CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3780
Heard in Edmonton,
Wednesday, 10 June 2009
VIA RAIL CANADA INC.
Appeal the suspension of Locomotive Engineer Garry Bereska, of
B.C., for “Insubordination in reference to your failure to follow instructions
of a Company Officer to attend an employee statement as directed, resulting in
a 30 day suspension”.
JOINT STATEMENT OF ISSUE:
On January 23, 2007, Mr. Bereska was required to attend an
investigation for allegedly failing to protect his assignment on Train No. 2 on
November 18 and 19, 2006.
Mr. Bereska failed to attend the investigation on January 23, 2007
as he had accepted a call for an assignment the previous day on January 22, 2007.
A second investigation was scheduled.
As a result of a second investigation, Mr. Bereska was
suspended from duty for 30 days for alleged insubordination for failure to
attend an investigation.
The Union contends that the
Corporation did not prove its charge of insubordination as alleged and that the
discipline is unwarranted under the circumstances.
It is the Union’s position
that Mr. Bereska’s discipline should be expunged, or in the alternative, the
discipline should be significantly reduced. Mr. Bereska should be compensated
for all loss of wages or benefits.
The Corporation’s only response has been acknowledgement of
the Union’s grievance, which was submitted at
Step III of the grievance procedure on April 30, 2007.
FOR THE UNION:
(SGD.) T. MARKEWICH
FOR: GENERAL CHAIRMAN
There appeared on behalf of
A. Richard – Sr. Advisor, Labour Relations,
D. Stroka – Sr. Advisor, Labour
J. Gosse – Operations, Vancouver
And on behalf of the Union:
M. A. Church – Counsel, Toronto
T. Markewich – Vice-General Chairman, Edmonton
G. Bereska – Grievor
AWARD OF THE ARBITRATOR
arises as result of the grievor’s failure to attend an investigation on January 23, 2007
because of his allgeged failure to protect his assignment on November 18 and
The grievor stated that he was called
to work by a Corporation officer late on the evening January 22nd for an
assignment on January
23, 2007, the date of his scheduled statement into the November 18th
and 19th incidents. The grievor claims that, because the call came in late at
night, he assumed that the Corporation knew he already had an investigative
meeting scheduled for the following day and also assumed that the Corporation
would make the appropriate arrangements to cancel the meeting. Mr. Gosse, the
Manager of Train Operations for B.C., issued a new Notice to Attend for a
re-scheduled investigation to take place on January 29, 2007 as a result of the
grievor’s failure to attend the January 23, 2007 investigative meeting. Due to
a staff transition in the Union’s offices, the
grievor was unaware which Union officer would attend the meeting with him. The
grievor contacted Mr. Gosse on the morning of January 29, 2007 and told him that
Union representation could not be arranged, that he would prefer not to proceed
without an accredited representative but that he would nevertheless attend the
meeting at the hotel. The grievor maintains that he had called Mr. Gosse three
times the previous day in regards to rescheduling.
The grievor reported for the
investigation on the morning of January 29, 2007 without any Union
representation only to find that the meeting room had been cancelled. The
investigation was rescheduled a third time for February 5, 2008 at which time the
grievor appeared with Mr. Sorba, the new accredited Union officer.
notes at the outset that the grievor was well-versed in Corporation procedures
having been an employee of both VIA and CN for more than 40 years. Based on the
evidence before me, I find that the grievor simply took advantage of the
call-in in order to avoid having to appear the following day for the scheduled
investigation. He should have been forthright when he first spoke with the crew
office on January
22, 2007 about his obligation to attend the investigative meeting
the next day. His behaviour amounts in my view to no more than a transparent
attempt on his part to lay the blame for his absence at the feet of the
Corporation, rather than on his own lack of communication to the crew office
over his required attendance at the scheduled investigative meeting on January 23, 2007.
His actions under the circumstances are deserving of discipline.
raises the issue of the lack of a fair and impartial investigation because of
Mr. Gosse’s role as both the fact-finder and the investigator at the
investigative hearing. The Union cites the
recent decision in CROA 3759 where
the Arbitrator found that the investigation did not meet the fair and impartial
standard because the investigator had received medical information from the
grievor which effectively made him a witness in the proceedings. In this case,
the critical discussion over the January 23, 2007 assignment took place between
the grievor and an individual in the crew office and not with Mr. Gosse, who
presided over the investigation. Mr. Gosse did not take any part in the January 23, 2007
discussion and, as such, cannot be viewed as being in the conflicting position
of both a witness to critical incident information and the person reviewing
that same information in the context of an investigative statement.
Arbitrator finds that the issue of Union representation at the scheduled
investigative meeting of January 23, 2007 is not a relevant factor in determining
whether there was just cause for discipline. It was the grievor’s failure to
disclose his assigned shift on January 22nd which forms the basis for the
discipline. On the other hand, the Arbitrator finds that the 30 day suspension
is not a proportionate disciplinary response under the circumstances. A
suspension of 30 days is not in keeping with either the principles of
progressive discipline nor does it reflect the gravity of the offending
conduct. I would substitute in its place a written reprimand for the grievor’s
failure on January 22nd to turn down the Spareboard assignment for January 23, 2007
because he was already under a Notice to Attend an investigative meeting on January 23, 2007.
(signed) JOHN M. MOREAU, Q.C.