RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3943
Heard in Montreal, Thursday, 14 October
TEAMSTERS CANADA RAIL CONFERENCE
RAIL CANADA TRAFFIC CONTROLLERS
denial of Weekly Indemnity Benefits for Rail Traffic Controller Hugh Nugent.
JOINT STATEMENT OF
March 18, 2010
Rail Traffic Controller Hugh Nugent informed the Company that he would be going
off on sick leave and subsequently filed with Manulife for Weekly Indemnity
Benefits. On April
22, 2010, Mr. Nugent received notification from Manulife that his
claim was denied stating that his employer had relieved him from duties on March 18, 2010
and subsequently he was held out of service and an inactive employee as of the
date of his disability (March 22nd). Therefore he was not an eligible employee
and consequently not entitled to Weekly Indemnity Benefits.
Union contends that Mr. Nugent was not out of
service and was an eligible employee at the time of his application for
benefits and therefore was entitled to claim Weekly Indemnity Benefits.
Union requests that Mr. Nugent be immediately
returned to service and made whole for all wages and benefits.
Company disagrees and denies the Union’s
FOR THE UNION: FOR THE
(SGD.) S. BROWNLEE (SGD.)
There appeared on behalf of the
D. Burke – Labour Relations Officer, Calgary
A. A. Garcia – Director, Labour
R. Hampel – Counsel, Calgary
P. Couture – Manager, Montreal Operations
B. Deacon – Labour Relations
And on behalf of the Union:
S. Brownlee – General Chairwoman,
F. Zamarria – Vice-Local Chairman,
C. Clark – Local Chairman, Montreal
T. Beaver – General Chairman,
TCRC (LE), Oshawa
AWARD OF THE ARBITRATOR
arbitration concerns the status of Rail Traffic Controller Hugh Nugent
following certain events on March 18, 2010. The Company maintains that as of that date
the grievor was effectively held out of service and was no longer an active
employee. The Union claims that he remained on the active employee list, was
not laid off or held out of service and was therefore entitled to claim sick
leave benefits, as he did, effective March 22, 2010.
discloses that Mr. Nugent was hired on November 15, 2005 as a crew dispatcher. In
January of 2008 he qualified as a Rail Traffic Controller working in the
Montreal Operations Centre. It appears that he qualified on all desks in the
Montreal Operations Centre save the MacTier desk on which he was unable to
qualify notwithstanding two attempts and additional training. As a result of
layoffs in January of 2010 Mr. Nugent became the junior most employee at the
Montreal Operations Centre and was soon transferred to the Seaway Tower
as an Interlocking RTC. He commenced working on the Seaway Spur on February 24, 2010.
It appears that two serious errors made on his first day on duty at the Seaway Tower
resulted in two separate heads of discipline being assessed against him for
important rules violations. As of February 26 an arrangement was put in place
whereby the grievor was not allowed to work without supervision and was obliged
to re-familiarize himself with the Seaway Spur territory.
On March 18, 2010
Mr. Nugent was re-evaluated on the Interlocking RTC desk for the Seaway Spur.
Trainer Steve Harrison and the Operations Manager at the Montreal Operations
Centre, Mr. Paul Couture, were involved in that process. The record reveals
that during the course of that tour of duty the grievor made two errors in
respect of blocking switches and signals, failing to insert locking pins as
required. Mr. Nugent’s repetition of that error, and his subsequent inability
to recall the instructions he was given in relation to a TOP provided to a
Track Foreman, caused Mr. Couture to become concerned. It seems that while the
grievor was excused from his desk for a short time Mr. Couture communicated
with the Manager of Operations at the Montreal Operations Centre, Mr. Jim
Blotsky, advising that he could not qualify the grievor and that his evaluation
was to be terminated. It appears that an understanding was reached between Mr.
Couture and Mr. Blotsky that Mr. Nugent would be sent home without completing
his tour of duty for that day.
A meeting of
approximately twenty minutes then ensued between Mr. Couture and Mr. Nugent. It
does not appear disputed that Mr. Couture then informed the grievor that he had
not qualified for the Interlocking RTC desk at the Seaway Spur. According to
the Company’s account of events the grievor expressed to Mr. Couture concerns
that he would be given two weeks’ notice and then be dismissed. It seems that
Mr. Couture responded that dismissals were not handled in that way and must
involve an investigation of “all possible scenarios”. Shortly thereafter Mr.
Nugent was informed by Mr. Couture that he was relieved of his duties, that he
would be compensated for the remainder of his shift and that he should go home.
It appears that he was also told that a member of management would contact him
on March 22, 2010,
being the Monday following Thursday March 18.
Later the same
day, some three hours after being relieved of his duties, Mr. Nugent emailed
Mr. Couture advising that he was going on sick leave and would update Mr.
Couture as to his status the following week. The grievor subsequently submitted
forms to Manulife to claim Weekly Indemnity Benefits (WIB). Those documents
indicate the first date of illness and treatment as being March 22, 2010. It appears
that the grievor’s application for WIB was initially unsuccessful for want of
documentation. It would seem that the documentation was eventually obtained
and, after some uncertainty Manulife appears to have reached the point where it
indicated that it was prepared to provide him WIB. However it appears that the
Company then interceded, advising the insurer that in fact the grievor had
ceased to be an employee on active duty as of March 18, 2010, and was therefore not
entitled to Weekly Indemnity Benefits.
position is that the grievor was pulled out of service by Mr. Couture during
the course of his tour of duty on March 18, 2010 and that thereafter he could not
claim wages or benefits under the collective agreement, including Weekly
Indemnity Benefits. The Company points to article 35.03.01 of the collective
agreement which provides:
35.03.01 When an employee has been suspended for investigation, a decision
shall be rendered as quickly as possible but not later than ten calendar days
from the date of the suspension or such other period as might be mutually
agreed upon by the parties. If held out of service more than 10 calendar days,
or such other period agreed upon, awaiting result of investigation at the
Company’s instance the employee will be paid schedule wages for the time in
excess of 10 calendar days, or such other agreed upon period, whatever the
decision may be.
The Union relies on certain documentation within the
Company’s records to argue that in fact the Company viewed the grievor as
having been on sick leave. In that regard it points to email correspondence
between the Company and Manulife. That correspondence reveals that initially
the Company’s communications with the insurer were to the effect that the
grievor’s application should be processed and properly documented. In the early
stages of those communications there was no position taken by the Company to
the effect that the grievor was in fact not an active employee at the time of
his claim. It would seem that on April 16, 2010 Manulife’s claims officer
communicated to her Company correspondent that the documentation was finally
reviewed and that based on the information provided the claim would be
approved, asking whether the Company had any concerns. Ultimately on April 19, 2010
the Company advised the insurer that “… we determined that this [employee] was
effectively held out service upon his DOD …”. That conclusion is also reflected
in other emails between Company officers, including a message from John Dorais
to Ms. Judy Au on April 16 stating: “After reviewing with REW our view is that
he was relieved of his duties due to safety concerns, thus HOS, and is
therefore an inactive employee. Consequently, I don’t believe that he would be
entitled to benefits, correct?”.
As noted above
the Union relies on these communications, and the initial approach taken by the
Company which appears to have been to process the grievor’s WIB claim, as well
as the fact that work schedules, apparently down to the present time, show Mr.
Nugent as being on sick leave. It submits that these facts effectively confirm
that at the time he made his claim for Weekly Indemnity Benefits he was viewed
by the Company as entitled to do so.
Arbitrator’s view in assessing the instant case it is substance, and not form,
which must prevail. The issue at hand is what was the precise status of Mr.
Nugent as of the moment he was instructed to go home by Mr. Couture on March 18, 2010?
After careful review, the Arbitrator is compelled to accept the Company’s
characterization of the grievor’s status at that time. As is reflected in the
account of events related above, Mr. Nugent was effectively being carefully
monitored in the performance of his duties, in a manner akin to a probationary
status, albeit that was not his situation, in handling RTC duties on the Seaway
Spur. That resulted from the fact that he committed two serious rules
infractions on his first day of duty at the Seaway Tower
on February 24,
2010. When the grievor made two serious errors, and was unable to
recall instructions given, he was immediately taken off duty by Mr. Couture.
Arbitrator’s view it is significant to understand the nature of the discussion
which transpired with Mr. Nugent at that time. The Union
offers no evidence to rebut the Company’s submission that upon being taken off
his desk by Mr. Couture the grievor inquired as to whether he would be given
two weeks’ notice and effectively terminated. The supervisor’s response to him
was that termination was not done in that fashion, and that an investigation
would be conducted. The Arbitrator has difficulty in viewing the conversation
which took place between Mr. Nugent and Mr. Couture as anything but a clear
exchange which placed the grievor on notice that he was no longer working and
that he would be investigated and possibly terminated. Indeed the record
further discloses that following these events the Company attempted, without
success, on repeated occasions to communicate with the grievor to have him
attend an investigation. Those primarily responsible for his employment status
clearly viewed him as suspended pending the investigation.
While it is
true that certain internal correspondence would indicate that some within the
Company felt that since the grievor’s claim was made on a day when he was in
fact at work, it should be processed in the normal fashion. There is no reason
to believe, however, that those who made that judgement were in fact privy to
the decision made by Mr. Couture and clearly communicated to Mr. Nugent some
three hours prior to when he made his claim for Weekly Indemnity Benefits. I
must agree with the representatives of the Company that at best what transpired
was an administrative error in the handling of the grievor’s file. There is
nothing in the material which persuades the Arbitrator that in fact Mr. Nugent
was viewed, for any practical purposes, as being an active employee by those
responsible for his employment status from and after his discussion with Mr.
Couture and the instruction given him to leave the workplace pending the
In the result,
the Arbitrator is satisfied that the grievor was in fact removed from active
service some three hours prior to the time he attempted to claim Weekly
Indemnity Benefits. It is not disputed that under the collective agreement, and
policy governing those benefits, he could only be entitled to them if he was an
active employee at the time of his claim. In fact he was not. On that basis,
the grievance must be dismissed.
October 18, 2010 (signed)
MICHEL G. PICHER