SHP 230

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF G. TEASDALE

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

A. Rosner

C. Robert

 

APPEARING FOR THE COMPANY:

A. Y. de Montigny

D. J. David

 

 

A hearing was held in this matter at Montreal on November 3, 1987.

 

 

 

AWARD

The grievor, who was hired by the company in September, 1978, as a Machinist Apprentice, and who was employed at the material times as a Machinist, was discharged on June 19, 1987, for accumulation of more than sixty demerit points.

The Joint Statement of Fact and Issue in the matter is as follows:

Statement of Fact:

On October 23, 1986, the grievor was assessed twenty (20) demerit marks for "piètre tenue de temps".

On October 24, 1986, the grievor was assessed ten (10) demerit marks for "travail exécuté ne correspondant pas aux spécifications".

On January 6, 1987, the grievor was assessed ten (10) demerit marks for "piètre tenue de temps".

On June 19, 1987, the grievor was assessed a further twenty (20) demerit marks for poor timekeeping. Combined with his prior record, this brought his total to 75, and he was dismissed.

Statement of Issue:

The Union contends that the discipline assessed in the in any event, both the extent of the discipline and the rate of its imposition were excessive and that the dismissal was thus unwarranted. The Union requests that the discipline be reduced accordingly and that the employee be reinstated with full restoration of compensation, rights and benefits.

The Company denies the Unionís claim.

 

The first of the matters before me relates to the assessment of twenty demerits for poor timekeeping during the period from August 8 to October 8, 1986. In that period the grievor was absent from work on several occasions without authorization and without giving notice to the company prior to the start of his shift, which began at 1530 hours.

The first of these occasions was August 8, when the grievor went to Quebec City on the occasion of the death of a cousin. While that may have been a circumstance in which leave would be granted, the grievor did not seek leave; he states that he called the company, collect, about fifteen minutes before the start of his shift. The expenses of the call were, not improperly, refused. Clearly, the grievor ought to have had more consideration for the employer, and ought to have made such a call earlier than he did. There was, I consider, some ground for the imposition of discipline in this.

The second incident was on September 3, 1986. On that occasion the grievor had gone fishing. He had trouble with the motor of his boat, and had to be towed. On his return, "Il était trop tard pour avoir líesprit a líouvrage". Again, the grievor failed in his responsibility to take reasonable precautions to ensure his prompt attendance at work.

The third occasion is similar. Then, the grievor got lost in the woods when he went back to retrieve a jacket which his wife had left behind. When he got out, "Il était déjà huit heures et vingt sans chemise et sans gibier". Clearly, the grievor had left his return to work to the last minute, and had quite obviously put attendance at work at high risk when he re-entered the woods to look for the jacket.

On none of these occasions was the grievorís explanation for his "no-show" sufficient, in my view. There was, I find, just cause for discipline of the grievor in respect of his poor timekeeping for the period August 8 Ė October 8, 1986.

At the time, the grievorís discipline record stood at 15 demerits, accumulated as follows: a warning for poor timekeeping during the period from August 16 to October 16, 1985; 5 demerits for poor timekeeping from January 3 to March 10, 1986; and 10 demerits for poor timekeeping, imposed on June 4, 1986. Prior to that, the grievorís record had been free of discipline since 1979. From the latter part of 1985, it appears that the grievorís attendance problems had been developing, and it was appropriate for the company to take a firm stand with respect to it, the present instance constituting the fourth disciplinary action within one year. In my view the imposition of twenty demerits, while severe, was not beyond the range of reasonable disciplinary responses to the situation. I find that there was just cause for the imposition of twenty demerits in this instance. As a result, the grievorís record then stood at 35 demerits.

The second matter before me involves an allegation of poor workmanship on October 9, 1986. On that occasion the grievor did fail to utilize the proper work method and tools to perform his work; he did not use the proper gauges to centre wheels properly nor did he measure the height for the dust-guard fit of each wheel.

Instead, he presumed that when the first wheel produced was correct, the remaining ones would be so as well. This was not the case, and a certain amount of scrap resulted. The grievor had not been on that particular job for long, and stated that he had followed the method he had been shown. The grievor is not to be automatically disbelieved on this. In my view, it is doubtful whether there was just cause for any discipline in these circumstances, but in any event the discipline imposed ought not to have been of a higher level than that of a warning. Accordingly, it is my award that the 10 demerits assessed the grievor in this instance be removed. The grievorís record, at this stage, remains at 35 demerits.

The third matter before me relates to the assessment of 10 demerits against the grievor on January 6, 1987, again for poor timekeeping. A statement was taken from the grievor in respect of eight occasions on which the grievor was late, one on which he called in as unavailable for work, and one on which he did not call in or report for work. Considering the statement given by the grievor, the company did not assess discipline in respect of two of the occasions of lateness. It did, however, take into account that the grievorís absences or latenesses appeared to occur in proximity to his days off. It is certainly not unreasonable to consider the pattern of an employeeís absenteeism, but on analysis, in the instant case the grievorís absences did not, as a rule, reveal any pattern of that sort.

The first of the occasions relied on by the company in respect of the period now under consideration was on October 16, 1086, when the grievor was two hours late for work as a result of going to help his brother get his car started. The grievor stated that his brotherís situation was not an urgent one, but that he felt that he owed it to him. That may be, but the grievor also owed a duty to the company, and in giving priority to his brotherís situation in a case where there was no urgent need for it, the grievor was in violation of his duty to his employer, and subject to discipline.

The second occasion was the following day, when the grievor was one-half hour late, having lain down and fallen asleep after taking two aspirins for a headache. No doubt the grievor ought to have set an alarm as a precaution. While the lateness was to some degree blameworthy, the incident would not in itself attract any significant disciplinary measure.

On October 20, 1986, the grievor was two hours late for work, as his pit bull had escaped from his yard, someone else apparently having left the gate open. I think it was proper for the grievor to ensure that the dog returned, although it is not clear that he advised the company that he would be late. Again, no substantial discipline would be called for in respect of this event.

On November 28, 1986, the grievor was thirty minutes late for work. He stated that the reason was that his route to work was blocked by an overturned oil truck, and that he had to make a lengthy detour. I see no reason not to believe the grievor as to this. While an employee should anticipate the possibility of normal traffic delays, so the "heavy traffic" is not usually a sufficient excuse for lateness, a serious accident may in some cases be a sufficient explanation, and that seems to have been the case here.

On October 22, 1986, the grievor was absent from work, although it appears he did call in. On that day, he discovered, at about the time he was to leave for work, that his car would not start, and required a new starter. The grievor lives a considerable distance from the shop, and it appears could not at that point have gotten to work in reasonable time using public transportation. He called to advise the company he would not be in, and spent most of the day obtaining and installing a starter for his car. In the circumstances, I do not consider that any substantial discipline was called for.

On December 16, 1986, the grievor did not report for work, nor did he call in. He had gone skiing with a friend and the friendís young daughter. The daughter became ill and had to be taken to a clinic; the friend, who was driving, was unable to drive the grievor home as planned. As a result, the grievor was unable to come to work. While, again, the intervening circumstance may have been out of the grievorís control, there does not appear to be any explanation for his failure at least to notify the company. Some minor disciplinary measure might have been justified in this respect.

For the matters described above, the grievor was assessed ten demerits. While, as I have indicated, in some instances no discipline was justified, there were, in the period referred to, several occasions for which some discipline might be imposed, and having regard to the grievorís record, the assessment of ten demerits, I find, was not excessive. At that point, then, the grievorís accumulated record stood at forty-five demerits.

On June 19, 1987, the grievor was assessed ten demerits for poor timekeeping during the period from April 27 to June 13. During that period it is alleged that the grievor did not show up for work on two occasions, booked off on three occasions, was late once, and called in sick once. The grievor stated that with respect to the two occasions said by the company to be "no shows", he had really booked off sick. Apart from that, however, the grievor gave no particular explanations for his absences or latenesses, giving rather the general explanation that he had been under considerable stress following his divorce, his wife making claims with respect to his children and seizing his wages. While such considerations may properly be taken into account in assessing the degree of any discipline which might be imposed, they do not relieve an employee, in a proper case, of the requirement of explaining absences. In the present case, the grievor did state that his "no-shows" were really occasions on which he booked off. He preferred not to give any further explanation, and stated that these were personal matters. I do not conclude on the material before me that the grievor was deliberately being insubordinate; there were certainly stressful elements in his life. It is to be remembered as well that the grievor had, in the past, a good record, and that his difficulties of attendance at work appear to have begun at about the time of his divorce. That does not, however, relieve the grievor of the need of explaining absences, and it is not enough simply to say that they are "personal". If he wishes to rely on them as justification for his conduct, then he will have to explain what they are, although there will of course be an obligation on the company, or an anyone who becomes privy to the employeeís personal affairs, to maintain their confidentiality.

In the instant case, while the grievor ought to have provided the company with explanations for the absences mentioned, his failure to provide other than a very general one ought not, in the particular circumstances of this case, to be held against him. While I consider that some discipline might have been imposed, the assessment of such substantial discipline as twenty demerits, especially where that would have the effect of putting the grievorís accumulated demerits beyond sixty and so subjecting him to discharge was, in my view, excessive. These were, I think, circumstances in which a period of suspension would have been appropriate, notwithstanding the general applicability of the Brown system used by the company.

In my view, the assessment of more than ten demerits was, in the circumstances of this particular case, excessive. Having regard to all of the foregoing, it is my award that the penalty assessed be reduced to one of ten demerits, so that the grievorís record stands at 55 demerits, and that the grievor accordingly be reinstated in employment forthwith, without loss of seniority. The grievor shall, however, be compensated in respect of any loss of earnings or other benefits only in respect of the period from and after September 19, 1987, so that he will, in effect, have served a three-month period of suspension.

DATED AT TORONTO, this 9th day of November, 1987.

(signed) J. F. W. Weatherill

Sole Arbitrator