IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(The Company)
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
(The Union)
RE DISCHARGE GRIEVANCE OF CHOK PITTAYANON
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Susan Blackmore – Manager, Labour Relations, Edmonton
Sylvie Grou – Sr. Manager, Labour Relations, Montreal
Peter Newman – S&C Supervisor, Quality Control, Toronto
Timothy Orr – Sr. Manager, S&C, Toronto
And on behalf of the Union:
Ken Stuebing – Counsel, Toronto
Luc Couture – International Representative, St. Leonard
Ron Hewson – General Chairman
Chok Pittayanon – Grievor
A hearing in this matter was held in Montreal, on Tuesday, May 1, 2012.
AWARD OF THE ARBITRATOR
This is the arbitration of a grievance against discharge. The grievor, Mr. Chok Pittayanon was employed as an S&C Apprentice. He had 1-1/2 years of service with the Company when he was terminated as a result of two incidents. During his tour of duty which commenced on November 16, 2010 the grievor was found sleeping in his truck at 03:45. He was then assigned to protect signal and fibre optic cables during the construction work being performed near the Fort York Signal Plant. As a result of that incident he was assessed thirty demerits. However, during the course of the investigation process, the Company discovered that the grievor had changed his place of residence. As a result of that he was no longer entitled to receive the $104 per day all inclusive travel allowance which he in fact continued to receive for a period of almost a year. In the result, the grievor was paid some $13,000 to which he was not entitled.
On the grievor’s behalf it is not denied that he was found asleep in his truck. By way of mitigation, however, the grievor tendered a note from his physician. That note contains, in part, the following with respect to the grievor, in his doctor’s words:
He has had great difficulties in adjusting to his new night shift work since September 2010. He just cannot sleep well in his home during daytime (noisy & bright).
In the Arbitrator’s view the above note cannot be given great weight as a medical document. It appears, in fact, to be little more than a narrative account of the grievor’s doctor confirming that he has trouble sleeping by reason of his shift work. It appears that the grievor asked to be taken off day shift, and while he would have preferred the evening shift, he was in fact assigned to nights, working between 8:00 pm and 6:00 am.
In the Arbitrator’s view this is not a circumstance which raises a medical impediment or condition in the nature of a sleep disorder. At most, it would appear that the grievor had trouble adjusting to night shifts. That, however, did not minimize his obligation to remain awake and alert to his duties during all of his paid working hours. I am compelled to agree with the Company that the grievor had an obligation to keep himself awake, and that he obviously failed to do so in such a way as to attract discipline. Prior cases cited by the Company’s representative indicate that discipline in the range of twenty-five to thirty demerits has previously been sustained by boards of arbitration: SHP 568; SHP 244; CROA 2030.
The record also indicates that when he was first hired Mr. Pittayanon was eligible to receive and did receive an all-inclusive living allowance of $149.49 per day by reason of the fact that he was required to travel to work a distance of forty highway miles or more to his work location. In fact Mr. Pittayanon had moved to Mimico, which involved a distance from work of considerably less than forty highway miles and disentitled him to any further payment of the living allowance. Notwithstanding that fact, he gave the Company no indication of his change of residence and continued to receive the allowance for close to a year, amassing a sum of approximately $13,000 in excess of what he should truly have been paid.
The Arbitrator finds it difficult to accept the grievor’s suggestion that he simply did not realize that he was being paid the amounts in question, as it was all done automatically through payroll. As the Company’s representative stresses, the payment of the all-inclusive allowance added an additional 50% to what his paycheque would otherwise have been. I find it highly implausible that the grievor would not have noticed that difference or that he was unaware of the substantial overpayments which he was receiving over a long period of time. Alternatively, if the grievor is to be believed, the best that can be said is that he was careless, if not reckless, in initially applying for and receiving the travel allowance and thereafter doing nothing to alert the Company that an adjustment should be made.
Mr. Pittayanon is not a long service employee. He has little in the way of mitigating factors to assist in the support of his case. If anything, the accumulation of thirty demerits for having slept on the job is an aggravating factor in considering the assessment of discipline which would be appropriate for his either willful or reckless receipt of funds in the amount of approximately $13,000 from the Company, funds to which he was never entitled.
In the result, I am satisfied that the grievor’s failure to draw to the Company’s attention which he was receiving or, alternatively, his gross negligence in not recognizing that overpayment, did justify the assessment of forty-five demerits. By reason of that discipline, he accumulated seventy-five demerits, thereby placing himself in a dismissible position. In the Arbitrator’s view that is not an outcome that should be disturbed.
For the foregoing reasons the grievance is dismissed.
Signed at Ottawa, this 18th day of May 2012.
__________________________________
MICHEL G. PICHER
ARBITRATOR