BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. A. Cameron

And on behalf of the Union:

B. Paradis

A hearing in this matter was held at Montreal on December 18, 1985.

The grievor, who was hired by the company in September, 1978, was discharged on February 1, 1985, for accumulation of demerit marks. The grievor had then accumulated 75 demerits, having been assessed 20 demerits on January 21, 1985. That assessment is in issue in this case.

The Joint Statement of Issue is an follows:

At the investigation, the company requested the grievor’s explanation for his lateness or absence from work on some fifteen occasions during the period from October 23, 1984 to January 11, 1985. The company’s records showed that the grievor has been late 30 minutes on three occasions, one hour on four occasions and one hour and one-half on January 9. He had left work early on three occasions, by two, three and four hours respectively. He had been absent from work on four occasions.

The grievor had no particular explanation to offer for any of these latenesses, early leavings or absences. With respect to the latenesses, he said that he "got up late", "probably got up late" or that "either I got up late or my car wouldn’t start". These are not sufficient explanations for a series of significant latenesses over a relatively short period of time for an employee with a bad discipline record due to attendance problems. The grievor was, I find, subject to discipline on account of his repeated lateness.

The grievor either could not remember or said nothing at all with respect to the occasions when he left work early. It is not established, however, that these were cases in which the grievor left work early without permission (in which case he ought to have been disciplined promptly), and in my view where an employer has allowed an employee to leave without requiring justification or indicating that future leaves will not be granted without justification, it cannot thereafter discipline the employee for having left. In the instant case, grounds for discipline on this account have not been established.

As for his absences, the grievor said generally that "The days I didn’t come in, it’s because I didn’t feel well at all to come in, but I didn’t need to see a doctor". He also, however, made remarks as to each of the four absences during the period. For that of November 16, he "couldn’t say"; for that of December 24, he "probably didn’t feel well, but called"; for that of January 4, he "probably didn’t feel well" and for that of January 11, he "probably missed work to get my car fixed". He knew that he bad a very bad attendance and discipline record, and he had been interviewed about it. As well, he had "recently" been reprimanded by his foreman for time missed.

It was the union’s contention that all of the grievor’s problems, that is, his latenesses and absences were due to his continued suffering from the effects of an industrial accident which occurred in January, 1982, as a result of which the grievor had missed, in all, more than two years’ attendance at work.

There is no doubt that the grievor has suffered back pain as a result of the accident, and it may well be that such pain continues. The grievor may indeed suffer such recurrent pain from time to time and it would not be necessary in every case for him to seek medical attention. The grievor did not, however, raise that as an explanation for any of the latenesses, early leavings or absences for which he was disciplined. It is true that, with respect to certain of his absences, the grievor stated that he may not have felt well. It may be that on some of those occasions, he did not feel well on account of the effects of his injury. Depending on the degree of bad feeling, that would justify absence.

Such justification has not, however, been provided in this case, apart from the general proof that the grievor had an accident from which he still suffers at times.

With respect to his absence on December 24, 1984, the grievor stated that he "probably didn’t feel well", and the union argues (with respect to this and all absences and latenesses), that this was due to his back condition. With respect to the absence on January 11, 1985, the grievor stated that he "probably missed work to get my car fixed". Both occasions are dealt with in a doctor’s report dated February 2, 1985 (after the grievor’s discharge). The doctor states that after the grievor’s return to work in May or June 1984, he consulted with him several times by telephone, but that these consultations were not noted on the grievor’s record, with the exception of those of December 24, 1984 (when, according to the doctor’s report, the grievor suffered from gastritis), and January 11, 1985 (when he is said to have suffered from gastroenteritis). There is thus no suggestion in either the grievor’s own statement or in the subsequent doctor’s report that the grievor’s absences - and certainly not his latenesses were due to problems related to his accident.

For the foregoing reasons, I cannot find that there was justification for the grievor’s absences from work on the occasions referred to. From the nature of his responses, it is clear that the grievor was generally vague and, at the time, unconcerned about his attendance at work and his obligations to his employer. There was, I find, just cause for the imposition or discipline in respect of the absences referred to.

Accordingly, from all of the foregoing, there was cause for discipline, although not on account of leaving early. As this latter ground of discipline was not established, it may be that the discipline assessed should be reduced. Having regard to the circumstances and to the grievor’s record, it is my view that it would not properly be reduced to less than 15 demerits, but even if it were to be reduced to ten, the result would still be that the grievor’s discipline record would be in excess of 60 demerits, and that he would be subject to discharge.

The grievance in respect of the number of demerits assessed is, accordingly, allowed to the extent that the number of demerits is reduced from 20 to 15. The grievance in respect of the discharge of the grievor is, for all of the foregoing reasons, dismissed.

DATED AT TORONTO, this 13th day of January, 1986.