AH584

IN THE MATTER OF A DISPUTE

 

BETWEEN:

 

CANADIAN NATIONAL RAILWAY

(the “Company”)

 

And

 

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

 

 

RE:  DISCHARGE OF CONDUCTOR CHARMAINE IDING

 

 

 

ARBITRATOR: Michel G. Picher

 

 

 

APPEARANCES FOR THE COMPANY:

Frank O’Neill                          - Manager, Labour Relations

 

 

 

APPEARANCES FOR THE UNION:

Michael Church                       - Counsel

James Robbins                        - General Chairman, TCRC Sarnia

Glen Gower                            - Vice General Chairman, TCRC

George MacPherson    - General Chairperson, Toronto

Ed Page                                   - Local Chairperson, Toronto

Cindy Little                            - Local Chairman, Belleville

Don Griffin                             - Vice Local, Belleville

Allan McDavid                       - Local Chairman, Capreol

Charmaine Iding                     - Grievor, Toronto

 

 

 

The hearing in this matter was held in Mississauga, Ontario, on October 9, 2009.

 

 

AWARD

 

This grievance concerns the assessment of several heads of discipline over a period of time and the ultimate termination of the grievor by reason of the administrative closing of her employment file.  The Company’s action was prompted by its view that the grievor, Conductor Charmaine Iding, had effectively abandoned her employment.

 

At the hearing the Union filed the following Ex Parte Statement of Issue:

 

A.  PARTIES TO THE DISPUTE

 

1.   The parties before the Arbitrator are the Teamsters Canada Rail Conference (the “Union”) and the Canadian National Railway Company (the “Company”).

 

B.  DISPUTE

 

2.   The discipline assessed Conductor Charmaine Iding which culminated in her termination from employment on or about April 20, 2008.

 

C.  EX PARTE STATEMENT OF ISSUE

 

3.   The grievor was assessed 15 demerits for failing to protect her assignment by booking sick and booking rest between April 17 and June 2, 2006.  The Union contends there was no evidence to support a finding that the Grievor booked rest or sick for other than bona fide reasons.  The Union contends that the discipline was without just cause; the Company had failed to comply with Article 53.2 of Agreement 4.16; and has violated Section 239 of the Canada Labour Code.

 

4.   The Company takes the position that the discipline assessed was warranted.

 

5.   Following a workplace injury on January 11, 2008 and three (3) separate investigations the Grievor was assessed:  (1) a written reprimand for violation of CROR General Rule C (i) and GOI 8.1 “in not being vigilant to avoid risk of injury, not looking where you were going, and not being sure of your footing resulting in injury on 11 January 2008”; (2) 15 demerits for “violation of GOI 8.3.1 in not immediately reporting an injury to the proper authority on 11 January 2008”; and (3) 15 demerits for “inappropriate conduct in refusing to participate in an injury investigation on 11 January 2008”.

 

6.   The Union takes the position that the Company violated Article 82 of Agreement 4.16 and all of the discipline assessed should be declared null and void; that there was no just cause for discipline; and that the discipline assessed was in violation of Section 239.1 of the Code.

 

7.   The Company takes the position that the discipline assessed was warranted.

 

8.   By letter dated April 30, 2008 the Company advised the Grievor that it “has closed your employment file” allegedly because the Grievor was absent from work without leave.

 

9.   The Union denies the allegations and submits that the Grievor’s termination was contrary to Agreement 4.16, including Article 82 thereof, and was unjustified, unwarranted and excessive.  The Union seeks the Grievor’s reinstatement into employment without loss of seniority or benefits and with full compensation.

 

10. The Company has denied the Union’s request.

 

 

The facts which commenced the series of events which led to the termination of the grievor are not in substantial dispute.  On January 11, 2008, the grievor was employed as Assistant Conductor in GO Train service.  During the course of her work she slipped on the stairs of a locomotive, striking and injuring her left hand.  Although she continued to work through the balance of her tour of duty, and filled out an injury on duty form at the end of her working day, it is not disputed that she did not immediately report the injury by means of radio to anyone in management, although it appears that she did advise her conductor.  It is also common ground that she was subsequently absent for a period of time, and received W.S.I.B. benefits for her loss of working time attributable to her injury.

 

It appears that in the period one to two weeks following the incident the Company took the position that the grievor should be able to perform modified duties within the cab of a locomotive, duties which would involve no great physical exertion.  The grievor, however, did not agree and obtained from her physician a CN Return to Work form which indicated certain restrictions which she maintained prevented her from returning to work.  Ultimately investigatory statements were taken on January 21 and 22, 2008, apparently in relation to the circumstances surrounding her injury, her late reporting of the injury and her refusal to participate in a re-enactment of the injury on the day it occurred.  On January 31, 2008 she was assessed a written reprimand for a violation of CROR General Rule C (i) and GOI 8.1 for lack of vigilance so as to avoid injury.  She was also assessed 15 demerits for failing to immediately report her injury to the proper authority and a further 15 demerits for refusing to participate in the injury investigation re-enactment on January 11, 2008.  The record reveals that notwithstanding the foregoing events the grievor remained away from work.

 

While it is not disputed that she was in receipt of W.S.I.B. benefits, the material before the Arbitrator raises substantial questions about the degree of her candour and her apparent failure to respond to calls and written communications from her employer.  For example, on six separate occasions Trainmaster Nancy McLaughlin telephoned Ms. Iding and left a message on her answering service for her to call her employer.  On no occasion did she do so.  It would appear that there was no actual conversation with Ms. Iding by Ms. McLaughlin before March 29, 2008.  Perhaps of greater concern to the Company, a registered letter was sent to the grievor, advising that the Company had modified duties which were available to her, on February 15, 2008.  Further, a registered letter was sent to her on March 4, 2008, advising her of a formal investigation to be conducted on March 13, 2008, in relation to her absence from the workplace since January 16, 2008.  That letter went without any reply.  An additional letter sent on March 18, 2008, again requested the grievor to attend an investigation into her failure to appear at the formal statement scheduled on March 13, 2008.  Again, there was no response.  The Company next sent a registered letter on April 4, 2008, indicating that her failure to appear for the second investigation would result in her employment record being closed should she not reschedule the investigation with the Company within the ensuing 15 calendar days.  Still there was no response from the grievor.  Finally, on April 20, 2008, the Company sent to Ms. Iding a letter noting her failure to either respond to any of the registered letters sent to her or to attend at any of the investigations scheduled, communicating the Company’s decision to close her employment file.  In effect, as related at the hearing, the Company viewed the grievor as being AWOL, having effectively abandoned her employment.

 

Having reviewed the foregoing material the Arbitrator can readily understand the Company’s concern.  While the events surrounding the actual injury to the grievor’s left hand, particularly with respect to the failure to immediately report it by radio to the appropriate supervisor and the refusal to engage in a re-enactment on the same day are relatively minor, the grievor’s course of conduct, which must be for reasons that only she can understand, was entirely inconsistent with an employee’s duty toward his or her employer with respect to maintaining communication and keeping the employer apprised of her situation.  Particularly, the failure to respond to any of the numerous telephone messages left by Trainmaster McLaughlin through February and March of 2008, and the subsequent ignoring of a series of registered letters sent on February 15, March 4, March 18 and April 4, 2008, do, in the Arbitrator’s view, constitute a gross violation of the obligation of candour and communication which the grievor owed to the Company as its employee.  The Arbitrator cannot dismiss out of hand the position of the Company which concluded that she had effectively abandoned her employment.

 

There are, however, mitigating circumstances which must be taken into account.  Firstly, it should be noted that Ms. Iding is an employee of more than twenty years’ service with a near exemplary disciplinary record.  The material before the Arbitrator further indicates that in January of 2008 she was additionally diagnosed by her physician with another serious illness, the nature of which may have complicated her situation considerably, albeit the full details of that were apparently not known to her employer.  On the whole, in the result, I am satisfied that this is an appropriate case for reinstatement into employment, albeit without compensation for wages and benefits lost, subject to the reduction of the overall total of demerits on the grievor’s record.

 

The Arbitrator therefore directs that the grievor be reinstated into her position forthwith, without compensation for wages and benefits lost.  The 15 demerits for refusing to participate in the injury investigation on January 11, 2008, shall be removed from her record.  The reprimand for failing to be vigilant so as to avoid injury and the 15 demerits assessed for her failure to immediately report the injury to the proper authority shall stand, with the grievor’s record to reflect a total of 15 demerits upon her reinstatement.

 

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

 

Dated at Ottawa, this 3rd day of November, 2009.

 

___________________________________

                                                                                                            Michel G. Picher

                                                                                                            Arbitrator