IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
Canadian Division Brotherhood of Railway Carmen of the United States and Canada
IN THE MATTER OF THE GRIEVANCE of K. WOZNEY
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 February 24, 1987.
The Dispute and Joint Statement of Issue in this matter are as follows.
Appeal of 20 demerits assessed the personal record of Carman Apprentice K. Wozney of Calder Yard, Edmonton, Alberta, resulting in his discharge for accumulation of demerit marks.
JOINT STATEMENT OF ISSUE:
On July 23, 1986 Carman Apprentice K. Wozney attended an investigation concerning his timekeeping. On August 6, 1986 his record was assessed with 20 demerits for continued poor timekeeping. This increased his current discipline record to 70 demerits. On August 6, 1986 he was advised that he was discharged for accumulation of demerits.
The Brotherhood contends that the discipline assessed was unwarranted and that Carman Apprentice Wozney should not have been discharged. The Brotherhood contends that the absences were unavoidable, that the grievor called in on each occasion, and the absences should not be considered in assessing discipline because of the provisions of Rule 16.1 of Agreement 12.35.
The Brotherhood also contends that Carman Apprentice Wozney did not receive a fair and impartial hearing because he was asked to explain absences and lateness over a period of three months. The Brotherhood requests that the 20 demerits be removed and Carman Apprentice Wozney be returned to service with his full seniority rights and with payment of all wages and benefits lost.
The Company denies the Brotherhood’s contentions and has declined the Brotherhood’s request.
Rule 16.1 of the collective agreement deals with the matter of absence from work, and imposes an obligation on the employee to give timely advice of absence to his foreman. In the case of the grievor’s absences (although not, it seems, in the case of his latenesses), notice was given. The Company does not allege that the grievor was in violation of his obligation under Rule 16.1.
The Union, however, alleges that the Company was in violation of its obligation under that article, which is not to discriminate against an employee "unavoidably kept from work". There is no evidence in support of that allegation. It has not been shown that the Company treated the grievor’s case differently from any similar cases, or that it sought to punish him for absence which was in fact unavoidable. Rule 16.1 does not prevent the imposition of discipline in cases where improper absence or lateness is established. The question is whether or not there was just cause for discipline of the grievor on that account in the instant case.
Although it is not referred to in the Joint Statement, the Union argued at the hearing that the Company was in violation of Rule 28.2 which requires the Company to give proper notice of investigations. It was contended that the incidents which were the subject matter of the investigation occurred too far back in the past to properly be the subject of investigation, and that the grievor could not properly be expected to respond to questions in respect of them. It may be that in some cases the Company waits too long to investigate incidents which might be the subject of discipline. There is no limit set out in the collective agreement on the time within which disciplinary action may be taken, however, and in the instant case no timely objection was taken to the holding of the investigation – indeed, it was acknowledged that the grievor had been duly notified and was ready to proceed – and in fact the grievor could remember and did give answers in respect of the incidents in question. There was, I find, no violation of article 28 by the Company, although I do not consider that that question is properly before me in any event.
On the merits of the case, the material before me reveals that the grievor was absent from or late for work on some fifteen occasions during a four-month period. The grievor’s overall absence during his apprenticeship, it may be noted, would appear to be at the rate of approximately fifteen per cent.
On Saturday, April 12, 1986, the grievor called in sick and did not report for work. It was the grievor’s statement at the investigation that he had the flu, but that he did not go to the doctor. There is no indication that a doctor’s certificate had been requested at the time, and none to contradict or even cast in doubt the grievor’s statement. Absence due to illness is not cause for discipline.
On April 16, the grievor reported late for his regular assignment. He has no particular recollection of the matter, but considered that that would probably be due to his not having a vehicle. That of course is not a sufficient excuse for lateness, it being the employee’s responsibility to make arrangements to attend his work on time.
On April 20, the grievor reported to work late. He stated that he slept in because he had worked a "mutual" the night before, that is, he had exchanged shifts with another employee, whether for his own convenience or that of the other employee is not stated. The making of such arrangements is not improper, but it does not relieve an employee of the responsibility of carrying out his own assignment, and reporting for it on time. The grievor was subject to discipline in respect of his lateness on that occasion. The grievor, as he agreed, was late for work on April 24. He did not recall why, and had no excuse.
On May 2, the grievor called to say he was not well and would not be in to work, but subsequently called to say he would be in. He reported late. It would have been open to the Company to advise the grievor that he was not entitled to report late; it did not do so, and in the circumstances cannot properly discipline the grievor for late reporting.
On May 3, the grievor left work one and one-half hours early, as he was not feeling well. It does not appear that he left without giving notice, or contrary to instructions. Cause for discipline is not made out in respect of this incident.
On May 14, the grievor called in to say that he would not be at work. At the investigation, he stated that his girlfriend lost her baby that day, and that when he called in to advise of his absence, he left a number where he could be reached. In the circumstances, I do not consider that there was cause for discipline in respect of this incident.
On May 28 the grievor called in sick, and on May 29 he left shortly after reporting for work. The grievor stated that he had a swollen gland in his leg. On May 29, it appears that the grievor hoped for light duty, but none was available without a doctor’s certificate, which the grievor did not then have. At the hearing, the grievor produced a form of medical certificate in respect of his absence for the two days. While, on the material before me, it must be concluded that it has not been shown that the absence was unjustified, the grievor’s appearance at work, knowing he was not prepared to perform his regular duties and not having sought light duties in advance was improper and on that account, although not on account of the absence itself, some discipline was justified.
On June 7, the grievor reported late for work. He blamed this on his not having a vehicle. Such an explanation is not sufficient, as has been noted.
On June 12, the grievor called in sick. He could not recall why, and has not provided a sufficient explanation for his absence.
On June 15, the grievor was late. He gave as his excuse that he was "caught in rush hour downtown". Without more to show that the circumstances were unforeseeable and the delay substantial, this excuse is not sufficient.
On June 20, the grievor left work four hours early. He stated that he did so with permission from his foreman, and there is no denial of that. In those circumstances, there would be no ground for the imposition of discipline.
On June 29, the grievor called in sick. He would not disclose the nature of his illness but advised, at the investigation, that he could get a doctor’s certificate. He did not suggest that he had had medical treatment at the time. In the circumstances, it is my view that the grievor’s absence on that occasion has not been justified, and that there was cause for the imposition of discipline.
On July 10, the grievor reported for work late. He does not recall why.
On July 12, the grievor called in sick. At the hearing, he stated that he had been hurt, and he produced some form of doctor’s certificate. There is no evidence to contradict this.
From all of the foregoing, while not all of the grievor’s absences were cause for discipline, many of them were, as were virtually all the instances of lateness. On at least nine occasions, the grievor was subject to discipline. Even if it be thought that, since not all the incidents relied on by the Company have been shown to justify discipline, the penalty of twenty demerits should be reduced, it remains that a penalty of at least ten demerits would be appropriate, and that since the offences were ones for which the grievor had been repeatedly subject to discipline, some greater number of demerits than that would be justified. In any case the result would be that the grievor had accumulated at least sixty demerits and would be subject to discharge.
The grievor, who had something less that three years’ service, had been disciplined on many occasions in respect of his timekeeping. He was given a verbal reprimand on that account in May, 1984, and a written reprimand in August of that year. In September, 1984, he was given ten demerits, and in November, twenty. In October, 1985, he was assessed ten demerits and in November was interviewed, having accumulated forty demerits. In April, 1986, the grievor was assessed ten demerits for continued poor timekeeping. At the time of his investigation in April, the grievor avowed that in the future his timekeeping would be "Better than they have ever seen from me before". The grievor’s habits of lateness and frequently unjustified absence nevertheless continued, as appears from the evidence in this case. In my view, the Company was entitled, in all of the circumstances of this case, to conclude as well that the grievor was not displaying,the desire to learn his trade required by Rule 53.19(f) of the collective agreement.
There was, I find, just cause for the assessment of at least ten demerits on the grievor in respect of the incidents described above. As a result, the grievor’s accumulated demerits exceeded sixty, and he was subject to discharge. In my view, there was just cause for the Company to take that action.
For the foregoing reasons, the grievance must be dismissed.
DATED AT TORONTO, this 9th day of March, 1987.
(signed) J. F. W. Weatherill