CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4081
BOMBARDIER TRANSPORTATION CANADA INC.
2-day suspension assessed to T. Steenkist.
JOINT STATEMENT OF ISSUE:
It is the
disagrees and denies the
(SGD.) G. MACPHERSON (SGD.) A. BROWN
GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
M. Horvat –
A. Brown –
Manager, Human Resources,
D. Mitchell –
General Manager Operations,
There appeared on behalf of the
M. Church –
G. MacPherson –
AWARD OF THE ARBITRATOR
As can be seen from the joint statement, the grievor was assessed a two day suspension for having left the premises when he was responsible for an engine under load which in fact caught fire during his brief absence. While it is common ground that the grievor returned to discover the fire and exhibited some courage in putting it out, the Company takes the position that Mr. Steenkist must bear some responsibility for the extent of the fire which, it is not disputed, caused considerable damage to the locomotive in question, estimated at some $250,000.
Article 9.1(e) of the collective agreement deals with the information which must be provided to an employee who is notified of the requirement to attend at a disciplinary investigation. It reads as follows:
9.1 (e) The notification shall be accompanied with all available evidence, including a list of any witnesses or other employees, the date, time, place and subject matter of their investigation, whose evidence may have a bearing on the employee’s responsibility.
Article 9.1(i) is also relevant. It reads as follows:
9.1 (i) If the employee is involved with responsibility in a disciplinary offence, they shall be afforded the right on request for themselves or a representative of the Union or both, to be present during the investigation of any witness whose evidence may have a bearing on the employee’s responsibility, to offer rebuttal thereto and to receive a copy of the statement of such witness.
As noted above, it is not disputed that the grievor was never notified of the Company’s investigation of employee Amal Athauda. A review of that investigation confirms that Mr. Athauda had some involvement with a fuel leak on the locomotive unit and by his account, he notified the grievor of the status of the fuel lines.
It is well established in the jurisprudence of this Office that the failure to notify an employee of the evidence of another individual which may have a bearing on his or her responsibility, during the overall investigation of an incident, constitutes a failure to meet the standard of a fair and impartial investigation and vitiates any discipline which might result. In this regard general reference may be made to CROA 363, 377, 491, 624, 696, 987, 1241, 1420, 2280, 3322 and 3420. I am compelled to the conclusion that the Company failed to meet the standard required by article 9 of the collective agreement and reflected in the jurisprudence noted. The grievor was entitled to know, in advance, of the investigation of his fellow employee, whether or not that individual’s statement might be positive or negative towards him, to be present at that investigation and to be provided a copy of the employee’s statement. Regrettably, it is clear that the grievor was given no notification of Mr. Athauda’s investigation nor was he given a copy of Mr. Athauda’s statement prior to the commencement of his own investigation.
On the foregoing basis the discipline must be declared to be void ab initio, as the Company did fail to provide a fair and impartial investigation within the standards contemplated under article 9.1 of the collective agreement. Given that determination it is unnecessary for me to consider the alternative argument as to whether the 100 day delay was of itself outside the standard of a fair and impartial investigation.
For the foregoing reasons the grievance is allowed. The Arbitrator directs that the suspension of Mr. Steenkist be stricken from his record and that he be compensated for wages and benefits lost.
(signed) MICHEL G. PICHER