RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3932
CANPAR TRANSPORT L.P.
UNITED STEEL WORKERS (LOCAL 1976)
The dismissal of
Mr. Quang Ly on
JOINT STATEMENT OF ISSUE:
The Union requested Mr. Ly be reinstated immediately without loss of wages, benefits and/or seniority.
(SGD.) D. NEALE (SGD.) L. FUACO
VICE-PRESIDENT VICE-PRESIDENT, OPERATIONS
There appeared on behalf of the Company:
L. Fuaco –
D. Johnson –
C. Mathewson –
And on behalf of the
D. Neale –
R. Pagé –
D. Byfield –
A. Therrien –
Q. Ly – Grievor
AWARD OF THE ARBITRATOR
before the Arbitrator establishes that the grievor separately approached two
employees to instruct them that they should work more slowly in the unloading
of parcels from trailers in the Company’s facility at Courtney Park,
preliminary matter the
cannot sustain the
6.3 Whenever an employee is to be interviewed by the Company with respect to his work or his conduct in accordance with article 6.1, an accredited Union representative, selected by the employee, must be in attendance. In the event the accredited Union representative selected by the employee is not available another accredited representative selected by the employee will be substituted. Such interview and any subsequent interviews dealing with the incident must be held within 14 calendar days from the date the incident became known to the Company, unless mutually agreed. Such agreement will not be unreasonably withheld. The employee to be interviewed shall be notified in writing, no less that 24 hours prior to the scheduled interview time. This notice shall include the reason the interview is being held, including the subject matter with applicable details, to be investigated. Whenever a written statement by a person employed by the Company is entered at the interview, the employee will have the right to request the presence of that person at the interview. The employee and his Union representative may ask appropriate questions to all parties at the interview.
In the case at
hand it is not disputed that the
has some difficulty with the submission of the Company that it was under no
obligation to provide any information to the
6.8 During the interview the employee or his accredited representative shall have the right to read, review and ask questions concerning any documents, tapes or videos as they are presented by the Company and copies will be presented at that time. Copies of the interview notes will be provided to the employee and the Unit Chairperson within 4 working days of the interview.
When these provisions are read together with the whole of article 6, it appears apparent to the Arbitrator that the parties intended the investigation process to be a reasonable forum for the employee to learn the case against him or her. It defies logic to believe that the parties would have agreed to allow the Company to have two forms of evidence, namely statements which it files into the employee interview, and statements which it decides to withhold until the arbitration stage. In the Arbitrator’s view it would require clear and unequivocal language to suggest that the parties would have intended such a bifurcation of process, so inconsistent with the most fundamental precepts of natural justice. Quite simply, the provisions of article 6 would be rendered meaningless if the Company could choose to receive statements from employees that it then simply does not put forward during the investigation, while nevertheless fully relying upon them for its decision to terminate an employee, both in its own decision process and subsequently at an arbitration hearing.
What is the consequence of the Company’s failure? In the Arbitrator’s view there can be no question but that article 6.4 is categorical. The investigation as at it was conducted must be viewed as null and void. That, in any event, is well in keeping with the jurisprudence of this Office with respect to the failure to provide a fair and impartial investigation under most of the collective agreements which are interpreted and administered in this Office.
In the result, I have no alternative but to find that the Company’s actions with respect to the grievor, as understandable as they may be, must be viewed as a nullity, void ab initio by reason of the withholding of Mr. Mathewson’s reports. The grievor is therefore to be reinstated into his employment forthwith, with compensation for all wages and benefits lost.