CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3778
Heard in Edmonton,
Wednesday, 10 June 2009
CANADIAN NATIONAL RAILWAY COMPANY
The assessment of 20 demerits to Locomotive Engineer A.
03, 2008, for failure to protect assignment by missing a call and
her subsequent discharge for accumulation of demerits in excess of sixty (60).
JOINT STATEMENT OF ISSUE:
On October 03, 2008, Locomotive Engineer Mason was called for
train 874341-01 at 05:30 hrs however the Crew Management Centre did not receive
a response and reported the grievor as missing a call for train.
The Company conducted an investigation of the incident and
determined the grievor had failed to protect her assignment and was therefore
subsequently assessed 20 demerits for her failure to protect assignment on October 03, 2008.
The assessment of 20 demerits in this case resulted in Ms Mason accumulating a
total of seventy (70) demerits on her discipline record. The Company issued a
second form 780 discharging the grievor for accumulation of demerits.
The Union contends the
grievor slept through the call, which was a completely acceptable reason after
being absent from work for fourteen (14) months.
The Union also contends the
grievor was not properly served discipline for an incident that occurred in
August 2007 and therefore such discipline cannot exist on the grievor’s record.
The Union requested the
Company reconsider the discipline assessed and resulting discharge and expunge
or drastically reduce the discipline. Ms. Mason should be compensated for all
loss of wages or benefits.
The Company disagrees with the Union’s contentions denied
the Union’s request.
FOR THE UNION: FOR
(SGD.) T. MARKEWICH (SGD.)
FOR: GENERAL CHAIRMAN FOR:
DIRECTOR, LABOUR RELATIONS
There appeared on behalf of
D. Crossan – Manager, Labour Relations,
K. Morris – Manager, Labour Relations, Edmonton
L. Cooper – Transportation Assistant, Winnipeg
P. Payne – Manager, Labour Relations, Edmonton
And on behalf of the Union:
M. A. Church – Counsel, Toronto
T. Markewich – Vice-General Chairman, Edmonton
A. Mason – Grievor
AWARD OF THE ARBITRATOR
issue arising in this matter concerns the Union’s
objection to the twenty demerits assessed on October 11, 2008 for the grievor’s
failure to protect her assignment from April 13, 2007 to August 12, 2007. The investigation
into this incident was held on August 17, 2007 and twenty demerits were assessed
by the Company subsequent to the investigation. The evidence is that the Form
780 assessing the twenty demerits was actually prepared in the Company’s system
on August 21,
2007. The grievor, however, was off work due to illness from August 24, 2007 through
to March 6, 2008
and, as a result, she was not served with the Form 780 discipline within the 28
days set out in article 86.1. After several options were discussed, including
service by registered mail, an agreement was struck between Transportation
Assistant Cooper and Local
Representative Dance, prior to the expiry of the time limits, to extend the
time limits for service until the grievor returned to work from her illness
remained off work through the Fall of 2007. The grievor’s continued absence
from work through the Fall of 2007 caused the Company to decide that the Form
780 should be served by registered mail and an attempt was made to do so on November 22, 2007.
The registered letter was returned “unclaimed” from the grievor’s last known
address. The grievor, in that regard, never provided a change of address form
to the Company until November
returned to work on March
7, 2008 and was assigned modified duties training new employees.
The grievor was on vacation from April 12, 2008 to April 24, 2008. She
returned to work until April 26, 2008 when she had to undergo surgery in order to
repair her earlier injuries. She remained off work on illness leave until September 28, 2008.
The grievor, upon her return, worked one extended run and then missed a call on
October 3, 2008
for which she was assessed the most recent discipline of twenty demerits. It
was not until October
4, 2008 that Ms. Cooper was made aware of the grievor’s return to
work through a report in the CATS system of her missed call the previous day.
Ms. Cooper then made arrangements to serve the grievor with the outstanding
August 2007 Form 780 on October 11, 2008
submits that the Company had numerous opportunities to serve the grievor during
the six week interval between March 7, 2008 and April 26, 2008 with the August
2007 Form 780 but failed to do so. The Company asserts that the underlying
facts disclose the Company’s genuine attempts to deliver the Form 780 and that,
despite the late service of the discipline, the Company complied with the
requirements of article 86.1 as a result of the agreement with the Union to serve the grievor after she returned from
As noted in CROA 1696, the language of article 86.1 has been construed as being
directory only given the absence of an express penalty clause setting out the
consequences of a failure to abide by the time limits. The arbitrator notes:
… In the arbitrator’s view it would require clear
and specific language to conclude that in this context the parties intended a
strict application of the time limits, failing which the Company would forfeit
its ability impose discipline for misconduct, however serious. Moreover, although this aspect of the case
was not argued, the Arbitrator would seriously doubt that the Union
could refuse to agree to an extension of the time limits for other than
reasonable and defensible motives. It is at least arguable that that much may
be implied from the terms of article 86.1. …
In this case,
the grievor was off work from August 24, 2007 through to March 6, 2008, some eight months, due to illness.
The parties had, in light of the grievor’s circumstances, entered into an
agreement to extend the time limits and serve the grievor when she returned to
work. Although the grievor returned to the workplace on March 7, 2008, it was
not to her previous assignment but rather to modified duties. It was not
unreasonable in my view for Ms. Cooper to be unaware of the grievor’s return to
the workplace given that she had not returned to her previous assignment. The
grievor was also away for 12 days during that same time on vacation. Indeed,
the grievor herself acknowledged her extended absence during her employee
statement at Q & A 7 when asked the reason for her missed called on October
3, 2008. She replied: “I had been off work for 14 months and just returned on
September 29, 2008”. The Company in my view fulfilled the bargain struck with
the Union concerning the extension of time
limits on the August 2007 discipline by acting appropriately to serve the
grievor with the Form 780 once Ms. Cooper became aware that the grievor had
returned from illness leave through the CATS notice. The assessment of twenty
demerits for the grievor’s failure to protect her assignment from April 13, 2007
to August 12,
2007 therefore stands as recorded discipline on the grievor’s
In terms of the
grievor’s failure to protect her assignment by sleeping through her call on October 3, 2008,
I accept the position of the Company that it was incumbent on the grievor to
report to work and that her personal circumstances, including the fact that she
was just away on illness leave for some 14 months, is insufficient reason to justify
her absence. On that basis, there is cause for discipline. In terms of penalty,
I note that the grievor has lived through a difficult time with many personal
challenges in more recent years. She has twenty years of service with the
Company and it is my view that she should be granted another opportunity to
demonstrate that she can again provide valuable service to the Company as a
locomotive engineer. Accordingly, the grievance is allowed, in part. The
grievor shall be reinstated into her employment without compensation and
without loss of seniority.
June 25, 2009
(signed) JOHN M. MOREAU, Q.C.