SHP Ė 190

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION BROTHERHOOD OF RAILWAY CARMEN

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF M. VALIQUETTE

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. A. Cameron

 

 

And on behalf of the Union:

S. A. Horodyski

 

 

 

A hearing in this matter was held at Montreal on January 21, 1986.

 

 

AWARD

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

DISPUTE:

Dismissal of Carman M. Valiquette, Pt. St. Charles Coach Yard, Montreal, Cue. February 11, 1985 for accumulation of demerit marks.

JOINT STATEMENT OF ISSUE:

Carman M. Valiquette was assessed 15 demerits on January 15, 1985, for unexplained absences from work between October 9 and December 30, 1984.

As a result of the assessment of 15 demerits to Carman M. Valiquette, he was discharged from the Companyís service for accumulation of demerits.

The Union appealed the assessment of the 15 demerits as too severe.

The Company has declined the Unionís contention.

The grievor was hired by the company in January, 1978 as a Coach Cleaner, and since then has worked as a Carman Helper, a Carman Trainee and, at the times material to this grievance, as a Carman.

The grievor was called to an investigation on January 15, 1985, in connection with time missed. He was asked to explain his absence or his leaving early on a number of occasions between October 9, 1984 and December 30 of that year.

On October 9, 1984, the grievor left work two hours early. It is not clear whether of not the grievor had permission to leave. If he had, no discipline would be proper. If he had not, the explanation given by the grievor at the investigation was that he had to rush to the hospital with his wife because she was having a miscarriage. This explanation does not appear to have been questioned, and it would be a sufficient explanation for the grievorís leaving early on that occasion (although not for his failure to get permission to leave, if there was such a failure). There was no cause for discipline in respect of that.

From October 12 to October 22, 1984, the grievor was away from work, and for at least part of that period the grievor was sick, apparently with bronchitis. The medical report indicates that he was seen by a doctor on October 13 and October 19. The grievor made no claim for weekly indemnity until his return to work, and from the material before me, the company was not advised of his illness until that time. Failure to advise the company of absence, even where the absence may be justified in itself, is proper cause for discipline, and the grievor was subject to discipline on that account.

On November 2, 1984 the grievor was absent from work. It does not appear that he had permission therefor, nor that he advised the company. At the investigation, he stated that it was due to his wifeís condition, but no support for that statement was provided. In any event there would appear to have been no excuse for failure to advise the company of any necessary absence. Discipline would be justified on that account.

On November 13, 1984, the grievor left work two hours early. Again, it has not been established that this was without permission, and the grievor gives as justification that it was on account of his wifeís condition. No cause for discipline has been established In respect of that absence.

On November 23 and 24, and on December 29 and 30, 1984, the grievor reported sick. On December 11 and 22, he was absent. The grievor produced a doctorís certificate (dated January 14, 1985), stating that on those days (as well as on November 13), the grievor had to look after his children at home, as his wife was four months pregnant and was showing signs of a miscarriage. The doctor subsequently stated, however, that he issued that certificate to oblige the patient. He had seen neither the grievor nor his wife on those occasions, and could not really make any valid certification as to the facts. The grievor later produced another certificate from another doctor (apparently his wifeís doctor), which was to precisely the same effect as the first, but the latter certificate, like the former, gives no indication of being based on any timely examination of the patient. In the circumstances, neither certificate can be said to have any probative value.

The grievor himself, it seems clear, was not sick on the days mentioned, although his wifeís condition might have justified his absence. There was no justification for the grievorís simply being absent. It was improper for him to report sick when he was not sick, and improper for him to be absent on those days when he did not report. Again, there was cause for the imposition of discipline in these circumstances.

Accordingly, while cause for the imposition of discipline in the cases where the grievor left work early has not been clearly established, cause for discipline has been established in the remainder of the instances, which constitute the bulk of those relied on. While some reduction in the number of demerits assessed might be considered appropriate where not all the grounds of discipline relied on have been established, those not established in this case would appear not to have been a major factor. It is difficult to say, in the circumstances of this case, that fifteen demerits was an excessive penalty; in any event, there was just cause for the assessment of at least ten demerits.

At the time of assessment of discipline in this case, the grievorís record stood at fifty demerits, assessed over five occasions in September, 1982, April and November, 1983 and January and July 1984. The grievor had been interviewed and written to with respect to his record, and knew that his employment would be in jeopardy if unjustified absenteeism or absence without notice continued. It did continue, and in the circumstances there was just cause for the grievorís discharge when he had accumulated sixty demerits.

For all of the foregoing reasons, the grievance is dismissed.

 

DATED AT TORONTO, this 10th day of February, 1986.

 

(signed) J. F. W. Weatherill