SHP – 186
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
International Brotherhood of Electrical Workers
IN THE MATTER OF THE GRIEVANCE OF RONALD GUY
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
R. Lecavalier – Attorney
And on behalf of the Union:
And on behalf of the Grievor:
G. Paquette – Attorney
Hearings in this matter were held at Montreal on September 30 and November 12, 1985.
The grievor, an electrician hired by the Company on March 24, 1981, was dismissed on July 2, 1984 for the following reasons as stated in a letter of the same date:
As you did not demonstrate without a doubt that you had the qualifications that an employer may expect of an electrician, and furthermore, were given an extension of your probationary period, which proved ineffective, I have no alternative but to inform you that your services will no longer be required as of today, in accordance with Rule 23.1 of Collective Agreement 12.1.
Rule 23.1 of collective Agreement 12.1 reads as follows:
23.1 A new employee shall not be regarded as permanently employed until he has completed 65 working days cumulative service. In the meantime, unless removed for cause which, in the opinion of the Company renders him undesirable for its service, the employee shall accumulate seniority from the date he entered the classification in the craft, and shall be regarded as coming within the terms of this Agreement.
The grievor, therefore, was not truly a new employee. He was, however, in his probationary period, and came under Collective Agreement 12.1, due to certain previous events. From the date he was hired in March 1981, the employee worked as a building maintenance electrician at Company Headquarters. He came under Collective Agreement 12.12 and accumulated seniority in accordance with the provisions of that agreement. In July 1983, he was dismissed for certain incidents which are not now under dispute. The grievor filed a grievance in connection with his dismissal, and on February 7, 1894, during the second step of the grievance procedure, the grievance was settled by the two parties – the Company and the Union – with the approval, or at least the consent of the grievor.
The terms and conditions of the grievance settlement are described in a letter from the Company to the General (System) Chairman of the Union, Frank Klamph. This letter is signed by the Regional Vice-President of the Company, by Mr. Klamph (noting his agreement) and by the grievor. The terms and conditions of the settlement are as follows:
... it was agreed that Mr. Guy would be reinstated to the service of the Company under the following conditions:
a) He will retain his service date of March 24, 1981; he will not be paid for time out of service and such time will be considered as a suspension.
b) He will be placed on a position of Electrician in the Agreement 12.1 group, provided he meets the medical and trade qualification requirements that are demanded of electrician candidates. He will also be subject to the probationary period stipulated in Rule 23.1 of Agreement 12.1.
c) While working under Agreement 12.1 he will not be permitted to work within the Maintenance group nor at Central Station.
d) Mr. Guy’s case will be reviewed again after he has worked 12 months in the 12.1 group. The review will be to determine the possibility of his reinstatement into the Agreement 12.12 group with full seniority. To be considered in this review will be his work performance under Agreement 12.1 and a written report from his therapist as to the status of his problem. The written report will be subject to evaluation by the CN medical authorities who will decide whether Mr. Guy’s problem is under control and if he should be permitted to work in the H.Q. Building/Central Station complex.
Under this agreement, the grievor was assigned to work in the Pointe Saint-Charles Diesel Shop as of February 29, 1984. He continued to work as an electrician, but his duties were different, because station and building maintenance (under Collective Agreement 12.12) is not the same as the maintenance and repair of locomotives or cars as performed by employees governed by Collective Agreement 12.1. (Both agreements, it should be noted, involve the same parties, but different negotiating units.) The grievor kept his true seniority date, but in accordance with subparagraph (b) of his grievance settlement in connection with his dismissal, he was subject to the probationary period stipulated in Rule 23.1 of Collective Agreement 12.1.
According to said subparagraph (b) of the settlement, he also had to meet medical and trade requirements. It seems that he did meet the medical requirements, which are not part of this dispute. The reference to trade requirements enabled the Company to ensure that the grievor had the appropriate training and certification to work as an electrician under Collective Agreement 12.1. This again, is a point not now under dispute - the grievor had the necessary certification and took the appropriate courses for his work - which does not mean, however, that he met the standards of knowledge, efficiency and production that the Company requires of its shopcraft employees.
Therefore, during the first sixty five days that the grievor worked under Collective Agreement 12.1, the possibility existed that "the Company could dismiss him in relation to its standards." He was, with respect to this aspect of his work, in the same situation as a new employee. Dismissed during the probationary period, (which was extended by mutual agreement of the Company and the Union, with the note that "It is understood that during this period, Mr. Guy must show a marked improvement, quickly failing which, he will be released from service", the grievor was entitled to a grievance, but the question to determine, in contrast to an employee dismissed after completing his probationary period and acquiring seniority, is not one of a "just cause" - this onus is not imposed on the employer in the case of probationary employees. The question is rather to know if the employee met the employer’s standards, meaning reasonable standards of knowledge, efficiency, production and conduct (the last point is not under dispute in this case).
I would add that, in view of the circumstances surrounding this case, the arbitrator should consider, in particular, the soundness of the Company’s decision and should make sure that no irrelevant reasons are taken into account. In this respect, it is significant that most of the foremen and superintendents who evaluated the grievor during the probationary period were not aware of his history with the Company. There is no evidence of discrimination against him.
Regarding the employee’s knowledge, on February 10, before the grievor was assigned to his work, the Company, as normally is done, had him take a written test to evaluate his knowledge and his ability to read and understand electrical plans. The grievor did not achieve an acceptable result, and clearly failed the part or the test involving the reading of plans. He does not deny this poor result, but explains it by the fact that he was going through a divorce, and was not fit to take a test. While such situations are difficult, it does not explain why he did not pass a test on the basic elements of his trade.
On February 29, the grievor was assigned to the Diesel Shop. He worked there until April 23, when he was transferred to the LRC Shop, because of a shortage of work at the Diesel Shop. The work at the Diesel Shop, dealing with the electrical systems of locomotives, and direct current, was much different from that which the grievor was accustomed to. The evidence is clear that his work at the Diesel Shop was not up to standard. The Company witnessed several instances where the grievor was not able to complete simple jobs, even over an extended period of time. The management found that he put forth a minimum effort, and that he was neither enthusiastic (can be explained), or interested in learning (cannot be explained in view of the grievor’s situation).
On April 24, the grievor was assigned to the LRC Shop, but only stayed there for a brief period of time (until May 4) when he was assigned to the Pointe Saint-Charles Coach Yard. He stayed there until June 1. Appraisals of his work at the Coach Yard were not good.
On May 24, the grievor was interviewed by the General Foreman of the Coach Yard, who explained to him that the Company was not satisfied with his work, that he did not take enough care in his work, that he lacked initiative, that he always needed the help of a co-worker, that his judgement was doubtful, that he lacked self-assurance, that the quality of his work did not meet required standards and that his production fell short of that required. Under the circumstances, the Company was in a position to dismiss the grievor under Rule 23.1 of the Collective Agreement. Taking into account, however, that the grievor had worked in three different sectors during his sixty five day probationary period, and that he worked only a few days at the Coach Yard, the two parties - the Company and the Union - agreed to extend the training period by one to thirty days.
On June 2, the grievor was again transferred, returning to the LRC Shop. This time, he stayed there until July 2. His work, mostly inspection work, was not as difficult as his work at the Diesel Shop. He generally worked with a partner inspecting cars, each one taking a side. Certain employees testified in favour of the grievor, saying that he did his work as well as the others. This testimony, however, is based only on the recollections of a few work shifts, and is not as valid as a systematic appraisal. The employer alleged that certain employee’s complained about the grievor’s work and effort, but it does not have concrete proof of such allegations.
Because the recommendation was to dismiss the grievor after the sixty-five day period, and the probationary period was extended to give him a chance, the onus was obviously on the grievor to demonstrate that he was diligent, capable and assiduous. There is no evidence, however, of such an effort. To the contrary, while there was a lack of evidence for this last period, it could be seen that the grievor showed no interest in learning his work. It seemed that he was expecting to simply spend the twelve months mentioned in the settlement of his grievance before returning to his old position. The above-mentioned settlement did not in the least justify this notion. Conversely, the grievor, should have known that he was in a period of probation, and that this probation was based on his work at the time which had to meet the Company’s standards. In view of all the evidence, I find that the Company was right to conclude that the grievor did not meet these reasonable standards and that he should be dismissed during his probationary period. This conclusion, I believe, was neither arbitrary nor discriminatory.
For all these reasons, the grievance is rejected.
DATED AT TORONTO, this 28th day of November 1984.
(signed) J. F. W. Weatherill