SHP588

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

 

AND

 

 

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

 

 

RE: GRIEVANCE OF GUY DESAUTELS – 30 DEMERITS
ATTENDANCE MANAGEMENT STANDARDS

 

 

 

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. O’Neill                           – Manager, Labour Relations, Toronto

           

 

 

 

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

 

 

AWARD

 

            The grievance arises because the Company assessed thirty demerits against the grievor for having missed a call on April 5, 2009. The dispute and statement of issue read as follows:

 

DISPUTE:

The assessment of thirty (30) demerit marks to Conductor Guy Desautels for failure to comply with Attendance Management Standards by missing a call on April 5, 2009.

 

STATEMENT OF ISSUE:

The Union contends that the discipline is: Unjustified, unwarranted and excessive; In violation of the workplace environment; In violation of CROA jurisprudence.

 

The Union requests that all discipline be removed, and that the grievor be reinstated without loss of seniority or benefits. The Union also contends that a remedy is applicable in this case.

 

The Company disagrees with all of the Union’s contentions.

 

            In explanation of the missed call, the grievor, during the course of his disciplinary investigation, explained that on the date in question a windstorm cause a neighbour’s  tree to fall against his house. He states that he was using a chain saw to clean up the debris when, in all likelihood, his cell phone may have sounded without his hearing it. The position of the Company is that it was the grievor’s obligation to first notify his employer if he was going to be out of reach by telephone, thereby avoiding a missed call. Alternativey, it submits that he should have placed his cell phone on vibrator mode or left it in the house where someone else could answer it.

 

            The Arbitrator is compelled to agree with the Company. An employee of some twenty-one years’ service, Mr. Desautels has a lamentable record with respect to missed calls, having been discharged on one occasion and subsequently reinstated by agreement. Unfortunately he seems to fail to grasp the importance of being responsible with respect to his availability to receive calls from his employer.

 

            The parties are agreed that the grievor’s full count of discipline following the culminating incident of the missed call of April 5, 2009 would stand at sixty demerits, given the removal of forty-five demerits from his record by reason of an earlier award of the Arbitrator in a separate matter heard concurrently with this case. The issue then becomes the appropriate outcome in all of the circumstances.

 

            In the Arbitrator’s view the instant matter can be resolved in a way which balances the interests of both parties. As a long service employee the grievor is arguably entitled to a last chance to demonstrate that he can be compliant with attendance standards and the obligation to faithfully respond to calls when he has not booked off. On the other hand, any reinstatement of the grievor must be subject to conditions fashioned to protect the Company’s legitimate interests.

 

            The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, with his disciplinary record to stand at thirty demerits. The period between his termination and reinstatement shall be recorded as a suspension. However, the grievor’s reinstatement shall be conditioned upon his accepting to maintain, over a period of two years, a record of attendance and response to calls which is equal to or better than the average of his fellow employees within his terminal. His failure to honour that standard within any three month period, calculated on a rolling basis within the two years, shall render him liable to dismissal with no recourse to the grievance and arbitration process save to verify the accuracy of the the relative attendance figures.

 

 

Dated at Ottawa this 30th day of November 2009.

 

 

_________________________________

MICHEL G. PICHER

ARBITRATOR