CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4083
BOMBARDIER TRANSPORTATION CANADA INC.
3-day suspension assessed to K. Skeene.
JOINT STATEMENT OF ISSUE:
an investigation and statement held on
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
On the merits
of the grievance the Arbitrator is satisfied that the grievor did engage in
negligence, and in all likelihood an excess of speed, while driving a Kubota
all-terrain vehicle while on duty on
the merits of the dispute, the Arbitrator is compelled to give consideration to
a procedural objection raised by the
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.
It is common
ground that the rolling of the vehicle by the grievor was recorded on the video
camera taping system of GO Transit. That video tape, it appears, was viewed by
the investigating officer who conducted the statement taken from the grievor.
At question 12 the investigating officer states: “The video footage clearly
indicates you were in excess of the posted speed limit, how would you explain
that?” The Union representative then objected stating that the
It has long been established that the purpose of a provision such as sub-paragraph (e) of article 9.1 of the collective agreement is to ensure a minimum form of due process. An employee who is accused of misconduct is entitled to know the evidence in the possession of the employer which bears on that accusation. How is that standard met when the investigating officer states to the employee, in effect: “I have viewed a video that shows that you were speeding. You must trust me about that as the video will not be provided to you.”?
In fact the video, which was presented at the arbitration hearing, is far from clear with respect to the speed at which the grievor was travelling, as it is in fact what appears to be a series of still photographs taken at very short intervals. More importantly, it is clearly in violation of the most fundamental notions of due process for the investigating officer to have taken a view of a video which he pronounced as inculpating the grievor without making that video available to the employee and his union or at least arranging for a viewing of it. That is clearly in violation of the minimal standards of article 9.1 of the collective agreement. On that basis alone the grievance must be allowed, and the Arbitrator is compelled to declare that the grievor was denied a fair and impartial investigation, rendering the discipline against him null and void, ab initio.
same conclusion would be sustained with respect to the apparent withholding by
the Company of the statement of another employee, Mr. Michael Colangelo. The
accident/incident report provided to the
While it is not
necessary to rule on it, the Arbitrator must also indicate a degree of sympathy
for the submission of counsel for the
am compelled to agree with counsel for the
For all of these reasons the grievance must be allowed. The Arbitrator finds and declares that the discipline assessed against the grievor is void ab initio for the denial of a fair and impartial investigation. The Arbitrator directs that the three day suspension registered against the grievor be stricken from his record and that he be compensated for all wages and benefits, accordingly.
(signed) MICHEL G. PICHER