SHP 155B

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific Limited

(the "Company")

AND

THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCE OF C. M. VINET

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

J. W. Asprey

E. W. Tandy

P. E. Perrault

 

 

And on behalf of the Company:

A.Y. de Montigny

D. J. David

 

 

A hearing in this matter was held at Montreal on May 10, 1984.

 

 

AWARD

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACT

Carman C.M. Vinet, employed at Weston Shops, was assessed the following discipline on December 12, 1983:

Discipline Reason

40 demerit marks Poor attendance from April 13, 1983 to November 30, 1983.

Record closed Accumulation of over 60 demerit marks.

Prior to that date, Mr. Vinetís discipline record stood at 45 demerit marks.

JOINT STATEMENT OF ISSUE

It is the Unionís position that this employee bad been unfairly treated by the Company, we feel that Mr. Vinet should be reinstated with all rights and benefits and that he should be compensated for all time lost.

The Company denies the claim.

It is not in dispute that during the period from April 13 to November 30, 1983, the grievor was in fact absent from work for 22 working days (9 of them Mondays), of the 141 working days in that period. The grievorís reason for absence with respect to 20 days was sickness, although he had not seen a doctor with respect to any of his absences. He stated that he had "an acid stomach".

Although no question would appear to have been raised with respect to any of the individual absences, it appears from the record as a whole, and from the grievorís failure to take any steps with respect to any condition he may have had, that the company was justified in concluding that the grievorís substantial sporadic absenteeism would continue. That would represent a serious problem for the employer, and it was justified in taking measures to deal with the situation.

The grievorís discipline record since 1980 reveals a continuing problem of absenteeism. On September 28, 1982, as a result of the assessment of 20 demerits for poor timekeeping, the grievor had accumulated 65 demerits. He was then discharged. On October 21, 1982, however, the grievor was allowed to return to work, he having provided the certificate of a doctor who was treating him for "a mild nervous disorder" and who stated that he would then be able to attend work without interruption. The grievor was advised by the company that any further unwarranted absenteeism would result in his immediate dismissal.

The grievor, as noted, had not sought medical attention with respect to his repeated absences during 1983. Following the investigation held on November 30, the grievor did seek medical advice. He was found to suffer from a gastric and a duodenal ulcer, and was referred to a specialist for treatment. His treatment appears to have consisted of diet and medication. A letter from his doctor dated May 4, 1984 states that his symptoms have cleared.

This evidence would show that, while the grievorís past absences would appear to be explained, there is no prognosis of a continuing condition which would make continuing absence likely. Justified absence is not a matter for discipline, but an employer may nevertheless terminate an employeeís employment for "innocent absenteeism" where it is shown that a bad attendance record is likely to continue. In the instant case, that has not been shown. On the material before me, it would appear that the grievorís condition has at least been controlled, and that regular attendance Ė on which the employer is entitled to insist may be expected.

It remains that the grievor, while perhaps not responsible for the condition which led to his absences, behaved irresponsibly Ė towards his employer as well as to himself Ė in not seeking medical treatment in circumstances where it was obviously necessary. Having regard to all of the circumstances, including the fact of the grievorís having some twenty years service with the company, it is my conclusion that this is not a case in which there was just cause for the dismissal of the grievor, and that a smaller number of demerits ought to have been assessed together, perhaps, with a period of suspension in which the grievor might seek medical help, and furnish a prognosis on the basis of which a decision as to the likelihood of regular future attendance might be made.

Having regard to all of the foregoing, I make the following award: the grievor is to be reinstated in employed forthwith, without loss of seniority. There is no award of compensation for loss of earnings or for any other benefit. The grievorís disciplinary record, upon his reinstatement, shall stand at 55 demerits.

DATED AT TORONTO, this 14th day of May, 1984.

(signed) J. F. W. Weatherill

Arbitrator