary, or arguably even possible, to pursue both. That adjustment would place the grievor in a pass situation with respect to section C, with thirty-eight points, over the minimum of thirty-four.
Lastly, the grievor scored twenty-nine points in section D, responding to emergency situations. The Arbitrator can see no responsible basis upon which the grievor’s mark could be raised in either of the two questions under that section. Significantly, in both questions he neglected to indicate that in an emergency situation he would place an emergency call to the RTC, in one case seeking assistance from fire fighting authorities. In the result, I am compelled to conclude that the grievor’s failing mark of twenty-nine over a possible minimum of thirty-one must stand.
There are, however, mitigating circumstances which support a result different from the outright dismissal of this grievance. The grievor’s evidence, confirmed by medical documentation, establishes that at the time of the interview he was taking intensive medication known to have powerful side effects. Having regard to the letter of his personal physician with respect to the specific nature of the side effects, and the grievor’s own evidence concerning his physical state on the day in question, I am satisfied that it is unfair to allow his application to be determined on the basis of the test results gathered on that day. It should be stressed that no fault can be ascribed to the Corporation with respect to the grievor’s circumstance, as he admittedly did not bring his physical condition to the attention of any Corporation official at the time.
The grievance is therefore allowed in part. The Arbitrator directs that Mr. Matheson be afforded the opportunity to repeat the interview process, with not less than seven days’ advance notice, and under conditions and circumstances as similar to the initial interview, albeit adjustments may obviously be made with respect to the content of the questions put to him. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award, it being further understood that the grievor retains all rights concerning the procedure or outcome of the interview to be conducted.
Dated at Toronto, this 15th day of December 2000
MICHEL G. PICHER