CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3792
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dismissal of Mr. Craig Cox.
JOINT STATEMENT OF ISSUE:
In April 2008 the grievor, Mr. Cox, learned that his file had been closed by the Company. According to the Company the reason for the file closure was that the grievor failed to accept recall. A grievance was filed.
contends that: (1) The grievor started a school course in his native
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) K. HEIN
PRESIDENT LABOUR RELATIONS OFFICER
There appeared on behalf of the Company:
M. Goldsmith –
Labour Research and Budget Specialist,
D. Freeborn –
Manager, Labour Relations,
M. Thompson –
Labour Relations Officer,
And on behalf of the
Wm. Brehl –
D. Brown –
A. R. Terry –
AWARD OF THE ARBITRATOR
before the Arbitrator confirms that the grievor, Mr. Cox, performed many years
of Extra Gang work, normally working to the end of the work season and being
recalled in the following spring. It does not appear disputed that between his
layoff at the end of 2007 and the commencement of the 2008 work season he
undertook a course at an industrial college near his home in
is satisfied that the Company acted at all times in good faith in eventually
coming to the opinion that the grievor had effectively abandoned his employment
when he did not in fact respond to the recall to work issued to him pursuant to
a registered letter dated
Section 4 – Clause 4.4 of Wage Agreement 42 states (in part), as follows:
… Failure to respond to such recall within 15 days of the date the registered letter was sent to the employee’s last known address, shall result in severance of employment relationship, unless satisfactory reasons are given.
Unfortunately, as the record discloses, it would seem that the grievor’s union representative described to the Company in less than precise terms his intentions with respect to the training he was receiving. In effect, the description given to the Company was to the effect that the grievor was taking training to enable him to secure work outside the service of the Company, something which is not apparently the case. It is common ground that the grievor’s eleven week course would have been concluded by the end of May and that he could have then resumed work with the Company, as was his intention.
At the hearing
Leave of Absence
13.10 Employees shall be granted leave of absence in accordance with the current general regulations or practice of the Railway. The TCRC MWED Director will be notified when such leave is granted.
The Union’s representatives submit that many educational and training leaves have been accorded without difficulty by the Company and that the closing of the grievor’s employment file without considering the possibility of granting him that leave of absence, even retrospectively, reflects an element of arbitrariness which, they submit, stems from the fact that the Company, although not obligated to conduct a full blown disciplinary investigation, made no significant inquiry into the grievor’s actual circumstances.
As noted above
the Arbitrator readily understands the perspective of the Company. The
The grievance is therefore allowed, in part. The Arbitrator directs that Mr. Cox be reinstated into his employment forthwith, without compensation for wages and benefits lost and without loss of seniority.
(signed) MICHEL G. PICHER