SHP - 89



Canadian National Railway Company

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey

L. Beniares



R. Wiebe



A hearing in this matter was held in Ottawa on January 21, 1981.



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


Time lost by Machinist A. Rousseau due to investigation into his absence from work.


After an absence from work for a period of several months Machinist A. Rousseau reported ready to return as of 29 October 1979. Prior to allowing Mr. Rousseau to resume duty, however, the Company conducted an investigation into the reasons for his absence.

A formal statement taken from Mr. Rousseau commenced on 31 October 1979 but had to be suspended when Mr. Rousseau refused to continue. Mr. Rousseau subsequently reported to complete the statement on 14 November 1979. He was allowed to return to work on 22 November 1979.

The Union contends that Mr. Rousseau should be paid for all time lost from 29 October 1979 to 21 November 1979 inclusive. The Company does not agree.

The grievor is a Machinist, having some thirty-one, years' service with the company. He left work on June 1, 1979 with a medical pass, and then went to a hospital where he received certain treatment and then went home. In an investigation conducted on August 2, 1979, he advised that he took a week off work to make sure he was completely recovered, and that he then had to take more time off work because of certain financial problems with some property which he owned. He did not receive health insurance benefits during this period. He stated that he called to advise his foreman he had suffered a work accident, and that he did not receive a letter of July 11 asking him to report to work.

In any event, it was appropriate for the company to require the grievor to justify his absence, and to this end he was called to an investigation on August 2, 1979. Apart from what is set out in the preceding paragraph, the grievor had no medical justification for absence, in the sense of medical proof, apart perhaps from the first week of absence. The grievor stated it was his intention to return to work as soon as possible, but asked for a thirty-day leave of absence to attend to his business affairs.

On August 16, 1979, the company advised the grievor that his request for leave of absence had been denied, and advised him as well that he had been assessed fifteen demerits for excessive lost time. Neither of those determinations is in issue in this case.

The grievor did not return to work, and on August 31 was requested to report for investigation on September 13. He did not report for that investigation and his file was documented to note that he was "suspended-pending investigation"× At a subsequent investigation the grievor explained his failure to report for investigation by saying that he had injured his knee and could not move about. While he was not hospitalized as a result of this injury, his doctor had prescribed some pills and a liniment for it.

In the latter part of October the grievor presented a medical certificate dated October 23, 1979, stating that he should remain off work until October 28, and that he could return on October 29. The medical certificate did not set out any explanation of the grievor's condition or justification for his absence. On October 29 the grievor was examined at the company's medical clinic and found fit for work. Rather than permit the grievor to return to work at once, however, the company required him to attend an investigation into the reasons for his absence.

Such an investigation was held on October 31, 1979. It was, in my view, quite proper for the company to require such an investigation, as the grievor had been absent for a considerable period of time, some of it apparently in defiance of a refusal of leave of absence, and most of it insufficiently explained.

Part-way through the investigation on October 31, the grievor refused to continue the statement, and left. The questions which had been asked of him to that point were quite proper, and no sufficient reason appears for the grievor's refusing to continue. It was suggested that this was in some way due to the questions put by the office conducting the investigation, but I find no foundation for that suggestion in the record.

The investigation continued on November 14, 1979. The grievor was asked why he had not given proof of the medical treatment he said he had received. He replied that he thought the letter of October 23 (referred to above), would suffice. Clearly, however, that letter was not a sufficient explanation of the bulk of the grievor's absence. The grievor then undertook to submit further medical evidence.

On November 16, 1979, the grievor presented a certificate dated that day, and stating that the grievor had received medical treatment between August 17 and October 18, 1979, for severe pain in his right knee resulting from a stretched ligament. On November 22, the grievor was again examined in the company's medical clinic and pronounced fit. He returned to work that day.

The company has undertaken to compensate the grievor for loss of wages subsequent to November 14, 1979. That was the day on which the grievor advised that he would provide a further medical certificate. It might not have been surprising had the company limited its undertaking to the period following November 16, when the certificate (which was, following the company's own examination, apparently accepted).

There is, in my view, no entitlement to payment in respect of the time prior to November 14. The grievor had, until that time, not provided sufficient justification for his absence. In the circumstances described, the company was clearly entitled to require such justification. The grievor had none available at the proper time, and unjustifiably delayed the investigation into the matter. In my view, the company is under no obligation to make any greater payment to the grievor than that which it has, already undertaken to make.

For the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 3rd day of February, 1981.

(signed) J.F.W. Weatherill