CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3964
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEE DIVISION
Claim on behalf of employee Greg Nilsson for all hours held from service while under investigation.
JOINT STATEMENT OF ISSUE:
was removed from service on
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 attended an investigation that
commenced at 07:30 on
At the outset of the investigation the grievor’s Union representative took issue with what he believed was an improper approach to the recording of objections by the investigating officer. It appears that that concern was triggered by the Union representative’s objection to the fact that no job briefing, in the sense of reviewing the safety features of the building which they were in, was conducted by the investigating officer and that he indicated that he would not record that fact as part of the record of the investigation. It would appear that the investigating officer also indicated that there might be other kinds of objections that he might not consider appropriate for recording.
Faced with that
The record indicates that in fact the Company convened another investigation, which the grievor attended and did not abandon and at which the Company agreed, without prejudice, to conduct a job briefing prior to the commencement of the investigation. At that point the grievor had been held out of service for five days.
The sole issue in this grievance is whether the Company was entitled to hold the grievor out of service for the five days in question. I am satisfied that it was. The right of the Company to conduct a disciplinary investigation is well established within the terms of the collective agreement. The Arbitrator is directed to no provision of the collective agreement which would entitle the employee being investigated simply walking out on the basis of a procedural objection or dissatisfaction with respect to the way an investigation is being conducted. Absent extreme abuse at the hands of an investigating officer, a standard not revealed in the instant case, it is obviously the obligation of an employee to answer questions which are put during the course of an investigation, with the ability for the employee or his Union representative to raise and seek to have recorded proper objections. Should the investigating officer not record objections to the satisfaction of the grievor or his Union representative that may be a matter for a separate grievance, but it does not give the employee a right to refuse to continue any further with the investigation. In this as in other workplace endeavours, the “work now – grieve later” principle has its application.
The issue of an employee being held out of service during an investigation is addressed within section 15.1 of the collective agreement which provides as follows:
15.1 No employee shall be disciplined or discharged until a fair and impartial investigation has been concluded and responsibility established.
An employee is not to be held out of service unnecessarily in connection with an investigation. An employee may be held out of service for an investigation for the following reasons:
- The nature of the offence is dismissible in and of itself, or,
- The continued employment of the individual is in jeopardy, or,
-There are concerns regarding the safety of the employee.
In such case, an employee held out of service more than five (5) work days, or as mutually extended, will be paid a regular day’s pay, at the basic rate of pay, exclusive of overtime, for each day held out of service in excess of five (5) work days, or such other agreed upon period, whatever the decision rendered by the Company.
If an employee is unavailable for investigation, the five (5) day period shall be extended by a period equal to the period the employee is unavailable.
In the event that an employee is held out of service, the investigation is to be conducted as soon as possible.
NOTE: the Company will advise the
In the Arbitrator’s view the second condition which would allow the Company to hold an employee out of service during an investigation, namely “the continued employment of the individual is in jeopardy,” clearly came into play in the case at hand. It is also arguable, in my view, that the nature of the offence, the unauthorized dissemination of personal employee information could itself have been viewed by the Company as an offence that was dismissible. Setting that aside, at the point in time when the grievor, obviously faced with a serious charge, walked out of the investigation with no indication that he intended to return or ever answer the Company’s questions concerning his alleged conduct, he can be fairly said to have entered that perilous territory where indeed his continued employment was being put in jeopardy. It is true, as the Union stresses, that the grievor is a long service employee with a positive disciplinary record. However, it is less than clear to the Arbitrator that an employer might not reasonably view an employee who is being investigated for the misappropriation and misuse of confidential information in relation to employees who then refuses to participate in the resulting investigation as an employee who could well face termination, regardless of that individual’s prior service.
In the result, I am satisfied that the Company acted within the contemplation of section 15.1 of the collective agreement when it decided to hold the grievor out of service following his refusal to participate in the Company’s investigation. The grievance is therefore dismissed.