IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL SYSTEM NO. 11
GRIEVANCE RE: DISMISSAL OF KEVIN WATERSON
SOLE ARBITRATOR: MICHEL G. PICHER
THERE APPEARED ON BEHALF OF THE COMPANY:
Maggie Chernenkoff – Labour Relations Officer, Calgary
B. Lockerby – Labour Relations Officer, Calgary
D. Freeborn – Manager, Labour Relations, Calgary
THERE APPEARED ON BEHALF OF THE UNION:
Ken Stuebing – Counsel, Toronto
Brian Strong – Senior General Chairman, Fort Qu’Appelle
Ron Hewson – General Chairman, Aylmer
Kevin Waterson – Grievor
A hearing in this matter was held in Edmonton, Alberta on Monday, 13 June, 2011.
The Company has discharged the grievor for possessing and using a firearm on Company property while on duty. It submits that his possession of a hunting rifle in an attempt to shoot deer while working in remote areas of Northern Ontario, during on duty hours, constitutes conduct unbecoming an employee and a violation of Safety Rules and Recommended Practices for Engineering Services Employees Item I-K. It submits that his actions did justify his termination in the circumstances.
The nature of the dispute is reflected in the Joint Statement of Issue filed before the Arbitrator at the hearing, which reads as follows:
JOINT STATEMENT OF ISSUE:
S&C Maintainer Mr. Kevin Waterson was dismissed from Company service for alleged “conduct unbecoming an employee of the Company as demonstrated By your unauthorized possession of a loaded firearm on Company property and in a Company vehicle, and for engaging in hunting activities on Company property and while on duty, a violation of Safety Rules and Recommended Practices for Engineering Services Employees, Item 1-K, while employed as S&C Signal Maintainer MacKenzie on October 29th, 2010.”
The Union contends that the investigation was not conducted in a fair and impartial manner as per the requirements of the collective agreement. For this reason the Union contends that the discipline is null and void and ought to be removed in its entirety and Mr. Waterson be made whole.
The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty of discharge is excessive and unwarranted.
The Union requests that Mr. Waterson be reinstated without loss of seniority and benefits and that he be made whole for all lost earnings, with interest. 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. Waterson is an
S&C Maintainer who, in October of 2010, was working at MacKenzie on the
Nippigon Subdivision of Northern Ontario. On
The grievor was in possession of a Company hy-rail vehicle. As he had on the day previous, on October 29th he brought into the Company truck his personal hunting rifle which was apparently unloaded and in its storage case, with ammunition being separately carried on his person. By his own admission, he carried the rifle for the purpose of hunting deer that they might encounter or, as he put it “In case we saw the trophy buck.”
The evidence confirms that during the course of duty on that day on two separate occasions Mr. Waterson and Mr. Ivey did see deer adjacent to the track that they were travelling on. On both occasions Mr. Waterson removed his rifle from its case, exited the vehicle and walked towards the animals. In both incidents, however, the deer removed themselves into the adjacent woods so that in fact no ammunition was loaded and no shots were fired.
There appears to be little doubt but that the employees realized that the grievor’s activities were contrary to Company rules. When they arrived back at MacKenzie shortly before 10:00 a.m. on that day, having removed their hy-rail truck from the tracks, Mr. Ivey exited the truck stating “I want no part of this.” Mr. Ivey then left for home in his personal vehicle. It appears that shortly afterwards the grievor and Mr. Ivey telephoned their supervisor, Mr. Stephen Moore.
It seems that both individuals left messages for Mr. Moore who returned a call to the grievor at approximately 10:30 a.m. Mr. Waterson then advised him of what had occurred and was told to await further instructions. Mr. Waterson then proceeded to his home where he returned his hunting rifle to its normal storage place before returning to the Company tool house. He was there met by S&C Manager Marcel Gauthier, Structures Engineer Paul Zachariasz and CP Police Sergeant Scott Macaskill. The grievor then provided to Sgt. Macaskill documentation to establish that he was in lawful possession of a registered firearm as well as all required hunting permits. He was then removed from service by Mr. Gauthier.
course of an ensuing investigation held on
On the basis of
the material gathered during the course of the investigation the Company made
the decision to terminate the grievor’s services. It recognizes that his prior
disciplinary record, while not exemplary, does not involve an extensive list of
serious offences. However, its representative stresses that the Company
considers the incident of
preliminary matter, the
In the Arbitrator’s view neither of those challenges can succeed. Firstly, it should be stressed that as a general rule within the administration of investigations under collective agreements in the railway industry the standard of a fair and impartial investigation generally requires that the employee and his Union representative be in possession of all documentation which is the possession of the investigating officer. In the instant case it is not disputed that the Company’s police force operates as an independent entity, and as a general rule does not supply documents, notes or reports to the operational branch of the Company. In the instant case that is what occurred. The Company officials responsible for the investigation of the grievor’s conduct and the assessment of discipline against him had never received or been in possession of any written report from Sgt. Macaskill.
What the record
discloses is that the investigating officer received an oral statement from
Sgt. Macaskill to the effect that there was no conduct discovered on the part
of the grievor that would involve any violation of the criminal law. That
verbal statement by Sgt. Macaskill was duly and fully related by the
investigating officer to the grievor and his Union representative during the
course of the investigation, as recorded in the Q&A document placed before
the Arbitrator. In essence, the CP Police concluded that the grievor had done
nothing wrong and conveyed that information verbally to management who
immediately shared it fully with the
allegation of the
12.3 All material and necessary witnesses must be notified to appear. An employee shall have the right to be present during the examination of any witness whose evidence may have a bearing on his responsibility or be accorded the right to read the evidence of such witness and offer rebuttal thereto.
As is evident
from the foregoing, the obligation of the Company under article 12.3 can be
discharged on an alternative basis. On the one hand it can allow the grievor to
be present during the examination of a witness. On the other hand, as an
alternative, it can equally discharge its obligation by according to the
grievor the opportunity to read the evidence of that witness and offer rebuttal
to it. The latter option is what occurred in the case at hand. There is no
dispute that the investigative statement of Mr. Ivey was fully provided to the
grievor and his Union representative at the outset of his investigation. Mr.
Waterson and the
I turn to consider the merits of the dispute. Viewed from a certain perspective the Arbitrator can understand how the grievor’s actions and words gave considerable concern to the Company. Following an unfortunate shooting fatality in the late 1980s where hunting firearms were present on Company property, the Company promulgated a prohibition against the unauthorized possession of firearms or ammunition on Company property by employees, in the terms of Rule I-K. It does not appear disputed that firearms and ammunition are sometimes permitted, with the proper authorization of CP Police, where it becomes necessary to do so, as for example in the eradication of beavers or other pests whose activities might threaten the integrity of the Company’s roadbed and operations. In the case at hand, however, there was no such justification, much less authorization, and to all outward appearances the grievor proceeded in flagrant disregard of a well promulgated rule. If anything, his circumstance was aggravated by his unfortunate comment about the value of a firearm in a Company vehicle in light of ongoing theft and vandalism.
however, substantial mitigating factors to be considered in this case. Firstly,
as stressed by counsel for the
concern is what appears to have been the treatment of other employees charged
with similar infractions by the Company. Three such examples are offered by the
In 2005 an S&C Maintainer was investigated for carrying a firearm in his vehicle while on duty. The employee admitted that he used his gun to shoot injured trap animals and suggested that he had permission from the Company to trap and hunt on a certain section of the Winchester Subdivision. When it was revealed that he did not in fact have proper authorization to do so, he was assessed ten demerits for his violation of rule I-K. Finally, the Union refers to a third incident, the timing of which does not appear clear, which involved an S&C Maintainer who used an unauthorized firearm to shoot moose on Company property, as a result of which he was prosecuted by the Ministry of Natural Resources. While the employee in question was investigated and disciplined by the Company, he was not discharged.
While it is trite to say that each case must turn on its own facts, I am compelled to agree with the Union that the Company’s historic treatment of firearms infractions committed by employees working in wilderness areas, generally in relation to hunting, must at the very least be seen as a mitigating element to be taken into account in the case at hand. It is also significant, I think, that the grievor was at all times forthcoming with his supervisors. In fact, when Mr. Ivey left the workplace Mr. Waterson independently called his supervisor to fully disclose what had occurred and also recorded what I judge to be a sincere expression of regret and remorse during the course of his investigation. At the arbitration hearing he explained the unfortunate reference to trespassers and vandals as emerging from the context of a conversation which occurred during a brief adjournment of the investigation. I accept his explanation that that was more of an ill-advised comment than a true reflection of his personal judgement.
to the totality of the evidence, I am satisfied that while a serious degree of
discipline was appropriate, the discharge of the grievor was excessive, and
errors of judgement were committed on both sides, particularly having regard to
the treatment of other employees in similar circumstances in the past. The
grievance is therefore allowed, in part. I direct that the grievor be
reinstated into his employment forthwith, without loss of seniority and with
compensation for one-half the wages and benefits he has lost. Half the period
between his discharge and reinstatement shall be recorded as a suspension for
the violation of Item I-K on
Dated at Edmonton, Alberta this 16th day of June, 2011
MICHEL G. PICHER