SHP - 84

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian Pacific Limited

(the "Company")

AND

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

(the "Union")

RE: GRIEVANCES OF W.C. FITZSIMMONS, V.A. PYLYPOW AND R.C. WILSON

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

J.W. Asprey

 

APPEARING FOR THE COMPANY:

M. Yorston

 

 

A hearing in this matter was held in Montreal on November 13, 1980.

 

AWARD OF THE ARBITRATOR

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

JOINT STATEMENT OF FACT

On June 16, 1980 Carman W.C. Fitzsimmons and Carmen Helpers V. A. Pylypow and R. C. Wilson were dismissed from the service of CP Rail for being in possession of an intoxicant while on duty on Company property, Sutherland, Saskatchewan, May 11, 1980.

JOINT STATEMENT OF ISSUE

It is the position of the union that in dismissing Carman W. C. Fitzsimmons and Carmen Helpers V. A. Pylypow and A. C. Wilson, the Company treated these employees unjustly.

It is the position of the Company that dismissal of Messrs. Fitzsimmons, Pylypow and Wilson was warranted.

There is no doubt that in cases such as this the onus is on the employer to show by clear and cogent evidence that, on the balance of probabilities, the employees were guilty of the offence alleged. In the instant case, the only direct evidence that the grievors were in possession of an intoxicant would be that of the company police officer who examined the truck in which the grievors were riding, and is said to have discovered a twelve-pack of beer in the rear seat of the truck, covered by a jacket which one of the grievors, Pylypow, later wore. It is said that at least one of the bottles was open. There is no evidence that any of the grievors had, been drinking.

The evidence of the police officer is not before me. His report, it is said, is "confidential". Although the officer himself might have been the subject of a subpoena and required to testify, such a procedure was not taken. Although Mr. Ritchie, Master Mechanic at Saskatoon, gave evidence as to what the police officer's supervisor told him that the police officer had reported, that is not, of course, admissible evidence, although I believe Mr. Ritchie reported accurately what he had heard. Mr. Ritchie did testify that there was at the Investigation Office, a carton of beer all but two bottles of which had been opened which was described as "all that was left of the evidence".

The grievors, in their statements, consistently deny having any beer in the truck. Their whereabouts for a time on the south side of the yard at the east end when the train on which they would work was to be yarded on the north side may raise some suspicion, but that is not, without more, in the nature of even a circumstantial proof. Even if it be assumed that there were beer in the truck, the only grievor to be linked with it in any definite way would be Mr. Pylypow.

There is simply no admissible evidence of any sort to establish any wrongdoing on the part of Mr. Fitzsimmons or Mr. Wilson. Mr. Pylypow, however did subsequently plead guilty to a charge of resisting arrest, which charge resulted from the same set of events which led to the allegation of possession of an intoxicant. While the conduct of the police officer (no longer employed by the company) appears to have been improper, it is clear that Mr. Pylypow himself was guilty of misconduct in the circumstances. As to the others, while there is suspicion, there is nothing more than that.

Having regard to the material properly before me, I make the following, award: Messrs. Fitzsimmons and Wilson are to be reinstated in employment forthwith without loss of seniority or other benefits, and to be compensated for loss of earnings. Mr. Pylypow is likewise to be reinstated forthwith, without, loss of seniority, but in his case I make no award of compensation.

DATED AT TORONTO, this 18th day of November, 1980.

(signed) J.F.W. Weatherill

Arbitrator