SHP 125

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian National Railway Company

(the "Company")

AND

Canadian Council of Railway Shopcraft Employees and Allied Workers

(the "Union")

 

IN THE MATTER OF THE GRIEVANCE OF J. GAFFNEY

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. A. Cameron

J. R. Hnatiuk

 

 

And on behalf of the Union:

J. W. Asprey

R. E. Peer

J. Kearns

 

 

A hearing in this matter was held at Montreal on April 27, 1982.

 

 

AWARD

The Dispute and Joint statement of issue in this matter are as follows:

DISPUTE:

Dismissal of Carman J. Gaffney of Hamilton, Ontario.

JOINT STATEMENT OF ISSUE:

On May 28, 1981, Carman J. Gaffney was discharged for misappropriation of Company funds by submitting a false claim for travel expense at Hamilton, Ontario on March 30, 1981.

The Union appealed the discipline on the grounds the Company did not substantiate their decision that Carman Gaffney misappropriated the Company funds and the Company violated Rules 28.2 and 28.3 of Agreement 12.1.

The Company declined the appeal.

The matter arises as a result of the grievorís submitting an expense account, on March 30, 1981, which included mileage claims which the grievor was not entitled to make and which, in this investigation, he in effect admitted he knew he was not entitled to make. He had used a company vehicle for travel to and from his home without authorization and had purchased fuel for the vehicle which would include the fuel used for these trips.

On April 14, the grievor was instructed to report to the office of a Special Agent of the companyís police department. There, the grievor was interviewed by the Special Agent, whose concern was an investigation into a theft of gasoline. The grievor was not implicated in such theft. The Special Agent did, however, point out to the grievor that his expense claim was improper and advised him to withdraw the part of the claim referred to, or to repay monies paid in respect of it. The grievor agreed to that, and the monies were subsequently repaid or deducted from other payments. The Special Agent, I find, did not hold out to the grievor that he would be absolved of responsibility if he repaid the money.

At this interview, the grievor did not have union representation. It is not clear that any charges were contemplated against the grievor, and the company does not rely on the interview conducted by the Special Agent. It is not as clear in this case, as it was in CROA Case No. 280, that an "investigation" took place. If it was, it was an improper one, as article 28.2 of the collective agreement provides that where an investigation is to be held, a duly authorized representative of the employee shall be present. That provision was complied with when the formal investigation of the grievor was held on April 23, 1981.

Following the investigation on April 23, the grievor was advised on May 28, 1981, that he was discharged. He had not been held out of service pending that decision. It is the unionís contention that it was then too late for discipline to be imposed, as article 28.2 of the collective agreement requires that a decision be rendered not more than 28 calendar days after the investigation. In the instant case, that time limit was not met.

Article 28.3 of the collective agreement is as follows:

28.3 An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the report of the investigation is referred to the officers designated in Step II of the grievance procedure unless otherwise mutually agreed.

In CROA Case No. 202 it was held, in a case involving very different facts, that a similar (but not identical) provision did not prevent the company from assessing any discipline after the expiry of the twenty-eight days. The proper interpretation of the provision, it was held, was that the company then lost its right to hold the employee out of service.

Whether or not that is the correct interpretation of the provision which was dealt with in CROA Case No. 202, I do not consider, upon reflection, that it is the correct interpretation of article 28.3 of the collective agreement governing this case. The only limitation with respect to holding an employee out of service is that he not be held out "unnecessarily". The twenty-eight day period is not expressed as a limitation on holding an employee out of service, but as a limitation on the employerís right to render a decision, that is, to impose discipline with respect to a particular incident. There is no expressed limitation (leaving only the implicit one that it be held within a reasonable time) on the holding of an investigation. It may be in some circumstances, that a supplemental investigation would be proper. Once the investigation is closed, however and the matter then sent to the appropriate officer for decision, such decision must be rendered "not, later than 28 calendar days" from that date.

This limitation is analogous to those set out in the collective agreement with respect to filing grievances, appealing decisions, and referring grievances to arbitration. Their justification is a multiple one: there must be a time after which either party may consider that an incident is no longer current, and that it may forgo the making of notes, the keeping or gathering of evidence, and the like. If discipline is to be imposed, that should be done, to be effective and to be fair, in timely fashion, and the 28-day limit must be taken, I now think, to set out the partiesí agreement in that respect.

In the instant case, discipline was not imposed within the period provided for. It is the effect of article 28.3, I find, that it was not thereafter open to the company to impose discipline in respect of the incident in question (although the monies in question, of course, were quite properly recovered). The discipline purported to be imposed was, it follows, a nullity. Accordingly, it is my conclusion that the discharge of the grievor must be set aside, and it is my award that he be reinstated in employment without loss of seniority or other benefits, and with compensation for loss of regular earnings.

DATED AT TORONTO, this 18th day of May, 1982.

(signed) J. F. W. Weatherill

Arbitrator