CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3996
VIA RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS’ UNION OF
The assessment of sixty (60) demerits to Mr. N. Nasraoui.
JOINT STATEMENT OF ISSUE:
The Corporation received a complaint from its supplier concerning the injury caused to their employee by Mr. Nasraoui. The Corporation submits that Mr. Nasraoui has been disciplined for the same type of behaviour in the past. A violation of the Corporation’s code of conduct, and demonstrating violent behaviour is a serious infraction of the code of conduct and damaging to the Corporation’s reputation.
Consequently the Corporation submits the discipline was reasonable and appropriate and that the termination of employment of Mr. Nasraoui was justified.
(SGD.) R. FITZGERALD (SGD.) B. A. BLAIR
NATIONAL REPRESENTATIVE SR. ADVISOR, LABOUR RELATIONS
There appeared on behalf of the Corporation:
B. A. Blair –
Sr. Advisor, Labour Relations,
L. Selesnic –
Manager, Customer Experience,
There appeared on behalf of the
R. Fitzgerald –
D. Andru –
N. E. Nasraoui – Grievor
AWARD OF THE ARBITRATOR
Corporation alleges that the grievor deliberately injured the employee of a
supplier contractor during an incident which occurred on the loading dock of
the Toronto Maintenance Centre on
The video tape of the incident, taken from a security camera, reveals that the grievor was seated on a metal two-seater bench filling out a report when he was approached by Mr. Murray Windross, a delivery employee of the Corporation’s linen supplier, a company called “Ms. Clean”. After backing his truck close to the loading dock, Mr. Windross came around behind the bench where Mr. Nasraoui was writing a report, asking him what he was doing. The tape reveals that in fact Mr. Windross placed a hand on the grievor’s shoulder and another hand on the back of the bench.
The grievor’s account, which I accept, is that he told Mr. Windross that he did not wish to be disturbed while he was writing. As is evident from the video, when Mr. Windross touched the grievor on the back, the grievor grabbed the bottom edge of the bench with his right hand and pulled himself up, at the same time causing the bench to spill over backwards. According to a subsequent report filed by the employer for Mr. Windross, it would appear that the steel bench fell onto the driver’s right foot, causing serious bruising which resulted in his subsequently losing a day’s work to obtain medical attention for his injury.
position of the Corporation is that the grievor deliberately flipped the metal
bench back onto Mr. Windross, deliberately causing the injury which resulted.
carefully reviewed the video, the Arbitrator has some difficulty with the
I do not consider it necessary to find that the grievor intended to have the bench land on Mr. Windross’ foot, as it apparently did. In my view it is sufficient to conclude, as I feel I am compelled to, that it is clear that the grievor deliberately upset the bench in a backwards direction, reckless as to whether it would or would not strike Mr. Windross. That action, apparently prompted by anger on the grievor’s part, did obviously result in injury to the supplier’s delivery driver. I am satisfied that the carelessness exhibited by the grievor in the circumstances did warrant a severe level of discipline.
The grievor is an employee with a prior record of violence in the workplace (CROA 3315). In all of the circumstances I am satisfied that the assessment of sixty demerits was not inappropriate, and that the grievance must be dismissed.