CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3963
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEE DIVISION
The assessment of 30 demerits and dismissal for accumulation of demerits to Mr. A. Wynne.
JOINT STATEMENT OF ISSUE:
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) DAVID
There appeared on behalf of the Company:
M. Thompson –
Labour Relations Officer,
K. Hein –
Manager, Labour Relations,
B. Lockerby –
Labour Relations Officer,
There appeared on behalf of the
Wm. Brehl –
D. Brown –
W. Phillips –
AWARD OF THE ARBITRATOR
before the Arbitrator confirms that the grievor improperly cancelled TOP
protection for a siding at Pays Plat on
Believing that the employees who were previously on the Pays Plat siding would have left that location, he cancelled the TOP for that siding. In fact they were still in that location, and consequently were left without any TOP protection by virtue of the grievor’s actions. It does appear, however, that because the grievor held track occupancy permits for a substantial section of the main line, including access to the siding in question, the situation created was something less than one of immediate peril.
There can be no doubt but that the grievor did commit what the Company properly characterizes as a cardinal rule violation, a violation of a kind which could have created an extremely perilous situation. I must agree with the employer that it is of little consequence for the purposes of the quality of the grievor’s actions that other factors, including his holding of a TOP over a broad section of connecting main line track, can be said to reduce his responsibility for what occurred.
The only real issue in the instant grievance is the quantum of discipline that is appropriate. While the Arbitrator can readily understand why the Company assessed thirty demerits, resulting in the discharge of the grievor for an accumulation of demerits, I am satisfied that there are grounds in the case at hand for a substitution of penalty. The record before me confirms that the bulk of the prior discipline accumulated by Mr. Wynne was by reason of chronic attendance difficulties experienced over a substantial period of time. That discipline was coincident in time with the grievor not then being in control of his condition as an alcoholic. That problem has clearly resolved itself since the grievor was reinstated into his employment following a dismissal for the accumulation of demerits in late 2004. In fact the record does disclose that the grievor, who has twenty years of service, does not have any prior extensive disciplinary record for operating rules violations.
In the result,
the Arbitrator concludes that the grievance should be allowed, in part. The
Arbitrator directs that the grievor be reinstated into his employment
forthwith, without loss of seniority and without compensation for any wages and
benefits lost. The thirty demerits assessed against his record shall be
removed, and the period between the date of his termination and his date of
reinstatement shall be recorded as a suspension for the events of