SHP - 76
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF G.P. CORBEIL
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey
APPEARING FOR THE COMPANY:
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:
Discharge of Electrician G.P. Corbeil.
JOINT STATEMENT OF ISSUE
On 11 July 1979, Mr. Corbeil destroyed a punch clock and card racks at the Pt. St. Charles Motive Power Shop.
An investigation was conducted and, as a result, Mr. Corbeil was assessed 45 demerit marks for damaging Company property. This brought the number of demerit marks to 85 and he was subsequently discharged for accumulation of demerit marks.
The Union contends that Mr. Corbeil had been suffering from a severe emotional condition prior to this incident and was not responsible for his actions. They claim he has been unjustly discharged, and should be reinstated to his former position with compensation for loss of earnings.
The Company disagrees.
There is no dispute as to the incident which occurred on July 11, 1979. The grievor, an Electrician who had entered the company's service on September 6, 1974, was at work that day on the 1530-2330 shift, at the Winding Shop in the Pte. St. Charles Motive Power Shop. At about 1600 hours on that day he went to the tool crib, and requested a sledge hammer, which was issued to him. He then went to the area where punch clock no. 5 was located, and using the sledge hammer, destroyed the punch clock, using such force as to break the handle of the sledge hammer. He then took the punch clock rack and smashed it against the base of the punch clock and against a light fixture. In the process of doing this, the grievor somewhat injured his hands.
Two fellow employees then persuaded the grievor to accompany them outside the shop. The CN Police arrived shortly thereafter and the grievor was taken first to a general hospital and later to a psychiatric hospital, from which he was released the following day. The psychiatrist who examined the grievor gave as his diagnosis "troubles transitoires situationnels", and recommended sick leave, medication, and referral to a psychologist.
The same psychiatrist saw the grievor on August 14, 1979, and issued a certificate on that day to the effect that the grievor was fit to return to work. The company, as it was entitled to do in the circumstances, required the grievor to be examined by its own medical officer. This was done on August 24, and the company doctor, although not a psychiatrist, issued a certificate to the effect that there was no medical reason to keep the grievor from work and that he was psychologically fit to return to work "et à effectuer ses responsabilités devant les gestes malencontreux qu'il a pu effectuer récemment".
The grievor returned to work on August 28 and a formal investigation of his conduct on July 11, was held on August 29. The grievor stated that he considered what occurred to have been an accident, and that he had not been conscious of what was taking place. His explanation for it was, in general, the stress that he was under due to the "atmosphere of lies and trickery" created by certain members of supervision. He expressed regret at what had occurred, and stated that he had been having weekly medical treatments to clarify the reasons for what had happened, that the therapy was continuing and that he did not know when it would be terminated.
In fact, the grievor cancelled his scheduled interview with the psychologist the following day. The week after that, at a testing session he was found, according to the medical report, to be uncooperative and "more interested in criticizing society than his own attitudes and behaviour". The following week his psychiatric file was closed.
Apart from the grievor's feeling that he had been unjustly treated and harassed by his supervisors for some period of time, there was no evidence of any provocation on the company's part to which the grievor's conduct may have been a reaction. Certainly, there was no particular incident on the afternoon of July 11, prior to the qrievor's outburst, which could be said to have provoked it.
It would appear that the grievor was under considerable stress, caused not only by his working life, but also by his personal concerns, including certain university studies which he had undertaken.
Destruction of the employer's property in the apparently deliberate fashion described above is of course a serious offence for which discipline may properly be imposed. If, because of illness (mental or physical) the actions in question are ones for which the employee cannot be held responsible, then it is not a matter of blame, and no discipline should be imposed, although if the illness is a continuing one, a question would arise as to the employee's capacity to continue at work. Given the apparently deliberate conduct in question here, the onus is on the employee or his representative to show that what occurred was attributable to illness, and was not conduct for which the employee should be held responsible.
That is a matter, of course, for medical evidence. From the material before me it is clear that neither the psychiatrist who examined the grievor on more than one occasion, nor the company's doctor (who later, with the grievor's consent, consulted the psychiatrist, considered that the grievor was not responsible for his acts. That his violent conduct was "transitory" and that his troubles were "situationnels" or brought on by circumstances would seem to be the case: that is not to say, however, that such conduct was beyond his control.
It has not, therefore, been established that the grievor was not responsible for his conduct. He ought not to have lost control of himself as he did, and he was properly subject to discipline. In assessing the penalty imposed, regard may be had to the circumstances, including personal circumstances which may bear on the appropriateness of the penalty. While, as I have noted, there was no immediate act of provocation which might be considered, the grievor himself apparently felt harassed (although he did not resort to the grievance procedure), and he was, as has been noted, under some personal stress. These considerations, from a point of view favourable to the grievor might suggest that what occurred was a sort of "momentary flare-up", unlikely to be repeated. Even taking this view, however, it remains that the "flare-up", was a very serious and destructive one, and that a severe penalty would be justified in any event. Without some such explanation, the deliberate destruction of company property in this way might well call for outright discharge. As it was, the company assessed forty-five demerits. Even if, to view the case more sympathetically than that, it were considered that thirty demerits was more appropriate (and I would certainly consider that penalty to be within the range, of appropriate disciplinary responses to the situation), the result would still be the discharge of the grievor who had already, as a result of previous discipline, accumulated a record of forty demerits. For an employee in that position to have acted as the grievor did is really to invite discharge.
For the foregoing reasons it is my conclusion that the grievor was subject to discipline, and that, in view of his record, discharge was proper in the result. Accordingly, the grievance is dismissed.
DATED AT TORONTO, this 30th day of May, 1980.
(signed) J.F.W. Weatherill