IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
THE CANADIAN DIVISION, BROTHERHOOD OF RAILWAY CARMEN OF THE UNITED STATES AND CANADA
IN THE MATTER OF THE GRIEVANCE of M. R. MULLALY
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
S. A. Horodyski
There appeared on behalf of the Company:
S. A. MacDougald
A hearing in this matter was held at Montreal on September 4, 1986.
The Joint Statement of Issue in this matter is as follows:
On December 13, 1985 carman Helper Mullaly was required to provide an employee statement concerning his timekeeping during pay periods 22 to 25 inclusive (October 18 to December 12, 1985). The Company subsequently assessed ten demerits to his record for poor timekeeping habits for pay periods 22 - 25 of 1985.
The Brotherhood contends that Carman Helper Mullaly was not properly notified of the investigation and that the investigation was not fair and impartial. The Brotherhood contends that the Company thereby violated Rules 28.1 and 28.2 and that the discipline should be removed.
The Brotherhood has appealed the assessment of discipline contending that Carman Helper Mullaly was unavoidably kept from work thereby fulfilling the requirements of Rule 16.1. The Brotherhood alleges that the Company has violated Rule 16.1 by discriminating against Carman Helper Mullaly. The Brotherhood requests the ten demerits be removed from Carman Helper Mullaly’s record. The Company disagrees and has declined the Brotherhood’s request.
The material before me indicates that the grievor was either absent, or late for work, on some twelve occasions during the period in question, being one of less than two months. On the first of these, October 21, 1985, the grievor was sick, and called in to notify the Company that he would be absent. At the time of the investigation into the grievor’s absences, the grievor could not recall the nature of his illness on October 21. It does not appear, however, that the grievor was challenged at the time with respect to his assertion that he was sick, or that any medical certificate was asked for in a timely fashion. Accordingly, I do not consider that the grievor’s being absent by reason of unchallenged illness, as to which notice of absence was given, can be relied on as a ground for discipline.
The second occasion relied on by the Company was October 26. On that occasion the grievor is said to have been absent from work without having given notice. The grievor stated that he had thought he had called in, but had no reason for the absence. The Company’s records do not indicate that any call was made. On all the material before me, it is my view that the grievor was absence without notice on that occasion, and that there was ground for discipline in that case.
The third occasion was November 9. On that occasion the grievor left work early, in order to drive his girlfriend’s daughter to the hospital. The Company gave him permission to leave early. That being the case, the incident can scarcely be relied on as a ground of discipline.
The fourth occasion was November 10. The grievor asserts that he was at home on account of a sprained knee on that day. The Company’s records show that the grievor did give notice of absence, and there is nothing to indicate that the excuse given was challenged, or that it was not true. The reason given would appear to be a sufficient excuse for not going to work, and no timely challenge having been raised, that absence would not be ground for discipline.
The fifth occasion was November 11. That was a statutory holiday, on which the grievor was not required to work. Absence on such a day (unless there had been a specific undertaking to work, of which there is no evidence here), cannot properly be a ground of discipline.
The sixth occasion was November 15. On that day, the grievor was some twenty-eight minutes late for work. His explanation was that that was due to mechanical problems with his car, and the grievor states that he called the Company to advise that he would be late. The Company records, however, do not indicate that such a call was made. Having regard to all the material before me, it is my conclusion that the grievor did not notify the Company he would be late – and that on that ground some discipline might be imposed – but that there was some excuse for being late to the extent he was.
The seventh occasion was November 19. On that day the grievor called in sick. He could not, at the time of the investigation, recall the nature of his illness, but as in the first and fourth instances, there appears to have been no timely challenge to the assertion of illness, and the grievor did call. There has not been shown to be grounds for discipline in such a case.
The eighth occasion was November 25. On that day the grievor arrived late for work (it seems that he had at first wrongly been considered to have been absent), although he called to say he would be late, on account of illness. This call, however, was itself late, although there was no timely challenge to the grievor’s statement that he was sick. In the circumstances, there would be some ground for discipline with respect to the grievor’s having called in late.
The ninth occasion was December 1. On that day the grievor was some thirteen minutes late, as a result of difficulty with the locks on his car, which had frozen after he washed the car the previous day. It does not appear that the grievor called in to advise that he would be late. This was, I think, a preventable delay, and one for which some discipline might be imposed, although the question would only arise in the case off an employee with a bad attendance record, as the grievor was.
The tenth occasion was December 2. On that day, the grievor asserts that he was sick with the flu. He also asserts that he called in and left a message that he would not be at work. As to the grievor’s illness, there appears once again to have been no timely challenge to that. I consider, however, that the grievor did not call in, or at least that he did not satisfy the obligation of notifying the Company. Some discipline might be imposed on that account.
The eleventh occasion was December 8, when the grievor reported for work one-half hour late, due to a doctor’s appointment. The grievor had not advised the Company that he had such an appointment, nor sought permission to be late. Clearly, he was subject to discipline on that account.
The twelfth occasion was December 9, when the grievor was one hour late reporting for work. He offered no explanation for this, did not phone in to advise he would be late, and indeed did not punch in upon arriving at work. Clearly, the grievor was subject to discipline in respect of that occasion.
Of the twelve instances relied on as grounds for discipline, five, in my view, involved no grounds for discipline at all, four were occasions for some criticism, although not to the full extent alleged, and three were clearly instances in which discipline might properly be imposed.
In most of these cases, the failure for which discipline is appropriate relates to the giving of notice of absence or lateness. Given a record of roughly half-a-dozen of such failures over a two-month period (which is what the grievor’s record comes to on the above analysis), the taking of some formal disciplinary action is warranted. In the case of an employee with a clear record, it would have been my view, had the whole of the allegations been established as grounds for discipline, that five demerits would have been justified in the case of an employee with a clear record.
Given that only about half of the allegations were substantiated as grounds for discipline, I would have considered that a written warning was appropriate.
In the instant case, the grievor has a very bad discipline record with respect to absenteeism and timekeeping. He was counselled in that respect in September and again in November, 1984. He was given ten demerits in December, 1984, and twenty demerits in February, 1985. In March, 1985, he was interviewed, and the fact that he had accumulated thirty demerits was stressed. In April, 1985, the grievor was counselled on account of sleeping on the job. In August he was assessed ten demerits on account of absenteeism, and in September he was again interviewed on account of the accumulation of forty demerits.
On such a record, had the Company’s allegations in the instant case been fully or substantially made out, I would agree that the assessment of ten demerits was entirely proper. That some assessment of demerits was called for is clear, but given the failure of so many of the Company’s allegations, it is my view that the full discipline assessed cannot stand. Accordingly, the penalty assessed will be reduced to one of five demerits. It was contended that the Company was in breach of Rule 16 of the collective agreement, which provides that the Company shall not discriminate against an employee unavoidably kept from work. The grievor was not the subject of any "discrimination" in the usual sense, but if the provision is to be read as providing that discipline shall not be imposed where employees are unavoidably absent, then the effect of what has been said above is, in those cases where it was not shown that the grievor’s absence was improper, to allow the grievance to that extent.
It was also contended that there had been a violation of Rules 28.1 and 28.2, relating to investigations. In my view, however, the investigation was fairly conducted, and the notice given the grievor was proper. The grievor was familiar with proceedings of that sort.
For all of the foregoing reasons, it is my award that the discipline assessed against the grievor be reduced from ten demerits to five.
DATED AT TORONTO, this 15th day of September, 1986.
(signed) J. F. W. Weatherill