SHP Ė 172

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF R. DABETIC

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

D. Lord

 

And on behalf of the Union:

S. Horodyski

 

A hearing in this matter was held at Montreal on April 24, 1985.

 

 

AWARD

The dispute in this matter is the dismissal of Carman R. Dabetic, Jasper, Alberta, on June 4, 1984, account accumulation of demerit marks. The parties have presented separate statements of issue. The union statement of issue is as follows:

The Company alleges poor time keeping habits by Carman R. Dabetic between May 3 and May 10, 1984.

After an investigation Carman Dabetic was assessed 20 demerits on May 17, 1984.

As a result of the assessment of 20 demerits, Carman Dabetic was discharged from Company service, effective June 4, 1984, account accumulation of demerits.

The Union contends the assessment of 20 demerits resulting in the dismissal of Carman Dabetic as too severe and not consistent with the Companyís Corrective Discipline Policy.

The company statement of issue is as follows:

Carman Dabetic left work without authorization on May 5 and 9, 1984, and was absent from work on May 10, 1984.

After an investigation, Carman Dabetic was assessed 20 demerits on May 17, 1984.

As a result of the assessment of 20 demerits, Carman Dabetic was dismissed from Companyís service on account of accumulation of demerits.

The Union appealed the discipline as too severe and not consistent with the Companyís progressive discipline policy and requested reinstatement of the grievor.

The Company declined the request.

It would appear that the grievor did leave work early on May 3, 1984, but it is acknowledged by the company that he had permission to do so. He left work without authorization on May 5 and 9 (these matters will be discussed later in this award), and was absent without authorization on May 10. This series of events constituted an occasion with respect to which the position of some discipline would be warranted. The substantial issue in the case is as to the extent of the penalty imposed; in the instant case, the imposition of twenty demerits led to the grievorís dismissal, he having thus accumulated some seventy demerits.

The grievor, having worked as a Car Cleaner with the company for the summer period in 1974 and 1975, last entered the companyís service in June, 1976. He worked as a Carman Helper and as a Carman Trainee, and became a Carman in June, 1983, following an apprenticeship. Since 1980, the grievor has been disciplined on numerous occasions for offences relating to attendance, and in one case for sleeping on the job.

His discipline record was cleared in 1981. In January, 1982, he was assessed five demerits for being absent from his worksite. In April, 1982, he was interviewed with respect to unauthorized absences from work. In December, 1982, he was assessed fifteen demerits for lateness and unauthorized absence. Later in the same month, he was interviewed with respect to unauthorized absence. In March, 1983, the grievor was assessed fifteen demerits for unauthorized absence and failure to punch out. In June, 1983 he was assessed fifteen demerits for frequent absence and failure to complete his assignment.

The grievorís discipline record then stood at fifty demerits, and on June 30, 1983, the grievor was interviewed by the Regional Mechanical Officer - Car, in order to bring home to him the seriousness of his situation, and to be sure that he understood it.

The grievor then passed nearly eleven months without demerit points being assessed. During this period, however, the grievor was absent on sick leave for some six weeks, and in addition was the subject of a disciplinary interview in August, 1983, for failing to wear his hard hat on a work site. The grievorís record thus properly stood at fifty demerits at the material times, and he was not then on the very eve of having his record reduced by reason of a yearís discipline-free period.

It was argued that the company had acquiesced in or condoned the grievorís poor attendance by not imposing discipline when, on some occasions, it might have done so. This would suggest that the grievorís record ought to be worse than is shown, but quite apart from that, the fact is that the company did impose discipline at intervals, and while it may have been lenient on many occasions, it did nothing which would somehow have lulled the grievor into the belief that it did not regard proper attendance as important. In my view, on the material before me, the opposite was the case.

There was, it is clear, just cause for the imposition of discipline in respect of the grievorís leaving work early on May 5 and 9, 1984, and his absence on May 10. With respect to May 5, the grievor says that he asked the permission of the Car Foreman and the other men on his shift. He ought, however, to have sought permission from his supervisor, and in my view the grievor must have known that. There is no suggestion that he sought any authorization to leave early on May 9 or to be absent on May 10.

The grievorís explanation for these absences were his personal problems, and in particular problems with a girl whom he believed he had made pregnant; the parties involved, he said, "had to decide what action to take". Of course such a situation would be extremely stressful, and it may be that it would have been reasonable to request time off to deal with it, although it is far from clear that the loss of earnings involved would help matters at all. The grievor, who, understandably, "was very frightened and not thinking clearly", failed in his obligation to his employer. This failure, while it may be understood, cannot really be excused as being the undesired consequence of another failure. The grievorís conduct with respect to his employment was blameworthy; there can be no real doubt that discipline was proper; the only question is as to the effect the grievorís stressful circumstances might have on the amount of discipline assessed.

In this respect, I would consider that in the case of a first offence, assessment of twenty demerits in circumstances such as these would be excessive. See, in this connection, what is said in CROA Case No. 781. The instant case, of course, is not one of a first offence, but of a repeated offence. Even if the demerits assessed were reduced to the amount imposed on the two previous occasions, the result would remain that the grievor had accumulated more than sixty demerits, and even if the demerits assessed were reduced by half, it would, still be the case that the grievor had accumulated sixty demerits. In all of the circumstances, it is my view that a penalty of at least ten demerits was justified, and that in any event there was just cause for the discharge of the grievor, who had persisted in his disregard of proper attendance requirements, notwithstanding his knowledge of the jeopardy in which he placed himself.

For all of the. foregoing reasons, I find that there was just cause for discharge. The grievance is accordingly dismissed.

 

DATED AT TORONTO, this 13th day of May, 1985.

 

(signed) J. F. W. Weatherill