SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on May 20, 1987.

The grievor, a Coach Cleaner, hired by the company in 1981 (although laid off and on leave of absence on several occasions since then), was discharged by the company on August 5, 1986. The Issue is whether or not he was discharged for just cause.

The Joint Statements of Fact and Issue in this matter are as follows:

On June 27, 1986, the grievor was at work on the 2400 – 0800 shift on the caboose track at Alyth Yard. His duties involved the cleaning and servicing of cabooses. At approximately 0330, the Car Foreman, Mr. Reine, was advised by an employee, an Electrician, that the grievor was asleep in one of the cabooses. Mr. Reine went to investigate, and it is his evidence that the grievor was indeed asleep in a caboose, with his boots off and a blanket rolled up under his head.

Mr. Reine awakened the grievor, and asked him if his work was done. The grievor replied to the effect that it was. It appears, on all of the evidence, that this was not the case. Mr. Reine then told the grievor to come with him to the caboose cleaners’ shack, There, when Mr. Reine attempted to discuss the work remaining to be done, the grievor addressed a number of profane and abusive remarks at him, grabbed his notebook from him, and later threw it across the room. From the employees’ statements given at the investigation of this matter, it would appear that these incidents were overheard by one and visually witnessed by another employee.

Mr. Reine directed the grievor to return to his work, and left the shack. A short while later, receiving a message that the grievor wished to see him, Mr. Reine went to the maintenance room, meeting the grievor just outside the adjoining cleaners’ room. Again, the grievor directed abuse at the foreman, and shoved him. Mr. Reine called by radio for the company police. At that point, the grievor swung at the foreman, knocking off his hard hat. Mr. Reine then went into the maintenance room, where there were other employees who had heard, but not visually observed, the incident. In reaching the conclusion to be set out below, however, I do not rely on any conclusions by those employees as to actually hearing a hard hat hit the ground. Shortly after the events described, the police arrived and the grievor was eventually escorted from the property.

The matter was not investigated with the promptness required by the collective agreement, and the grievor was held out of service without resolution of the matter for a period longer than that contemplated by the agreement. In that respect, however, company acknowledged its error, and the grievor has been compensated for the loss of earnings involved.

The grievor denies that he was sleeping on the job and denies having verbally abused or having physically attacked the foreman. His position is, in effect, that the whole affair was a plot by other employees who do not like him and have discriminated against him. The material before me does suggest that there was some animosity against the grievor on the part of other employees, and there is evidence of certain acts of improper discrimination against him by other employees, although not on the part of Mr. Reine, who was working with the grievor for the first time that evening. If indeed other employees have fabricated false accusations against the grievor in this case, then a very serious injustice has been committed, and it would be my view (subject to whatever particular considerations might arise in individual cases), that there would be cause for the discharge of persons who would engage in such a plot.

On the material before me, however, including the uncontradicted viva voce evidence of Mr. Reine, I find that the grievor was in fact asleep and did in fact abuse and assault his foreman, as Mr. Reine testified.

It has, I find, been established that there was just cause for the imposition of substantial discipline on the grievor in the circumstances. The grievor’s record shows that he had been assessed ten demerits for sleeping on the job in August, 1985. Be would be subject to a more substantial assessment of demerits in respect of the repetition of that offence in the instant case. He would also be subject to substantial discipline in respect of the repeated abuse of and unprovoked assault on the foreman on the evening in question.

The offences in question were very serious ones. The grievor was not a long-term employee, and his record was not clear. 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 15th day of June, 1987.

Arbitrator