AH603
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
AND
TEAMSTERS CANADA RAIL CONFERENCE
(the “Union”)
RE: GRIEVANCE OF HUSEIN AMIJI
Sole
Arbitrator: Michel G. Picher
Appearing For The Union:
J.
Robbins – General Chairman, Sarnia
H.
Amiji – Grievor
Appearing For The Company:
F.
O’Neill – Manager, Labour Relations, Toronto
D.
Gagné – Sr. Manager,
Labour Relations, Montreal
A hearing in this matter were
held in Montreal on Tuesday, April 27, 2010.
AWARD
The
following Dispute and Joint Statement of Issue was filed at the hearing by the
parties.
DISPUTE:
The discharge from service of Conductor Husein Amiji as a result of his accumulation of demerits in excess of 60.
JOINT
STATEMENT OF ISSUE:
On 1 March 2009, Conductor Amiji was discharged from the Company’s service for his accumulation in excess of 60 demerits. The grievor was assessed discipline in the following issues which are before the arbitrator:
1. 15 demerits for failure to follow yardmaster instructions resulting in a near miss with the 22:00 dual extra assignment on November 27, 2008.
2. 25 demerits for violation of CROR rule 104.4(b) resulting in a derailment at BIT on December 10, 2008.
3. 30 demerits for violation of Macmillan Yard Operating Manual item 6.6 – Point Protection, when riding in the locomotive cab during his tour of duty as yard helper on the YEXS30 31 in January 31, 2009.
4. 20 demerits for the circumstances surrounding his failure to properly protect his spareboard assignment on February 1, 2009, by making himself unavailable for work at 13:54 hours.
It is the Union’s position that the discipline assessed, in consideration of all the factors relating to this matter, is unfounded and unwarranted and should be removed in its entirety.
Without prejudice to our position or to progress this in other forums, consistent with Addendum 123 and given the preceding, it is the Union’s position that the Company has violated: The Workplace Environment provision contained in the collective agreement; Articles 84 and 85 of the collective agreement; the Grievance Tracking System (GTS); and the Brown System of discipline.
As a result of such violations, it is the Union’s position that the grievor be exonerated of any wrongdoing with all the discipline removed and, given the violations of the collective agreement that a remedy is applicable in the circumstances consistent with Addendum 123 of the collective agreement. That the Company and the Union agree to meet within 60 of the date of the Union’s Step 3 grievance and attempt to reach agreement on the appropriate remedy to apply. Failure as to the appropriate remedy (to be determined by either party upon written notice to the other) to be submitted to the arbitrator for resolution within 30 days of such failure.
The Company disagrees and deems that the discipline assessed was both warranted and appropriate in the instant case.
(signed) J. M. ROBBINS (signed)
F. O’NEILL
GENERAL CHAIRMAN MANAGER,
LABOUR RELATIONS
The material
before the Arbitrator confirms that the grievor is an employee of some three
years’ service. Prior to the incidents which are the subject of this
arbitration Mr. Amiji worked as a discipline-free employee. It does not appear
disputed that on July 21, 2007, while he was working as a conductor in GO Train
service Mr. Amiji was a close witness to a suicide, when a person deliberately
stepped into the path of his train. It is common ground that he suffered
post-traumatic stress disorder as a result of that incident, a condition for
which he has been under ongoing medical care.
Notwithstanding
the above events, it appears that the grievor was encouraged back into work
without delay, at the urging of an EFAP counsellor. Further, when he booked off
on sick leave he was denied that leave by Assistant Superintendent D. Ryorchuk
who directed the Crew Management Centre to place the grievor on AWOL status
should he not attend at work.
The record
discloses that the grievor’s subsequent work record was near disastrous. In the
period from November 27, 2008 to February 2, 2009 he incurred a total of ninety
demerits for four separate incidents, which resulted in his discharge.
Having
reviewed the entirety of the record and the submissions of the parties, the
Arbitrator is satisfied that there are grounds for adjustments in the
discipline assessed against Mr. Amiji, and for his reinstatement into
employment, albeit on conditions fashioned to protect both the Company and the
grievor himself.
Firstly, the
twenty demerits for the grievor’s alleged failure to protect his spareboard
assignment on February 1, 2009 cannot stand. It is trite to say that the
Company has the burden of proof in all matters of discipline. In the case at
hand, it would appear that at best there was some confusion as to the grievor’s
status. According to his own explanation he attempted to book off but his
request was not complied with. In the result, I am satisfied that the Company
has failed to establish, on the balance of probabilities, that the grievor
failed to protect his assignment on February 1, 2009 as alleged. In the result,
the twenty demerits assessed against him for that incident are to be removed
from his record.
I am
satisfied that the grievor was at fault with respect to the incident involving
the near miss in the yard on November 27, 2008. In light of the fact that the
grievor was then without any prior discipline, however, I am satisfied that a
written reprimand would have been sufficient in the circumstances. The
Arbitrator therefore directs that the fifteen demerits be removed from the
grievor’s record and that a written reprimand be substituted for the near miss
of November 27, 2008.
I am also
satisfied that the grievor was responsible for failing to respect rule 104.4(b)
while working at the BIT on December 10, 2008. In my view, however, twenty-five
demerits is excessive for that incident and fifteen demerits should be
substituted as the appropriate penalty. Additionally, I am satisfied that the
grievor did merit discipline for riding in the cab of his locomotive during his
tour of duty on January 31, 2009. However, fifteen demerits would have been the
appropriate measure of discipline in that circumstance.
In the
result, the grievance is allowed, in part. The Arbitrator directs that the
grievor be reinstated into his employment forthwith, with his disciplinary
record to stand at thirty demerits. His reinstatement shall be without
compensation for any wages lost, and without any loss of seniority or benefits.
For the
purposes of clarity, by this award the grievor is reinstated into employment
with the Company. Whether that employment is within the running trades or
elsewhere is a matter for the parties to discuss and, failing their agreement,
to be ultimately resolved by the Arbitrator. However, prior to the grievor
returning to any work with the Company, he must agree to first undergo medical
assessment to determine his physical and mental fitness to work, having
particular regard to his condition of post-traumatic stress disorder. Should a
medical examination confirm that he continues to suffer the effects of
post-traumatic stress disorder, or any other form of physical or mental
disability, his reinstatement shall be conditioned upon his following an
extended course of treatment for that condition after his reinstatement, until
such time as he is declared to no longer require any such treatment.
The matter
is therefore remitted back to the parties for their consideration, with the
Arbitrator retaining full jurisdiction.
Dated at Ottawa this 30th day of April 2010.
MICHEL G. PICHER
ARBITRATOR