CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3771
CANADIAN NATIONAL RAILWAY COMPANY
The closure of Anthony Sheena’s employment file under the provisions of Article 108.6 of Agreement 4.3.
UNION’S STATEMENT OF ISSUE:
The grievor, Anthony Sheena, was a newly
hired conductor, working under the probationary period of the collective
On December 14, the grievor was issued a notice to appear for an investigation – scheduled for December 21 – with respect to this matter. On December 20, the grievor advised the Company that the doctor had now approved the grievor’s participation in light duties. On December 21 the grievor received a registered letter informing him that his employment file was being closed under the probationary provisions of the collective agreement. No employee investigation took place.
The Company maintains that the Mr. Sheena was determined to be unsuitable for reasons unrelated to this incident and that the Company is within its rights to close the grievor’s file.
Further, as a preliminary matter, the
Company submits that this grievance was not forwarded by the
(SGD.) B. R. BOECHLER
There appeared on behalf of the Company:
D. Crossan – Manager, Labour Relations, Prince George
D. VanCauwenbergh –
Director, Labour Relations,
P. Payne –
Manager, Labour Relations,
K. Morris –
Manager, Labour Relations,
And on behalf of
K. Stuebing –
B. R. Boechler –
R. A. Hackl –
A. Sheena – Grievor
AWARD OF THE ARBITRATOR
The present grievance, along with several other discipline and policy grievances, were progressed in a timely manner up to February 17, 2007. On February 19, 2007, the Board of Directors of the UTU International passed a resolution removing the General Chairperson and Vice-General Chairperson from their positions and replaced them with two vice-presidents who were responsible for overseeing union operations.
February 28, 2007, the Company and the
Union relocated its offices in
instant grievance was faxed to the Company’s Mr. Morris on December 21, 2007.
That same day a package of all the remaining discipline grievances were sent by
Company submits that the
key evidentiary point in my view revolves around the discussion between
Company has since closed its file and the particulars surrounding the grievor’s
performance during his probationary period are no longer available. The Company
would be clearly prejudiced if it was required to defend the grievance without
access to critical evidence surrounding the grievor’s performance during his probationary
period. The failure of the
is also no basis for a finding of estoppel. The agreement of the Company was to
accept the discipline and discharge cases captured by the earlier extension
agreement of December 2007. The Union, to repeat, failed to live up to its end
of the agreed conditions for processing of the discipline and discharge
grievances by failing to include the instant grievance in the package
This is also not a case where the arbitrator should exercise the discretion available under the legislation to extend time limits. The evidence is that the Company is unable to now locate the probationary performance records given that the file has been closed for some time. It is reasonable in my view that these records would not be available given the short tenure of the grievor with the Company, an employee who had not yet completed his probationary period. In balancing the interests of both parties, the scales tip in favour of the Company in this case to not extend the time limits.
For all the above reasons the preliminary objection is upheld and the grievance is dismissed.
June 23, 2009
(signed) JOHN M. MOREAU, Q.C.