SHP Ė 197

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF US & CANADA

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF L. DENNETT

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. Cameron

S. MacDougald

 

 

And on behalf of the Union:

S. A. Horodyski

B. Paradis

 

 

A hearing in this matter was held at Montreal on April 29, 1986.

 

 

AWARD

The grievor, who was employed as a Coach Cleaner at Vancouver Yard, was hired by the company on July 5, 1985. Her employment was terminated effective October 17 of that year. The Joint Statement of Issue in this matter is as follows:

Ms. Dennett was employed by the Company as a Coach Cleaner at the Vancouver Coach Yard on the 1500-2300 shift. On [12] October 1985 Ms. Dennett was given notice of being dispensed with during her probationary period effective with the end of her shift ran 17 October). In an effort to avoid being dispensed with, Ms. Dennett signed a form at approximately 1540 hours on 17 October resigning from the Company.

The Brotherhood contends that Ms. Dennett did not voluntarily resign from the Company and that she was improperly dispensed with by the Company. The Brotherhood requests that Ms. Dennett be reinstated with full compensation, benefits and seniority rights. The Company denies the Brotherhoodís contentions and has declined the Brotherhoodís request.

The grievor was, at all material times, a probationary employee, and was subject to Rule 23.1 of the collective agreement, which provides 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 company considered that the grievorís work performance was unsatisfactory, and consequently advised her that her services were being dispensed with at the conclusion of her shift on October 17. That is, there was cause which, in the companyís opinion, rendered the grievor undesirable for its service. Clearly, Rule 23.1 gives the company a discretion with respect to retaining probationary employees. When such an employee is let go, or "dispensed with", the company is not under an obligation to show, as in the case of a permanent employee, that there was just cause for the termination of employment. Under Rule 23.1, it is the companyís opinion which governs. Of course, the company may not act in an arbitrary or discriminatory manner, or in bad faith, in exercising its discretion. In the instant case, there is no evidence to suggest that the company acted in such a fashion.

Having given the grievor notice on October 12, the company allowed her to continue work until October 17. At the beginning of her shift on the last day the grievor, accompanied by her union representative, came to the office of the Car Foreman, to ask if she could be given another chance. There had been, to that point, no reason for the grievor to consider that the notice had been revoked. The answer to her request for another chance was negative. The grievor then asked if she might resign instead, and she was given the opportunity to discuss that with her union representative. She asked for the appropriate form, which she was given, and she filled it out and signed it. The grievor then left the property. It would appear that she did not perform her work for that day.

It was argued that the grievor was distraught and that her resignation was procured under duress. It may be, and it would be quite understandable, that the grievor was distraught. That is not to say, however, that the company had somehow placed her under duress, in order to force a resignation from her. The resignation, on the evidence, was the grievorís idea, since it would presumably not leave the sort of negative mark on her record which the fact of her having been dispensed with during the probationary period might do. It would appear to have been a matter of indifference to the company whether or not the grievor resigned, since the company was entitled, in the circumstances (the grievor being a probationary employee), to exercise its discretion not to retain her in its employ.

In any event, the grievor did not take prompt action to seek to withdraw her resignation. The grievance was filed on October 31, alleging that the resignation was procured under duress, and that there was no just cause for dismissal. As I have found, the resignation was not procured under duress but was voluntary. As I have also noted, in the case of termination of a probationary employee, the employer is not under any obligation to show just cause. The requirement of Rule 23.1 is that there be "cause which, in the opinion of the Company renders him undesirable for its service".

In the instant case there were a number of instances of clearly unsatisfactory work by the grievor and these, in the company s opinion - which was not exercised arbitrarily or in bad faith or in a manner which would unfairly discriminate against the grievor - rendered her undesirable for its service. It is immaterial whether or not these instances would constitute grounds for the imposition of discipline in the opinion of an arbitrator - although it may be noted that in some cases at least, they would - because the case is one in which the company is free to exercise its discretion (subject to the qualifications referred to, which are met in this case), not to retain a probationary employee.

It was argued that the grievor had not been given adequate training for her job. It appears, however, that the grievor was given similar training to that given others, and it does not appear that the grievor indicated a need for further training or that she did not understand her job. The instances of bad workmanship complained of are, to a large degree, instances of glaring omissions to perform work which obviously was to be done; the grievorís failure in that regard is not explained by any lack of training.

It was also argued that the grievor had incurred the enmity of certain fellow-employees by not joining them in certain charges against the company or other employees, and that these fellow-employees were sabotaging the grievorís work so that she would look bad. There is, however, no evidence to support this speculation, and there appears to have been no timely suggestion by the grievor, with respect to the uncompleted work for which she was criticized, that she had in fact completed the work, and that there was some ground to think that others had then dirtied-up the areas which she had cleaned.

It was further argued that a verbal reprimand issued to the grievor in September, 1985, was not justified. That matter is not really in issue in this case and the company does not rely on it. In any event, it is clear that the quality of the grievorís overall work, and her attendance, was such that the company was entitled to come to the conclusion, as it did, that it did not desire to retain her as a permanent employee.

In the circumstances, the company was not in violation of Rule 23.1 in dispensing with the grievorís services. It acted within the scope of its discretion under that article. It did, however, permit the grievor to resign, in accordance with her understandable request in that regard. That resignation was, I find, effective, and the grievorís record should continue to show that she left the companyís service by reason of resignation.

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

 

DATED AT TORONTO, this 22nd Day of May, 1986.

 

(signed) J. F. W. Weatherill