SHP - 75

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Railway Company

(the "Company")

AND

DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO

(the "Union")

RE: GRIEVANCE OF M. SOULIGNY

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

J. W. Asprey

L. Beniares

 

APPEARING FOR THE COMPANY:

R.J. Wiebe

 

 

A hearing in this matter was held in Montreal on May 22, 1980.

 

AWARD OF THE ARBITRATOR

The Statement of Dispute and Joint Statement of Issue in this matter are as follows:

DISPUTE

Discipline and dismissal of machinist M. Souligny, Pt. St. Charles Main Shop.

JOINT STATEMENT OF ISSUE

A review of Mr. Souligny's record indicated 85 hours absent from work between June 8, 1979 to September 30, 1979. An investigation into the cause of absence was held on October 1, 1979 and, as a result, Mr. Souligny was assessed 10 demerit marks. This brought the total demerit marks on his discipline record to 65, and Mr. Souligny was subsequently dismissed for accumulation of demerit marks.

The Union claims that most of the time absent was due to sickness and that the 10 demerit marks assessed should therefore be rescinded. The Union further claims that Mr. Souligny should be reinstated to his former position with compensation for loss of earnings.

The Company contends that the discipline was justified in that Mr. Souligny failed to establish bona-fide reasons for his absenteeism.

The issue is whether or not the company was justified in assessing ten demerits against the grievor on account of his absences during the period June 8 to September 30, 1979. If the ten demerits were justified or indeed if even five demerits were justified, since the grievor's record then stood at fifty-five demerits then the grievor was subject to discharge.

During the period referred to (which included his vacation period), the grievor was absent from work on fourteen separate day). Two of these days were Mondays (one appears to have been the Monday following the grievor's vacation), and nine were Fridays. On two occasions the grievor was absent on a Wednesday, and on one occasion the grievor punched out on a Thursday, calling in the next day to say he would be absent.

The grievor usually complied with the requirement of reporting. On five occasions he punched out after being at work. On six occasions he reported that he was sick. On two occasions he reported that he would be absent, and on one occasion he was simply absent.

On each of these occasions there appears, to have been no question raised at the time. The grievor was allowed to leave early on those occasions, and his word that he was sick and unable to work was accepted. In cases of repeated brief absenteeism of this sort, however, it is proper for the employer to accept an excuse at the time it is offered, but to question it where an unusual or suspicious pattern of absenteeism appears. Here, the company acted promptly when, on a regular review of attendance records, the grievor's pattern of absenteeism emerged.

While an employee might not, when asked for an explanation in such circumstances, be able to justify each absence he should, in a case such as this, be able to account for the general trend of his absenteeism. In the instant case, the grievor, asked to explain his 85 hours absence, stated simply that he was sick. He said that he had pain in his right ear as a result of an operation (about a year before), and that the reason for absence on Mondays and Fridays was that in that way he would have a longer period of time away from the noise of the shop.

On one occasion apparently at the end of the period in question, the grievor presented a doctor's certificate, which simply states that the grievor visited the doctor's office on a certain date. The date was not one of the dates on which the grievor was absent and the certificate does not set out any statement that the grievor was sick, does not contain any diagnosis, and does not justify any absence at all. A few days before that, the company's medical clinic had issued a certificate stating that the grievor was fit, although suggesting that he avoid exposure to a noisy environment.

In a certificate issued shortly before the hearing of this matter the grievor's doctor, an ear, nose and, throat specialist, indicated that the grievor's hearing was normal and that he could work normally and that  si jamais il était dispensé du bruit tous les autres travailleurs pourraient l'être aussi .

It is clear from the material before me that during the period in question the grievor was frequently absent when be had no real justification for it. It is not enought simply to report absence. It must be justified as well, and where there is a pattern of absence are as there was here, the company may properly expect adequate justification. Where that is not forthcoming, discipline may properly be imposed.

In the instant case the grievor had previously been disciplined with respect to excessive absenteeism and related offences. He had been made aware of the state of his record, and that his job was in jeopardy. The company was justified in assessing demerits and in these circumstances it would be my view that ten demerits was not excessive. As I have indicated, even if this were to be reduced, to five the outcome of the case would not be affected; the grievor would still be subject to discharge.

For the foregoing reasons it is my conclusion that the discipline was justified. Accordingly, the grievance is dismissed.

DATED AT TORONTO, this 30th day of May, 1980.

(signed) J.F.W. Weatherill

Arbitrator