CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 1169
Heard at Montreal, Tuesday, January 10, 1984
VIA RAIL CANADA INC.
CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS
Pay claim of Counter Sales Agent R. Thompson, Toronto.
JOINT statement OF ISSUE:
On April 15, while on duty, the grievor wore a non-regulation sweatshirt over her uniform blouse, in violation of the Corporation's written dress code. The grievor was asked to remove her sweatshirt but refused.
As an alternative, the grievor was requested to go home to change. When the grievor failed to return to complete her shift, she was docked 3 hours and 45 minutes.
The Brotherhood requested that Ms. Thompson be paid for lost time. The Corporation rejected the Brotherhood's request.
FOR THE BROTHERHOOD: FOR THE corporation:
(SGD.) TOM McGRATH (SGD.) A. GAGNE
National Vice-President Director, Labour Relations
There appeared on behalf of the Corporation:
A. Leger – Manager, Labour Relations, Montreal
H. J. Campbell – Manager, Human Resources, Toronto
M. McKenzie – Supervisor Ticket Sales, Toronto
B. Walker – Supervisor Ticket Sales, Toronto
C. 0. White – Labour Relations Assistant, Montreal
And on behalf of the Brotherhood:
R. G. Gee – Staff Representative, Toronto
AWARD OF THE ARBITRATOR
On March 23, 1983, the Corporation issued a written directive to all Counter Sales Agents at Toronto pertaining to dress regulations. The dress code required all employees to wear clothing that would not hide the shirts and ties or blouses and ascots distributed to them. As a result pullovers, turtleneck sweaters and like apparel that concealed the said clothing was prohibited.
The grievor refused to comply. On March 26, 1983, she wore a sweat shirt over her blouse thereby concealing the said apparel contrary to the Corporation's directive. When the grievor refused to remove the sweat shirt and accept her supervisor's suggestion that she wear a "VIA" uniform jacket she was requested to go home and change.
The grievor went home but did not return to work until the following day. Because the grievor did not return to complete her shift she was docked three hours and forty-five minutes from her pay cheque.
The Trade Union had launched a grievance contesting the "reasonableness" of the Corporation's directive of March 23, 1983, alleging that the dress code violated article 27.6 of the collective agreement. That grievance was abandoned short of arbitration. The Trade Union grieved the Corporation's decision to dock the grievor for the three hour and forty-five minute period she failed to complete her shift.
I am satisfied, particularly in light of the Trade Union's decision to withdraw its grievance, that the directive relating to the dress code required of its sales agents was "reasonable" and was adopted for a legitimate, business purpose. Moreover, I am satisfied that the grievor during the course of her shift deliberately challenged her supervisor's decision to implement the Corporation's dress code with respect to her. In that sense the grievor was insubordinate and should have been disciplined for her misconduct. But she wasn't.
It is settled arbitral law that an appropriate response by an employer to the misconduct of its employees is a disciplinary sanction. In this case the Corporation penalized the grievor through a deduction of monies that she would have otherwise have earned had she been allowed to complete her shift. The Corporation in doing so, deprived the grievor of her right to a "full and impartial hearing" as required by the collective agreement prior to the imposition of such discipline. Moreover, the Corporation prejudiced the grievor's rights with respect to the onus of proof that is normally imposed on an employer in establishing just cause for discipline.
In my view it is not an answer for the Corporation to say that its objective was not disciplinary. The grievor had made up her mind to defy the Corporation's directive and her refusal to return to work upon being directed by her supervisor to go home to change was a continuation of that challenge. Indeed, the Corporation's own brief accurately characterized her misconduct by saying that "the grievor willfully and deliberately refused to obey her supervisor's instructions to comply with the Dress Code".
In short, in docking the grievor's pay for the hours not worked at the instance of her supervisor, the Corporation failed to respond in an appropriate and correct manner to the situation. The grievor should have been suspended. As a result, I am reluctantly compelled to direct that she be compensated for the monies lost.
(signed) DAVID H. KATES