CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3994
Heard in Montreal, Thursday, 14
RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS’ UNION OF CANADA
assessment of twenty-five (25) demerits to Mr. N. Nasraoui.
STATEMENT OF ISSUE:
On august 26, 2010
an investigation was held for Mr. Nasraoui for his alleged conduct unbecoming
and damage to Corporation property on August 18, 2010. Mr. Nasraoui was subsequently
issued twenty-five (25) demerits.
The Union contends that the discipline was excessive, unfair
and unwarranted. The incident was not intentional and was accidental, and there
were mitigating factors that should have been taken into account. The Union further contends the Mr. Nasraoui is a senior
The Union seeks the discipline be expunged and Mr. Nasraoui
be reinstated with full employment, without loss of seniority and reimbursed
all wages and benefits.
Nasraoui damaged company property by slamming a company truck door causing a
window to shatter.
Corporation submits that Mr. Nasraoui was in violation of the Corporation’s
Code of Conduct and policies and the discipline imposed was warranted and justified.
THE UNION: FOR
B. A. BLAIR
NATIONAL REPRESENTATIVE SR.
ADVISOR, LABOUR RELATIONS
There appeared on behalf of the
B. A. Blair –
Sr. Advisor, Labour Relations, Montreal
L. Selesnic –
Manager, Customer Experience, Montreal
There appeared on behalf of the Union:
R. Fitzgerald –
National Representative, Toronto
D. Andru –
Regional Representative, Toronto
N. E. Nasraoui –
AWARD OF THE ARBITRATOR
material before the Arbitrator confirms that on August 18, 2010, while working as
stock checker at the Toronto Maintenance Centre, Mr. Nasraoui exited the
driver’s side of a cube van which he was driving during the course of his
employment. It appears that he was then disturbed about the fact that his
normal workmate, Mr. Steve Bynoe, had absented himself from the work place for
a period of time during the morning to go to a drug store. Following his
return, while Mr. Bynoe and the grievor were loading train no. 83, according to
a written report filed by Mr. Bynoe, a tension arose between the two. According
to Mr. Bynoe’s account, which the Arbitrator accepts, when the two employees
reached the parking place the grievor referred to him as a “stupid bitch” which
caused Mr. Bynoe to respond that Mr. Nasraoui is the stupid one. Following that
exchange the grievor exited the truck and slammed the driver’s side door with
such force that its window shattered entirely. Following an investigation the
Corporation assessed twenty-five demerits against the grievor for causing
damage to Corporation property.
Corporation relies, in part, on the fact that the grievor had previously been
discharged for a physical assault on another employee, albeit he was reinstated
following a reduction of his penalty by this Office in CROA 3315. Its representative maintains that in the circumstances
the assessment of twenty-five demerits was not inappropriate. The Union’s representative questions whether the discipline
is appropriate. He submits that the grievor was then under personal stress,
partly by reason of a divorce as well as due to the fact that he was then
fasting for the holy month of Ramadan, as well as trying to quit smoking.
Arbitrator has some difficulty with the submission of the Union.
While the circumstances in one’s personal life may be difficult, the obligation of an employee
of respect for the employer’s property is not thereby reduced. That the grievor
clearly applied excessive force in slamming the truck door shut, following an
exchange of insults between himself and his co-worker, leaves little doubt but
that his action was deliberate and reckless as to the outcome. The fact that
the glass in the door of the cube van shattered is itself a testimony to the
force which the grievor applied in slamming the door. Given his prior record of
discipline for misconduct which was plainly related to issues of anger control,
I do not consider that the twenty-five demerits assessed against him was
excessive in the circumstances.
the foregoing reasons the grievance is dismissed.
April 18, 2011 (signed) MICHEL G. PICHER