BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

D. J. David

A. Y. de Montigny

And on behalf of the Union:

R. Laroche

A. Rosner

A hearing in this matter was held at Montreal on May 22, 1985.

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

The grievor, an Electrician, entered the service of the company in November, 1970. He was discharged for accumulation of demerits on April 9, 1984, and this grievance was filed on May 8, 1984.

At the beginning of the period of time material to this case, the grievor’s discipline record stood at twenty-five demerits. The record showed that five demerits had been assessed on May 19, 1983, for absenteeism; ten demerits had been assessed on June 30, 1983, for continuous absenteeism; and ten demerits had been assessed on January 27, 1984, for poor quality of workmanship.

On March 12, 1984, investigations were held in respect of charges that the grievor had been sleeping on the job on February 24 and on February 27. On March 28, 1984, the grievor was assessed ten demerits in respect of the first, and twenty demerits in respect of the second incident. No timely grievance was filed in respect of those discipline measures, and the record stands. In assessing the propriety of a discharge for accumulation of demerits however, an arbitrator is not strictly bound by the company’s system of discipline, and may consider the nature of a penalty previously imposed. In the instant case, I would agree with the union that the doubling of a disciplinary penalty in respect of a second offence, where the second discipline is imposed at the same time as the first is not, as a general matter, proper. In order to deal with the matter in terms of the company s discipline system, then (and it is my view that while I am not strictly bound by the system, it must be taken very seriously into account), I would consider the grievor’s record as properly standing at forty-five demerits, just prior to the culminating incidents.

The culminating incidents led to the imposition of a total of forty demerits on April 4, 1984. They all arise from an incident on February 28, 1984, when the grievor fell while at work and injured his knee. As a result, the grievor was off work, on Workers’ Compensation, for some time. The company contested the grievor’s right to Workers’ Compensation in the circumstances, but that issue was resolved by the Workers’ Compensation Board in the grievor’s favour.

The grievor appears to have slipped and injured his knee while crossing from the front of a diesel unit to one of the shop platforms. He was observed by some employees flying on the ground, and they advised the Assistant Foreman who saw the grievor lying on the floor, and went to get first aid. The evidence of the Assistant Foreman is that he then, out of the corner of his eye, saw the grievor move: he rolled over onto his hands and knees, and for a few seconds ground his left knee on the rough concrete platform. The Assistant Foreman then called the Assistant Manager, the First Aid Attendant and the Relieving Foreman on the radio.

The grievor, in a sworn statement, denies having made any such movement. The Assistant Foreman, in a sworn statement, attest to it, and such was his evidence at the hearing. I have no doubt as to the sincerity of the Assistant Foreman’s testimony, and from the whole of his evidence there is no substantial ground for doubt of its accuracy. If the Assistant Foreman’s account of his observations is accurate, the only probable conclusion to be drawn is that the grievor deliberately aggravated whatever injury he may have suffered. That of course would be improper, and would justify the imposition of discipline. The assessment of ten demerits would not be excessive for such an offence. That was the penalty assessed against the grievor on April 4 for his conduct on February 28, and in my view just cause for that penalty has been established.

The grievor was also charged with making an untrue statement with respect to his activities while he was off work due to his injury. In the course of a statement which he gave to the company’s claims department on March 7, 1984, the grievor had denied having given a hair cut to someone in his hair dressing shop, prior to March 6. It appears that in fact he had done so on March 2. Faced with evidence of this, the grievor then agreed that he had done so. It may be that the grievor had forgotten that incident, and it appears that he did eventually give a full account of the matter. I am not persuaded that the grievor was subject to discipline on this account, and accordingly I consider that the ten demerits assessed against the grievor should be removed.

Finally, the grievor was charged with failing to follow his doctor’s instructions with respect to staying off his injured leg. It is clear from the nature of the grievor’s activities at his hair dressing shop that he was not following his doctor’s directions in that respect. His prime responsibility in respect of his employment was to follow such instructions and return to work as quickly as he properly could. Instead of this, the grievor was involved in the operation of his own business. This was not proper, and the grievor was subject to discipline on that account. In all of the circumstances, I do not consider that the assessment of twenty demerits was excessive, but it may be noted that even if the penalty for that offence were reduced to one of ten demerits, it would not affect the result of this case.

It will be seen that with a record taken as forty-five demerits in respect of misconduct up to and including February 28, the grievor was then properly assessed thirty demerits for aggravating his injury and for not following his doctor’s orders when he ought to have been recuperating properly. The grievor had thus accumulated well in excess of sixty demerits. In my view there was just cause for the discharge of the grievor. Accordingly, the grievance is dismissed.

DATED AT TORONTO, this 5th day of June, 1985.