IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
Canadian Council of Railway Shopcraft Employees and Allied Workers
IN THE MATTER OF THE GRIEVANCE OF R. GOUCHIE
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
J. A. Cameron
And on behalf of the Union:
J. W. Asprey
A hearing in this matter was held at Montreal on April 28, 1982.
The Dispute and Joint Statement of Issue in this matter are as follows:
Claim on behalf of Machinist R. Gouchie, Moncton Main Shop, for 9 days lost wages account failure to wear eye protection on January 13 to 23, 1981.
JOINT STATEMENT OF ISSUE:
On January 12, 1981, Machinist R. Gouchie was cautioned by the Company for refusing to wear safety glasses after being instructed to do so. Again, on January 13, 1981, Machinist R. Gouchie continued to refuse to comply with the Company’s directive to wear safety glasses and as a result was required to give a statement for his failure to do so.
Machinist R. Gouchie claimed that he was unable to conform with the Company’s eye protection policy using medical reasons as a basis for his refusal. He was not allowed to return to work until he could comply with the Company’s policy.
The Union claims that Machinist Gouchie should be compensated for the 9 days’ lost wages as the Company violated Rules 28.2, 28.4 add 28.5 of Wage Agreement 12.1.
The Company has declined to pay the claim.
Article 28.2 of the collective agreement requires, among other things, that an employee be given at least one day’s notice of an investigation. That does not mean that a proper officer of the company may not hold an "immediate investigation", but I do not think that exception applies. If it did, it would apply to most shop operations, and would be the rule, rather than the exception. Its purpose appears rather to be to make it clear that the requirement of notice of formal investigation does not inhibit the company from properly investigating matters where it is appropriate to do so. In the instant case, a 24 hour notice ought, I think, to have been given to the grievor. The grievor attended, on short notice, with a union representative, and no objection was raised. The notice requirement was, I think, waived in these circumstances.
It appears that the grievor was advised at the conclusion of the hearing that he was suspended indefinitely, and he was sent home. The grievor, it seems, requested that he be given notice of suspension in writing. This was not done, and the company, if indeed it did purport to suspend the grievor, was in violation of article 28.4 which requires advice in writing. In fact, however, there was no discipline recorded against the grievor. The suspension was not in fact imposed in a formal way, no demerits or other discipline were assessed, and no entry made on the grievor’s record.
It remains that when the grievor left the premises on January 13, he was then under the impression – created by what the General Foreman had said – that he was "indefinitely suspended". Now while it was proper that the grievor be sent home on January 13 (since he refused to follow the proper requirements respecting eye protection), he was wrongly given the impression that he had no right to work the following day. The grievor is, I find, entitled to compensation for that day, January 14.
Arrangements were made for a medical examination on January 15, and it was determined that there was no medical reason for the grievor’s refusal to wear the eye protective equipment (specially prepared for him), which the company required. This examination was for the grievor’s benefit, and I do not consider that in the circumstances he was entitled to pay for that day.
The grievor was then cleared to return to work He did not do so. One week later, he advised the company by telephone that he would return to work the following Monday. Such a statement is of course inconsistent with a belief that one has been suspended. Throughout this period, then, the grievor’s loss of earnings was attributable to his own refusal to work, and the company is under no liability in that respect.
For the foregoing reasons, it is my award that the grievor be paid one day’s pay.
DATED AT TORONTO, this 18th day of May, 1982.
(signed) J. F. W. Weatherill