RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3940
CANADIAN NATIONAL RAILWAY COMPANY
the assessment of 15 demerit marks to Locomotive Engineer G. (Ben) Foreman for
conduct unbecoming an employee
JOINT STATEMENT OF ISSUE:
The Company conducted an investigation of the incident and assessed discipline in the form of 15 demerit marks.
disagrees with the
(SGD.) T. MARKEWICH (SGD.) D. BRODIE
FOR: GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
P. Payne –
Manager, Labour Relations,
D. Brodie –
Manager, Labour Relations,
K. Morris –
Sr. Manager, Labour Relations,
T. Brown –
General Manager Operations,
D. Broesky –
And on behalf of the
M. A. Church –
T. Markewich –
G. B. Foreman – Grievor
AWARD OF THE ARBITRATOR
before the Arbitrator confirms that the grievor had been investigated in
relation to having booked sick to obtain leave from work on
note of the incident is related in his Memo To File dated
The grievor gives a substantially different account of the event. Firstly, he notes that there are several factual errors in the account given by Mr. Broesky. Firstly, at the time in question he was coming off duty after a long assignment, not going on duty. Secondly, he relates that the supervisor did not meet him in the booking in room, but rather followed him into the locker room where they were alone when he presented him with the Form 780. Mr. Foreman denies that he had to request Mr. Broesky to read the notice to him as he did have his glasses and states that he has no recollection of having used the language attributed to him.
The Company does not challenge the factual inaccuracies which appear on the face of Mr. Broesky’s Memo To File. It is trite to say that in a matter of discipline the burden of proof is on the employer. It must establish, on the balance of probabilities, that the conduct alleged in fact occurred.
With the greatest respect, the Arbitrator finds it difficult to assign substantial credibility to the statement of events made by Supervisor Broesky. There is obviously a significant difference between the booking in room at Symington Yard and the employees’ locker room, notwithstanding that they may be adjacent to each other. The repeated reference is to the incident having taken place in the booking in room in the supervisor’s memorandum raise substantial questions about the memorandum itself. That issue is not aided by the fact that the supervisor misstates that the grievor was going on duty when he approached him. On the whole, the Arbitrator is not prepared to find that the Company has discharged the burden of proof which is upon it in this matter. While it is entirely possible that the grievor may have used some form of strong statement to his supervisor, the case as presented does not satisfy the Company’s burden of proof.
For the foregoing reasons the grievance must be allowed. The Arbitrator directs that the fifteen demerits assessed against the grievor be removed from his record forthwith.