IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
AND IN THE MATTER OF GRIEVANCE OF C. FENSOM
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
J. W. Asprey
E. W. Tandy
P. E. Perreault
And on behalf of the Company:
F. B. Reynolds
D. J. David
D. A. Lypka
A hearing in this matter was held at Montreal on June 22, 1984.
The Joint Statement of Fact and Issue in this matter is as follows.
JOINT STATEMENT OF FACT
On August 18, 1983, Carman Trainee C. Fensom was dismissed for "damaging Company and private vehicles in a hit and run accident, and falsifying Form 1409 and statement in an attempt to avoid personal responsibility for accident of July 29, 1983."
JOINT STATEMENT OF ISSUE
It is the position of the Union that Mr. C. Fensom was unjustly dealt with by the Company and that he should be reinstated forthwith with all rights and benefits as provided in the Collective Agreement.
There is no substantial dispute as to the facts. The grievor, a Carman Trainee, was at work on the shift which began at 2300 on July 28, 1983, and ended at 0700 on July 29. At about 0045 on July 29 the grievor advised his supervisor that he was going to the yard office to obtain a train line-up. Instead, the grievor took a company truck and went to a restaurant where he bought some cigarettes and then decided to stay for a cup of coffee. As he explained in one of his statements, he had not had sufficient rest before reporting to work, having had certain personal business to attend to, and "I was getting pretty tired so I went for a drive with the windows down in the truck to keep myself awake". During the course of this ride the grievor struck a half ton truck which had been parked on Victoria Avenue, in Regina. The damage to that vehicle was subsequently determined to amount to about $1,450.00. Damage to the company’s vehicle is said to amount to some $800.00.
The grievor returned to the shop and advised the Assistant Mechanical Supervisor that the company vehicle he had been operating had been damaged while parked in the lot of the restaurant to which he had gone for coffee, and that whoever was responsible had not remained at the scene of the accident. The company police were notified, and on their advice the matter was reported to the Regina City Police, to whom the grievor submitted a report stating that the company vehicle had been "hit and run" in the restaurant parking lot. The grievor submitted similar reports to the company and to the Saskatchewan Government Insurance Claims Centre. On August 5 the grievor attended an investigation in connection with the damage to the company vehicle at which he gave essentially the same story.
The statements which the grievor made with respect to the accident were of course untrue. He had not been the victim of a hit and run accident, he had been the perpetrator of one, and he had repeated his false story on several occasions. On August 8 he advised the Mechanical supervisor that he wished to amend his statement, and later that day gave a further statement saying that he had been travelling East on Dewdney Avenue when he hit a parked truck, and that he then returned to the shop and reported that someone had hit the company truck and damaged it. He had told this story, he said, to protect his job. It was at a subsequent investigation, on August 10, that the grievor stated he had not had sufficient rest because of personal business, and had gone for a drive to keep awake. At another investigation, on August 13, the grievor stated that the accident occurred "between 0110 and 0145", that he did not stop when he hit the parked truck, and that he had had two bottles of beer to drink between 7:00 and 8:00 p.m. the evening before coming to work. Although he at first insisted that the truck he hit was parked on Dewdney Avenue, he subsequently stated that he realized it was possible it was parked on Victoria Avenue, some three miles away.
In October, 1983, the grievor pleaded guilty to a charge of failure to remain at the scene of an accident, and was fined. A further charge of public mischief was withdrawn at that time.
There can be no doubt that the grievor was subject to discipline on account of tile conduct described above. He was away from his work place for an excessive length of time. While driving a company vehicle he had an accident involving a parked truck; and he made false statements to the company and to the public authorities with respect to what had happened. There was just cause for discipline and in my view an offence as serious as the one described would, in general, be just cause for discharge. The grievor has less than two years’ seniority and cannot claim any special consideration on that account. It is true that he did eventually tell the truth about what had occurred, but he did not do so until some time had passed, and after he had given his false statement on several occasions. From the nature of the damage to the company vehicle and of the circumstances in which it was said to have occurred, it may be noted that the grievor’s story would give rise to some suspicion. While his eventual disclosure is to his credit, it does not outweigh or eliminate the fact of his previous falsehoods, nor does it alter the clear facts of his improper and irresponsible conduct. There was, I find, just cause for discharge in this case.
It was argued that the company did not comply with the second paragraph of article 28.2 of the collective agreement. That paragraph provides as follows:
28.2 … When employees are required to make statements on matters affecting the Agreement, Company working rules or compensation, a duly authorized representative of the employee shall be present except that when employees are required to make statements on matters not affecting the Agreement, company working rules or compensation, the employee may have a fellow employee or an accredited representative of the Union present.
At the various investigations at which statements were taken from the grievor, he was accompanied by a fellow employee, and not by an accredited representative of the union. In each case, it may be noted, the grievor was asked if he wished the presence of a union representative or a fellow employee, and in each case he named a fellow employee. He also indicated in each case that he was satisfied with the manner in which the investigation had been conducted. In any event, what was involved was not a matter "affecting the Agreement, Company working rules or compensation", matters in which the union itself has an obvious interest, protected by the provisions of article 28.2 in question. Those interests were not in issue in this case, which comes within the exception set out in article 28.2. There was no violation of than article, and the investigation was not improper.
For all of the foregoing reasons, the grievance is dismissed.
DATED AT TORONTO, this 10th day of July, 1984.
(signed) J. F. W. Weatherill