IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF
SYSTEM COUNCIL NO. 11
GRIEVANCE OF DANIEL DUCHARME
SOLE ARBITRATOR: Harvey Frumkin
APPEARING FOR THE COMPANY:
D. Laurendeau – Manager, Labour Relations
Bill McMurray – CN Counsel
Norm Parson – CN Constable – Montreal
APPEARING FOR THE UNION:
Michael A. Church – Counsel
Luc Couture – International Representative
Kevin Kearns – Senior System General Chairperson
Richard Hunt – General Chairperson
Stan Dembinski – Regional Chairperson Central Canada (Great Lakes)
D. J. Morin – Retired Company Supervisor
Daniel Ducharme – Grievor
A hearing of this matter was held in Montreal on March 30, 2005.
AWARD OF THE ARBITRATOR
Dismissal of S&C Maintainer Daniel Ducharme
COMPANY’S EX-PARTE STATEMENT OF ISSUE:
Mr. Ducharme was the S&C Maintainer responsible for the Capreol West territory.
In June 2004, CN investigated allegations of possible power theft by local cottagers along CN right of way on the Ruel Subdivision. While patrolling the Ruel Subdivision, CN S&C Supervisor D. Vernon and CN Police Officer Lisa Burt-Jones found that there was sufficient cause to believe there was, at one time, power being illegally taken from a hotbox bungalow at mileage point 24.3 of the subdivision. Since this was discovered on Mr. Ducharme’s working territory, he was investigated on June 10, 2004, and November 24, 2004, in relation to his alleged knowledge and/or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Subdivision. Further to completion of the disciplinary investigation, Mr. Ducharme was discharged.
The Brotherhood contends that the discipline is unwarranted and excessive. The Brotherhood further requests that the grievor be reinstated into Company service without loss of seniority and with full compensation for all wages and benefits lost.
The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.
For the Company:
(s) Denis Laurendeau
UNION’S EX-PARTE STATEMENT OF ISSUE:
Mr. Ducharme is a long term employee of CN with an excellent record. His record was clear of discipline at all material times.
Mr. Ducharme was the S&C Maintainer responsible for the Capreol West territory since January 2002. On June 2, 2004, S&C Supervisor Dan Vernon and CN Police Constable Lisa Burt-Jones were doing a hy-rail inspection on the Ruel subdivision, when at mileage point 24.3 of the Ruel subdivision they noticed evidence of what they thought might be a possible power hook-up from a cottager’s shed to the Hot Box bungalow.
On the basis of the above suspicions, Mr. Ducharme was required to attend at a formal investigation on June 10, 2004, to explain his alleged knowledge and/or participation of an unauthorized power hook-up between the CN Hot Box bungalow and the civilian cottage at Mile 24.3 Ruel subdivision. Mr. Ducharme attended this investigation and answered all questions as required. Mr. Ducharme did not receive any action or discipline from CN as a result of this investigation. No charges were laid following his statement.
On September 28, 2004, as a result of a request from his Supervisor D. Vernon, Mr. Ducharme was required to meet with CN Constable Burt-Jones to answer questions about his original statement referred to above. She could not complete her interrogation on that date. She required Mr. Ducharme to return to the police station for further questioning the next day. On September 29, 2004 Mr. Ducharme again attended at Constable Burt-Jones’ office where he was introduced to another gentleman (OPP Constable Dave Drake).
On September 29, 2004, Mr. Ducharme was placed under arrest by an OPP Investigator Dave Drake, and required to attend at the OPP office in downtown Capreol for formal questioning. Mr. Ducharme was forced to take stress leave following this incident. Mr. Ducharme was not offered union representation on either of the above noted dates.
While absent due to illness, Mr. Ducharme was required to attend a formal Investigation Supplemental to the first Investigation. As required, Mr. Ducharme gave an employee statement on November 24, 2004. At the commencement of the said investigation (statement) Mr. Ducharme’s accredited representative of the IBEW (S. Dembinski) objected to the investigation on the grounds that the Company would not supply the transcript of the above noted interrogation of Mr. Ducharme as well as any photographic evidence. This information was not supplied. Subsequently, Mr. Ducharme was discharged effective December 14, 2004 for: “Knowledge and or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Sub to a civilian residence/cottage at same location.”
The Brotherhood filed a step three grievance letter dated January 10, 2005. The Brotherhood challenged the Company’s entire investigation. The discipline is null and void. The discipline should be removed entirely on this basis and the grievor ought to be made whole. The investigation and issuance of discipline was delayed, untimely and in complete violation of Article 13 of the collective agreement.
The Brotherhood also contends that the discipline is unwarranted and excessive. The Brotherhood further requests that the grievor be reinstated into Company service without loss of seniority and with full compensation for all wages and benefits lost. The discipline is also discriminatory and unequal to other employees in similar circumstances.
The Union also seeks a remedy (damages) above and beyond the relief set out above because of, amongst other things, the hardship and stress that Mr. Ducharme and his family have been put through because of the Company’s actions and decisions in respect to this entire case.
The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.
For the Union:
(Sgd) Luc Couture
1. The grievance which was presented in the form of a letter dated January 10, 2005, is directed against the decision of the Company taken on December 14, 2004, to dismiss the grievor for “his alleged knowledge and/or participation of an unauthorized power hook-up” from CN facilities located at mile 24.3 Ruel Sub to a civilian residence/cottage at same location. The grievance reads as follows:
Mr. K. Creel January 10, 2005
Senior Vice-President, Eastern Division
895 De la Gauchetière West, 4th Floor
Montreal, Quebec, H3B 4G1
ATTN : Denis Laurendeau
Please accept this as a step three grievance under the provisions of Article 13 of collective agreement 11.1 between System Council 11 of the International Brotherhood of Electrical Workers and Canadian National Railway.
The grievance concerns the dismissal of Daniel Ducharme 543530, on the 780 form received it was mentioned: “Your knowledge and or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Sub to a civilian residence/cottage at same location.”
The Union would first like to mention that we are appalled at the manner in which this whole situation was undertaken by the Company including and not limited to the actions of the CN constable who was in charge of said investigation.
To have a long service employee with a good record like Mr. Ducharme treated in this manner is very disturbing to the brotherhood, especially considering all the information the Company had access to before deciding to dismiss him. This situation could have been alleviated if this investigation was done properly.
The Union contends that the discipline is totally unwarranted and excessive considering the history of these hook-ups and requests that Mr. Ducharme be immediately reinstated with all loss of pay, seniority and benefits, including pension from the time the first investigation was taken on June 10, 2004 up to and including his full reinstatement as a maintainer.
Furthermore the Union would also be requesting some remedy above and beyond the preceding paragraph for all the hardship Mr. Ducharme and his family have been put through because of this travesty of justice the Company has been undertaking. The purpose of which we fail to understand since the Company has probably lost most of its respect that the members from Northern Ontario would have had before this all started.
Considering all that has happened the Union is still willing to meet, at a mutually convenient time, with the Company to discuss this grievance in its entirety.
(s) Luc Couture
2. The grounds upon which the Company relies to justify its decision are set out in its response to the grievance of February 23, 2005, which is to the following effect:
February 23, 2005
Mr. Luc Couture
International Representative IBEW
First District, Canada
486 Laflèche Rd.
Hawkesbury, Ontario, K6A 1M9
Dear Mr. Couture:
This refers to your letter dated January 10, 2005, concerning an appeal submitted at step III of the grievance procedure on behalf of S&C Maintainer Daniel Ducharme, PIN 843530, who was discharged effective December 14, 2004, for “Your knowledge and or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Sub to a civilian residence/cottage at same location.” Time limits were extended by mutual agreement.
Mr. D. Ducharme was the S&C Maintainer responsible for the Capreol West territory since January 2002.
On June 2, 2004, S&C Supervisor D. Vernon and CN Police constable Lisa Burt-Jones were doing hy-rail inspection on the Ruel subdivision to investigate allegations of possible power theft by local cottagers along the CN right of way. At mileage point 24.3 of the Ruel subdivision they noticed that there was a cable protruding from one cottager’s shed heading in the general location of the Hot Box bungalow. They saw, further to a closer investigation, that there was sufficient cause to believe there was, at one time, power being illegally taken from this location.
As a result of the findings of S&C supervisor Vernon and CN constable Burt-Jones, Mr. Ducharme was notified to appear for a formal investigation to be held on June 10, 2004, to explain his alleged knowledge and/or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Sub. to a civilian residence/cottage at same location. The investigation was held as scheduled. A supplemental statement was obtained from Mr. Ducharme on November 24, 2004. Further to the completion of Mr. Ducharme’s investigation, he was notified that the Company decided to discharge him for the reasons mentioned above.
In its submission at step III of the grievance procedure, the Brotherhood contends that the discipline is unwarranted and excessive. The Brotherhood requests that Mr. Ducharme be reinstated with compensation for all lost wages and benefits. The Brotherhood is also requesting some remedy in addition to any compensation Mr. Ducharme might be entitled to if he was to be reinstated as a result of this grievance.
It is the Company’s position that it is the responsibility of the employees to ensure interests and property of the Company are protected against illegal intrusions. The Company maintains that Mr. Ducharme failed in this regard.
At Q&A 9 of Mr. Ducharme’s statement of June 10, 2004, he is stating the following:
9. Q. Mr. Ducharme, From the report generated by S&C Supervisor Dan Vernon indicated there was evidence to suggest that there was an unauthorized hook-up by a 3rd party to Company (CN) power services at Mile 24.3 Ruel Sub
Please respond with any knowledge you have or had of its existence?
A. The only thing I knew he (Larry, the camp owner) told me he was hooked up. I had no idea how he was hooked up, I asked no questions. I assumed that it was a flat rate with his lease from CN
Furthermore, Mr. Ducharme answered as follows during the supplemental statement taken on November 24, 2004:
8. Q. Mr. Ducharme, upon review of the evidence presented to you today is there any statement you would like to make regarding the incident under investigation?
A. Yes, The investigation on June 10th 2004 I misunderstood the reference to 3rd party, CN being the first, Larry being the 2nd and the 3rd party being another camp somewhere, and uh, as stated in June 10th Mr. Mennard mentioned to me he was connected and as I stated I thought it was part of his lease, and I understand now as a CN employee it is my duty to notify my supervisor of any suspicious connection with power. At this time I would like the record to show I had no knowledge of the hook-up at mile 24.3. My statement on June 10th 2005 question #16, I would like to clarify my answer that there had been a cable plugged into a receptacle mounted in behind the equipment rack, I had no idea what it was for, I would like to state at this time that there are some inconsistencies in the evidence presented.
9. Q. Mr. Ducharme, when did you first notice the hook-up at the hot box at mile 24.3?
A. A few months after I started in 2002
12. Q. Mr. Ducharme, why is it you sought not determine where the connection was going?
A. I didn’t trace it
13. Q. Mr. Ducharme, why did you not trace it?
A. I was thinking it was part of his lease
22. Q. Mr. Ducharme why did you not seek confirmation of the hook-up from you supervisor upon finding it?
A. I thought it was part of his lease”
The evidence clearly demonstrates that Mr. Ducharme was aware that the cottage at mile 24.3 of the Ruel Subdivisions was taking its power from the Hot Box bungalow. According to his answers given during the investigation, Mr. Ducharme did not report it to his supervisor. He simply assumed it was part of the lease.
However, when questioned by CN Constable Burt-Jones, the evidence shows that Mr. Ducharme knew that the leaser of CN property was illegally connected to CN. As being aware of this, Mr. Ducharme became a party to the offence.
It was clearly his responsibility to inform his supervisor, which he ignored to do.
In light of the above, it is the Company’s position that the above demonstrate a breach of trust from the part of S&C Maintainer Ducharme and as such the Company cannot continue his employment relationship.
Your grievance is therefore declined at step III of the grievance procedure.
3. In effect, the Company contends that an unauthorized power hook-up was observed in the Capreol West territory for which the grievor, as S&C Maintainer, was responsible, that he failed to adequately explain the unauthorized power hook-up, that he failed in his responsibility to protect Company property against illegal intrusions, and that discrepancies in answers given by him during formal investigations of the incident established that he had knowledge of or participated in the unauthorized power hook-up.
4. The factual background out of which the grievance […] may be briefly summarized as follows. The Company’s rail system is controlled by a uniform system of train signals that monitor train performance and direct train traffic. This nationwide system is maintained on a centralized, region by region basis. Each region has its own unique Centralized Traffic Control system which, in Northern Ontario, covers 700 miles of track.
5. At approximately every twenty (20) miles of track in the Northern Ontario Centralized Traffic Control System there is a Wayside Inspection Site. This site consists of hotbox detectors, hotbox wheel detectors and dragging equipment detectors which check for equipment dragging from passing trains. These hotbox detectors, which are located in Hot Box bungalows, run only on electricity and are supplied with power from the Company’s main power distribution system.
6. The hot box detectors are designed to automatically measure the temperature of a train’s wheels to ensure that the wheels and wheel bearings are not overheated and prone to grating. They are installed widely and evenly across Northern Ontario and extend through areas where there are only a few isolated communities [and] where the rail lines pass through sparsely populated regions which are, for the most part, settled by campgrounds and solitary cottages.
7. The grievor, at the time of his dismissal, was an S&C Maintainer stationed at Capreol where he had been working since the year 2002 when he was transferred from Doncaster. He had been in the service of the Company since August 4, 1978. Shortly after [he was hired] he entered an S&C apprenticeship program and became qualified as an S&C Maintainer upon successful completion of the program. At the time of his dismissal, he had accumulated twenty-six years of service, and had never been made the object of discipline.
8. The S&C Maintainer is required to regularly inspect the condition of each hot box detector in his/her assigned region and to ensure that it is in good working order. The S&C Maintainer’s duties also require that he confirm that there is nothing abnormal with the configuration and functioning of the electrical cables inside the bungalow.
9. In the month of June 2004, and over the two years prior to that time, the grievor was responsible as S&C Maintainer for the Capreol West territory between mileage points 3 and 52 on the Ruel Subdivision. On June 2, 2004, S&C Supervisor D. Vernon and CN Constable Lisa Burt-Jones were conducting inspections as part of an investigation of allegations of possible power theft by local cottagers along the CN right of way on the Ruel Subdivision. The inspection being conducted was from Milnet at mile 8 to Laforest at mile 31. During the course of the inspection an electrical cable protruding from a cottager’s shed heading in the general direction of a Hot Box bungalow was discovered at mileage point 24.3. Upon further investigation, a small opening directly adjacent to the entrance shoot of the Hot Box bungalow capable of allowing a small cable to enter the building, was also observed.
10. Although no cable connecting the cottage to a power source in the Hot Box bungalow was in place at the time, there was sufficient cause in the mind of the investigators to at least suspect that an unauthorized electrical connection had been made at some point in time between the cottager’s shed and the Hot Box bungalow.
11. Since the Hot Box bungalow was located within the grievor’s jurisdiction, he was notified to appear for a formal investigation, which was held on June 10, 2004, to determine whether he had any knowledge of or had participated in what was perceived as an unauthorized power hook-up from CN facilities.
12. During the course of the formal investigation, the grievor acknowledged that he had been made aware of the power hook-up by the owner of the cottage who was familiar to him, but that he was not aware that it was unauthorized, believing that it formed part of a lease between the cottager and the Company.
13. It should be stated that for many years, and even decades, the Company had entered into informal arrangements with private parties inhabiting remote regions along its rail lines, whereby power hook-ups to Company power sources would be authorized, in exchange for certain services. It should also be stated that unauthorized hook-ups to Company power sources along its rail lines in remote areas had been drawn to the attention of the Company, were known to it, and were, to a considerable extent, tolerated or ignored. In the result, the suspected power hook-up, such as the one uncovered by Supervisor Vernon and Constable Burt-Jones, on June 2, 2004, would not, according to the evidence, have been a matter of major concern for an S&C Maintainer. In effect, power hook-ups, authorized and unauthorized, were not uncommon in remote areas such as the one to which the grievor was assigned.
14. It would appear, however, that at the time the Company had resolved to address and put an end to unauthorized power hook-ups, wherever they might be found. On June 4, 2002, the Company’s superintendent for the North Ontario zone, Mr. Pierre Arseneault, circulated a memo to such effect to, amongst others, all S&C Maintainers in the region. The relevant portion of that memo read as follows:
It is the responsibility of all employees who come across situations such as this to report it immediately to their supervisor so that appropriate legal action can be taken. I would like all maintainers to be especially diligent when performing tests this month and to not only check out their end of sidings but to investigate their approaches and Hot Boxes to make sure that there are no illegal hydro taps off our system. In addition to this, we want to ensure that any signal location in close proximity to a cottage protected with Abloy style fibre lock as opposed to the present “user friendly” Raco lock.
15. The investigative interview of the grievor of June 10, 2004, ended without the grievor’s further involvement until September 20, 2004, when he was interviewed informally by Supervisor Vernon on September 20, 2004. The result of that interview appears in a memo forwarded by Supervisor Vernon to Constable Burt-Jones at the time, which read as follows:
Lisa; I took the opportunity to interview Dan Ducharme this morning to better pin down a couple of facts. Dan tells me that the power hook-up that Larry Menard had into his camp was achieved through the use of a standard piece of 14/2 house wire with a male plug attached to one end and plugged into a receptacle inside the Hot Box Detector. It was visibly noticeable when he entered the building, however he felt that because this was already existing that it had been OK’d. If it was actually hooked up like this it would constitute an improper, unsafe installation as that particular type of wire is not approved for that kind of application. This would indicate to me that Larry probably hooked it up himself as I can’t see a qualified CN employee doing such a slipshod job. I called Dan Ducharme on the radio and asked him to come in and see you at the end of the day to further discuss …
16. Following the informal interview of the grievor on September 20, 2004, Supervisor Vernon instructed the grievor to report to Constable Burt-Jones at her office at the main CN building at Capreol. This the grievor did on September 29, 2004, when he was confronted both by Constable Burt-Jones and a constable in the service of the Ontario Provincial Police (OPP). The grievor was told by the OPP constable that he was under arrest and would have to accompany him to the OPP Sudbury station for questioning.
17. The grievor was interrogated by the OPP constable, with the interrogation being recorded on videotape. He was then released, but would appear to have been so unnerved by the experience that he was obliged to take stress leave. No charges were ever brought against the grievor and at the date of the hearing the status of the police investigation was unclear.
18. On October 6, 2004, by letter signed by Superintendent Arsenault, the grievor was summoned to what was referred to as an Investigation Supplemental to the Investigation conducted on June 10, 2004, concerning “your knowledge and/or participation of an unauthorized power hook-up from CN facilities located at Mile 24.3 Ruel Sub to a civilian cottage at the same location and any knowledge of additional unauthorized power hook-ups at other locations”.
19. The Supplemental Investigation to which the grievor was convoked was held on November 24, 2004. The grievor’s version of events and the explanation provided was little different than it was on June 10, 2004. He acknowledged that he had been made aware of a hook-up shortly after he assumed his responsibilities at Capreol in 2002, but was unaware that the hook-up was unauthorized, believing that it was part of a lease arrangement between the Company and the owner of the cottage.
20. While the grievor did provide more detail during the course of the interview of November 24, 2004, than he did on June 10, 2004, most probably because the interview was more thorough, the essence of what he said on June 10, 2004, remained unchanged, save for his acknowledgement that he would have reported the hook-up had he had the benefit of the alert circulated at the behest of Superintendent Arsenault on June 4, 2004. It should be said, in this regard, that the evidence suggests that the grievor was not aware of Superintendent Arsenault’s communiqué of June 4, 2004, when he was interviewed on June 10, 2004.
21. It was upon the basis of the investigation of Supervisor Vernon and Constable Burt-Jones and the interviews of the grievor, that the Company concluded that there had been an unauthorized power hook-up and a theft of Company power in an area for which the grievor was responsible. The Company concluded, as well, that the grievor had knowledge of or had participated in the unauthorized power hook-up, and on that basis proceeded to dismiss him on December 14, 2004. The Company has relied additionally upon the Company Code of Business Conduct (Code) and the Canadian Rail Operating Rules (Rules) which, it insists, the grievor violated in this case by failing to report the unauthorized power hook-up.
22, Having carefully reviewed the evidence and the submissions of the parties, the Arbitrator, without any hesitation, must conclude that the Company has failed to established any measure of culpable conduct on the grievor’s part, or any violation of the Code or the Rules. While the weight of the evidence strongly suggests that there was an unauthorized power hook-up at one time from a cottage belonging to a civilian to a power source within a Hot Box bungalow along a rail line within the grievor’s jurisdiction and that the grievor was aware of the hook-up, there is no evidence that he was aware that the power hook-up was unauthorized or that he in any way participated in the hook-up. Indeed, all of the evidence suggests that he was not aware that the hook-up was unauthorized and that he in no way participated in same.
23. The entire incident involving the grievor, insofar as the power hook-up in this case is concerned, must be viewed against a background of tolerance and indifference on the part of the Company that prevailed over many years. Hook-ups of such a nature in remote regions were often authorized by informal arrangement. Where they were not, they would not seem to have been treated as matters of any particular concern. It is quite understandable, therefore, that the observation of such a hook-up would not raise any red flag for an S&C Maintainer who could very well be, as the grievor would seem to have been, under the impression that the hook-up formed part of a lease arrangement between the Company and a civilian cottager.
24. As for the alleged participation of the grievor in the unauthorized hook-up, even Supervisor Vernon, in his memo to Constable Burt-Jones of September 20, 2004, expresses the opinion that the civilian cottage owner “probably hooked it up himself as I can’t see a qualified CN employee doing such a slipshod job”. The Company has certainly provided no hard evidence of any participation of the grievor in the unauthorized hook-up other than what the Arbitrator would regard as unwarranted speculation based upon the fact that there existed, at one time, an unauthorized hook-up within a territory under the grievor’s jurisdiction.
25. The only evidence which bears upon the issue of the grievor’s knowledge of and participation in the unauthorized hook-up consists of the responses given by the grievor during the course of the Company’s investigation and interviews of him. In this evidence, the grievor categorically denies that he knew that the power hook-up was unauthorized, or that he in any way participated in the hook-up. He explains that he believed that the power hook-up was part of a lease arrangement between the civilian cottager and the Company and the Arbitrator cannot see any basis for doubting the grievor’s assertions. Simply stated, the Company bases its decision to dismiss the grievor on “his knowledge and/or participation of an unauthorized hook-up” and has failed to establish any such knowledge or participation on the grievor’s part.
26. The Arbitrator is compelled to say that the decision of the Company and the lengths to which it went in this case are surprising. The grievor was an employee with twenty-six years of service and was, from all appearances, a devoted employee with an excellent service record and an unmarked disciplinary record. To be sure, the Company did discover that at one time an unauthorized power hook-up existed within the territory for which the grievor, as an S&C Maintainer, was responsible. It asked the grievor, as it was entitled to do, for an explanation. He provided one which was perfectly plausible, given the historical context.
27. Rather than take the grievor at his word, the approach adopted was to treat him as a suspect involved in wrongdoing. The Company continued its investigation of him after a time and persistently refused to accept his explanation, although it was plausible and credible and despite the fact that there existed no hard or independent evidence to place his explanation in doubt. In the final analysis, the Company went so far as to terminate an employee of twenty-six years standing, with an excellent work record, upon the basis of nothing more than unwarranted suspicion. Surely, the Company owed an employee of such long standing as the grievor more than that.
28. The Union, in contesting the grievance, has raised a number of procedural issues which it argues operate to nullify the Company’s decision without the need for further inquiry into the merits. It invokes, in this regard, a procedural requirement in the Collective Agreement that discipline be imposed within stipulated delays following completion of an investigation, requirements for Union representation during the investigative process and prerequisite disclosure requirements prior to the conduct of disciplinary interviews.
29. While there may be merit to some of the procedural objections raised by the Union, the Arbitrator has preferred to decide the grievance on its merits, rather than upon technical procedural grounds. This is because the Arbitrator regards it as important to underscore the fact that no evidence of culpable conduct on the grievor’s part has been presented in this case.
30. The Union also seeks as a remedy damages for the hardship and stress suffered by the grievor as a result of the Company’s actions. It referred the Arbitrator to a number of cases where the jurisdiction of a tribunal of arbitrator to award general or punitive damages in particular cases was recognized, and a case of Amalgamated Transit Union vs. Toronto Transit Commission (October 6, 2004 – Owen Shime, Arbitrator) where an amount of $25,000.00 was awarded an employee for repeated and persistent harassment and abuse at the hands of a foreman.
31. While the Arbitrator has great sympathy for the grievor and certainly cannot condone his treatment by the Company in this case, he does not believe that that treatment and the ill-conceived decision to dismiss at which the Company ultimately arrived, was the product of any malicious intent or bad faith. The Company’s objective at the time was to put an end to a situation that existed in remote regions where it maintained assets. It would no longer tolerate unauthorized access by civilians along its rail lines to its power sources. The grievor, along with other employees similarly classified, were made the object of inquiry and investigation to enable the Company to gather the information it would require to implement and apply the measures necessary to meet its new policy objectives. It would seem that the grievor, innocent though he may have been, got caught up in this process and became the victim of what the Arbitrator would characterize as an error in judgment.
32. For this reason, the Arbitrator does not believe that the present case would be one that calls for a remedy above and beyond the conventional relief that would flow from a wrongful dismissal.
33. For the foregoing reasons the grievance is maintained in part; the decision of the Company to dismiss the grievor on December 14, 2004, is annulled and set aside and ordered stricken from the grievor’s work record; the Company is ordered to reinstate the grievor in his former position of S&C Maintainer, with full rights and benefits and without loss of seniority, together with full compensation for all wages and benefits lost, retroactive to the date of dismissal.
34. The Arbitrator retains jurisdiction and will reconvene at the instance of one or other of the parties for purposes of determining any issue arising out of the application of the present award.
Montreal, April 8, 2005
(signed) HARVEY FRUMKIN