SHP Ė 184

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF F. R. GULLIVER

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. A. Cameron

 

 

And on behalf of the Union:

F. Klamph

 

 

A hearing in this matter was held at Montreal on November 13, 1985.

 

 

AWARD

The Dispute and Joint Statement of Issue in this matter are as follows:

DISPUTE

Dismissal of Electrician F.R. Gulliver, Newfoundland Dockyard, St. Johns, Newfoundland, for accumulation of demerit marks.

JOINT STATEMENT OF ISSUE

Electrician F.R. Gulliver was assessed 20 demerit marks effective November 30, 1984, account excessive late reporting, early quitting and being absent from work without permission on various occasions between 6 September 1984 and 30 November 1984.

As a result of the assessment of 20 demerit marks to Electrician Gulliver he was discharged from the Companyís service for accumulation of demerits.

The Union contends that the Company violated Rules 16.1, 28.1 and 28.3 of Agreement 12.1

The company contends that the above Rules were not violated.

On December 4, 1984, the grievor was required to attend an investigation in respect of his absence on November 30. The grievor, who was ill, did not report to work and did not call his supervisor (whom he knew not to be at the shop), nor seek to call another supervisor. Instead, he called another employee at work, some forty-five minutes after the shift started.

Clearly, the grievor was not in compliance with company regulations which, quite reasonably, required that employees unable to report for a scheduled shift must give sufficient advance notice to the supervisor so that relief may be arranged. It would appear that it was not the practice to arrange relief for the grievor when he was absent, but that is a matter for the company, and it was the grievorís obligation to give timely and proper notice when he was unable to report to work. He would have been subject to some discipline over this incident, although the incident alone would probably call for no more than a warning.

The company did not impose discipline in respect of that incident particularly, but rather took the occasion, as was proper, to review the grievorís attendance record for the period from September 6, being the date the grievor had returned to work following a layoff. That record was the subject of an investigation held on December 20, 1984. There is no doubt that on some twenty-five occasions during the fifty-five day period involved, the grievor lost time for one reason or another. In some cases, the reasons for absence were not blameworthy: in some cases the grievor was sick, and in some cases he left early with permission. If the company considered that the grievor was leaving early with permission too often, its recourse was not discipline rather the refusal, or the closer study of permission to leave early.

In other cases, however, the grievor was late, or obtained a pass to leave early without obtaining specific permission from his supervisor. On the occasions when he was late, the grievor would usually call in to say that he would be late. He indicated at the investigation that he considered he had permission to be late, since the supervisor would say "O.K.", when the grievor called. In those circumstances, however, "O.K." simply indicates an acknowledgement of the message, that the employee will not be at work on time, and is not necessarily an indication that the reasons given have been accepted as valid. At the investigation, the grievor gave a plausible explanation for many of his latenesses, but it is noteworthy that throughout the period in question the grievor was late by progressively longer periods of time.

The company referred to two occasions on which the grievor was absent without leave. One of these was November 30, which was the subject of the investigation above referred to and for which, as I have indicated, no very substantial discipline would be proper. The real offence there was not absence, since the evidence is that the grievor was sick, but rather that he did not report his absence in a proper and timely fashion. The other occasion was September 20. As to that, the grievor stated at his investigation that he had been sick on that day, having left work early with permission the previous days because he was sick. He stated that he had advised the company on September 20 that he would not be in, There is no evidence to the contrary. With respect to that day, just cause for discipline has not been shown.

On all of the evidence before me, I consider that the grievorís record of lateness and leaving early during the period in question would be cause for the imposition of some discipline. No substantial case of absence without leave has been established, however. While the grievorís latenesses were not necessarily accepted as being valid, it does not appear that he was advised at the time that the reasons he gave were not acceptable. Further, while in some cases the grievor would appear to have obtained a pass to leave early without any valid reasons, on most occasions when he left it was with permission, and in such cases no ground for discipline arose.

It is alleged that the company was in violation of articles 16.1, 28.1 and 28.3 in the circumstances. Article 16.1 deals with absence from work. It imposes an obligation on the company not to discriminate against an employee "unavoidably kept from work", and on the employee to give timely advise of absence to his foreman. In the instant case there is no evidence that the company discriminated against the grievor. It has not been shown that it treated his case differently from any similar cases, or that it sought to punish him for absence that was in fact unavoidable. The grievor, however, did not always meet his obligation under article 16.1. The only violation thereof in the instant case was by him.

Article 28.1 requires that an investigation be held before any discipline is imposed That rule was complied with in the instant case. Rule 28.3 calls for the prompt rendering of decisions in discipline cases, and provides that an employee shall not be held out of service unnecessarily pending the rendering of a decision. In the instant case, the grievor was held out of service following the investigation on December 20. He had not been held out of service following the investigation on December 4, nor do I consider it would have been proper to have done so. Even following that investigation, however, the grievor was late or left early on three occasions. His disciplinary record stood at 55 demerits. It was clear that discharge was a strong possibility and I do not consider that in those circumstances it was improper to hold him out of service.

There was, in the circumstances, no violation by the company of any of the procedural requirements of the collective agreement.

The grievorís record, as noted, stood at 55 demerits. The nature of the incidents giving rise to the various disciplinary actions which make up the record was discussed at the hearing, but the record speaks for itself, and beyond stating what discipline was imposed for what type of action, it is not proper for the parties to show either on the one hand that parts of the record were "undeserved or too severe", or on the other hand that past discipline was well deserved and not severe enough.

In the instant case, the grievor was assessed 10 demerits in September, 1982, 20 demerits in March, 1983, and 25 demerits in February 1984. In each case discipline was imposed for an offence relating to attendance. The grievorís seniority dates from May, 1977.

With respect to the offence or series of offences for which the grievor was investigated on December 4 and 20, 1984, I do not consider that there was justification for the imposition of twenty demerits. In most cases, the grievor has given an uncontradicted explanation for absence or lateness. In a few cases, such explanations may be regarded sceptically, but there was no timely request by the company for further justification or documentation, although there might well have been. In many cases, as noted, permission to leave was granted. The record as a whole appears to reveal an employee who is lax in respect of his obligation to report promptly and to put in a full dayís work. Some disciplinary action would be appropriate, based on the two investigations before me. Where the result of disciplinary action beyond that of a warning will be the employeeís discharge, however, the extent of the discipline imposed must be considered in that context. Indeed, the company has indicated that it considered suspension rather than the imposition of demerits in this case, for that reason. Since I do not consider that all of the grounds for discipline on which the company relied have been made out, it is my view that the discipline imposed must be reduced in this case.

In all of the circumstances, it is my award that the discipline imposed on the grievor in the instant case be reduced from 20 demerits to a warning, but that, while the grievor is to be reinstated in employment without loss of seniority, there is to be no compensation for loss of earnings prior to December 1, 1985. The grievorís discipline record as of that date will stand at 55 demerits.

DATED AT TORONTO, this 28th day of November, 1985.

(signed) J. F. W. Weatherill