CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4027
CANADIAN NATIONAL RAILWAY COMPANY
Discharge of Locomotive Engineer Gerald Pilon for “Your
blatant and calculated submission of a fraudulent time ticket dated
JOINT STATEMENT OF ISSUE:
a locomotive engineer from Capreol, submitted a stand-alone time claim for
disagrees with the
(SGD.) P. VICKERS (SGD.) B, HOGAN
GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
M. Marshall –
Sr. Manager, Labour Relations,
B. Hogan –
Manager, Labour Relations,
D. VanCauwenbergh –
Director, Labour Relations,
There appeared on behalf of the
J. C. Morrison –
P. Vickers –
G. Pilon – Grievor
AWARD OF THE ARBITRATOR
alleges that the grievor fraudulently claimed the payment of constructive miles
when he was not called. Essentially the Company’s position is that he was not
available and therefore could not make the claim for the constructive miles.
Its position is based largely on a telephone conversation between the grievor
and a Crew Dispatcher on
It appears that during that conversation the grievor related that he had previously received calls close to the commencement of his personal leave day, calls which he accepted and which therefore meant that he lost the personal leave day in question. He was obviously trying to avoid that scenario, if possible. As a result, when the dispatcher asked him what time he was booking off at he responded “Do me a favour – just in case I get a freebie – don’t do nothing until call time.”
It does appear that during that conversation said to the dispatcher that if she did call him: “You will just talk to an answering machine.” and that he was going to his trailer to share some weekend time with his wife. He also said during the course of that conversation “If I’m lucky maybe it will go over their heads and they won’t sharp practice me for once.” The latter reference appears to be in relation to prior situations when the grievor was in fact called and ended up losing his personal leave day.
In essence the
position of the Company is that the grievor had no intention of accepting a
call on July 9 and, in the circumstances, could not legitimately claim the
constructive miles for the fact that he was not called on that day. The
has some difficulty accepting the
On the other hand, I am also of the view that the Company has not demonstrated that the grievor did have a fraudulent intention to deceive the Company or to game the calling rules. I am satisfied that he was, in fact, simply trying to size up whether he could expect a call or whether he might “get lucky” and not be called and be compelled to lose his personal leave day by accepting the call. That said, I cannot reject the position of the Company that the words conveyed to the crew dispatcher by the grievor appeared to convey the message that he did not intend to accept a call, but that he did not want to book off on the chance that he might be able to claim constructive miles.
In my view what the evidence discloses is a gross error of judgement on the part of Mr. Pilon. While I am satisfied that he did not intend to defraud the Company, and was simply hoping to “get a freebie” as he would be entitled to do under the normal operation of the collective agreement, the words he conveyed clearly suggested something else. To that extent he was, in my view, the author of his own misfortune.
The grievor is an employee of some thirty-one years of service with a relatively positive disciplinary record. He is said to be one year from eligibility for a full pension at the time of his termination. In the circumstances I am satisfied that the substitution of a suspension and the return of the grievor to his employment is not inappropriate, and that the substituted penalty will have the desired rehabilitative effect of conveying to Mr. Pilon the importance of being clear and straightforward in his communications with the Company and its crew dispatchers.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for wages and benefits lost. The period between the grievor’s termination and reinstatement shall be substituted as a suspension for the improper claim for constructive miles.