SHP – 193
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN
IN THE MATTER OF THE GRIEVANCE OF A. CLOUTIER
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
H. B. Butterworth
D. J. David
And on behalf of the Union:
A hearing in this matter was held at Montreal on January 21, 1986.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
As indicated on CP. Form 104, Carman A. Cloutier, employee No. 267432, Chapleau, Ontario, was dismissed from Company service for "reporting late for duty in an intoxicated condition and subsequently committing a physical assault on a Company officer, an act of insubordination, on August 16, 1985."
JOINT STATEMENT OF ISSUE
It is the Union’s position that Mr. A. Cloutier was unjustly dismissed and that he should be reinstated with all rights and benefits as provided in the Collective Agreement and that he be reimbursed for all lost wages. The Company declines the claim.
The grievor, who was hired by the company in 1976, worked as a Labourer, a Carman Helper and a Carman Trainee, being promoted to Carman on August 1, 1985.
The company had recently issued a Technological, Operational and Organizational Change notice affecting certain employees, including the grievor who was to be laid off on October 30, 1985. He would, however, have qualified for substantial job security benefits over a considerable period of time.
On August 16, 1985, the grievor was assigned to work as a Carman on the 0001 to 0800 shift at Chapleau Yard. He did not report to work until 0130, at which time, according to the grievor, his intention was to advise his supervisor that he would not work that night. This was because, as the grievor then realized, he was drunk and unable to carry out his duties.
From about 2200 on the 15th (he had been at the Legion hall before that time), the grievor had been at a local hotel, drinking heavily. This was, it appears, the first time the grievor had been drinking in many years. According to his statement, he consumed at least 26 ounces of rye before going to the yard. Although he stated that it was then his intention simply to advise the supervisor that he could not work that night, he also seems to have had the idea of performing some of the initial work of his shift. Whether, strictly speaking, he could be said to have "reported for duty" or not, it is quite clear that the grievor was late, and that he was in an intoxicated condition.
Were the grievor subject to Rule "G" of the Uniform Code of Operating Rules, it would seem clear that he would be subject to discharge for an offence of this nature. Such a severe penalty might not be imposed in other cases, depending on the circumstances and the employee’s record, but what was said in the Sylvester case between the same parties (October 9, 1985), may be borne in mind here:
Such an offence would, as a general matter, be grounds for discharge in the case of an employee involved in the operation of trains, and there is no very substantial distinction between such employees and those whose duties involve, as here, the inspection of trains. Quite apart from the dangers to himself which are inherent in the working environment, the potential risk of harm to others must be said to be very great.
The grievor’s offence on the evening in question was, however, compounded. He approached. or was approached by his supervisor and, in answer to a question, advised (wrongly), that he had been at work since 0100. When the supervisor told him that that was not so, the grievor struck the supervisor on the side of the face, and then hit him again, knocking him down. He then pinned the supervisor to the ground and struck him several times on the head. He then got up, tried to kick the supervisor. who avoided the blow, and ran off from the area.
The grievor states that he did not run away, but walked away and went to the lunch room, where he lay down and passed out. He also states that he is uncertain how the fight began, and that the supervisor may have hit him first. With respect to the extent that there is any conflict in this respect, I accept the testimony of the supervisor given at the hearing. It may be noted that the supervisor is a much smaller man than the grievor.
Assault on a supervisor is also, of course, an extremely serious offence. The supervisor had done nothing to provoke the assault and there were not, in this case, the sort of mitigating circumstances which led to a reduction of the penalty in the Burcevski case (November 12, 1982). Drunkenness is not, in my view, an excuse for an offence of this type. The assault was a serious one, and unprovoked. Having regard to all of the circumstances, it is my conclusion that there was just cause for the discharge of the grievor.
For all of the foregoing reasons, the grievance is dismissed.
DATED AT TORONTO, this 14th day of February, 1986.
(signed) J. F. W. Weatherill