(the Company)







(the Union)







Sole Arbitrator: Michel G. Picher




Appearing For The Union:

J. Robbins General Chairman, Sarnia

G. Desautels Grievor



Appearing For The Company:

A. Daigle Manager, Labour Relations, Eastern Canada

F. ONeill Manager, Labour Relations, Toronto




A hearing in this matter was held in Montreal on Monday, November 23, 2009





The Union grieves the assessment of twenty-five demerits against Conductor Guy Desautels for non-compliance with attendance management standards. The dispute and joint statement of issue filed at the hearing reads as follows:



Assessment of discipline in the form of 25 demerits to Conductor Guy Desautels, Belleville, Ontario



It is the Unions position that the discipline was improper in all aspects, in violation of the collective agreement provisions and contrary to the Canada Labour Code.


The Companys decision to assess discipline in the instant case is inappropriate, inexplicable and outside the parameters of fair and impartial employment which is supposed to be free of harassment and intimidation.


The actions of the Company in the matter at hand violate the application and intent of the agreed conditions contained in the Workplace Environment provisions.


It is respectfully submitted that the discipline was discriminatory under the Canada Labour Code as well as being unfounded.


The Union seeks removal of the discipline because of the facts surrounding the case and all the reasons set forth in the joint statement of issue.


The Company disagrees with the Unions position.


It is common ground that the grievor, who worked a regular assignment in Belleville, was absent by reason of what he claims was illness on Friday May 9, Sunday June 22, Saturday July 5 and Sunday July 13, 2008. The absences involved a total of eight days of lost work. During the course of the Companys investigation the grievor gave no further explanation other than Being sick with respect to each of the absences and did not address the Companys concern that each of the absences occurred on weekend days. Following the investigation the Company assessed the grievor with twenty-five demerits for failure to comply with attendance management standards by booking sick on Friday May 9, Sunday June 22, Saturday July 5 and Sunday July 13, 2008.


The record discloses that the Companys concern did not arise in a vacuum. The grievor has a clearly negative record with respect to attendance issues. Between 2003 and 2005 he received a total of forty-five demerits and three suspensions for attendance problems. Those problems involved both missing calls and booking sick and in fact resulted in his discharge, a penalty which was eventually reduced to a suspension by the agreement of the parties after an effective absence from work of some 229 days. It would also appear that the grievors reinstatement resulted in an error on the part of the Company in computing his disciplinary record. The parties are agreed that the correct count of demerits should in fact be substituted for the purposes of this grievance, as well as for two other grievances heard concurrently.


Among the objections raised by the Union is that the period under review is too long and does not allow for a fair and impartial investigation, given the period of time under consideration. The Arbitrator cannot agree. The instant case, in my view, fairly falls within the principle enunciated in CROA&DR 3804 where the following was said.:


The Union raised challenges to the fairness of the disciplinary investigations which were conducted by the Company into the grievors problems of absenteeism. Among other things, it submits that too great a time period elapsed before the investigations were conducted. The Arbitrator cannot agree. I am satisfied that in each case it was appropriate for the Company to examine a relatively extensive period of time during which absences occurred, there being no other realistic basis upon which it could deal with what was essentially an unacceptable pattern of absenteeism.


While the Arbitrator can appreciate the Companys suspicion with respect to the grievors condition, the evidence adduced at the hearing does raise substantial concerns. As stressed by the Unions representative, the Company did not require any doctors notes or any other medical documentation to support the grievors claim of illness, something which might arguably been available to the Company under article 53.2 of the collective agreement, to the extent that the grievors record might well have placed him within the category of continual offenders contemplated within that article. However, at the arbitration the grievor did produce medical documentation, specifically confirming that he was suffering from allergies at the time of the events under review.


In the result, the Arbitrator is satisfied that the grievance must be allowed. The employer is directed to remove the twenty-five demerits registered against the grievors disciplinary record. It is also common ground that by reason of that adjustment Mr. Desautels is also entitled the removal of an additional twenty demerits from his record as he would then have had the requisite period of discipline free service for that credit.


Dated at Ottawa this 30th day of November 2009.