SHP Ė 144
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
IN THE MATTER OF THE GRIEVANCE OF B. FINNERTY
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
D. J. David
And on behalf of the Union:
J. W. Asprey
A hearing in this matter was held at Montreal on May 12, 1983.
The Dispute and Joint Statement of Fact and Issue in this matter are as follows:
Dismissal of Electrician B. Finnerty for accumulation of demerit marks.
JOINT STATEMENT OF FACT
St. Luc Diesel Shop Electrician, B. Finnerty, employee number 299347, was assessed 20 demerit marks "in connection with failure to report for duty on August 7, 9, 14 on September 25 and on October 2 and 3, 1982, and for not advising the shop that you would not report for duty at St. Luc Diesel Shop on August 7, 14, 21 and 22, on September 25 and on October 2 and 3, 1982, "which resulted in his dismissal for accumulation of demerit marks.
JOINT STATEMENT OF ISSUE
It is the position of the Union that Mr. Finnerty was treated unjustly.
It is the position of the company that the discipline assessed to Mr. Finnerty was warranted in the circumstances and, therefore, because his discipline record exceeded 60 demerit marks, he was properly dismissed.
The Joint Statement refers to some eight occasions when the grievor was absent from work. With respect to some of these it is alleged that the absences were improper, and with respect to others (some being the same), it is said that there was an improper failure to report. These absences all occurred within the period from July 26, 1982, when the grievor transferred to St. Luc Diesel Shop and October 18, the date of the investigation. Within that period, the grievor was laid off from August 24 to September 21. Most of the absences followed the grievorís days off.
The first absence in issue was on August 7, 1982. The grievor, an Electrician, was on the 0730-1530 shift. He did not report to work. His explanation was that he had to pick up his wife at the airport, that her flight was due to arrive at 1030, and that it was delayed about two hours. The grievor did not call the company to advise that he would not be in, or to offer any explanation. He had made no advance arrangements, although it would appear that he knew in advance what he would be doing. His explanation for not advising the company was that "I was worried for my wife and I didnít think to phone". That explanation, such as it is, does not account for the grievorís failure to seek leave in advance, as he ought to have done. In my view, the grievor was subject to discipline for his absence and failure to report on August 7.
The second absence was on August 9. On that occasion, the grievor did call the shop to advise that he would not be in, because of marital problems. The material before me indicates that such were in fact the cause of the grievorís absence. Evaluation of such an excuse depends on definition and circumstances, but from what is before me in this case, I do not conclude that there was just cause for discipline in this instance.
On August 14, the grievor did not attend at work, nor did he advise the company that he would not be in. His explanation for his absence was that he was best man at a wedding. That might be a persuasive reason for the company granting a day off, but since it was clearly known in advance, there was no excuse for the grievorís not requesting the day off. The unreported absence was improper, and the grievor was subject to discipline on that account.
On August 22 and 23, the grievor did not attend at work. He states that he did see a doctor who prescribed medication, and there, is no proof to the contrary. The grievorís absence, then, was justified. He did not, however, advise the shop that he would not be reporting for work, and there was no justification for that failure. The grievor was subject to discipline on that account.
On September 25 (that is, after the days off which immediately succeeded the end of the grievorís layoff), the grievor did not report for work. His reasons, which he described as "personal", were that he would lose his Unemployment Insurance entitlement for the week by working that day. As to his not informing the company that he would not be in, "it absolutely skipped my mind". Clearly, discipline was justified in such circumstances.
On October 2, the grievor was due to report at 0400. He discovered at about 0330 that his car had been stolen. He did not report for work (which could be excused in the circumstances) nor did he report his absence, because "in all the confusion about the car, I forgot". That too might be excusable, but it, may be remembered that the grievor had a bad attendance record, and a very bad discipline record, in the light of which his forgetfulness may be thought significant. In all of the circumstances, it is my view that this incident should not be taken into account in assessing the discipline imposed on the grievor.
The grievor did not report for work on October 3. His car had been found, and the grievor and a friend were repairing it. I did not consider that to have been a sufficient justification for the grievorís absence, but in any event there was no justification at all for his failure to advise the company that he would not be in. As to that, "it just slipped my mind". Clearly, the grievor was subject to discipline on that account.
While not every allegation against the grievor was fully made out, in that certain of his absences were justified, it is clear that the grievor was absent without good reason on a number of occasions, and that on many occasions he failed, without valid excuse, to notify the company. There was just cause for discipline in these circumstances. While I do not consider twenty demerits excessive in the circumstances, it may be rated that since the grievorís discipline record stood at fifty demerits, even the assessment of ten demerits (amply justified) would lead to the accumulation of sixty, and leave the grievor subject to discharge.
There was just cause for the discipline imposed, and the grievance must accordingly be dismissed.
DATED AT TORONTO, this 6th day of June, 1983.
(signed) J. F. W. Weatherill