CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4223
Heard in Montreal, July 10, 2013
Concerning
CANADIAN NATIONAL RAILWAY COMPANY
And
TEAMSTERS CANADA RAIL CONFERENCE
DISPUTE:
The discharge of Conductor Bradley Marshall for while in the Locomotive Engineers training program for "circumstances surrounding the irregularities of time claim submissions while Student Locomotive Engineer training between January 7th and January 19th, 2013.
JOINT STATEMENT OF ISSUE:
Mr. Marshall was a student
locomotive engineer and worked out of Capreol. Mr. Marshall was out of the country from January 9th to
January 16th, 2013. Mr. Marshall submitted time claims for
dates that he was out of the country. On January 31st, 2013 Mr.
Marshall was required to attend a formal statement in connection with
circumstances surrounding the alleged irregularities of time claim submissions
while Student Locomotive Engineer training January 7th and January
19th, 2013. As a result of this investigation the Company on
February 5th 2013 assessed Mr. Marshall with discharge. The Union submits that
Mr. Marshall had booked Personal Leave Days on January 7, 11, 15 and 19. The Union submits Mr. Marshall followed the contract and submitted claims. The Union further submits that the discipline assessed was unwarranted, discriminatory and
disproportionate based on the facts and mitigation and in the very least
grossly excessive. The Union seeks to have Mr. Marshall reinstated to his
employment and made whole for all lost wages and benefits from the time of his
discharge on
February 5th, 2013.
The Unions position: Article 66.10 sets out payment of an all-inclusive weekly rate while in the Company's training program while an employee is available for service. Mr. Marshall signed and followed the contract as it was explained to him on August 24th, 2012.
The Company’s position: The Company disagrees with the Union's position. In light of the circumstances of the incident, the Company asserts that discharge is warranted.
FOR THE UNION: FOR THE COMPANY:
(SGD.) J. Robbins (SGD.) V. Paquet (on behalf of) J. Orr
General Chairperson Senior Vice President Operations
There appeared on behalf of the Company:
V. Paquet – Labour Relations Manager, Toronto
D. Gagne – Senior Labour Relations Manager, Montreal
M. Marshall – Senior Labour Relations Manager, Toronto
B. Glass – Senior Engine Service Officer, Toronto
G. Hare – Superintendent, NOD, Capreol
D. Larouche – Labour Relations Manager, Montreal
There appeared on behalf of the Union:
K. Stuebing – Counsel, Toronto
J. Robbins – General Chairman, Sarnia
J. Lennie – Vice General Chairman, Port Robinson
P. Boucher – Arbitration Coordinator, Belleville
D. Psichogios – Local Chairman CP Yard, Montreal
B. Marshall – Grievor, Capreol
AWARD OF THE ARBITRATOR
The record reveals that the grievor was employed as a student locomotive engineer/conductor in Capreol. In January 2013 Mr. Marshall took some time off for a holiday trip to Costa Rica and between January 9 and January 16, 2013 he was out of the country and in Costa Rica.
Upon his return from Costa Rica Mr. Marshall submitted time claims for January 7, 10, 11, 14 and 15, of 2013. It is common ground that the grievor booked three personal leave days (PLD’s) for three of the days in question, January 7, 11, and 15. Subsequently he claimed payment for those days and only removed his claims when he received notice that some irregularity had been determined in his wage claims. It is common ground that the claims which he made were “stand alone claims” which would normally involve a review and scrutiny by a timekeeper.
The grievor’s explanation is that he simply made an error. As he put it, during the course of the Company’s investigation “I erred in my claims. I claimed the 7th but should have claimed the 9th. I claimed the 11th but should have claimed the 13th. I miss-claimed the 15th but I corrected that. I cancelled that claim when I realized what day it was.
The fundamental issue in this grievance is whether the grievor deliberately tried to defraud the Company by making wage claims for dates on which he was not in fact available to perform any work. Bearing in mind that the burden of proof is upon the Company and that fraud is to be established by clear and cogent evidence, I am not satisfied that the Company has proven that Mr. Marshall in fact attempted to claim wages in a fraudulent manner. I am satisfied that he was reckless and negligent in the manner in which he proceeded to make his claims, and that his conduct did reasonably give the Company cause for concern and lead to the dispute that is now before me. In the circumstances, I am satisfied that it is appropriate to direct the grievor’s return to work, albeit without compensation.
The grievance is therefore allowed, in part. The grievor shall be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages and benefits lost. Any notations of discipline in relation to the wage claims which led to his termination shall be removed from his disciplinary record and the period between his termination and reinstatement shall be recorded as a suspension for his negligence in the making of incorrect wage claims.
July 12, 2013 _______________________________
MICHEL G. PICHER
ARBITRATOR