AD HOC 555: SMILAR, S.: DISCHARGE

AWARD

This arbitration concerns the termination from employment of an S&C Maintainer, R. Smilar. The Company terminated the grievor’s employment for administrative reasons, relating to what it viewed as his inability to work within the qualifications of an S&C Maintainer. The Union submits that the Company has not demonstrated just cause for the grievor’s termination and, alternatively, could have reassigned him to another position. The nature of the dispute is reflected in the joint statement of issue filed at the hear, which reads as follows:

DISPUTE

Dismissal of S&C Maintainer Richard Allen Smilar of Edson, Alberta for non-culpable failure to meet the minimum standard for the S&C Maintainer Position.

JOINT STATEMENT OF ISSUE

Mr. Rick Smilar is a long service employee. Mr. Smilar had previously taken, qualified and passed the S&C Apprenticeship Training Program (“ÁTP”). Mr. Smilar received certification from the Assistant Chief Engineer S&C of having passed the ATP in March 1999. Mr. Smilar had worked as an S&C Maintainer until March 28, 2002.

On March 29, 2002, the Company received the result of an evaluation conducted on March 28, 2002 which persuaded the Company that Mr. Smilar was unable to fulfill the obligations of an S&C Maintainer. Accordingly, the Company suspended his services as an S&C Maintainer effective this date. Shortly thereafter the Company created and implemented a personal development plan designed to provide Mr. Smilar with training, mentoring and testing of technical demands associated with an S&C Maintainer’s role. The Company also authorized a temporary assignment as an S&C Assistant to allow Mr. Smilar to experience practical field requirements with qualified Maintainers.

On October 17 and 18, 2002, the Company conducted a second evaluation of Mr. Smilar’s knowledge, comprehension and practice application of basic duties related to an S&C Maintainer. The Company determined that Mr. Smilar could not be relied upon to safely and effectively perform such duties. Accordingly, the Company imposed a permanent restriction effective immediately preventing Mr. Smilar from occupying an S&C Maintainer position.

The Company maintained Mr. Smilar’s rate of pay as an S&C Assistant until the end of the 2002 work season. The Company recalled Mr. Smilar from layoff status in 2003 and required him to write the required tests associated with apprenticeship qualification. After completing an ATP level 1 on March 20, 2003, the Company determined that Mr. Smilar was unable to meet the minimum standards required to pass ATP Level 1. Accordingly, the Company advised Mr. Smilar that his services within the S&C department were terminated effective immediately.

The Union filed a Step III grievance on behalf of Mr. Smilar requesting, inter alia, that he be reinstated into service, allowed to complete the balance of the ATP and to compensate him for all lost wages and benefits. The Company declined the grievance.

THE UNION CONTENDS: Mr. Smilar felt that he was not provided with adequate training. The exam was unfair and the exam process was improper in the circumstances. The Union says that in all the circumstances the Company has not dismissed Mr. Smilar for just cause.

The Company denies the Union’s contentions and declined the Union’s request.

Since the parties could not resolve the grievance, the Union referred such to the Arbitrator in accordance with Article 13 of the collective agreement. The dispute is now properly before the Arbitrator.

FOR THE UNION: FOR THE COMPANY:

(sgd.) K.W. Kearns (sgd.) Kerry Morris

Senior System General Chairperson for: Vice President, Western Region

The grievor was hired on April 20, 1992 and was employed for a period as an S&C Helper, entering the apprenticeship program in 1995. He became qualified as an S&C Assistant in March of 1999 and was awarded a permanent position as S&C Mechanic in April of 1999. As of April of 2000, he worked in a permanent S&C Maintainer position in Edson, Alberta.

The record reveals that on January 23, 2002 the grievor and a work-mate, S&C Maintainer M.S. O’Sullivan, encountered a substantial difficulty in attempting to resolve a CTC block failure at Leiman, at mile 88 on the Edson subdivision. The grievor and Mr. O’Sullivan were unable to solve the difficulty over a combined effort of some ten and a half hours, a third S&C Maintainer was dispatched to the work sight. Within 15 minutes that individual was able to determine the cause and location of the system failure, which was apparently a broken rail.

Following an investigation of the incident the Company formed the view that the two employees exhibited unacceptable troubleshooting skills and questionable judgement. When the same employees encountered yet another similar difficulty on March 13, 2003, the Company decided to conduct a formal evaluation of their abilities. That was done on March 19 and 20, 2002, with a Union representative being present.

When the assessment process revealed that both employees were deficient in their knowledge and skills, they were advised that they would be temporarily restricted from performing the duties of S&C Maintainers, being reassigned to less complex duties on S&C gangs. For some time the Company considered how best to deal with the situation of the grievor and Mr. O’Sullivan. On May 31, 2002 the Company advised the Union that it had developed a training and mentoring program which they would be required to follow to upgrade their skills, with the understanding that at the end of that program, which was to extend over a period of six months, they would be subject to another assessment to determine whether they had reached the adequate knowledge and skill level. Consequently, on October 15 and 16, 2002 the two employees were assessed by S&C Instructor J. Crawford, at which time Mr. O’Sullivan was found to have displayed the level of knowledge and skills to merit reinstatement as an S&C Maintainer. The grievor, however, did not.

The Union then requested that the grievor be placed in a position of S&C Assistant on a permanent basis, a proposal which the Company did not accept. Its response was based on the fact that an S&C Assistant must, in any event, demonstrate qualification by passing all levels of the apprenticeship training program, levels 1 through 4. The position of the Union was motivated, in part, by the fact that the grievor had previously satisfied the apprenticeship qualification standards, albeit at a time when the passing standard was 60% rather than 80%. Finally, it was agreed that the grievor would be allowed to continue to work on S&C gangs, being compensated at the rate of an S&C Assistant, with mandatory participation in the apprenticeship program, and be subject to retesting at the conclusion of the apprenticeship period. That resulted in the grievor again taking his qualification exams in February of 2003 which resulted in him receiving a mark of 71%, short of the passing grade of 80%. In accordance with the provisions of Article 11.1 of the Collective Agreement the grievor was given a second opportunity to rewrite the ATP Level 1 exam, which he did after a delay of some five weeks after the initial test. On that occasion, according to the marking of instructor J. Crawford he scored 77.5 % on the identical exam. The evidence reveals that the grievor scored extremely well on the academic or theoretical part of the test, but failed in certain of the practical or troubleshooting tests which were administered. Following that result, in accordance with what it viewed as the application of Article 12.5 of the collective agreement, the Company terminated the grievor’s services.

The Brotherhood argues a number of alternative positions. Firstly, its counsel submits that the grievor did achieve 80% or better on the second assessment administered by Mr. Crawford and on that basis should be reinstated into the position of an S&C Maintainer. Alternatively, based on the principle reflected in the Edith Cavell Award, Re: Edith Cavell Private Hospital and Hospital Employees’ Union Local 180, (1982, 6 L.A.C. 3d 229) (Hope), it argues that the Company must show that it provided reasonable supervision and adequate instruction to allow the grievor the opportunity to meet the appropriate standard and, in any event, should not sever the employment relationship where there is an alternative position to which the employee can be assigned, in circumstances where the indications are that employee has the capacity to improve. On that basis the Brotherhood submits that the grievor should be placed into a permanent S&C Assistant position.

Counsel for the Company stresses that the grievor was treated fairly and generously in the process, as he was given the opportunity to be mentored, in preparation for his eventual reassessment on two separate occasions. Stressing the safety sensitive nature of the position, the Company’s representative submits that it is not compelled to continue to employ the grievor where he has not demonstrated the ability to function within the standards of knowledge, skill and ability required by the position of S&C Maintainer. He stresses that the position of Helper no longer exists, save in the case of three employees grandparented in that position in eastern Canada, and that the persons who hold the position of S&C Assistant are required to be qualified in the four levels of the apprenticeship program. He further points to the testimony of Mr. Crawford as evidence that the final test administered to Mr. Smilar was conducted fairly and objectively, stressing that the questions were virtually identical to those that had been administered on the prior test some five weeks before.

I turn to consider the merits of the dispute. In the Arbitrator’s view great care should be taken in assessing the evaluation of the grievor, particularly in an area which involves some technical complexity. On the whole, I am satisfied that Mr. Crawford proceeded in good faith and did not bring a bias or any predisposition to bear against the grievor. It may be, as the Union suggests, that marks could have been distributed more generously, perhaps on a part marks basis. It may well be that an Arbitrator might, when the evidence is clear, determine that the mark assigned to an employee is incorrect. However, such a determination must be based on the most clear and compelling evidence. It should not lightly be made in relation to a test which necessarily involves some subjective assessment, particularly in a highly complex trade or discipline. In the result, while I well appreciate the submissions made on the grievor’s behalf respecting the first argument concerning his actual result on the second evaluation, I am not prepared to find that he did, in fact, satisfy the requirements to qualify as an S&C Maintainer.

That does not fully dispose of the equities of this grievance. There is evidence to indicate that during the six month period leading up to the re-evaluation tests in February and March of 2003, the grievor was placed in assignments which frequently did not expose him to the kind of practical experience which would have maximized his chances on his subsequent re-evaluation. In a number of instances he was simply assigned to S&C gangs, effectively doing labourer’s work, and in other circumstances to a mentor whose own workload was so heavy as to seriously compromise the ability to give the grievor the explanation and training which were required.

How, then, is the grievance to be resolved? The Arbitrator accepts the submission of the Company that it is simply not appropriate to reinstate the grievor into the position of S&C Maintainer, bearing in mind that the work in question is highly safety sensitive, dealing as it does with the Company’s signals and communications system. Nor do I deem it appropriate, on the facts of the case at hand to simply direct that the grievor be placed in a permanent S&C Assistant position, bearing in mind that he has not as yet demonstrated the ability to function at the level of qualification which is now necessary for that position.

There are, however, considerable mitigating factors to be taken into account with respect to the merits of fashioning of a fair outcome in this dispute. The fact is that the grievor, now in his forties, did work for a substantial number of years for the Company. At one time he did properly and successfully complete the apprenticeship program. It appears that because that his assignment in Edson did not involve exposure to some of the equipment and systems which might be the subject of testing, his limited opportunities for practical work over time may have contributed to his present shortcomings. In the Arbitrator’s view the appropriate resolution of this grievance is to reinstate the grievor, in the position of an S&C apprentice, with his wages to be at the level of an S&C Assistant for the period of his apprenticeship, it being understood that he must, in all other respects, successfully follow the normal course of the apprenticeship program, and meet all of the necessary qualification requirements within it. Should he prove unable to do so, he shall be subject to termination.

It should be understood that the reinstatement of the grievor and his placement, virtually as a new hire, in the apprenticeship program must be administered in such a fashion as to ensure that he be given a reasonable opportunity to get practical hands on experience, a factor which may bear on the location to which he will be assigned. For example, if necessary, it may be that assignment to Edmonton or to another nearby location with an adequate range of learning opportunities will be necessary. That is for the parties to consider.

The grievance is therefore allowed, in part. The Arbitrator directs the grievor be to be reinstated into his employment, without loss of seniority, to be compensated at the level of S&C Assistant, but to be otherwise assigned and treated as a new hire apprentice and placed in the stream of job progression which will allow him to satisfy the qualification requirements to become a qualified S&C Assistant, and eventually an S&C Maintainer. In the Arbitrator’s view it is appropriate for the parties to be provided the opportunity to best fashion the manner in which the grievor’s reassignment is to be administered. I retain jurisdiction in the event of any dispute between them with respect to the appropriate details of reassignment, or any other matter concerning the interpretation or implementation of this award.

Dated at Toronto this 4th day of August, 2004

(signed) Michel G. Picher

Arbitrator