BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

Maître R. Lecavalier

And on behalf of the Brotherhood:

Maître M. Morisette

A hearing in this matter was held at Montreal on February 20 and May 21, 1985.

The case before me deals with the dismissal of the grievor for having accumulated the maximum allowable number of demerit marks.

According to the Company’s record, the grievor had already accumulated 59 demerit marks when 10 demerit marks were assessed to him as a result of the culminating incident. The record itself is also disputed, but what must be done here is study at first glance the culminating incident in order to establish whether or not the discipline was justified.

The culminating incident consists of a series of late arrivals for work, i.e. on November 30, December 22, 28 and 29, 1983, and on January 2 and 10, 1984 (an accusation regarding a late arrival on December 25, 1983 was withdrawn). When the grievor was summoned to an investigation on January 23, 1984, he did not deny these late arrivals for work, although he did not recall some of them. As regards the late arrival on January 2, the grievor explained that he was "out of town, actually 120 km outside Montreal, visiting relatives and had forgotten that I was on duty that day". This appears insufficient justification. The grievor had no explanation for the other late arrivals, except that "several times, I was stuck in traffic jams". He thought that "this is a plausible explanation for some of the lateness in view of the distance I live from my workplace". Although this kind of explanation can be accepted for an exceptional late arrival for work, the evidence shows that the grievor was often late; he therefore had to take into consideration the distance he had to travel and of what appears to have been the strong possibility of traffic jams. It was his responsibility to be at work on time, but he often - in particular on the dates mentioned - failed in this respect.

A series of unjustified late arrivals for work within a period of a few weeks leads, I believe, to discipline and within the framework of the Company’s long-established disciplinary system, there was fair cause for assessing the grievor with 10 demerit marks.

I now have to consider whether there was fair cause for dismissing the grievor. I do not agree with the argument of the attorney for the employer that the joint statement of issue should restrict my judgement to the 10 demerit marks. The joint statement of issue deals explicitly with the dismissal, although the culminating incident is mentioned more particularly. The case concerns dismissal and in my opinion, it is the Company’s responsibility to establish all the facts relating to it, not just the culminating incident.

Furthermore, I agree with the attorney for the Brotherhood in that I am not bound by the terms and conditions of the Brown System of discipline. I am no more bound either by the Company’s discipline policy which is described in its "White Paper" on the subject. I do nevertheless believe that the Brown System, which has been in use for some considerable time and which is generally understood by employees, should be respected by the arbitrator even if he reserves the right to revise its "terminal" application in the case of a dismissal.

The grievor was first hired by the Company in 1966; he resigned in 1969. He was rehired in 1977 and dismissed shortly thereafter on account of unsatisfactory performance. He was again rehired in December 1978 and has current term of employment dates from that time. He falsified his job application by not saying that he had previously been employed by the Company, but no disciplinary action appears to have been taken after his false statements had been discovered.

In December 1979, the grievor was assessed with 15 demerit marks for unsatisfactory performance. On February 1, 1980, he was assessed with 15 demerit marks for having left his workplace for two hours without permission. On February 6 of that same year, he was assessed a further 15 demerit marks for having been found asleep during his working hours. He had thus accumulated 45 demerit marks.

On August 1, 1980, he signed and had placed on his file a written reprimand concerning absences and lateness in reporting for work. In my opinion, this was a disciplinary action, not just a simple word of criticism as was described in Award No. 384 of the Canadian Railway Office of Arbitration; this was rather a formal notification which affected the grievor’s rights, as in [CROA] Award No. 217.

On February 6, 1981, 20 demerit marks were removed from his file in accordance with the presumed application of the disciplinary policy which provides for 20 demerit marks to be removed following 12 consecutive months without further disciplinary action. However, in the grievor’s case, discipline had been assessed on August 1, 1980 and these demerit marks should not have been removed. Whether as a result of error or not, the marks were indeed removed and the grievor is still benefiting from the fact that they were. On February 7, 1981, his record showed that he had accumulated 25 demerit marks.

On June 12, 1981, the grievor was assessed with 10 demerit marks for having left his workplace without permission. His total demerit marks at that time therefore stood at 35. On March 29, 1982, 15 demerit marks were assessed to his record for poor performance and lack of co-operation. A grievance was filed against this discipline, with the Brotherhood requesting that the demerit marks be replaced with a reprimand. The grievance was accepted and on August 27, the Company advised the Brotherhood accordingly in writing. The Brotherhood, the grievor’s certified representative, told the grievor that his grievance had been accepted and that the demerit marks had been removed from his record, but omitted to mention that they had been replaced by a reprimand. As the reprimand was the settlement sought by the Brotherhood and as the Company advised the Brotherhood that the demerit marks would be removed and be replaced by a reprimand, I believe that the reprimand validly replaced the demerit marks and constituted disciplinary action which was effective from the same date as the demerit marks it replaced, i.e. March 29, 1982, notwithstanding the fact that no letter of reprimand had been sent to the grievor following the successful outcome of his grievance. As of this date, he had accumulated 35 demerit marks.

On February 27, 1983, 10 demerit marks were assessed to the grievor on account of his absences. The same day, an additional 10 demerit marks were assessed for unsatisfactory production. He had therefore then accumulated 55 demerit marks.

On May 7, 1983, 4 demerit marks were assessed to the grievor’s file for not having done his work in accordance with his foreman’s instructions. The number of demerit marks here is significant. Generally, the minimum number of demerit marks assessed is 5. In view of the grievor’s record, assessing 5 demerit marks would have resulted (according to the terms of the Brown System) in his dismissal. From all accounts, it must have been quite clear to the grievor that his record was in very bad shape and that he was on the point of being dismissed. Despite its policy on discipline, it appears that the Company did not summon the grievor to a formal interview to stress his precarious position. I do not, for all that, believe that one can talk about surprise, or trap, or discrimination against the grievor in the circumstances described here.

Although other employees were on occasion late for work, according to the evidence, the grievor was late on average twice a week. He received very frequent warnings from his foreman.

As I have established, disciplinary action was in order in the case of the culminating incident and the discipline assessed - 10 demerit marks - was not excessive. The result was that the grievor had accumulated more demerit marks than the disciplinary system permitted. With respect to all the circumstances, I consider that the application of the system was reasonable and that there was just cause for the grievor’s dismissal.

On the basis of all these grounds, the grievance is rejected.

DATED AT TORONTO, June 12, 1985.