SHP - 40
IN THE MATTER OF AN ARBITRATION
BETWEEN
THE RAILWAY ASSOCIATION OF CANADA
(the "Company")
AND
RAILWAY EMPLOYEES' DEPARTMENT, DIVISION NO. 4
(the "Union")
RE:
GRIEVANCE OF H. JONES
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey
J. H. Clark
APPEARING FOR THE COMPANY:
J. A. McGuire
A hearing in this matter was held in Montreal on September 16, 1976.
AWARD OF THE ARBITRATOR
The Joint Statements of fact and issue are as follows:
JOINT STATEMENT OF FACT
On Tuesday, January 13, 1976, Diesel Foreman Syms approached Mr. Jones and asked that he explain his absence from duty on Saturday, January 10, 1976. Mr. Jones replied stating that since the Company was not required to pay him when he was off, then he was not required to provide an explanation. After further discussion concerning the matter Mr. Jones was advised to punch the time clock and go home.
An investigation was subsequently held concerning the matter. As a result of this investigation, Mr. Jones was dismissed for insubordination.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the dismissal of Mr. Jones was unjustified and that he should be reinstated with full pay for all time lost.
It is the position of the Company that Mr. Jones' actions were such that he was rightfully dismissed for insubordination and that the dismissal should stand.
Saturday, January 10, 1976 was one of the grievor's regular work days. He did not work on that day, nor did he advise the company that he would not be in to work. From the grievor's later statement, it appears that he had difficulty starting his car. This would not prevent him from trying to get to work some other way, and would certainly not excuse his failure to report. In any event, there can be no doubt that the company was entitled to an explanation from the grievor as to his failure to report on that day.
On Tuesday, January 13, the grievor was asked, first by his foreman and then by the manager of the diesel shop, to explain his absence on the Saturday. On each occasion the grievor failed to offer any explanation, although there can be no doubt that he was under an obligation to do so. While there is a conflict in the statements as to the sort of language used by the grievor, it is clear from the material before me that the grievor behaved in an insubordinate and disrespectful manner. His refusal to make any substantial response to their quite proper questions was insubordinate in any event.
There can be no doubt, then, that the grievor was properly subject to discipline for insubordination. In my view, however, discharge went beyond the range of reasonable disciplinary responses to the situation. The event itself was a serious one, but would of itself call for a period of suspension at most. The grievor had, slightly over a year before this incident, been involved in another in which he had been seriously insubordinate. There may also be considered his failure to report on January 10, which supports the conclusion that his attitude to his work was poor. Even with all this, however, I think it cannot be said that the rehabilitative possibilities of the discipline system had been exhausted. In my view a period of suspension would have been appropriate. In view of the character of the grievor's conduct, I do not consider that any award of compensation should be made in this case although, as I find, the penalty of discharge cannot be sustained.
For the foregoing reasons it is my award that the grievor be reinstated in employment forthwith, without loss of seniority. I make no award as to compensation.
DATED at Toronto, this 27th day of September, 1976.
J. F. W. Weatherill
Arbitrator