AH – 510

IN THE MATTER OF AN ARBITRATION

BETWEEN

VIA RAIL CANADA INC.

(the "Corporation")

AND

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

(the "Brotherhood")

RE: COMPENSATION GRIEVANCE OF JOHN PRESSEAULT

Sole Arbitrator:                    Michel G. Picher

Appearing For The Brotherhood:

J. Shields                – Counsel, Ottawa

J. Presseault           – Grievor

Appearing For The Corporation:

E. J. Houlihan         – Senior Manager, Labour Relations, Montreal

A hearing in this matter was held in Montreal on Tuesday, 13 February 2001.

SUPPLEMENTARY AWARD

The record discloses that Mr. Presseault’s position as a conductor was abolished, along with all other such positions, effective July 1, 1998. It is common ground that the Corporation incorrectly excluded Mr. Presseault from the initial stage of the locomotive engineer training selection process. As an employee with no discipline over some thirty-one years in the industry, the grievor should have successfully passed the work habits assessment. It appears that the Corporation became aware of its error, and adjustments were made to assist the grievor with income support pending the ultimate determination of his application for locomotive engineer training. As reflected in a recent award of this Arbitrator dated January 17, 2001, Mr. Presseault did not successfully pass the interview and has been removed from locomotive engineer training. That result is tantamount to the termination of his employment with the Corporation.

At issue now is the compensation properly owing to Mr. Presseault in the circumstances. The Corporation takes the view that the wages paid to Mr. Presseault are properly chargeable against the severance amount to which he was entitled, described as being $79,366.12. While its representative acknowledges that the grievor might properly have been entitled to his conductor’s wages under the terms of the Crew Consist Adjustment Agreement, for the period between July 1, 1998 and mid-August of 1998, when he should normally have been accorded an interview, it denies that there should be liability for the payment of his wages for any other period of time. Additionally, it submits that in any event the grievor failed to mitigate his damages by seeking alternate employment during the entire period since his job abolishment on July 1, 1998.

In the Arbitrator’s view Mr. Presseault’s case presents a rather unique, not to say unusual, set of circumstances. If he had succeeded in passing the interview, and had progressed successfully through locomotive engineer training, it does not appear disputed that his wage maintenance would have continued from July of 1998 through to the present. The position of the Corporation is predicated, in part, on the assumption that the grievor would in fact not have succeeded in the interview if it had been conducted in August of 1998. However, the Corporation’s own error caused the delay, and made it impossible to know how he would have performed at that time. I cannot reject out of hand the suggestion of counsel for the Brotherhood that the passage of two years may well have impacted Mr. Presseault’s ability to perform in the interview.

On the other side of the ledger, however, the Arbitrator is not impressed with the claims made by Mr. Presseault for compensation arising out of what he characterizes as the pain and suffering which he and his family endured by reason of his personal employment circumstances, up to and including the “humiliation” of a colonoscopy. Assuming that I have the jurisdiction to accord compensation for such heads of damage, including the expenses incurred by the grievor in retraining with the Ontario College of Art and costs incidental to the pursuit of his grievance, I do not deem such compensation appropriate in this case, particularly given the wage and severance pay protection which I find is appropriate in the circumstances.

In striving to establish equity in the resolution of the grievor’s claim, I deem it notable that the Corporation did maintain wage protection for conductors with flow-back rights to CN. They continued to receive their conductors’ wages for over a year, pending resolution of the dispute between VIA and CN concerning the right of those employees to flow back to employment with CN. It does not appear disputed that the Corporation did not require those individuals to seek employment elsewhere in the interim or otherwise mitigate what would have been their loss of earnings. While the Corporation may, of course, seek compensation for those expenditures as against the other railway signatory to the Special Agreement, the facts presented are such as to justify some uncertainty in the mind of the grievor with respect to his own obligation. That said, I am satisfied, as a matter of principle, that Mr. Presseault was nevertheless under a duty of mitigation, and that his decision to withdraw from the labour market by enrolling in full time college training was, to some degree, contrary to that obligation. By the same token, however, Mr. Presseault’s unfortunate circumstances were also contributed to in substantial part by the initial error of the Corporation in failing to accord him the opportunity of an interview for locomotive engineer training. In the circumstances I consider it fair to conclude that there was an equal sharing of fault.

In the result, the Arbitrator is satisfied that the grievor should be compensated as follows:

1. Mr. Presseault is to receive forthwith one-half his wages at the conductor’s rate of regular pay, exclusive of overtime, from the period July 1, 1998 to the date of the Arbitrator’s award dismissing his grievance against removal from the locomotive engineer training process, subject to adjustments hereinafter described.

2. The grievor’s service for purposes of pension should also include the additional time on payroll calculated on the basis of the preceding paragraph.

3. The grievor is also to receive forthwith severance pay in the amount of $79,366.12, also subject to adjustment.

4. Mr. Presseault shall also be given the opportunity to buy back any pension entitlement for the period between July 1, 1998 and the date of the Arbitrator’s award sustaining his removal from the locomotive engineer training process.

5. It is understood that the grievor has received monies from the Corporation, ostensibly in the form of advances on his severance pay. The parties are therefore directed to make all necessary adjustments to determine the amount still owing to Mr. Presseault, it being understood that any amount ultimately paid to him shall also be reduced by the amount of any employment insurance payments which he received and which the Corporation shall have an obligation to repay.

The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Toronto, February 19, 2001

(original signed by) MICHEL G. PICHER

ARBITRATOR