AH581
ARBITRATION
Between
CANADIAN NATIONAL RAILWAY COMPANY
and
NATIONAL AUTOMOBILE, AEROSPACE AND TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW)
SUBJECT - DISMISSAL OF PIERRE DUHAIME
Arbitrator: MICHEL G. PICHER
There appeared on behalf of the Company:
C. Gilbert – Manager, Labour Relations, Montreal
S. Grou – Manager, Labour Relations, Montreal
A. Y. deMontigny – Sr. Manager, Labour Relations, Montreal
J. Dumont – Supervisor, Facilities Management, Montreal
S. Couture – Manager, Facilities Management, Montreal
R. Martel – Supervisor, Structures, Montreal
There appeared on behalf of the Union:
D. St-Louis – National Representative, Montreal
P. Duhaime – Grievor
R. Brosseau – Local Vice-Chairman, St. Lawrence & Atlantic Region
Heard in Montreal, Friday, October 31, 2008.
AWARD OF THE ARBITRATOR
This is grievance concerning the dismissal of employee Pierre Duhaime. Mr. Duhaime occupied an electrician position in the Maintenance Department at the Company’s head office building and at Central Station, in Montreal. He was dismissed for having been assessed 20 demerits for lack of productivity and 60 demerits for sleeping during working hours.
The relevant facts of the grievance are not under dispute. The Grievor was hired in October 1978 and promoted to the position of electrician in 1982. He had no discipline assessed to his record prior to 2005. However, in January 2004, his supervisor thought it useful to review the Grievor’s responsibilities with him, due to the fact that certain tasks had not been completed. On February 2, 2004, Mr. Duhaime signed a letter confirming that he had been warned about his lack of work productivity on the night shift—i.e., from 19:30 to 07:30 hrs. Furthermore, he was assessed 5 demerits in 2005 for having failed to do the requested work, and 10 demerits in 2006 for “Failing to follow instructions given.”
The evidence establishes, without contradiction, that one of the Grievor’s supervisors, Jocelyn Dumont, discovered a folding bed in a cupboard reserved for electricians, in an electrical room. A few days later, at around 04:00 hrs. on April 3, 2007, Mr. Dumont—accompanied by supervisor Rejean Martel—caught Mr. Duhaime asleep on the folding bed in the room in question.
The fact that Mr. Duhaime obtained a folding camp bed and brought it to the premises is not under dispute. He had also equipped himself with sheets and an alarm clock. By his own admission, he used these comfort items to sleep during his work hours on several occasions. He denies that he was asleep when the supervisors found him lying shirtless under the sheets. According to his explanation, he had been resting like this for about an hour, although he intended to sleep. Based on the employer‘s evidence, during the night in question, Mr. Duhaime apparently worked for only five and a half hours during his twelve-hour shift. Moreover, it is acknowledged that Mr. Duhaime had slept in this way during work hours several times before.
The Union draws the Arbitrator‘s attention to what it describes as attenuating factors. According to his representative, the Grievor was going through a difficult period due to marital problems and potential divorce. He also points out that he was receiving medical care for anxiety and problems with sleeping. In support of his position, the Union representative maintains that jurisprudence indicates that such conduct generally results in a penalty of 20 demerits. He also alleges that the 20 demerits assessed for failure to perform work in addition to the 60 demerits assessed for having slept during his work shift constitute an unfair duplication of discipline for a single infraction (SHP 166, 244, 359 and 272, and CROA 2700).
In this case, the Arbitrator finds it somewhat difficult to accept the Union‘s arguments. Firstly, it should be recognized that this was not an occasional or irregular event, as would be the case where an employee dozed off for a moment in his chair. The evidence shows that the Grievor knowingly equipped himself with a bed, sheets—and even an alarm clock—so he could sleep regularly during his working hours. Considering the fact that he deliberately took steps to ensure the room in which he slept was comfortable, this grievance has more in common with CROA 1573, wherein the dismissal of an employee was justified by the fact that he was found in somewhat similar circumstances.
The Arbitrator cannot accept the claim that the penalty assessed constitutes an unfair duplication of discipline. As recognized by jurisprudence, claiming payment of salary for hours not worked is a form of theft committed against the employer (CROA 3042). In this case, this clearly consisted of two separate infractions: lack of productivity and misappropriation of salary.
Are there any attenuating factors to consider? I am not convinced that Mr. Duhaime’s family difficulties are a factor that would reduce the seriousness of his conduct. The core of Mr. Duhaime’s infraction remains the lack of honesty of a salaried employee working without supervision. The Arbitrator finds more convincing the Employer’s claim that the Grlevor’s actions made consciously and in a repeated fashion and the culmination of events that occurred on the morning of April 3, 2007, have irrevocably broken the relationship of trust that existed between the Grievor and his employer, thereby justifying the termination of his employment.
However, I believe that under the circumstances the penalty to which Mr. Duhaime would be subject is highly aggravated the potential loss of certain pension benefits. It is agreed that his pension would be significantly reduced if his is dismissed after 30 years of service, before reaching the age of 55, at which time he would become eligible for unreduced pension benefits. In view of his lengthy service and good prior discipline record, I believe that substituting Mr. Duhaime’s dismissal with suspension until he reaches age 55 is fair and preferable.
For these reasons, the grievance is upheld, in part. The Arbitrator directs that Mr. Duhaime be suspended from the date of his dismissal until he reaches the age of 55 years, on condition that he agrees to resign and retire at that time. If, however, he does not agree to this condition, the grievance shall be dismissed.
I will keep abreast of this grievance in order to resolve any conflict that could arise from the interpretation or execution of this ruling.
Dated this 11th day of November, 2008 in the city of Ottawa._____________________
__________________________
Michel G. Picher
ARBITRATOR