SHP - 87
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:grievance of A. DOUGLAS
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
M. M. Yorston
A hearing in this matter was held in Montreal on November 14, 1980.
AWARD OF THE ARBITRATOR
The grievor, a Carman Trainee, who had been employed by the Company since December, 1974, was discharged on May 28, 1980 as a result of an incident which occurred, on May 14, 1980. The grounds for the discharge were that the grievor had deliberately struck a fellow employee causing serious injury. The issue is whether or not the grievor was discharged for just cause.
There is no substantial dispute as to the facts. On the day in question, the grievor, along with others, was working the 1530-2330 shift. His duties were inbound and outbound inspections in the Car Inspection Yard. Near the start of his shift, the grievor, along with others, was being transported to his work location in a Company vehicle. He and others rode in the back of the truck. Among the other employees was Carman B. Aliko.
The grievor was sitting beside Mr. Aliko in the rear of the vehicle. Mr. Aliko states that the grievor was shouting at the driver of the truck (and in Mr. Aliko's ear), and banging on the inside of the vehicle with his elbow. Mr. Aliko states that although he asked the grievor to be quiet, be continued to shout and to use abusive language. The grievor states that while he did use profane and abusive language, Mr. Aliko did as well.
When the truck stopped at the East Tower, Mr. Aliko came over to the grievor, put his hands around his throat and, according to the grievor, began to strangle him. Mr. Aliko says that he "pushed" the grievor and "told him to leave me alone". Other statements suggest that Mr. Aliko pushed the grievor into a corner and "held" or "grabbed" him. The grievor states that on examination by a doctor that night, he was found to have a damaged and tender thyroid cartilage. Whatever the details may be, it is clear that Mr. Aliko assaulted the grievor, and it seems that other employees had to intervene. Mr. Aliko was disciplined for this, a penalty of thirty demerits being assessed.
The grievor then got out of the truck and went to speak to the Assistant foreman. Mr. Aliko, in his statement, indicated that he believed the scuffle was terminated at that point. The grievor, however, stated that "as far as I was concerned, the scuffle was not finished". The Assistant foreman stated that the grievor came to him, very upset, saying that someone had grabbed him by the throat and that he was going to get back at him. The Assistant foreman stated that he tried to calm the grievor down in order to get a better story from him. The grievor stated that the Assistant foreman "did not seem to understand, and by the time he had got out of the front of the truck, I had re-entered the vehicle and struck B. Aliko".
In fact, the grievor had taken a packing iron, being a length of 5/8" steel bar, had gone back into the rear of the truck and had struck Mr. Aliko across the neck with it. Mr. Aliko suffered a bruised and swollen neck, but fortunately, was not permanently injured. It appears that the grievor would have struck Mr. Aliko again, but other employees grabbed him and put him out of the truck. He continued to attempt to get at Mr. Aliko, but was eventually subdued by the others.
Obviously, the grievor committed a very serious and potentially lethal assault on a fellow employee. He had been, no doubt, provoked by Mr. Aliko's earlier assault on him, although that assault had itself been provoked (although not excused) by the grievor's own conduct. Even although the grievor might be said to have been "provoked", no such provocation could be said to justify the assault with a genuinely deadly weapon and apparently furious intent in which the grievor engaged. He was not then acting in self-defence, but had simply allowed himself to become enraged, and was out for brutal revenge. Such, conduct is not justified, and should not be excused.
While the Union acknowledged that the grievor was subject to discipline, it argues that he ought not to have been discharged especially in view of the lighter penalty imposed on Mr. Aliko. I am unable to accept this argument, on two grounds. First, without belittling the seriousness of Mr. Aliko's offence, the assault which the grievor committed was even are violent, and involved even greater likelihood of serious or perhaps fatal injury. It was a vicious assault and constituted a far more violent response than anything Mr. Aliko's attack could be said to have provoked The cases are distinguishable and the grievor's called for a are severe penalty.
Second, the grievor's disciplinary record appears to have stood at fifty-four demerits. Employees may be discharged for accumulation of sixty. Even if certain earlier disciplinary matters be overlooked, the grievor's record reveals forty-five demerits accumulated since April of 1978. Even if he were to have been assessed the same penalty as Mr. Aliko (although in my view the penalty of the grievor should have been greater), it is clear that he would still have been subject to discharge.
For all of the foregoing reasons, it is my conclusion that the Company had just cause to discharge the grievor. The grievance must therefore be dismissed.
DATED AT TORONTO this 12th day of January, 1981.
(signed) J.F.W. Weatherill