CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3799
CANADIAN PACIFIC RAILWAY COMPANY
UNITED STEEL WORKERS (LOCAL 1976)
Appeal of the assessment of 20 demerit marks and subsequent dismissal of Intermodal Operations Representative Latisha Myers.
JOINT STATEMENT OF ISSUE:
It is the
The Union requests a reduction of the 20 demerit marks and that Ms. Myers be reinstated without loss of seniority or benefits and that she be made whole for all lost wages.
disagrees and denies the
(SGD.) R. PAGÉ (SGD.) J. DORAIS
STAFF REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
D. J. Corrigan –
Labour Relations Officer,
V. Anderson –
Assistant Labour Relations Officer,
J. Dorais –
Manager, Labour Relations,
M. Clayton – Manager, Appointments & Dispatch,
M. Thompson –
Labour Relations Officer,
And on behalf of the
S. Hadden –
Chairman of the Board of Trustees,
M. Raîche –
Projects and Group Insurance Executive,
L. Myers – Grievor
AWARD OF THE ARBITRATOR
There can be no doubt but that the grievor has for an extensive period of time maintained an entirely unacceptable rate of absenteeism. During the entire course of her employment with the Company, when the average rate of absenteeism among her peers was 3%, Ms. Myers registered an average of 12% as her personal absenteeism rate, in other words some four times the average of her fellow employees. In her short two years of service she had received discipline in the form of demerits for excessive absenteeism and late arrivals on some five previous occasions, in addition to five verbal warnings.
many previous investigations and impositions of discipline for absenteeism, on
grievor’s attendance did not improve. She was investigated on
The Arbitrator cannot question the Company’s legitimate concern with the clearly unacceptable rate of absenteeism registered by Ms. Meyers. In her short two years of employment she was either late for work, absent for illness or left work early on 103 occasions for a total of 565 working hours lost. I agree with the Company that that rate of absenteeism is not a state that the Company can or should be expected to tolerate. Given her relatively junior status, if those were the only facts before this Office, the grievance would have some difficulty in succeeding.
However, there are mitigating factor which must be weighed. The Company does not challenge that the grievor was, apparently for a substantial period of time during the course of her employment, the subject of physical abuse at the hands of her partner. It appears that that history in fact led to a criminal prosecution. It would also seem that that difficulty is now fully behind her, and that to the extent that it may have contributed to her absenteeism and punctuality problems, it will no longer be a factor in the future.
What, then is the appropriate outcome? I am satisfied that while the Company has substantial ground for concern, a remedy can be fashioned which protects it legitimate interests in the future, while giving the grievor a last chance to prove that she can be an employee who attends work faithfully.
The grievance is therefore allowed, in part. The Arbitrator directs that the twenty demerits assessed against the grievor be removed from her record forthwith, and that she be reinstated without compensation for any wages and benefits lost. The time between her termination and reinstatement shall be recorded as a suspension both for the failure of her candour in a Company investigation (CROA&DR 3798) and for her unacceptable rate of absenteeism, lateness and early departures from work. The grievor’s reinstatement into her employment shall be subject to her accepting to be subject to the condition that she must maintain, for a period of not less than two years, a rate of attendance which is not less than the average for her peers in the workplace. Should she fail to maintain a rate of attendance equal to her peers in any quarter, calculated on a rolling basis during the two year period, she shall be subject to dismissal without recourse to arbitration save for the purposes of determining the accuracy of her attendance record and the average record for other employees.
14 September 2009
(SIGNED) MICHEL G. PICHER