BETWEEN:

AND

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

R. Wiebe

And on behalf of the Union:

J. W. Asprey

R. E. Peer

S. Horodyski

A hearing in this matter was held at Montreal on June 12,, 1981.

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

From all of the material before me, including the grievor’s own statement (subject as it is to lapses of memory), there is no doubt at all that the grievor was in fact absent from his workplace for a very considerable period of time. While a brief period of absence is explained by his need to go to the washroom, the bulk of the time (a period of several hours) is simply unaccounted for. Prolonged absence from the workplace and failure to perform assigned work, where no sufficient excuse appears, constitute grounds for discipline. In the instant case, I find that there was in fact occasion for the imposition of discipline on the grievor. The substantial issue is as to the extent of the penalty assessed, and as to its effect which was, in the result, the termination of the grievor’s employment.

A prolonged absence from work and a failure to perform work is a serious offence, and while it would not of itself (in the case of first offence) usually justify discharge, it would nevertheless call for a significant penalty. In my view, even in the case of a first offence, the assessment of, say, ten demerits would not be excessive. It may be noted that in the grievor’s case, given his existing record of fifty demerits, even the assessment of ten demerits would have subjected him to discharge. This was not, however, the first offence of this type on the part of the grievor. On three previous occasions within the same year he had been disciplined for related offences, namely leaving company property without authorization, unauthorized leave, and circumstances concerning work performance. He had been assessed ten demerits on January 17, 1980, twenty demerits on May 7 and a further twenty demerits on June 23. None of this appears to have had the effect to be hoped for from a system of progressive discipline, although it is clear that the grievor has, over a considerable period of time, received special consideration, counselling and support from both the union and the company. In my view, there was just cause for the imposition of discipline in the circumstances and the assessment of twenty demerits did not go beyond the range of reasonable disciplinary responses to the situation.

The effect of the assessment of twenty demerits in this case was that the grievor was then subject to discharge under the system of discipline in effect on the railway.

Much of the union’s forceful presentation on the grievor’s behalf was to the effect that this result ought not to occur in the special circumstances of this case. I have indicated in other awards relating to this system of discipline that I do consider that just cause for discharge may not necessarily be shown by the mere accumulation of demerit points, and that the circumstances of particular cases must be taken into consideration.

In the instant case, special circumstances obtain in that the grievor suffers from a certain handicap as a result of a motorcycle accident in which he was involved prior to his first employment with the company (as a Trackman), in 1977. In 1978, following a track motor car accident while the grievor was on duty (but in which he suffered no serious injury), the grievor revealed that he was subject to memory lapses as a result of his previous accident. He was (and propriety of this is not in question), found unfit for continued employment as a Trackman, and was restricted to "simple, non-hazardous, manual work under direct supervision". Such was the sort of work on which the grievor was engaged (even though supervision was not constant), at the time material to this grievance. Such work had been found for the grievor as a result of the work of the Union-Management Rehabilitation Committee.

The grievor was first assigned work as a Coach Cleaner (his classification at the time of discharge) on April 5, 1978. It was determined, after he had been on that job for some months, that he could meet the job requirements. That determination is not in question. The grievor had at first been on the day shift, but subsequently, by his own application, transferred to the afternoon shift. While his disciplinary record appears to have been accumulated while the grievor has been on the afternoon shift, I cannot conclude from the material before me that there is any significant causal relationship between that change and the grievor’s discipline record. That record, it must be said, simply reveals an irresponsible attitude toward the grievor’s work.

It was argued, quite properly, that because of the special circumstances of the grievor’s case, he should be given special consideration. In fact, the grievor has received the benefit of consideration beyond that which would be given an employee not affected by a handicap. That is, I think, quite proper, but at the same time an employee who receives such a benefit may fairly be expected to respond to it. It is not, I think, a right principle of industrial justice that a handicapped person is, by reason of his circumstances, relieved of the duty of responsible behaviour which is the lot of any employee. Such persons, while entitled to understanding and to a degree of special consideration, are nevertheless subject to discipline in a proper case. The instant case, as I have indicated, is one in which the grievor was properly subject to discipline. His own circumstances had been considered, and he had received a degree of preferential treatment to which, it would appear, he did not respond.

Having regard to all of the circumstances, it is my conclusion that there was just cause for the discharge of the grievor. The grievance is accordingly dismissed.

DATED AT TORONTO, this 24th day of June, 1981.