AH570

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

 

 (the "Company")

 

 

AND

 

 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, SYSTEM COUNCIL NO. 11

 

(the "Union")

 

 

RE GRIEVANCE OF DAVID HILL

 

 

Sole Arbitrator:                               Michel G. Picher

 

 

Appearing For The Company:

Denis Laurendeau              – Manager, Labour Relations

Alain DeMontigny                – Sr. Manager, Labour Relations

Brent Anderson                    – S&C Supervisor

Ron Osborne                        – S&C Supervisor

 

 

Appearing For The Union:

Michael A. Church              – Counsel

Ken Stuebing                       – Student-at-Law

Luc Couture                          – International Representative

Kevin Kearns                        – Senior System General Chairman

Richard Hunt                        – System General Chairman (Eastern Canada)

David Hill                               – Grievor

 

A hearing in this matter was held in Toronto on February 1, 2005

 

AWARD

 

            This arbitration concerns a grievance against discharge for unauthorized absence and the unauthorized use of a Company vehicle. The grievor, S&C Apprentice David Hill, was terminated following a disciplinary investigation conducted on December 12, 2003. The Union maintains that while the grievor may have been subject to some discipline, his termination was excessive in the circumstances. The Company submits that it did have just cause to terminate Mr. Hill’s services.

 

            The joint statement of issue, filed at the hearing, reads as follows:

 

JOINT STATEMENT OF ISSUE:

At the end of his shift on December 1, 2003, Mr. Hill used CN truck 076455 to return home and to come back the next morning. However, he reported late on December 2, 2003. As a result of this Mr. Hill was required to give an employee statement on December 12, 2003, to explain the incident. He was further discharged for: “Unauthorized use of company vehicle 076455 on Dec. 1 and Dec. 2 and unauthorized absence from duty on Dec. 2, 2003”

 

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.

 

            There is no dispute with respect to the facts. The grievor commenced service with the Company in August of 2001 and had a clear disciplinary record at the time of his termination. As an S&C Apprentice Mr Hill, whose home is in London, Ontario, was called upon to travel extensively on Company service. When he was on assignment away from home, generally in Southern Ontario, the grievor used hotel or motel accommodations at his own expense, to be reimbursed by the Company. He also had the use of a Company truck to travel to and from the work sites to which he was assigned.

 

            In the spring of 2003 the grievor experienced serious marital difficulties, resulting his separation from his wife and children on or about May 12, 2003. It appears that he struggled through a substantial degree of personal and financial hardship as a result of his marriage breakdown, a circumstance which eventually led to his extended absence from work from September 29 to November 20, 2003. It appears that upon his return to work he was referred to the Company’s EFAP service for his personal problems, and did obtain a degree of counselling. It is also not disputed that upon his return to service the grievor was cautioned that he was not to take a Company vehicle home and that he was under an obligation to keep the Company posted in the event that he should be late or absent for any reason.

 

            Upon his return to work Mr. Hill was virtually without funds, not being successful in obtaining an advance on his salary. The same day he was declined an advance, Mr. Hill worked on a project in Brampton, Ontario. After his day’s work he was scheduled to return with his Company vehicle to the Comfort Inn on Norfinch Drive in North York. Being without funds Mr. Hill had attempted to arrange for a friend to deposit money into his bank account. When he checked at an ATM dispenser he discovered that the money had not in fact been transferred. As his only credit card was then beyond its credit limit he was virtually without funds to pay for his night’s lodging. He therefore decided to drive to his apartment in London for the night, planning to return to work in Brampton the following morning.

 

            As matters turned out, he encountered a snow fall the following day which caused extended delays on the highway. In the result, he did not arrive at Brampton until 9:30 am. Following an investigation, and based in large part upon the fact that the grievor had been freshly counselled not to take a Company vehicle home, he was discharged effective January 6, 2004.

 

            The Company’s representative submits that, based on the counselling which the grievor had just received, the Company was entitled to conclude that he had effectively broken the bond of trust essential to the employment relationship. He stresses that the grievor not only used the Company vehicle in an unauthorized way, but that he also failed to call or advise the Company of his circumstances on the morning when he was some two hours late for work. Bearing in mind the seriousness of the incident and the grievor’s relatively short service, the employer submits that termination was appropriate in the circumstances.

 

            Counsel for the Union takes a different view. Firstly, in mitigation, he stresses the dire personal circumstances which effectively forced the grievor to seek shelter at his own home when he was literally without funds to do so in Toronto. Counsel notes that the grievor’s personal circumstances, a matter of considerable hardship that is now entirely behind him, were very much at the root of the difficulties he was then facing. In addition, he argues that it is out of keeping with the principles of progressive discipline to discharge the grievor for what is effectively a first offence, particularly having regard to the mitigating factors of the grievor’s personal circumstances. Counsel stresses that it is improper for the Company to elevate to the level of discipline the prior absence of the grievor from work, and the resulting counselling that he received. He notes that the Company did not in fact discipline the grievor in any way with respect to the prior incident, and that it cannot now seek to rely on that incident to justify the ultimate sanction of discipline for what is in effect a first offence.

 

            The Arbitrator can readily understand the Company’s concern. Mr. Hill obviously took a Company vehicle to his home, without authorization, virtually on the first tour of duty following his return to work, fresh from a counselling by the Company that he was not do so. There are, however, mitigating circumstances which must be considered. Firstly, it is not disputed that the grievor was entitled to take a Company vehicle to and from his overnight accommodation. While he was obviously not entitled to take the truck to his home in London, Ontario, he did that only as a last resort, when he was virtually without the money to provide himself a night’s lodging in Toronto. The undisputed account of the grievor is that he was denied an advance of wages, that he found his bank account to be empty of a loan which he expected to be deposited in it and that when, as a last resort, he called a local relative he was unable to find a place to stay in Toronto. While it might be arguable that, in the circumstances, Mr. Hill should have considered the possibility of finding overnight accommodation in a shelter for the homeless, in the Arbitrator’s view it was not beyond understanding that he opted to use the Company truck to return to spend the night in his apartment in London.

 

The Arbitrator has greater difficulty, however, understanding how the grievor could not have made a telephone call to the Company to advise that he would be late in arriving at work on the morning of December 2, 2003. On the whole, I am satisfied that Mr. Hill did render himself liable to a serious measure of discipline. I am not persuaded, however, given that he had no prior discipline on his record from his original date of hire, that termination was the only option. In my view, bearing in mind that discipline is primarily intended to be rehabilitative, this is an appropriate case for a reduction of penalty, albeit without compensation. In my view, however, it is also appropriate that any order of reinstatement be subject to conditions fashioned to protect the Company’s interests with respect to the grievor’s faithful attendance at work in the future.

 

            For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for wages and benefits lost. The grievor’s return to work shall be conditioned upon his accepting to maintain a rate of attendance at work over the course of the next two years to be no less than the average for the employees in his classification, within his region, such calculation to be made on the basis of any three month period. Should the grievor fail to maintain an attendance rate at least equal to the average of his peers, save for the occurrence of an extraordinary illness or injury that is medically documented, he shall be subject to termination without recourse to arbitration save for the purposes of determining whether he did or did not meet the required standard.

 

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

 

 

Dated at Toronto, this 17th day of February 2005

 

 

___________________________

MICHEL G. PICHER

ARBITRATOR