SHP - 54
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES DEPARTMENT - AFL/CIO
RE:GRIEVANCE OF S. MOQUIN
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey
APPEARING FOR THE COMPANY:
J. A. McGuire
A hearing in this matter was held in Ottawa on July 12, 1978.
AWARD OF THE ARBITRATOR
The joint statement of facts and issue in this matter is as follows:
JOINT STATEMENT OF FACTS
The Company closed Machinist Apprentice Serge Moquin's employment record effective March 20, 1978.
JOINT STATEMENT OF ISSUE
It is the position of the Union that in closing Machinist Apprentice Serge Moquin's record, the Company treated him unjustly and violated Rules 28.1, 28.2, 28.3, 28.4 and 31.8 of Wage Agreement, No. 16.
It is the position of the Company that Mr. Moquin was not unjustly treated by the Company and that the closing of his employment record was not in violation of the Collective Agreement.
* * * * *
The grievor was hired by the Company as an Apprentice Machinist on August 16, 1977. His employment was terminated on March 17, 1978. The issue is whether the termination the grievor's employment was proper.
As an apprentice, the grievor was subject to the provisions of article 31 of the collective agreement, which deals generally with several matters relating to apprentices. In particular, he was subject to article 31.8, which provides as follows:
31.8 An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.
As a part of his apprenticeship program the grievor had not only to perform work in the Company's shop, but he had also to attend instructional classes and as well to study on his own time and to prepare certain materials based on his home study. At the end of September, 1977, the grievor was given two instructional booklets (in French) containing questions which the grievor was to answer and submit. In December, 1977, he was given a further such booklet, also in French, together with one in English. Again, there were questions to be answered and the answers were to be turned in. The grievor was also given various text-book material most of which, it appears, was in English. By article 31.1 of the collective agreement, apprentices in the Province of Quebec (and the grievor worked in that Province) must be able to speak, read and write the French language. The grievor, who can speak, read and write French has some difficulty with English, and found some of the textual material with which he was presented hard to deal with. Most of the question booklets, however, were in French.
In fact, the grievor did not submit any of the material called for in the instructional booklets, although all apprentices were asked to try and submit two lessons per month. This was not an unreasonable requirement, and the Company was certainly entitled to set and enforce standards of accomplishment and progress for its apprentices. It appears from the evidence, however, that apart from the general request made to submit two lessons per month, no very close control over apprentices' written work was attempted, and they were not given precise or rigorous deadlines.
It appears that the grievor was spoken to on one or two occasions with respect to the submission of written work. It may be noted that there is no complaint with respect to the grievor's actual work in the shop. Further, the grievor's own evidence is that he was in fact studying at home as well as attending classes. He stated that he had left the question-booklets to one side as he felt it best to concentrate on certain exercises in drawing and on a text, in English, on Fundamentals of Diesel Engines. Since the grievor was in fact pursuing a structured course, it seems clear to me that his outlook in this respect was mistaken: he ought to have followed the course, and the assigned homework, as it was given to him, or at least to have sought the approval of his instructors for any variations therefrom.
While the grievor ought, as I have said, to have prepared and submitted written material as assigned, there was no attempt at strict enforcement of these assignments. The grievor was, as has been noted, spoken to about it, apparently in a rather casual way. Then, probably on March 10, 1978, he was spoken to by the Associate Supervisor of Training, Mr. Couture. Mr. Couture told the grievor that he must bring his homework in for the next class: that would have been on March 31. There can be no doubt that Mr. Couture was quite right in imposing this requirement. The grievor, quite properly accepted that direction and set to work to complete the questions to be handed in. These were, he stated, nearly completed by March 17, and were in fact completed in the following week.
On March 17, however, the grievor was called in to the office of Mr. Smith, the Assistant Superintendent at Angus Shops. There, the grievor was advised, in effect, that he was not displaying "the desire and aptitude to learn the trade" (to use the language of article 31.8), and he was offered the opportunity to resign. When the grievor refused that opportunity he was advised that his file would be closed. He was, in effect, discharged: in any event, his employment was terminated. The grievor was denied the right to Union representation at that interview.
Article 28.1 of the collective agreement provides that, generally speaking, an employee shall not be "disciplined or discharged unless he has had a fair and impartial investigation and his responsibility established". In a case of alleged misconduct, an apprentice, like any other employee, would have the right to the benefit of this provision. In this case, however, the grievor was not charged with any "misconduct" in the usual sense. I think there is considerable doubt that the provisions of article 28 relating to investigation are meant to apply to cases such as this which are really analogous to those of discharge for incompetence. I do not, however, make any determination of the matter in this case. This award does not turn on any finding that the Company was in violation of article 28.
While the Company may, certainly, make the determination that an employee succeeds or fails as an apprentice, it must make such determination by the unbiased and proper application of reasonable rules in that regard. Where, for instance, assignments are required to be turned in, the Company may set dates for that to be dome. Where such dates are repeatedly not met, and where has been advised of the consequence of such failure, then it would no doubt be appropriate (apart from some special circumstances) for that apprentice's employment to be terminated. The Company was, indeed, beginning to take such a firm stand in the grievor's case when, on March 10, Mr. Couture gave him until the next class to complete certain written work. That was, as I have said, quite. It was, however, inconsistent and unfair for the Company then, before the date the work was due, simply to advise the grievor that he would not be happy continuing there, and to request that he resign.
There is nothing else held against the grievor than that he had not submitted certain written work. That he should have submitted that work is clear. He was, quite properly, given a deadline for its submission. If he had not it that deadline, or at least given convincing reasons for not doing so, then I would take quite a different view of the case. The grievor did, however, work toward that deadline and on the evidence would have met it. It was then quite improper for the Company suddenly and without warning, or without any other justification, simply to bring the grievor's employment to an end. It must be added that it is most regrettable, whatever may be the application of article 28 in these circumstances that the grievor was refused Union representation at an interview which such assistance could have been vitally important. Indeed the availability of experienced Union advice may indeed have led to a better understanding of the matter by all concerned.
In the circumstances of this case, then, I find that the Company did not have just or proper cause to terminate the grievor's employment. It is my award that he be reinstated in employment forthwith, without loss of seniority or other benefits and with compensation for loss of earnings. His time out of service, however, is not to be credited toward the fulfillment of his apprenticeship requirements, which must be satisfied in full.
DATED at Toronto, this 17th day of July, 1978.
(signed) J.F.W. Weatherill