SHP Ė 181

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF D. KYMANICK

 

 

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:

P. E. Perreault

E. Tandy

 

A hearing in this matter was held at Montreal on August 15, 1985.

 

 

AWARD

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

JOINT STATEMENT OF FACT

Carman Helper D. Kymanick, employed at Weston Shops, Winnipeg, Manitoba was sent the following letter on October 11, 1984:

"This letter is further to the investigation held October 10, 1984.

As a result of that investigation your record has been assessed with twenty (20) demerit marks. The addition of these demerit marks to your record now brings your discipline total to seventy demerits.

Therefore, effective immediately, your services with CP Rail are terminated and your record is closed for accumulation of over sixty demerit marks".

JOINT STATEMENT OF ISSUE

It is the Unionís contention that the dismissal of Mr. Kymanick is much too harsh and we feel that he should be reinstated with all rights and privileges and also that he be compensated for all time lost.

The Company denies the claim.

The twenty demerits referred to were imposed on the grievor for being away from his authorized place of work without permission on October 3, 1984. The questions to be determined are whether or not there was just cause for the imposition of that discipline and whether, consequently, there was just cause for the discharge of the grievor.

It was contended by the union that the discharge of the grievor was a separate and subsequent penalty for the same offence for which the twenty demerits had been imposed. Having taken disciplinary action in imposing the twenty demerits the company, it was argued, could not then properly impose a second penalty.

The principle relied on by the union - that there ought not to be two penalties for the same offence - is one with which I agree, and which is well established in the arbitration cases. In my view, however, this is not a case in which two penalties were imposed. The "twenty demerits" and the "discharge" are not, in the circumstances of this case, distinct; they are related aspects of the system of discipline in effect on the railway. Under that system, where sixty demerits are accumulated, the employee becomes subject to discharge. It is true that the company is not obliged to discharge an employee in such circumstances, and that in some cases employees are retained notwithstanding the accumulation of more than sixty demerits. Where, however, the assessment of demerits for some misconduct results in the accumulation of sixty demerits, it is an aspect of the system that the employee is then liable to be discharged. Until the decision is made either to discharge the employee or to continue him in employment notwithstanding the demerits accumulated, the disciplinary process has not been completed. Where, in such a case, the decision is made to discharge the employee, that decision cannot properly be said to involve the imposition of a second penalty. It is simply the application of a well-established system of progressive discipline.

On the material before me, it appears that the grievor was in fact away from his work place without permission and without having completed his assignment. The assignment involved certain painting work, and had been given the grievor instead of his regular work at his request, because of a back injury which he had sustained at home. The painting was being done in the Car Shop. The grievorís regular work was in the Hopper Shop, approximately five minutesí walk away, and the grievorís locker was located there.

The grievorís shift on the day in question ended at 24:00. His supervisor stated that he noticed the grievor was missing from the area in which he should have been working at 23:15, and that he did not see him until he returned to pick up his time card at 00:03. Another supervisor stated that he saw the grievor in the locker room area of the Hopper Shop at approximately 23:35. When questioned by his supervisor at 00:03, the grievor replied that he had put his paint away, cleaned up, and gone to the locker room to change. Given a five-minute allowance for clean-up time; given an additional five-minute allowance each way for the distance the grievor would have to walk between his work area and the locker room; and given further the fact that the grievor was in the locker room area at about 23:35 it is clear that, even granting these allowances, the grievor had stopped work well before he should have and had taken much more time than he needed to put away his materials and clean up. He did not have permission for this, and was subject to discipline on that account.

As the company acknowledges, a first offence of this nature would not be considered serious, and might warrant a written warning or at most a few demerits. The circumstances of the particular case are not as serious as those set out in the Eckert or Eagleton cases, where it was suggested that ten demerits would not have been excessive in the case of a first offence. In the instant case, had the offence been the grievorís first, a penalty of more than five demerits would, I think, have been excessive.

The grievor, however, had compiled a very bad disciplinary record since the time of his transfer to Weston Shops in August, 1982. He was assessed five demerits in September of that year for a safety infraction; twenty demerits in October for sleeping during his assignment and ten demerits in February, 1983, for failure to report an injury. On February 8, 1983, he was interviewed and given a verbal warning in respect of his safety record and his overall attitude towards his assignment. His record then stood at thirty-five demerits.

On June 6, 1983, the grievor was awarded five merit points for assisting a fellow employee. The effect of that was to reduce his discipline record to one of thirty demerits. On June 14 he was interviewed with respect to an "attendance problem", and with respect to his accumulated demerits.

On August 30, 1983, the grievor was assessed ten demerits for failure to carry out his assigned duties. Subsequently, however, on October 27, the ten demerits were removed, on the understanding that the grievor would improve his overall attitude and performance. He was reminded of his previous interviews, and warned that if the trend continued his employment would be terminated. On September 15, the grievor had been verbally warned about arguments with co-workers. At the end of October, his record stood at thirty demerits.

On November 1, 1983, the grievor was verbally warned in respect of a late return from his lunch break. He was reminded of the interview he had had on October 27. On January 30, 1984, the grievor was assessed ten demerits for chronic poor timekeeping. On February 8, he was assessed ten demerits for being away from his place of work without authorization. On August 21, he was verbally warned for his poor attendance record. He was interviewed on that day and advised that he was in a precarious position with respect to his employment, as his record stood at fifty-five demerits. Giving credit for the five merit points referred to above, however, it will be seen that the grievorís record was really one of fifty demerits.

During the period of just over two years preceding the incident in question. the grievor had been disciplined in one form or another on some eleven occasions. He had been interviewed several times, and made aware that his continued employment was in danger. Many of the of fences for which the grievor was disciplined were similar in nature to the one in the instant case. The offence was a repeated one, and it was proper to impose greater discipline than might have been justified for a first offence. In this particular case, I do not consider that the assessment of twenty demerits was excessive, but in any event it is clear to me that the imposition of ten demerits would have been amply justified, and the result, that is the accumulation of sixty demerits and consequent liability to discharge, would be the same.

For all of the foregoing reasons, it is my conclusion that the assessment of discipline on and the consequent discharge of the grievor were for just cause. Accordingly, the grievance is dismissed.

 

DATED AT TORONTO, this 4th day of September, 1985.

 

(signed) J. F. W. Weatherill