AH 629
IN THE MATTER OF ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
-and-
CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION
(the “Association”)
RE: AGREEMENT 28.2 – RATES OF PAY AND RULES
GRIEVOR: CONSTABLE PATRICK BRISARD
ARBITRATOR: MICHEL G. PICHER
APPEARANCES FOR THE COMPANY:
Denis Laurendeau - Manager, Labour Relations
Bernard J. Bizier - Assistant Chief
Themis Taveira - Supervisor
APPEARANCES FOR THE ASSOCIATION:
Wayne Telcs - Vice-President
Guy Corriveau - Secretary/Treasurer
A hearing in this matter was held in Montreal, Quebec on
February 15th, 2013.
AWARD
The Association challenges the assessment of 25 demerits against Police Constable Patrick Brisard of Surrey, British Columbia. Twenty demerits were assessed against the grievor for being late for an assignment and failing to contact his supervisor while five demerits were assessed for disrespectful behaviour, contrary to section 4.1.3(10) and (14) respectively of the CN Police Procedural Manual. The nature of the dispute is outlined in the Dispute and Joint Statement of Facts filed with the Arbitrator at the hearing. That document reads as follows:
Dispute
Assessment of 25 demerit marks effective February 27, 2012, to Constable Patrick Brisard for: “Failure to report for assigned duty w/o notification or authorization 4.1.3 sub section (10) and Conduct likely to bring discredit to the department, sub-section (14): disrespectful behavior.”
Joint Statement of Facts
By email dated January 17 2012, Constable Brisard was ordered to report on January 18, 2012 at 08:00, to No 5 Road in Richmond BC to work a Crossing Enforcement Blitz. Constable Brisard was 38 minutes late arriving at 08:38.
By email dated January 27, 2012, Inspector Ritchie ordered Constable Brisard to report to the office on January 30, 2012, to discuss whether Constable Brisard wanted to use the ICA process or have a formal investigation in relation to the incident of January 18, 2012. Constable Brisard called and woke Inspector Ritchie up at 01:42 during the morning of January 28, 2012, to inform him that he wanted to proceed with a formal hearing.
As a result, the Company conducted a formal investigation on February 17, 2012, and determined that Constable Brisard failed to report for assigned duty on time without notification or authorization on January 18, 2012, and that he acted in a disrespectful manner the night of January 28, 2012. He was informed on February 27, 2012, that he was assessed with 25 demerit points.
The Association contends that Constable Brisard did report for duty on time, however due to extenuating circumstances, he was unable to attend the No 5 Road in Richmond at the designated time. The Association agrees that Constable Brisard did not notify Inspector Ritchie that he would be late. The Association also contends that while Constable Brisard could have proceeded differently in the manner and time at which he contacted Inspector Ritchie, that his actions were entirely justified.
The Association maintains that his discipline be removed from Constable Brisard`s record.
The Company declined the grievance and disagrees with the Association`s assertions
As can be seen from the foregoing, there are two distinct aspects to the discipline here under review. I deal firstly with the issue of the grievor`s failure to attend in a timely fashion at No. 5 Road in Richmond, British Columbia on January 18, 2012. It is common ground that he was to report at the location at 08:00, having started his tour of duty at 07:00. In fact, he was some 38 minutes late, arriving at 08:38. It is also not disputed that he failed to contact his supervisor, Inspector Dan Ritchie, who was waiting for him at that location. Moreover, as admitted during the disciplinary investigation, Constable Brisard had previously been spoken to by Inspector Ritchie with respect to the need to advise in the event that he should be late for an assignment.
The record before me, which includes the explanation provided by the grievor during his disciplinary investigation, confirms that Constable Brisard had some difficulty with the operation of his police vehicle prior to his departure to No. 5 Road in Richmond. By his account, which is not disputed, while warming his vehicle he inadvertently locked the keys inside it. He relates that the remote device would not unlock the door and that he was therefore required to use another car to proceed to the fleet garage to secure a spare key. It appears that he related that explanation to Inspector Ritchie when the latter telephoned him asking where he was and why he was late. Acknowledging that he had failed to call Inspector Ritchie to advise of the situation, during the course of his investigation Constable Brisard stated: “Because of the weather conditions and the bad morning I was having with the car keys/remote, I didn’t even think about calling Inspector Ritchie. I just wanted to get there.”
Based on what happened, a decision was made to conduct an investigation of the events of the morning of January 18, 2012. Some days later, on January 27, 2012, Inspector Ritchie emailed Constable Brisard instructing him to meet with him on January 30, 2012 to let him know whether he wished to proceed by way of a formal investigation or by the ICA informal procedure with respect to the incident of January 18, 2012.
Constable Brisard did not respond to Inspector Ritchie by return email, nor did he call him while Inspector Ritchie was on duty. Rather, for reasons only he can appreciate, Constable Brisard chose to telephone Inspector Ritchie at 01:42 in the morning of January 28, 2012, obviously disturbing him at home and waking him in the process. It appears that Constable Brisard could not meet with Inspector Ritchie on January 30, and in that telephone call he so advised him, additionally telling him that he wished to proceed by way of formal disciplinary hearing.
Following the disciplinary hearing held on February 17, 2012 a Form 780 Notice of Discipline was issued to the grievor advising that he was assessed 20 demerits for his violation of subsection 4.1.3 (10) of the CN Police Procedural Manual, relating to “Failure to report for duty without notification or authorization.” The same form notified him that he was assessed five demerits under subsection 4.1.3 (14) of the Procedural Manual for “Any act or omission contrary to good order and discipline or conduct likely to bring discredit to the Department.” More specifically, the form stated the following as the reasons for the discipline:
Failure to report for assigned duty w/o notification or authorization 4.1.3 sub-section (10) and Conduct likely to bring discredit to the department, sub-section (14): disrespectful behaviour.
I consider firstly the assessment of 20 demerits for the grievor’s lateness in arriving at the site of his assignment on the morning of January 18, 2012. As a general matter I am compelled to agree with the Company that Constable Brisard obviously failed in his fundamental obligation to advise Inspector Ritchie that he would be late. He knew, or reasonably should have known, that it was his obligation to advise his superior of his circumstances when he encountered delays in getting to No. 5 Road North in Richmond on the day in question.
There are, however, mitigating circumstances to consider. According to Constable Brisard’s explanation, when he locked the keys inside his assigned police car he was unable to access the car because the remote device failed to unlock the door. That required him to proceed to another location, using a separate vehicle, to secure a spare key. The Company, which obviously has custody and care of the vehicle and the remote control device, did not challenge Constable Brisard’s account of the difficulty which he encountered with that equipment. In effect, it provided him a remote car lock control which was defective. In the result, I am compelled to conclude that both the grievor and the Company contributed to his lateness to his assignment: the grievor because he inadvertently locked his keys in the police cruiser and the Company because it apparently supplied him with a defective manual remote device which was incapable of unlocking the door to allow him to enter his assigned car. But for those facts it appears he would not have been late.
It must also be noted that in its brief the Company has drawn to the Arbitrator’s attention two prior occasions on which the grievor reported late for duty. However, as pointed out by the Association’s representative, the first of those occasions was in October of 2006. He notes to the Arbitrator’s attention the provisions of paragraph 3(h) of Addendum No. 7-B of the collective agreement which governs formal investigations. That article reads:
In determining corrective action, only the employee’s discipline record of the last five years prior to the incident under investigation will be considered.
In light of the foregoing, as it stands before me the grievor’s record contains only one prior incident of a failure to report in a timely fashion, for which the grievor was assessed 10 demerits. When that record is considered, and coupled with the fact that in my view the Company must bear some responsibility for the grievor’s lateness, I am satisfied that 10 demerits is more appropriate than 20 demerits for what occurred in relation to lateness, considering both the grievor’s negligence in locking his keys inside the car and his failure to notify Inspector Ritchie of the situation immediately. For these reasons that aspect of the grievance is allowed, in part. The Arbitrator directs that 10 demerits be substituted for the 20 demerits assessed against Constable Brisard for his violation of 4.1.3(10), lateness without proper notification.
I have greater difficulty making any adjustment with respect to the second head of discipline here under consideration. It was plainly improper for Constable Brisard to telephone Inspector Ritchie while the latter was asleep at home at 01:42 on January 28, 2012. In my view that action cannot fairly be construed as other than a degree of game playing intended to visit a measure of retribution on the grievor’s supervisor. There is no evidence before me to suggest that the grievor would not have been able to communicate with Inspector Ritchie during normal working hours, whether by telephone or by email, or indeed by way of a written memorandum left for him at his normal place of work.
In the Arbitrator’s view the grievor is relatively fortunate in that the Company decided to assess no more than five demerits for this aspect of his conduct, properly characterizing it, in my view, as disrespectful behaviour contrary to subsection 14 of paragraph 4.1.3 of the CN Police Procedural Manual. It should also be noted that the grievor’s prior disciplinary record records 15 demerits assessed against him for an incident of insubordination which occurred in September of 2010. I can therefore see no basis upon which to allow the grievance in respect of the five demerits assessed against Constable Brisard for his disrespectful behaviour towards Inspector Ritchie on January 28, 2012.
For all of the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the 20 demerits registered against Constable Brisard for his violation of subsection 10 of paragraph 4.1.3 be reduced to 10 demerits. The assessment of five demerits against him for his violation of subsection 14 of paragraph 4.1.3 shall remain undisturbed. In the result, as he had five demerits previously on his record, the grievor’s disciplinary record shall be adjusted to stand at a total of 20 demerits.
I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award.
Dated at Ottawa, Ontario this 25th day of February, 2013.
______________________________
Michel G. Picher
Arbitrator