SHP – 139
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 R. DESLAURIERS
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
M. M. Yorston
J. H. Blotsky
And on behalf of the Union:
J. W. Asprey
E. Tandy
A hearing in this matter was held at Montreal on January 14, 1983.
AWARD
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
Carman R. Deslauriers, Employee No. 604245, St. Luc Yard - Montreal, was assessed ten (10) demerit marks on August 16, 1982 for having incorrectly placed wheels in the wheel bay at St. Luc, on July 1, 1982 and was subsequently dismissed from the service of CP Rail due to accumulation of demerit marks.
JOINT STATEMENT OF ISSUE
It is the position of the Union that Carman R. Deslauriers was unjustly dismissed and that the Company violated Rule 28.3 of Wage Agreement No. 51 in assessing ten (10) demerit marks 38 days after the investigation.
It is the Company’s position that the discipline assessed Carman R. Deslauriers for his poor workmanship on July 1, 1982 was warranted and that because his discipline record exceeded sixty (60) demerit marks, he was properly dismissed. Furthermore, it is the Company’s position that the time limit for assessing discipline was not violated.
On the merits of this case, it would be my view that the grievor did incorrectly place the wheels in the wheel bay. Whether or not it was possible for him to follow the correct procedure completely, he ought to have ensured that the wheels were properly blocked, or to have sought the advice of a foreman or lead hand. His work was careless, and subjected him to some discipline. For a first offence of that nature, it may be that the assessment of five demerits would be the most that could be justified. That would not affect the outcome of the grievor’s case, however, as his disciplinary record stood at fifty-five demerits. That record must be taken as it stands, and the propriety of the assessments it contains cannot (any more than could instances of alleged misconduct where no discipline was imposed) now be tested.
While the grievance might then be dismissed on its merits, it is the union’s contention that, by reason of lapse of time, it was no longer open to the company to impose discipline at the time it did, as the time limit set out in the collective agreement for taking any disciplinary action had expired.
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 2 of the grievance procedure unless otherwise mutually agreed.
That provision is one of a series of provisions dealing with discipline and with grievances relating to discipline. Discipline may not be imposed without an investigation and disciplinary action (apart from holding an employee out of service in some cases) is not to be taken prior to consideration of the report of the investigation by officers of a certain level.
In the instant case the alleged act of carelessness occurred on July 1, 1982. An investigation was held, and completed, on July 9. Having regard to the grievor’s discipline record, which was of such a nature that the grievor was subject to discharge, the company, in accordance with its own policy, forwarded the file to the General Manager Operations and Maintenance for approval. That was done on July 30, 1982, the accompanying memorandum noting that "the time limit for assessing discipline is August 18, 1982". The General Manager approved the discipline recommended on August 16, 1982 and the grievor was advised of the discipline on August 18 - that is the date on which the decision was "rendered".
Thus, discipline was imposed 40 calendar days after the investigation was completed, although only 19 calendar days after the file was in fact forwarded to the General Manager who was, it should be added, the officer designated in Step 2 of the grievance procedure.
In my view, the company’s action in imposing discipline in this matter was taken after the expiry of the time limit provided for in article 28.3. That article limits the employer’s right to impose discipline with respect to a particular incident. As was said in the CNR and CCRS (Gaffney) case (18 May 1982),
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 examination 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.
The evident purpose of such a provision is set out in the passage which follows, at page 6 of the award:
This limitation is analogous to those set out in the collective agreement with respect to filing grievances, appealing 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 parties’ agreement in that respect.
In my view, the reference to the "referral" of the report to a company officer must be read as a reference to the closing of the investigation and the beginning of the time period within which the a company must come to a decision as to discipline, if discipline is to be imposed. It would not be open to the company to gain whatever time it wanted simply by holding up the "reference" of the report of the investigation. What is meant by article 28.3 is a limitation on the time the company may take to consider the imposition of discipline in any case. It is not open to the company, by its own action or inaction, to render that provision effectively meaningless.
The investigation in this matter was completed, and a report thereof could have been forwarded to the appropriate company officer, on July 9, 1982. The time in which the company could consider the matter began to run then. When discipline was imposed, on August 18, the 28-day period contemplated by article 28.3 had expired. It was then too late to impose discipline, and it is my conclusion that the discipline then imposed on the grievor was a nullity.
Accordingly, the grievance must be allowed. It is my award that the grievor be reinstated in employment forthwith, without loss of seniority or other benefits, and that he be compensated for loss of earnings.
DATED AT TORONTO, this 18th day of January, 1983.
(signed) J.F.W. Weatherill