RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3909
CANADIAN NATIONAL RAILWAY COMPANY
50 demerits assessed to Mr. Greg Hasell for failing to comply with the
foreman’s instructions and for conduct unbecoming towards the foreman on
JOINT STATEMENT OF ISSUE:
After approximately 30 minutes Foreman Rezends asked Mr. Hasell a third time to replace the oxy tanks but he still refused. Foreman Rezends then reported the incident to Supervisor Ted Berlin and after the call Mr. Hasell made inappropriate comments to Foreman Rezends. Foreman Rezends completed the work himself that Mr. Hasell had refused to do. Mr. Hasell was assessed with 50 demerits which resulted in his discharge for accumulation of 95 demerits.
disagrees with the Union’s position and has denied the
FOR THE UNION: FOR THE COMPANY:
(SGD.) R. GATZKA (SGD.) B. LAIDLAW
NATIONAL REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
B. Laidlaw –
Manager, Labour Relations,
D. Brodie –
Manager, Labour Relations,
E. Berlin –
E. Reid –
Sr. Engineering Officer,
There appeared on behalf of the
P. Jacques –
R. Gatzka –
G. Hasell – Grievor
AWARD OF THE ARBITRATOR
before the Arbitrator discloses that on Tuesday
It appears that
the confrontation between Mr. Hasell and Mr. Rezends spilled over to Supervisor
Ted Berlin. It seems that initially Mr. Rezends phoned Mr.
It does not
appear disputed that the grievor continued to refuse to change the tanks alone.
As he had threatened to do, Mr. Rezends then called Mr.
course of the hearing the
The issue is whether the grievor was deserving of discipline for having refused the assignment given to him by his foreman, and for having been disrespectful in his language towards him. I am satisfied that in fact Mr. Hasell did conduct himself in such a way as to be deserving of discipline.
I accept the grievor’s evidence that he did have concerns about handling the oxy-acetylene tanks on his own, given that he did advise his foreman that he had previously suffered back pain when doing so. At no time, however, did Mr. Hasell ever communicate that concern to Supervisor Berlin. There was not, in other words, any responsible expression on the part of the grievor to a Company officer that he was refusing work because it was unsafe. Additionally, he obviously allowed matters to get out of hand, using abusive language towards his immediate foreman, a bargaining unit member, to the point where the latter reported him to Supervisor Berlin.
The issue is whether the assessment of fifty demerits was appropriate in all of the circumstances. Having regard to certain mitigating factors, the Arbitrator is satisfied that a substitution of penalty is appropriate, although I do not consider this to be a case for awarding compensation. One mitigating factor is that Mr. Hasell did communicate to his foreman that he had concerns about possible back pain if he were required to handle the oxy-acetylene tanks alone. However, from the record before the Arbitrator, it is far from clear that he ever gave any such explanation to Supervisor Berlin. Additionally, his obvious outburst and unacceptable conduct towards his foreman is an aggravating factor, which could not be justified in the circumstances. The grievor’s twenty-seven years of service must also be taken into account.
Arbitrator’s view a substitution of penalty is appropriate. The Arbitrator
directs that the fifty demerits assessed against the grievor be removed from
his record, and that he be reinstated forthwith into his employment without
compensation for any wages and benefits lost and without loss of seniority. The
period between his termination and reinstatement shall be recorded as a
suspension for the events of