SHP676

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

(The Company)

and

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS’ UNION OF CANADA (CAW-CANADA)
LOCAL 101

(The Union)

CONCERNING DISCHARGE GRIEVANCE OF DEREK SOPER

SOLE ARBITRATOR:          Michel G. Picher

There appeared on behalf of the Company:

Shelley Smith                                 – Labour Relations Officer, Calgary

Len Wormsbecker                         – Manager, Labour Relations, Calgary

Jennifer Love                                 – Labour Relations Officer. Calgary

Rob Andrews                                 – Mechanical Manager – Spence/Sudbury

And on behalf of the Union:

Brian Stevens                                 – National Representative, Toronto

Guy Lemyre                                   – Regional Vice-President,

Derek Soper                                   – Grievor

A hearing in this matter was held in Montreal on Monday, January 9, 2012.

AWARD OF THE ARBITRATOR

            Joint statement of issue filed at the hearing:

JOINT STATEMENT OF ISSUE:

On June 22, 2011, the Union and Rail Car Mechanic Derek Soper were advised that Mr. Soper was being held out of service on account of time keeping issues from the previous week pending a formal investigation.

Following an investigation which began June 24, 2011, the grievor was issued a Form 104 on July 7, 2011 advising that he was dismissed for “leaving company property without proper authorization on June 14, 2011, June 15, 2011 and June 16, 2011 and for improper wage claims entered into SAP payroll system, claiming 8 hours pay for June 14, 2011 and June 15, 2011, two of the three days that were investigated.”

The Union contends that: The grievor was unnecessarily held out of service prior to and following the investigation contrary to Rule 28.1 and 28.3. The investigation was not fair and impartial contrary to Rule 28.1. The Company did not take into consideration mitigating circumstances in the instant case. The Company failed to provide the Union with the requisite termination letter per Rule 28.4.

The Union is requesting that the employee be reinstated forthwith with full compensation including any lost pension and benefit credits and that the Form 104 and all materials related to the instant grievance be removed from the employee’s file, and that he be made otherwise whole forthwith.

The Company disagrees with the Union’s contention and has declined the Union’s grievance.

            Upon a review of the material the Arbitrator is satisfied that in fact the grievor did leave work early without permission on June 14 and 15, 2011, days for which he claimed eight hours of pay and also that he left work early on June 16, 2011 without proper authority, although he did not claim for hours that he did not work on that day.

            The record discloses that Supervisors M. Eaton and R. Andrews were advised by Mr. Greg Jamieson, an employee of an independent car cleaning contractor, that the grievor had left work prior to noon on June 14 and 15, 2011 and that he had given a ride home on those occasions to the grievor, Mr. Derek Soper. It is common ground that Mr. Soper’s hours of work extended to 3:00 p.m. and that he claimed eight hours’ pay for both the 14th and 15th of June, 2011. It is also common ground that he left work early on the 16th of June. I am satisfied that it was without proper authorization, as he did not get permission from his supervisor, although he did not claim wages on that day for any time which he did not work.

            The Union raises an issue with respect to whether the grievor was denied a fair and impartial investigation, in accordance with the requirements of the collective agreement. In particular it relies upon the provisions of the second paragraph of Rule 28.4 which provides as follows:

In cases of dismissals or other termination of employee relationships, the Company shall provide the Regional Vice-President of the union a copy of the advice given to the employee along with a letter outlining the reasons upon which the decision to terminate was based. Time limits for progression of a grievance under the provisions of Rule 28.8 shall begin with the date of such advice.

            The Union notes that while verbal information with respect to the grievor’s termination was provided to Regional Vice-President Guy Lemyre, along with a copy of the Form 104 which was sent to the grievor, no “letter outlining the reasons upon which the decision to terminate was based” was given to Mr. Lemyre or anyone else in the Union. On that basis the Union submits that there was a failure of a fair and impartial investigation.

            In the Arbitrator’s view these provisions must be read from a purposive standpoint. The object is obviously to ensure that the Union is, in fact, fully aware of the reasons for the grievor’s termination. In the instant case the Form 104 provided is, in my view, sufficiently elaborate with respect to the reasons for the grievor’s termination. It expressly states that the Company’s action was taken by reason of the grievor having left Company property without authorization on June 14 and June 15 as well as June 16 and that he improperly claimed wages for the 14th and 15th. That information was fully in the hands of the Union’s Vice-President, albeit it was not in the form of the letter contemplated under rule 28.4.

            In my view the facts before me confirm that that the substance of the requirements of Rule 28.4 was in fact met. There is no suggestion that Mr. Lemyre was in the dark as to why the grievor was terminated or that the Union was prejudiced in preparing a defence to the Company’s allegations for the purposes of the grievance and arbitration process which might unfold under the collective agreement. In the circumstances I am compelled to conclude that the Union‘s objection is more technical than substantive and that it should not be allowed, to the extent that a favourable ruling would effectively overturn the discipline assessed against the grievor. While the conclusion might be different if the information in the Form 104 had been more limited, on the whole I am satisfied that the information given verbally to Mr. Lemyre, coupled with the elaborate statement included in the Form 104 constituted substantial compliance with the requirements of the second paragraph of Rule 28.4 of the collective agreement, and that the Union’s objection in that regard must be dismissed.

            The Union also challenges the fact that the grievor was held out of service pending the investigation and the ultimate decision as to discipline. With respect to that issue Rules 28.1 and 28.3 of the collective agreement stipulate as follows:

28.1     No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established. An employee may be held out of service pending investigation up to five working days, which can be extended by agreement with the Regional Union Representative. Employees shall not be held out of service unnecessarily.

28.3     An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the report of the investigation is referred to the officer(s) designated in the grievance procedure unless otherwise mutually agreed.

I cannot sustain this aspect of the Union’s case either. The fundamental allegation against the grievor, in my view based on reasonable and probable cause, is that he had defrauded the Company by falsely claiming wages for hours not worked. That is an infraction for which he had previously been disciplined. In the circumstances I am satisfied that the Company was justified in considering that the grievor was possibly in a dismissable position. It was also justified in being concerned about the continuing presence in the work place of an employee whose honestly was seriously under question. In all of the circumstances I am satisfied that its decision to withhold the grievor from service pending the conclusion of its investigation was not inappropriate.

            What of the substance of the grievance? While it is true, as the Union stresses, that an allegation of fraud and the theft of time, as made by the Company in the instant case, must be supported by clear and cogent evidence, I am satisfied that that standard is met when the evidence is examined as a whole. Firstly, the Company was provided with a memorandum dated June 22, 2011 signed by Mr. Greg Jamieson. He states that on each of the three days, June 14, 15 and 16, he gave the grievor a ride home at the end of his own tour of duty, which was before noon on each of the three days. During his own disciplinary investigation statement, taken on June 28, 2011 the grievor stated that he had no recollection of having gone home with Mr. Jamieson on the 14th and 15th, although he did recall having done so on the 16th. While he added his belief that he may have been driven to and from work on the 14th and 15th by employee W. Hanchar, when Mr. Hanchar was asked to give a statement he had no recollection to support the grievor’s suggestion that on the days in question he went home with Mr. Hanchar.

            It appears that Mr. Jamieson later provided a further memorandum which purported to recant his earlier account of having driven the grievor home on all three days. Significantly, the Union sought to have that recanting memorandum withdrawn from the investigation process. While the Company did not withdraw the document, I consider it difficult to give any weight to it in light of the Union‘s position that it should have been withdrawn. More significantly, I am satisfied, on the balance of probabilities, that the verbal account of events given to Mr. Eaton and subsequently both verbally and in writing to Mr. Andrews by Mr. Jamieson are accurate.

             There are, however, mitigating factors to be taken into account. At all material times the grievor worked in an accommodated position by reason of a serious physical disability. He was then under medication for pain, medication which included daily prescription doses of oxycontin, a powerful narcotic. The unchallenged evidence before me is that that medication can prompt side effects which include confusion, forgetfulness and a degree of mental incapacitation for short periods of time. It appears that while the grievor was under the influence of that drug on the days in question, he no longer uses oxycontin as a pain medication.

            On the whole of the evidence, while I am satisfied that the grievor left work without proper authority, I am not persuaded that he deliberately intended to defraud the Company of wages on June 14 and 15, 2011. It is, in my view, equally plausible that his actions in respect of both of those days were influenced to some degree by the disorienting medication which he was then taking. It is worth noting that on both the 14th and 15th of June, 2011, there was in fact little work in the shop and that most if not all of the mechanical staff were in fact idle, although still at work, by reason of difficulties experienced by a principal customer in the automotive industry.

            These observations do not justify or excuse the fact that the grievor left work without authorization on June 14 and 15, as well as on June 16, 2011. I am satisfied that his actions on those dates did render him liable to discipline, and that that discipline would be serious in light of his prior disciplinary record. On the whole, however, given that the grievor would now have some thirty-two years of service and is close to unreduced pension entitlement, I am satisfied that this is a case for a substitution of penalty.

            The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lost and without loss of seniority.  His reinstatement shall be subject to such medical certification as the Company may reasonably deem to be appropriate, including confirmation as to any medications now being taken by the grievor. Should the parties be in any disagreement with respect to any aspect of the interpretation or implementation of this award, I retain jurisdiction.

Signed at Ottawa, this 13th day of January 2012.

ARBITRATOR

__________________________________

MICHEL G. PICHER