SHP 152

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian National Railway Company

(the "Company")

AND

THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCE OF A. FRIZZELL

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

J. W. Asprey

S. A. Horodyski

 

 

And on behalf of the Company:

P. E. Scheerle

T. D. Ferens

 

 

A hearing in this matter was held at Montreal on February 23, 1984.

 

 

AWARD

The Dispute and Joint Statement of Issue in this matter are as follows:

DISPUTE

Dismissal of Carman apprentice A. Frizzell, Spadina Coach Yard, Toronto.

JOINT STATEMENT OF ISSUE

Following an investigation Carman Apprentice Frizzell was discharged effective 21 May 1982 for his unacceptable work performance, lack of job interest, poor timekeeping, repeated absenteeism and for his failure to comply with Article 318 of Agreement 16, (now Agreement 12.1).

Rule 31.8 of Agreement 16 is as follows:

31.8 An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.

The Union contends that the Company violated the spirit of Rule 28.1 in as much as they have not followed the Company Corrective Discipline Policy. Apprentice Frizzell should have been cautioned, warned or otherwise disciplined in a progressive manner following each one of his progress reports and request that Apprentice Frizzell be reinstated with full compensation.

The Company maintains that the progress reports did not deal with matters concerning the misconduct but were for the purpose of establishing the grievorís competence for the work in which he was engaged and has therefore declined the Unionís request.

The grievor, a Carman Apprentice, was hired by the company in January of 1980. He was discharged on May 21, 1982. The reasons given for the discharge were: "your unacceptable work performance and lack of job interest, poor timekeeping resulting in repeated absenteeism, tardiness, and your continuing failure to comply with rule 31.8 of wage agreement no. 16 [now 12.1]".

Article 31 of the collective agreement deals generally with the matter of apprentices. Article 31.8 is as follows:

31.8 An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.

It was the companyís case that the grievor did not in fact continue to display the desire and aptitude to learn the carmanís trade, as evidenced by the shortcomings referred to in the notice of termination. There is, in my view, an onus on the company to establish grounds for termination, whether these be "disciplinary" grounds or not. In the case of an apprentice, failure to meet the requirements of article 31.8 would constitute grounds for termination, although it might be that termination would not be proper if it were established that the company had, in a particular case, acted in an arbitrary or discriminatory way.

In the instant case, the material before me establishes that the grievor had, over a period of time, and in most segments of his apprenticeship training, done work that was not satisfactory, had poor timekeeping, had repeatedly been absent, and had generally demonstrated a lack of interest in his work. Shop Reports were prepared and discussed with the grievor in respect of the various stages of his apprenticeship. In most instances the grievor was given less than a passing mark. In virtually every case the need for improvement was emphasized. Following some reports, there was an improvement in timekeeping, and occasionally there was an improvement in work performance, but these did not last. While the grievorís fourth, fifth and sixth performance reports showed gradually improving performance, the seventh report showed a very substantial decline. There had been many interviews with the grievor, stressing the need for improvement.

In connection with his apprenticeship the grievor attended courses at George Brown College in Toronto. His average mark on the examinations for these courses was less than the passing standard. After repeating one of the courses, the grievor then attained the passing grade, although he did not surpass it. The material before me indicates that the grievorís capability for craftsmanís work is marginal, so that matters such as attitude and good timekeeping are even more crucial than usual to his reaching an acceptable standard.

On May 14, 1982, the grievor was called to an "investigation" of his work performance and lack of interest. Article 28.1 of the collective agreement requires that an investigation be held, and an employeeís "responsibility established" before any discipline or discharge can take place. To the extent that the instant case may be thought to involve a disciplinary matter, then the provisions of article 28.1 were complied with. In my view, however, the case is not one of discipline Ė although in some instances the grievorís conduct might perhaps have given rise to discipline Ė but is rather one of assessment of the grievorís continuing with his apprenticeship where he himself has not met the requirements of the collective agreement in that regard.

The union sought to have the company produce the disciplinary record of another employee, an apprentice who had been disciplined but who had been continued in employment. In my view there would be no relationship between the two cases, and such evidence would not be relevant. There is no evidence that the company sought to discriminate improperly against the grievor, who might indeed have been terminated following the first Shop Report in June, 1980, which indicated that the grievorís work habits and interest in his job had "deteriorated to a point where he is now unacceptable for the job". The company nevertheless continued its efforts with the grievor, achieving the temporary improvement which has been referred to, but ultimately reaching the conclusion that the desire and aptitude called for by article 31.8 were not displayed.

That conclusion was justified in the circumstances of this case.

Whether or not the grievorís conduct might have subjected him to some discipline in the past, no discipline was imposed, and any past "misconduct" certainly does not appear to have been such as to make discipline compelling. This is not a case in which "just cause" need be shown, in the usual sense. To the extent that "progressive discipline" should be looked for as justification for such a drastic "penalty" of discharge, it is to be found, in the circumstances of the instant case (where the termination of the grievorís employment is not a "penalty" in the disciplinary sense), in the series of Apprentice Shop Reports which were discussed with the grievor in the hope that he would realize the necessity of improvement in his performance.

The grievor did not, from the material before me, continue to display the desire and aptitude to learn his trade and so was not to be retained as an apprentice. In terminating the grievorís employment, the company properly gave effect to the provisions of article 31.8 of the collective agreement.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 6th day of March, 1984.

(signed) J. F. W. Weatherill

Arbitrator