IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
TEAMSTERS CANADA RAIL CONFERENCE
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.
The following Dispute and Joint Statement of Issue was filed at the hearing by the parties.
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