IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
IN THE MATTER OF THE GRIEVANCE OF N. DIMICHELE
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
M. M. Yorston
F. E. Romeo
And on behalf of the Union:
A hearing in this matter was held at Montreal on May 14, 1981.
The Joint statement of Fact and Joint Statement of Issue in this matter are as follows:
STATEMENT OF FACT
The grievor, Mr. N. DiMichele, was dismissed from service on January 8, 1981, on account of having more than the legal amount of alcohol in his blood while driving a Company vehicle the wrong way on a one-way street while on duty January 2, 1981.
STATEMENT OF ISSUE
It is the Unionís position that under the circumstances, dismissal was too severe, and therefore the grievor was unjustly dealt with.
It is the Companyís position that Mr. DiMicheleís dismissal was warranted under the circumstances.
It is acknowledged that the grievor had in fact consumed a considerable degree of alcohol on the evening (January 1, 1980) preceding his reporting for work at 0730 on the morning of January 2. That day was, it appears a designated holiday on which the grievor was required to work. While he only occasionaly drove a company vehicle on duty, it was nevertheless a part of his duties to drive a vehicle, and on the day in question was directed by his supervisor to work with Machinist C. Jones, and to drive to Parkdale Yard with Mr. Jones to carry out certain work there.
It was in the course of that trip that the grievor was apprehended by the police. He was proceeding the wrong way on a one-way street, and had forgotten his licence, which was apparently in his locker. He was asked to go to the police station (it would appear that he was allowed to drive himself) and while there, asked to take a breathalyser test, which he failed. He has been charged with impaired driving, although the trial has not yet been held. The outcome of the trial would not, in my view, affect the outcome of this case. It is clear that the grievor was on duty, and in charge of a company vehicle, while under the influence of alcohol. That is a serious offence for which at the least, substantial discipline may be imposed.
The offence is a serious one, and in some ways obviously resembles that dealt with in the Boan and Gibson case, heard on the same day as this. There are, however, a number of differences between the two situations. First, the grievor is an employee with considerable seniority and (although it was also true in the other cases), with a good record. Second, the circumstances in which he proceeded down the one-way street were unusual, in that a construction site was involved and some confusion may have existed for any driver, whether he had been drinking or not. The fellow-employee did not say anything about it being a one-way street until they were well into it. Third, there is no evidence of the sort of wild and reckless driving in which the grievors in the Boan and Gibson case indulged. Fourth, there is no evidence (apart from whatever one might surmise led the police to request a breathalyzer test) of any clinical symptoms of intoxication. The supervisor who assigned the grievor to drive the vehicle has a certain responsibility in this regard, and there is nothing to suggest that he noticed or ought to have noticed anything strange in the grievorís appearance or behaviour.
Without detracting from the general principles set out in the Consolidated Truck Lines case, and in CROA Case No. 426, cited in the Boan and Gibson award, it is my view that in the circumstances of the instant case there was not just cause for the penalty of discharge, although there was of course occasion for severe discipline.
In all of the circumstances, it is my award that the grievor be reinstated in employment forthwith, without loss of seniority, but without compensation for loss of earnings or other benefits.
DATED AT TORONTO, this 29th day of May, 1981.
(signed) J.F.W. Weatherill