SHP 119

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

Canadian Council of Railway Shopcraft Employees and Allied Workers

(the "Union")

 

IN THE MATTER OF THE GRIEVANCE OF D. RIVEST

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

M. M. Yorston

 

 

And on behalf of the Union:

A. Manocchio

 

 

A hearing in this matter was held at Montreal on March 11, 1982.

 

 

AWARD

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

JOINT STATEMENT OF FACT:

On October 29, 1981, Angus Machinist Daniel Rivest punched his time card at 23:07 hours. He did not report to his immediate Supervisor at 23:30 hours to receive his work assignment. At about 23:52 hours, his Supervisor found him in the washroom washing his hands. An incident transpired between the Supervisor and Mr. Rivest, who was then held out of service pending investigation. Mr. Rivest was subsequently assessed forty demerit marks for his action, which resulted in the dismissal of Mr. Rivest for accumulation of sixty demerit marks.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that Mr. Rivest was innocent of the charge "être eloigné de votre ouvraye sans permission, avoir menacé et brutalisé un contremaître". Therefore, he was unjustly treated when he was assessed forty demerit marks and subsequently dismissed by the Company.

It is the position of the Company that Mr. D. Rivest was not unjustly treated and that dismissal for accumulation of sixty demerit marks was warranted.

As is set out in the Joint Statement, the grievor arrived at work in good time on the evening in question. He chatted with other employees for a while, and then went to his locker at about 23:25. He states that he had trouble with his lock, so that he was delayed in changing and getting what he needed to go to work. Then, without reporting for his work assignment, he went directly to the washroom. That was no doubt proper, particularly since the grievor says he had a pressing need to do so, although one notes that the need seems not to have been so during the preceding half-hour or so while the grievor was in plant.

Before leaving the washroom, and still not having received his assignment, the grievor then took time to wash off his safety helmet. While it is no doubt true that, at safety meetings, employees had been urged to clean their helmets regularly, it would not appear that that particular moment was well chosen for that task. It was just then that the foreman, who had been looking for him, found the grievor.

The foreman was, understandably, critical of the grievor for being there at that time although in fact, as I have said, the grievor seems to have had a proper justification for being there, although not for lingering.

In the course of what became a somewhat heated conversation, the grievor pointed his finger at the foreman, and I find, on all the evidence, that he waved his arm at the foreman in a way that the foreman (who was concerned as a result of a serious injury which had affected his left arm), reasonably considered to be threatening. The foreman took hold of the grievorís wrist in what was essentially a defensive move. The grievor withdrew his hand, and whether or not he actually shoved the foreman, the effect of his action was that the foreman fell backwards against a wall, and then to the ground.

Both the grievor and the foreman gave evidence in a straightforward and impressive manner. With respect to a brief and emotional incident such as this, no witness who was a participant can be expected to recount its details with complete accuracy. Having regard to all of the evidence, including the statement of two fellow employees who overheard certain parts of it, arriving on the scene just when the foreman fell, and having regard to the balance of probabilities, I find that the grievor did behave in an abusive and violent way toward the foreman.

The grounds of discipline relied on by the company have, then, been established, and there was just cause for the imposition of a disciplinary penalty. In my view, the assessment of forty demerits for this offence did not go beyond the range of reasonable disciplinary responses to the situation. It may be noted that the grievorís record stood at twenty demerits, that penalty having been imposed for a somewhat similar offence. As well, there were a number of warnings, some of which were for related offences, outstanding on the grievorís record. I would not have considered that, for the offence involved in the instant case alone, discharge would have been justified (although such a penalty was usually supported by arbitrators in the past), but a penalty of forty demerits was, as I have found, justified, and the result is an accumulation of demerits leading to discharge.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 5th day of April, 1982.

(signed) J. F. W. Weatherill

Arbitrator