SHP 121

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 A. LAZARUS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

M. M. Yorston

 

 

And on behalf of the Union:

E. Tandy

 

 

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:

Carman Trainee A. Lazarus, Angus Shops, was released from Company service on November 5, 1980, as a result of his not being available for duty.

JOINT STATEMENT OF ISSUE:

It is the position of the union that this employee was unjustly dealt with when the Company dismissed Mr. Lazarus without holding a fair and impartial investigation as per Rule 28.1 of Wage Agreement No. 16.

It is the position of the Company that in the circumstances of the case, Rule 28.1 would not apply and that the Companyís actions were warranted.

The company has raised the preliminary objection that the matter is not arbitrable, in that while the grievor was advised on November 5, 1980 (a copy of this notice being sent to the union), that his employment was terminated, his grievance was not filed until June 18, 1981.

It would appear that the grievor was out of the country at the time of his termination, and he may not have received actual notice thereof until sometime later. He returned to Montreal, where he worked, on December 30, 1980, and reported, not to his workplace but to the Staff Records Office, on January 5, 1981. He then presented a medical certificate which, it would seem, indicated he would be absent for some time to come. He must have been aware by that time, if he had not been before, that his employment record had been closed. This grievance was not filed until June 18, 1981.

Article 28.7 of the collective agreement is as follows:

28.7 The authorized Local Union Representative(s) may within 35 calendar days from the date of the alleged grievance progress the grievance in writing to either the supervisor, foreman or general foreman, or assistant works manager outlining all pertinent details and the date of the grievance.

The company, in its reply to the grievance on June 26, 1981, made a timely objection as to its arbitrability. This objection was not subsequently waived. The mere facts of participation in the Joint Statement, and of requesting an extension of the time provided for in one of the steps of the grievance procedure, do not in themselves amount to waivers of otherwise valid objections. Those are simply accommodations made within the course of the grievance procedure itself, and have no other effect.

Article 28.11 of the collective agreement is as follows:

28.11 A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims.

The first sentence of that article applies in the instant case. Its effect is, clearly, (having in mind the time limit set out in article 28.7) that the grievance "shall be dropped" and it is, accordingly, not arbitrable. Although it may be that much (although not all) of the grievorís absence from work during that period in question may be justifiable, there is not, in my view, a satisfactory explanation for the long delay in filing the grievance. In any event, an arbitrator has no jurisdiction to alter the effect, set out in the collective agreement, of a failure to meet time limits.

For the foregoing reasons it must be my conclusion that the matter is not arbitrable, and the grievance must accordingly be dismissed.

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

(signed) J. F. W. Weatherill

Arbitrator