AH601 (Miller)

AWARD

The Union grieves the discharge of probationary employee David G. Miller. The circumstances of the grievor’s termination are described in the Company’s ex parte statement of issue, in the following terms:

DISPUTE:

The termination of David G. Miller effective April 22, 2008 due to his failure to demonstrate the proper attitude of a compulsory trainee and submit homework assignments as required.

COMPANY’S STATEMENT OF ISSUE:

Mr. Miller was hired and received a new hire information package including the electrical fundamentals homework kit, on November 13, 2007. Mr. Miller was informed that he was required to submit one test/week.

The Company did not receive any homework assignments from Mr. Miller and after numerous requests throughout December 2007 and January, February, March and April of 2008, the Company determined that Mr. Miller did not display the proper attitude and desire to learn and terminated his employment in accordance with article 12.3 of agreement 11.1.

The Union contends that Mr Miller’s dismissal is unwarranted and excessive and he should be immediately reinstated into his position with full benefits, seniority and compensation.

The Company contends that termination in accordance with article 12.3 was justified and in any event, Mr. Miller was still within his probationary period and therefore denies the Union’s contentions and declines the Union’s request.

The Union’s ex parte statement of issue reads as follows:

DISPUTE:

The termination of David G. Miller effective April 22, 2008.

UNION’S STATEMENT OF ISSUE:

On April 22, 2008, Mr. Miller’s employment was terminated by the Company for alleged failure to complete homework assignments as part of the Apprenticeship Training Program.

The Union contends that there are no grounds for terminating Mr. Miller’s employment in the circumstances. The Union further contends that the penalty of discharge is unwarranted and contrary to the terms of collective agreement 11.1. In the alternative, it is the Union’s position that the termination of Mr. Miller’s employment is excessive.

The Union requests that Mr. Miller be reinstated without loss of seniority and benefits and that he be made whole for all lost earnings with full benefits, seniority and compensation. In the alternative, the Union requests that the penalty be mitigated as the Arbitrator sees fit.

The Company disagrees and denies the Union’s request.

The facts in relation to this grievance are not in substantial dispute. Mr. Miller was hired by the Company to enter the S&C Apprentice Training Program on or about November 13, 2007. As a trainee, the grievor fell under the terms of articles 12.1, 12.2 and 12.3 of the collective agreement which provide as follows:

12.1 Employees taking training under the Training Program shall, for the purpose of the Agreement, be designated as follows:

(a) Compulsory Trainee: An employee who is enrolled into the S&C Apprenticeship Training Program.

(b) Selected Trainee: An employee that the Company has designated to take job-related training

COMPULSORY TRAINEE

12.2 A compulsory Trainee must be able to speak, read and write the English language in the Province on Quebec, and must be able to successfully pass the Company selection process for the position of an S&C Apprentice. Such employee will be classed as an S&C Apprentice and compensated at the Apprentice starting rate of pay.

12.3 A Compulsory Trainee must, throughout his apprenticeship, continue to display the desire and aptitude to learn the trade or he will be removed from the service of the Company.

As explained by the Company, without contradiction, the Apprentice Training Program consists of the following elements:

· Electrical Fundamentals Homework – Self Study and completion of 12 Problem Solving Assignments.

· Electrical Fundamentals Exam

· ATP Tour 1 – Introduction to Railway Signalling, Relays, Switch Machine basics

· ATP-Tour 1 OJT (on-the-job training)

· ATP-Tour 2 – Crossing Theory

· ATP-Tour 2 OJT

· ATP-Tour 3 Light Density CTC

· ATP-Tour 3 OJT

· ATP-Tour 4 – Introduction to Electronic-based Signalling

At the time of his hire Mr. Miller, like all trainees, received a kit of materials. That package is described, again without contradiction, by the Company as containing the following:

· Welcome Letter, which outlines the requirements of the home study portion of the apprenticeship training.

· S&C Development, document which outlines the requirements of each stage of the training, including the some study portion.

· ‘Electricity’ textbook by Fowler

· Electrical Fundamentals binder, which contains the 12 questionnaires to be completed as homework.

· 12 envelopes labelled with Instructors’ address.

· 12 blank envelopes for the apprentice to inscribe his/her home address, so that the corrected assignments may be returned.

· Acknowledgement of Receipt form, which includes instructors’ address and fax number.

· Instructors’ business card.

· Information regarding accommodation.

· Calculator

It is common ground that passing the Electrical Fundamentals exam is the requirement to completing the first portion of the classroom session of the Apprentice Training Program (ATP). In preparation for that exam trainees are required to complete twelve homework questionnaires, based on assigned readings from home study materials, including the “electricity” textbook. Mr. Miller, like other trainees, was given twelve pre-addressed envelopes in which he could send his homework questionnaires to an instructor for correcting, on what was to be a weekly basis.

In fact, the record reveals that the grievor did not submit any of his twelve problem solving assignments in a timely fashion.

The evidence discloses that when the grievor was approached by Supervisor Timothy Orr in late December he indicated to the Senior Manager, S&C for the Eastern Region that he would be providing the materials completed to date in January. In fact no materials were received in January. Mr. Miller’s explanation is that he apparently sent them to the wrong address, which caused the issuing to him of a new kit by Ms. D.C. Whyte, S&C Training Supervisor. The grievor nevertheless continued to fail to file any of the required homework through February, March and April.

An email communication from Ms. Whyte to other Company officers, dated August 19, 2008 reflects the history of her efforts, and the efforts of other supervisors, to obtain the homework material in a timely fashion from Mr. Miller. That communication reads as follows:

Greg Miller: Hired and received his fundamentals kit November 13/07

Spoke to him myself shortly after was hired about the timeline for submitting the assignments.

Had received nothing from him by Dec 14/07, contacted him that week, also spoke to Ian Omeara, his supervisor at the time. He said he was going to have all 12 assignments done for the first week of January/08.

January 8th: Had received nothing from Greg, tried to contact him: gang, home and cell. No response.

No exact dates, but as Ian Omeara had left the supervisor position, I spoke to Tim Orr with regards to Mr. Miller, on a number of occasions between January 8 and April 17th.

Feb 24: see attached file. Mr. Miller said he had sent the test in, but as I had not received them, he would take a new set and re do them.

Feb 25/08 Attempted to contact Mr. Miller, and called Dave Marshall, his foreman. Was told Glen was in Rules in London … Spoke about Mr. Miller emailing me the chapter tests.

As I could not reach Mr. Miller, I sent him a complete set of the Fundamental tests.

March 3. Still no homework or contact from Mr. Miller. Tried to contact him again, spoke to Tim Orr about the situation.

March 11: Called Jack Ballerigon, the mechanic Mr. Miller was working with. Jack told me that Mr. Miller was indisposed and would call me back. He did not return my call.

April 1: Jack was in the signal centre, so I spoke to him about Mr. Miller and his homework.

April 15. Spoke again to Jack who told me that Mr. Miller was going to email the homework that evening. This from memory but there was some story about he couldn’t submit the tests earlier in the week, via email as promised because his brother had the computer, etc.

Roster for the Electrical fundamentals was sent out on April 16, see attached email. I was still expecting the work from Mr. Miller.

On April 22, Assistant Superintendent S&C Timothy Orr communicated the following letter of termination to the grievor, who it should be noted, was still a probationary employee:

Dear Mr. Miller

This letter is to inform you that your employment is terminated effective April 22, 2008.

When you were hired on November 13, 2007, you were made aware that as part of the Apprenticeship Training Program you were required to submit 12 Electrical Fundamental homework assignments. These assignments were to be submitted on a weekly basis. To date, you have not submitted any assignments on the prescribed forms.

Under Article 12.3 of the collective agreement, “A compulsory Trainee must, throughout his apprenticeship, continue to display the desire and aptitude to learn the trade or he well be removed from the service of the Company.”

Your failure to complete the homework assignments, after numerous requests from the Training Supervisor, indicates to the Company that you either cannot do the work, or cannot be trusted to work independently to complete assigned tasks. In either case, this renders you unfit to occupy a place in our Apprenticeship Program.

The record indicates that on or about April 21, Mr. Miller sent to the Ms. Whyte a single electronic message which purported to contain the answers to all of the questions in the twelve module homework kit. In fact that communication did not comply with the format which was provided to Mr. Miller. The Union submits that the fact remains that the grievor would have scored at the rate 83% on the materials which he did finally return, a figure which it submits would have qualified him to then undertake the exam leading to full participation in the ATP. Its counsel submits that the grievor was not given sufficient direction and warning, and that in effect he did ultimately provide sufficient responses to the homework assignments, and that in the circumstances the termination of his employment constitutes an arbitrary measure, beyond what is acceptable for the termination of probationary employee.

Regrettably, the Arbitrator cannot agree.

In the Arbitrator’s view it is important to retain in mind the lower standard which governs the termination of probationary employees. That was reflected in the arbitrator’s award in CROA 1568 where the following comments appear:

It is common ground that the standard of proof required to establish just cause for the termination of a probationary employee is substantially lighter than for a permanent employee. The determination of “suitability” obviously leaves room for a substantial discretion on the part of the employer in deciding whether an employee should gain permanent employment status. By the same token, however, under the instant collective agreement that discretion is not un-reviewable. That is plain from the language of article 58.1 of the collective agreement, which expressly permits an appeal against the dismissal of a probationary employee. While the parties addressed argument to the appropriate standard of review in such cases, it is not necessary to exhaustively recount or resolve that debate for the purposes of the instant case. It is sufficient to say that, at a minimum, the Company’s decision to terminate a probationary employee must not be arbitrary, discriminatory or in bad faith. It must be exercised for a valid business purpose, having regard to the requirements of the job and the performance of the individual in question.

The preponderance of the evidence before the Arbitrator is that, for reasons he best appreciates, Mr. Miller apparently accorded no importance to the timely completion and filing of his homework assignments. He did so notwithstanding several reminders from Mr. Orr and efforts by Ms. Whyte. Notably, it appears that a number of attempts of having Mr. Miller reply to the calls and requests of Ms. Whyte simply went unanswered.

On behalf of the Company Mr. Orr testified that the concern raised by Mr. Miller’s failure to adhere to the requirement for the timely filing of homework assignments caused substantial concern as to his suitability to work in an independent way in a largely unsupervised job function of high responsibility. In Mr. Orr’s view the repeated excuses raised by Mr. Miller, whether mailing errors, difficulties accessing a computer or scanning documents, were in the nature of excuses which raised a red flag concerning the independence and reliability of Mr. Miller.

The Arbitrator has considerable difficulty second guessing that assessment. As the standard in the case at hand is not simply just cause, I find it difficult to conclude that the judgement exercised by the Company can be said to have been arbitrary or discriminatory in all of the circumstances. Plainly, there were repeated failures on the part of Mr. Miller to respond to the requirements of his training program, and to the specific repeated requests of his supervisors to complete and file his homework assignments. In my view the Company’s analysis of his failure cannot be characterized as unfair or arbitrary.

Nor can the Arbitrator accept the Union’s suggestion that there was discriminatory conduct aimed at Mr. Miller. The Union suggests that another employee, trainee James Smith, was given more particular attention, and specifically was provided with a written reminder from Mr. Orr with respect to the need to be timely in filing his homework assignments. While it is true that Mr. Smith did receive such a written communication, it is important to note that it came only after the events resulting in the termination of Mr. Miller, and that Mr. Smith was in fact in a training program which commenced later. The Arbitrator accepts the explanation of Mr. Orr that in giving Mr. Smith a written reminder of the importance of filing his homework assignments he was simply then attempting to avoid a repetition of the unfortunate scenario with Mr. Miller. In the Arbitrator’s view the facts so disclosed do not constitute the discriminatory treatment of Mr. Miller who, it appears, had in any event been terminated virtually on the very date of the reminder letter sent to Mr. Smith.

Having regard to all of the circumstances the Arbitrator cannot sustain the suggestion of the Union that this is an extraordinary case which merits reversal on the basis that the termination was arbitrary, discriminatory and without proper foundation. On the contrary, I am compelled to the unfortunate conclusion that Mr. Miller is the author of his own misfortune.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Ottawa this 21st day of December 2009.

_________________________________

MICHEL G. PICHER

ARBITRATOR