AH638
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(The “Company”)
-And-
INTERNATIONAL BOTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO.11
(The “Union”)
2015-638
RE: The discharge of S&C Maintainer D. Millar on March 10, 2014.
ARBITRATOR: CHRISTINE SCHMIDT
APPEARANCES FOR THE COMPANY:
D. Laurendeau – Manager Labour Relations
S. Grou - Senior Manager Labour Relations
R. Bateman - Director Labour Relations
R. Karmali - Senior Manager S&C
Y. Langis - Manager S&C
J. Sorkin - Manager S&C
APPEARANCES FOR THE UNION:
R. Church – Counsel, Caley Wray
P. Mueller - Regional Representative G.L.D
S. Martin - Senior General Chairman
L. Couture - International Representative IBEW
S. Sime - Regional Representative, Champlain East
J. Ashworth - Observer
D. Millar - Grievor
A hearing in this matter was held in Montreal on August 28, 2015.
Ad-hoc matter 2015-638
AWARD
The nature of the dispute before me is reflected in the ex parte statement of dispute and statement of issue filed, which reads as follows:
Dispute:
The discharge of S&C Maintainer Donald Millar on March 10, 2014.
Union’s Exparte statement of Issue:
S&C Maintainer Donald Millar was dismissed from Company service for non-compliance of General Instructions, associated rules and failing to perform monthly tests combined with fraudulent recording of said tests.
The Union contends that Mr. Millar had an untreated medical condition which unknowingly contributed to his noncompliant behaviour and actions. Subsequently Mr. Millar sought treatment for his medical condition through the EFAP. The Company dismissed Mr. Millar’s medical condition and discharged him expeditiously. The Union contends that the Company acted rashly without due consideration or possible alternatives to discharge.
The Union requests that Mr. Millar be reinstated without loss of seniority, seniority rights, benefits, pension 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.
FOR THE COMPANY: FOR THE UNION:
Denis Laurendeau Steve Martin
Manager Labour Relations Senior General Chairman
As a result of the Company’s discovery on February 27, 2014 and S&C Maintainer Millar’s (the “grievor”) admission later that day that he had falsified battery, Grade Crossing Predictor and weekly log books to give an impression that the mandatory tests had been performed when they had not been, the grievor was summoned to attend at three formal investigation statements taken by the Company on March 5, 2014.
The Company discharged the grievor on March 10, 2014. At the time, the grievor had approximately five years of service with the Company and 20 demerit points on his disciplinary record.
The grievor’s investigative statements reveal that he was fully aware of what was required of him in his role as an S&C Maintainer. At all times he had a full appreciation that compliance with General Instructions (GIs) 310-A-2 and 310-a-0 was critical to the safety of the Company's employees, its equipment, the environment and the public at large.
In his statements the grievor readily admitted that he engaged in what can only be described as most deceitful conduct. Not only did the grievor fail to comply with GI 310-a-0 and 301-A-2 and associated rule 305, by not performing weekly required tests at railway grade crossings, he repeatedly falsified recordings to make it appear as though he had performed them.
Confronted with overwhelming evidence demonstrating that the grievor’s misconduct had taken place over a period of more than two months, he accepted “full responsibility” for his behaviour but maintained that it was not done “with knowing intent or wilful purpose.” The grievor explained that he was in a rush to complete his work so that he could pursue his “higher priority” of video gaming – his addiction. The grievor expressed an intention to actively pursue treatment for his addiction and he had contacted the Employee Assistance Program (“EAP”) the day before his investigation statements.
The Union takes the position that the grievor suffered from a disability that rendered his misconduct not culpable. Alternatively, the Union argues that grievor’s dismissal was excessive and that there were mitigating factors warranting his reinstatement. The Union highlights that the grievor was honest and forthright in the investigation, admitting his actions and taking responsibility for them. Also, the Union points out that the grievor has been working in a similar role to the one he held with the Company at Toronto Terminal Railway since November 2014 without issue. In the Union’s submission no aggravating factors would preclude the grievor from continuing his career with the Company. The Union relies on the Canadian Human Rights Act, and argues that the grievor has not been accommodated by the Company to the point of undue hardship.
The Union provided certain medical documentation to the Company before the hearing. Those documents reveal that the grievor attended at EAP in March, April and once in each of May and June of 2014 for counselling. He also attended monthly counselling sessions at the “Excessive Behaviour Unit” of the Centre for Addiction and Mental Health (“CAMH”) between July 2014 and March 2015. In July 2014, the grievor was assessed by Dr. Ballon, one of the psychiatrists at CAMH. According to the record before me, the grievor saw Dr. Ballon for six follow up appointments until his last appointment on February 26, 2015. In a letter to the grievor of that same date, Dr. Ballon wrote:
Regarding your ADHD and gaming problems, you asked me to further clarify their relationship.
The ADHD has been present since childhood and the gaming addiction originally began as a coping strategy to deal with it. Often adaptive behaviours can become problematic once they become systemic and ingrained.
The issue of your ADHD not being treated earlier in life is due to how your family initially reacted to the diagnosis. … As there was no further discussion, you did not see yourself as suffering from this condition. As you were only 7 years of age when the diagnosis was introduced to your family, this is natural. Plus, you have developed many alternative ways to deal with your impulsivity, attention issues, and restlessness, which included video gaming as a coping strategy.
You originally came to CAMH for “videogaming addiction.” It was through seeking help for this that the consideration of ADHD was recommended to be explored. As an adult, you did decide to go forward and have a psychiatric assessment and have accepted that ADHD was a co-morbid condition in addition to the gaming issues. It was through treating both simultaneously that you have returned to a functional life and work balance. You have been following treatment recommendations and have now returned to work with no problems. Involving yourself in structured use of time has also enhanced the speed of your treatment progress. You plan to continue with therapy to maintain gains and not allow the video gaming issues to become problematic.
In addition to the above, at the hearing the Union also produced the following letter, also from Dr. Ballon, written to the Union five months before the February 26, 2015 letter. It is dated September 21, 2014 and it reads:
This letter is written on behalf of Mr. Millar at his request to share that he has been diagnosed with Attention Deficit Hyperactivity Disorder which has played a major role in the various behavioural issues he has been working on. The ADHD has been a condition that has existed since childhood. He currently has been seeking treatment involving therapy with Mr. John McDonald and medication management with myself. He reports since complying with the treatment plan that he has noticed a marked improvement in his ability to focus and remain away from problematic behaviours. Mr. Miller is taking medication as prescribed and reports no side effects. He has come to all appointments and is eager to return to work. Based on this, our treatment team believes that he is at the stage where he could return to work with proper considerations.
Considering the medical evidence, reproduced above, I have no doubt that the grievor has suffered a co-morbid condition of ADHD since childhood in addition to the grievor’s “gaming issues” or addiction (it is unclear when the latter developed). The Company does not contest the diagnosis.
The difficulty with the Union’s position in this case is that, quite apart from the grievor's failure to perform essential tests necessary to ensure overall safety of train operations, he was persistently dishonest and deceptive towards the Company over a period of months. There is every indication that the grievor knew exactly what he was doing throughout the period in question.
In order for this grievance to succeed, the Union must establish on the face of the undisputed facts, that the grievor was not culpable for his conduct because of his disability or that the penalty of discharge is too severe, taking into account any mitigating circumstances. The Union accepts that arbitrators require that the medical evidence proffered must substantiate a link between the misconduct at issue and the medical condition.
On that point, the Company refers me to Arbitrator Christie’s comments In the Matter of an Arbitration between Canadian Postmasters and Assistants Association, (The Union) and Canada Post Corporation 102 L.A.C. (4th) 97 where he cites the Board of Arbitration in Re Canada Safeway Ltd. and RWDSU (MacNeil) (1999), 82 L.A.C. (4th):
We do accept that theft is a very serious employment offence which prima facie is just cause for termination. Especially where the theft is premeditated and is of a significant amount of money, the onus that shifts to the Union to establish that the penalty of discharge should be substituted is quite a high one. Where illness or psychological circumstances arise which are relied upon to explain the aberrant conduct, there are a number of necessary elements that must be established before an arbitration board can feel secure that reinstatement under any conditions is the proper course of action. ... Extrapolating from the past jurisprudence the elements that must be established before an arbitrator may consider reinstatement in a case where there has been a serious wrongdoing, such as a theft, which is attributed to illness, would appear to include the following:
1. It must be established that there was an illness, or condition, or situation being experienced by the grievor. Sometimes this is a true illness while other times it might be circumstances in a person's life that cause considerable psychological strain and can be as debilitating as a fully recognizable illness. ...
2. Once an illness or condition has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct. The mere existence of psychological stress does not automatically lead to improper behaviour such as theft. Again, most commonly this is established by expert evidence. This is not a scientific test and often an arbitration board must, as the finder of fact, draw certain inferences which lead it in one direction or another.
3. If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor's conduct less culpable. ... even if a gambling or alcohol addiction is established, and it is established that but for the condition the aberrant conduct, such as theft, would not have occurred, it still may be concluded that the grievor possesses sufficient responsibility for his or her actions so that a substitution of penalty is not appropriate. This was precisely what occurred in the SaskTel case [Ish, unpublished, July 14, 1998] where it was accepted that the grievor had a pathological or compulsive gambling addiction and that it contributed to his acts of theft but it was concluded that he was still responsible because he had been fully aware of his problem and he was fully aware of the avenues open to him to have his problem dealt with. In other words, the mere existence of an addiction does not in itself explain or justify serious aberrant conduct. There are many people with alcohol, narcotic and gambling addictions but a very small number of those people steal money.
4. Assuming the three elements set out above have been established, the arbitration board must be satisfied that the grievor has been rehabilitated. This involves an acceptance by the arbitration board that the grievor's fundamental problems are under control. Of course there can never be absolute certainty on this count nor should absolute certainty be required. However there must be a sufficient degree of confidence that the employee can return to the workplace as a fruitful employee and that the underlying problems that led to the improper behaviour in the first place have been resolved so that the risk of that behaviour, or similar behaviour, occurring in the future is minimized. Again, in addition to the evidence of the grievor, it is usual that expert evidence would be submitted to establish that rehabilitation has occurred.
On the same point, the Union cites a more recent case of Arbitrator Goodfellow in Toronto (City) v.CUPE, Local 79, [2014] O.L.A.A. No 16:
23 A review of the cases reveals that questions of causality and the need for medical evidence can arise in two contexts. The first is in relation to an argument that behaviour that would otherwise be disciplinable is rendered non-disciplinable because of a disability. The second is in connection with a mitigation argument. As we shall see, I have both arguments here.
24 At least in the first of these contexts, what is expressed is the need for a "causal link", "connection" or "nexus" between the established disability and the otherwise disciplinable misconduct. (TRW Canada Ltd., supra, also uses the phrase "proximate cause".) The question is how is that causal link to be established -- on the basis of what evidence? Is there a requirement for medical evidence beyond that which provided for the finding of "disability" in the first place? If so, how directly must that evidence speak to the question? Must there be medical evidence that addresses the connection specifically, i.e. in relation to the grievor's own actions or inactions, or is it enough if there is evidence that simply refers (e.g. after the fact) to the kind of behaviour that is in issue? Is a simple diagnosis with an accompanying description of symptoms sufficient or is even that not required?
25 Perhaps not surprisingly, there appears to be no "one-size fits all" answer to these questions. Different arbitrators have taken different approaches, and that is no doubt at least in part due to the varieties of behaviour sought to be explained. What does appear clear, however, is that there is a distinct arbitral preference for medical evidence that, if not addressing the question directly, at least provides something beyond the basic diagnosis from which that connection can reasonably be drawn. Without such evidence, in my opinion, the Union runs the substantial risk of a finding that the onus has not been met -- a risk that increases, not decreases, with the scope and extent of the behaviour that is in issue.
As was the case faced by the arbitrator in the City of Toronto award, I am confronted here with an argument by the Union that requires me to accept that the grievor’s disability explains his workplace behaviour. I would have to conclude that the disability caused the grievor not only to choose to satisfy his addictive impulses over performing important safety-related inspections, but also to mislead management by documenting that he had, in fact, completed those tasks. Based on the evidence that was presented, that is more in the nature of a leap of faith.
The most recent letter from Dr. Ballon sent to the grievor to clarify the relationship between his ADHD and “gaming problems” does not link the disability to the kind of misconduct admitted by the grievor. It states that video gaming was a coping mechanism to deal with the symptoms associated with ADHD. The note does not even describe symptoms that are consistent with the kind of behaviour exhibited by the grievor. The letter of September 21, 2014, shares with the Union that the grievor’s ADHD has played “a major role in various behavioural issues he has been working on” with nothing more. It is entirely unclear what those “various behavioural issues” are. I am simply unable to extrapolate from the medical evidence that the grievor’s serious misconduct is causally connected to the medical conditions suffered by the grievor. In the circumstances I am unable to find that the grievor’s misconduct was not culpable.
Nor are there mitigating circumstances that would lead me to substitute a lesser penalty than discharge, as urged by the Union in its alternative argument. Though the grievor admitted his misconduct – and to that extent he was forthright and honest - he did so only after the Company discovered the misconduct. The grievor maintains that he did not deceive the Company “with knowing intent or wilful purpose.” I cannot agree. The grievor engaged in an exercise of false documentation for the very purpose of hiding the fact that the had not carried out very important job functions. It is impossible to characterize such behaviour as anything but wilful. Though the grievor may have secured another position since November 2014, that in and of itself does not go to mitigation of penalty. Finally, the grievor was an employee with relatively few years of service whose misconduct can only be characterized as going to the heart of the employment relationship. In my view, the grievor’s misconduct cannot be reconciled with his continued employment with the Company.
In the result the grievance is dismissed.
September 9, 2015 _________
CHRISTINE SCHMIDT
ARBITRATOR