SHP 166

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 J. OUIMET

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

A. Rosner, and others

 

 

And on behalf of the Company:

D. J. David

J. Blotsky, and others

 

 

A hearing in this matter was held at Montreal on October 24, 1984.

 

 

AWARD

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

JOINT STATEMENT OF FACT

On October 31, 1983, Mr. J. Ouimet was assessed the following discipline:

Number of Demerits Reasons

15 Insubordination (refusal to answer questions during a formal investigation on September 27, 1983).

20 For having been found lying in a carton box on September 21, 1983.

Prior to this assessment, Mr. Ouimetís discipline record stood at 15 demerit marks.

JOINT STATEMENT OF ISSUE

The Union contends that Mr. Ouimet has been unjustly treated and that the discipline was not warranted.

The Company denies the claim.

The first matter to be determined is that of the justification for the imposition of twenty demerits for the grievorís "having been found lying in a carton box".

The grievor, who was hired by the company on September 17, 1979, was classified as a Labourer. His assigned working hours at the material time were 2300 Ė 0730 daily, Thursday and Friday as assigned rest days.

On September 21, 1983, at about 0630, that is about an hour before the end of the grievorís shift, the grievor was discovered, apparently asleep, partly inside a large cardboard box on the floor near the back of the shop. The grievor asserts that he was not sleeping, and that he was sitting on, rather than partly lying in, the box. From all the material before me, it is my finding that the grievor was indeed lying down, and that whether or not he was actually asleep, he was at least resting. It is significant that he did not see the company officers, who were carrying out a routine inspection of the shop, approach.

The grievor asserts that having completed his work and having put away the tools he was using, he then felt poorly, due to the effects of fumes from the solvent he had been using for his cleaning task. The solvent the grievor had been using is one with respect to which certain precautions must be taken; the grievor was not working in a particularly confined area, however, and he had, on his own account, finished his work and put away the tools before feeling poorly. Certainly where an employee feels poorly (for whatever reason), it is understandable that he might wish to sit down for a moment to recover himself. If he continues to feel unwell, he should report to his foreman or to the first aid room. He should not simply lie down and rest.

In the instant case, I find the grievor did lie down to rest. Even when found by the company officers, he did not give an explanation for his conduct. It is my conclusion that in the circumstances of this case there was just cause for the imposition of discipline, and that for an offence of this nature the assessment of twenty demerits, although substantial, was not excessive.

The second question to be determined is that of the grievorís alleged insubordination in refusing to answer questions during the investigation held into the matter.

The investigation was held on September 27, the grievor having been notified thereof on September 25. The grievor, despite the advice of his union representative, refused to answer questions with respect to the charge against him. The investigation was rescheduled for the following day, and a supplementary investigation was held some time later. The grievor did answer questions at these two subsequent investigations.

It is clear that in some circumstances an employeeís conduct at an investigation, including his failure to answer questions, may constitute insubordination which may properly be the subject of disciplinary action. See, for example, CROA case No. 720, cited by the company. Certainly, the company has the right to conduct investigations into matters which concern it, such as the conduct of its employees in this case. It has an obligation to conduct an investigation before imposing discipline. In some cases, whether himself subject to possible discipline, Ö to cooperate with the employer in its investigation of certain matters.

Here, however, the only issue was that of the grievorís own lying down on the job. The essential purpose of the investigation in a case such as that is to put to the grievor the reports of the company officers, and to give him the opportunity to respond to them, and to present his side of the matter. Where (in a case such as this where no other substantial concern arises), the employee refuses to answer questions or to participate in the investigation, it is not necessary to conclude (as it was in Case No. 720, for example), that the employee has attempted to undermine the exercise of a proper management function. Rather, he has simply failed to avail himself of an opportunity which the collective agreement required be afforded to him. In such a case, and particularly where the employee has acted in despite of proper advice from his union representative, it might be proper for the company to proceed and assess discipline on the basis of the material before it. In this case, the company took the more desirable and more generous course of affording the grievor a second opportunity to speak to the charges against him, and to give his side of the story.

In the particular case before me, it is my view that the grievorís refusal to answer questions at the investigation on September 27 was simply indicative of a lack of understanding on his part, and was not an instance of a deliberate attempt to undermine the management in the exercise of its function. The person who stood to lose from the grievorís actions was the grievor himself. Those actions might indeed have had consequences adverse to the grievor, but in the circumstances of this case, I do not consider that the imposition of discipline on that account was properly one of those consequences.

Accordingly, it is my conclusion that there was not just cause for the imposition of discipline on the grievor on the ground of insubordination, in the circumstances of this case.

For all of the foregoing reasons, my award in this matter is as follows:

1. That the grievance with respect to the imposition of a penalty for insubordination is allowed, and that the fifteen demerits be removed from the grievorís record; and

2. That the grievance with respect to the assessment of twenty demerits for lying down on the job is dismissed.

DATED AT TORONTO, this 5th day of November, 1984.

(signed) J. F. W. Weatherill

Arbitrator