SHP Ė 179

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific Limited

(the "Company")

AND

Canadian Council of Railway Shopcraft Employees and Allied Workers

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF G. BERNARD

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

A. de Montigny

D. J. David

 

And on behalf of the Union:

A. Rosner

A. Desmarais

 

 

A hearing in this matter was held at Montreal on June 10, 1985.

 

 

AWARD

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

JOINT STATEMENT OF FACT

On January 30, 1985, Mr. Gilles Bernard was dismissed from Company service for "repeated physical assaults against a security guard on duty without provocation and without valid reason".

JOINT STATEMENT OF ISSUE

The Union feels that Mr. Bernard was unjustly treated and is requesting that he be reinstated with full compensation. In any event, the Union considers that the discipline accorded was too severe a response.

The Company denies the claim.

There is no doubt that the grievor did assault a security guard. This occurred on January 23, 1985, shortly after noon, as the grievor was leaving the plant early in order to care for his wife and children.

The grievorís wife had undergone an operation that morning, and the grievor had promised to be at her side when she came out of the operation. He had been advised that morning that the operation was to begin an hour earlier than had been planned, but the grievor did not alter his plans, and secured a pass out for 12:00 as he had intended to do. While this may suggest that the grievorís intention to be with his wife when she came out of the operating room was rather vague (and indeed one would imagine that after a lengthy operation, she would spend some time in the recovery room), it is nevertheless the case that the grievorís wife was to undergo an operation that morning, and that that would be a matter of serious concern to the grievor.

Further, it was necessary for the grievor to return to his home at noon in order to prepare lunch for his young children, who always came home from school for their lunch. No other arrangements had been made.

The grievor was given a pass out on these quite legitimate grounds, and he went to the gate at noon. Another employee preceded him with a pass. The security guard let the other employee out before concerning himself with the grievor, whose car was parked in a different lot than that of the first employee. The grievor states that he advised the guard of his need for haste, but the guard denies that the grievor said anything about his children or his wife in the hospital at that point.

The guard proceeded ("tranquillement" and smiling, according to the grievor), to open the street gate of the parking lot where the grievorís car was. As the guard opened the gate (the grievor says he assisted in this manoeuvre, but the guard denies it), the grievor, who had already used abusive language to the guard, struck him in the face. The grievor says that this was an inadvertent reaction to the guardís arm having brushed past his own face as he was pushing the gate. The guard denies any such contact, and says that he was simply attacked by the grievor. The guard went at once to the gatehouse to report the matter to the police officer, and then returned to close and secure the gate before the grievor could drive out, so that he could be identified.

The grievor went to his car, and drove to the gate, which was then closed. According to his story, his car slid out of control, although other witnesses say that he ran into the gate. What subsequently occurred seem to have taken place outside the gate, on the sidewalk. The grievor got out of his car and picked up the mirrors and bumper which had been knocked off by the collision with the gate, and put them in his car. He then attacked the guard again, until he was restrained by the police officer and the Inspector.

The assault was a serious one, although the guardís injuries were relatively minor. The grievor subsequently pleaded guilty to a charge of assault, and was convicted and fined.

Any assault committed in a work-related situation is a serious industrial offence. Whether or not the guard was a "supervisor" (he was not), he was the representative of management and was carrying out his functions properly. He did nothing which could reasonably be considered to have provoked the grievorís attack; the grievor was no doubt agitated, but that would seem to be because he had not left himself enough time to meet his responsibilities. While the second assault may have taken place just off the company premises, the whole matter was quite clearly work-related, and the grievorís improper conduct was certainly proper cause for the imposition of discipline.

In the Burcevski case, between the same parties (November 15, 1982), it was held that an employee who had struck a supervisor be reinstated in employment, with a reduction in the number of demerits assessed, but without compensation. In that case the employee had struck a supervisor as a result of a "momentary flare-up, resulting largely from pent-up frustration and a sense of injustice which the supervisor appears to have done little to dissipate". In the instant case, the grievorís flare-up involved a repeated and serious assault, whose victim bore no responsibility for the excited state which may have touched it off. The offence in the instant case is, I think, a more serious one than that dealt with in the Burcevski case.

Having regard to all of the circumstances, it is my conclusion that there was just cause for the discharge of the grievor. The grievance is accordingly dismissed.

 

DATED AT TORONTO, this 9th day of July, 1985.

 

(signed) J. F. W. Weatherill