IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD.
BROTHERHOOD OF RAILWAY CARMEN LODGE 99
GRIEVOR: DAVID RODOCKER
ARBITRATOR:Denis T. LaCharité
APPEARING FOR THE COMPANY:
APPEARING FOR THE UNION:
DATE OF THE HEARING: February 23 and 24, 1988
DATE OF AWARD: April 22, 1988
PLACE OF THE HEARING: Sheraton Landmark Hotel, Vancouver, B.C.
The parties agree I was properly constituted as an Arbitration Board under their Collective Agreement with jurisdiction to resolve the issues in dispute. There is agreement to the principles enunciated in the William Scott case:
The grievor, Mr. David Rodocker, is a Carman Helper in the North Vancouver car shop.
The following Union grievances are the subject matter in issue:
The Company stated in its opening address that there is:
Briefly stated, if the Company is to succeed I am asked to consider a certain course of conduct revealed by the Company evidence covering a period from 1984 to 1987 and to draw the conclusion the grievor has with male fides abused Rule 13.1 of the Collective Agreement. This states:
Rule 13 — Absence From Work
13.1 In case an employee is unavoidably kept from work, he will not be discriminated against. An employee detained from work on account of sickness or for any other good cause, must, if possible, advise the foreman in time so he can arrange for relief, and in all cases employees will make arrangements with the foreman to lay off.
Counsel for the Company argues vigorously that if I am to understand and uphold the discipline it is necessary to hear all of the evidence regarding the pattern of absenteeism of the grievor; that the evidence is crucial if I am to draw an inference and/or a conclusion from the circumstantial evidence put forth.
The Union, not surprisingly, takes the position that question 1 of the William Scott case should be addressed in isolation and only then, dependant on the answer, should the record of the grievor be introduced as evidence and given consideration. In conjunction with this the Union advances the doctrine of the culminating incident and in support adopts the language from Canadian Labour Arbitration (Brown and Beatty, pp. 371-375) which quotes in part:
It follows from the very definition of the doctrine that as a condition precedent to its invocation, an employer must affirmatively prove some final incident of misconduct which itself is deserving of some discipline however marginal …
Both Counsel agreed the onus was on the Company regarding the discipline grievances and on the Union in connection with the malicious persecution grievance. The parties agreed the three were intertwined to some degree.
I adopted the approach as set out in British Columbia Forest Products Ltd. (Delta Plywood Division) and International Woodworkers of America, Local I-357:
The issue raised in this case is whether it is appropriate for the arbitrator to pause at the threshold and make a decision or rather to carry on to hear the balance of the case having deferred a decision on the initial question.
There may be cases where the union’s approach is appropriate or even necessary. This is not one of them. Arbitration is supposed to be quick, informal and inexpensive. These qualities have become rather elusive in the British Columbia arbitration scene. In my view, it would have taken too long to complete the hearing in this case had I decided on the first issue, I would probably have wanted to reserve my decision for a period of reflection. Then if I found that the employer had made out its case on the first issue, the hearing would have to be rescheduled for a time likely to be months in the future. The risk of delay of a period much longer than that involved in my hearing on the whole case at once was simply not worth taking.
The problem of prejudice is not peculiar to culminating incident cases. Many are the cases where potentially damaging evidence is admitted conditionally or where evidence of perhaps trifling weight is received. The chance that arbitrators will blunder or be dishonest with the treatment of that evidence is not sufficiently great to justify taking a truncated approach to hearings.
The Arbitrator went on to hear all of the evidence.
An examination of the case itself. At issue is the apparent predilection of the grievor to avail himself of extra time off through the use of Rule 13.1
The Company called Mr. Gerry Sampson, Assistant Car Foreman at the North Vancouver car shop and Mr. Jim Riley, Car Foreman at the same location. They rely on one another’s judgement and are both convinced the grievor was not ill on July 2 and October 13, 1987. They referred to their knowledge of his past absences which appear, to a significant degree, to coincide with statutory holidays. This was buttressed during the hearing by Exhibit 10. This is a compilation of dates of the grievor’s absences from 1984 to 1987. Counsel for the Union objected to a number of the items on this list.
In conjunction with this evidence were several warning letters issued to the grievor basically telling him to "pull up his socks" as far as his poor timekeeping habits were concerned. In this case poor timekeeping habits were established as absences from work. Previous discipline had been imposed under the old Brown system, resulting in demerit marks placed on the grievor’s record. A total of sixty (60) incurred automatic dismissal and the grievor had accumulated fifty (50) demerits up to the period ending in 1985.
The Company’s train of thinking and the grievor’s conduct came into collision again on July 2 and again on October 13, 1987.
Both dates followed a statutory holiday. Mr. Sampson, acting foreman on May 2, 1987, incensed at the grievor’s absence the day before fielding his record in North Vancouver and after some thought issued a letter to the grievor suspending him for two working days effective July 4, 1987.
Mr. Sampson stated he ordinarily accepts it if someone is sick. In this instance Mr. Rodocker’s past record militated against him. As he stated, he (Rodocker) had been warned and talked to:
"[E]verything we had done, tried and said didn’t work, wasn’t working, so I thought I would give him two days off to think about it."
A letter received by the grievor dated January 27, 1987 and signed by Mr. Riley states:
Your attendance at work record for the last 5 weeks has left a lot to be desired. You booked off sick on December 30 and 31st, Tuesday and Friday, January 2nd, 1987 and requested 1 weeks annual vacation. This was granted and then you called again on January 9th, 1987 in the morning and requested another weeks annual vacation. This again was granted. You returned to work on Friday, January 16th, 1987 and worked the 16th, 17th, rest days, 18th, 19th, worked 20th, 21st, 22nd, 23rd and 24th. Today you called in sick with the flu following your two rest days.
I urge you to seek the help of a physician for a cure to your ‘on going’ illness and I will require an attending physician’s statement for this bout of flu and for all future maladies that occur.
Mr. Sampson’s evidence is that the grievor did not produce a doctor’s note on the date he was given the suspension letter. His recollection was the note was received on the day the grievance was filed. Under cross examination Mr. Sampson agreed he never asked the grievor the reason for this absence on July 2, 1987 although he was informed by Mr. Chuck McCarthy, Supervisor of Passenger Equipment, that Rodocker had phoned in sick on July 2. He admitted he did not talk to the grievor, did not phone his home, didn’t try to find out why David was (off) sick:
"I assumed he wanted an extra day off."
Mr. Riley’s evidence supported the action taken by Mr. Sampson. He had returned after vacation around July 6 and became aware of the letter of discipline on July 13 or 16 – the date that he thought the grievance was filed.
"… During the grievance procedure I received the doctor’s note but I had my doubts whether Rodocker was sick – he didn’t go to the doctor until the day after he was sick."
Mr. Riley made his position clear: he believes the grievor is usually sick before his days off or after his days off. As a result he started disbelieving over a period of approximately 2 years the validity of some of the grievor’s illnesses. What added fuel to this fire was a request by the grievor for a day off in conjunction with the long weekend in October. On denial of that request he recalls the grievor stating:
"I guess I can’t get a long weekend again."
All of these elements prompted Mr. Riley to refuse acceptance of Dr. Tam’s note as proof of illness.
Mr. Riley stated that if a person is sick he doesn’t usually question him but a person avoiding duty by saying he is sick when he is not guilty of poor timekeeping.
Mr. Riley did believe he could have Mr. Rodocker go to the B.C.R. doctor, or another doctor to obtain a more extensive medical report – but he had not asked Mr. Rodocker to do this.
Dr. Jefferies was called by the Company. Dr. Tam was called by the Union.
They both agreed as to symptoms that may accompany migraine headaches. This is the chief reason put forth by the grievor as a cause of his absences. The existence of this migraine condition was generally supported by the grievor’s wife, Mrs. Erica Rodocker and by Mr. George Crosby, Chairman of the Local Protective Board of Lodge 99 of the Brotherhood of Railway Carmen, (who is the grievor’s stepfather).
In argument Counsel for the Company summarized the evidence that the grievor had been disciplined or warned about his problem of absenteeism on five (5) previous occasion since the beginning of 1984 and that none of the discipline was either pursued or overturned by the grievance process. Further the grievor had never informed the Company that a chronic medical condition (migraine headaches) was responsible for his conduct. As well, doctors’ notes re the last two absences were obtained after the fact and make no reference to a migraine condition.
Counsel for the Union argues that the test must be:
Whether the employer has proven blameworthy conduct? Specifically has the Company proved the grievor was absent on July 2 and October 13, 1987 without a reasonable cause?
It is easy to see how the Company arrived at its conclusion. The grievor has over a significant period of time built up a record of absenteeism that coincides to a degree with his days off and/or statutory holidays. He accepted discipline for the majority of these absences without question. In fact in the letter dated January 27, 1987 Mr. Riley placed Mr. Rodocker on notice that a physician’s statement would be required for future maladies that occur.
Thus it appears the absences on July 2 and October 13, 1987 coinciding with statutory holidays were the "Straw(s) that broke the camel’s back" and under the new provisions of progressive discipline suspension was imposed.
The Company position is understandable. Mr. Riley and Mr. Sampson felt frustrated that all their efforts to curb the grievor’s apparent abuse of the sick leave clause were ineffective.
Did the grievor abuse the sick leave clause on May 2 and October 13, 1987? It is possible. I feel the grievor was less than candid. At this date he testifies that migraine headaches kept him from work on the days in question. He did follow the Company dictates and obtained a doctor’s statement for both absences. The July 3, 1987 note by the locum, Dr. Michael Shum, states that the symptoms related to him
"likely represent a mild case of gastroenteritis"
The testimony of Dr. Tam was the grievor had not mentioned suffering a migraine when he attended at his office on October 13, 1987. Dr. Tam was positive that the grievor did not complain of headaches on that day. As he stated he always writes the relevant symptoms and it would unlikely he would miss any.
In view of all of the above is there sufficient circumstantial evidence to uphold the discipline?
Counsel for the Company urges me to accept the reasoning in MacMillian Bloedel Limited, Harmac Division, and Pulp, Paper and Woodworkers of Canada, Local 8. In that case the Arbitrator upheld a discharge for theft based on circumstantial evidence.
Incorporated in the decision is language from Macdonald’s Consolidated Limited, BCLRB Decision No. L171/81. In its decision the Board states in relation to circumstantial evidence:
… direct evidence, in the legal sense, is not needed to sustain a discharge for theft. … where an employee has been discharged for activity that constitutes a criminal offence, as well as an industrial offence, caution in assessing the evidence of guilt is needed. However, that does not mean that circumstantial evidence – even circumstantial evidence alone – is an insufficient basis upon which to find the employee guilty. Even in criminal cases, where the offence must be proved beyond any reasonable doubt, a conviction can be based on circumstantial evidence. In the criminal arena, a conclusion of guilt may be founded upon circumstantial evidence if such evidence is both consistent with guilt and inconsistent with any other rational explanation (which, of course, is just another way of saying that guilt must be proved beyond any reasonable doubt). Certainly no higher standard of care is necessary in the civil setting of labour arbitration where a lesser burden of proof is required. (emphasis added)
In the end result the Arbitrator found:
The circumstantial evidence adduced in these proceedings is, in other words, consistent with the grievor’s involvement and participation in the theft of Company property. Indeed, the cumulative effect of the evidence as a whole is compelling. Although there may be other possible interpretations of the evidence, none is reasonably probable. The grievor’s explanation is not only improbable, it is highly improbable.
In view of the possibility for the potential for an injustice to result from an incorrect interpretation of circumstantial evidence it must be asked:
Is the grievor’s evidence inconsistent with any other rational explanation and although there may be other possible interpretations of the evidence, are none of them reasonably probable?
The grievor does have a record of migraine headaches; he did seek medical help and receive medication from Dr. Tam in the past for this malady therefore, in spite of the apparent lackadaisical approach to a pathological condition it is not improbable he continues to suffer from migraine headaches and its accompanying symptoms. It was drawn to Mr. Riley’s attention, which is acknowledged in Mr. Riley’s "memo to file" dated May 14, 1987.
Mrs. Erica Rodocker and Mr. Crosby were credible witnesses and support the conclusion that a migraine condition forms part of the grievor’s medical history.
I am also guided by the Rule in Hodge’s case, (1838), 2 Lew. cc 227, to the effect that to rely upon circumstantial evidence such evidence must be consistent only with the guilt of the accused and inconsistent with any other rational conclusion.
On the whole of the evidence this is not the situation in this case.
I have dealt with the circumstantial evidence aspect in isolation but there is another legal portcullis the Company must cross to be successful. The first question in the William Scott case is:
First, has the employee given just and reasonable cause for some form of discipline by the employer?
This principle coupled with the doctrine of the culminating incident have become deeply entrenched in labour law.
In this context the evidence is clear. The grievor fulfilled the requirement in Rule 13.1 of the Collective Agreement. He did phone the Company and report he was ill. Due to Company’s view of his past absences he was on notice he would be required to produce a doctor’s statement. He complied with this directive.
There was no stipulation as to when the doctor’s note be produced and/or what its contents must contain. Both Mr. Sampson and Mr. Riley agree that no steps were taken to determine if the grievor was in fact legitimately ill on the days in question.
It is interesting to note that the grievor, as well as Mr. Crosby, agreed the grievor would be prepared to undergo an independent medical legal examination, either by Dr. Jefferies, who appears to be known as the B.C.R.’s doctor, or another medical examiner. The Company has, at no time requested this avenue be pursued.
Counsel for the Union points out that there is no evidence that the grievor was not ill on July 2 and October 13, 1987. This is correct. And although one may view the grievor’s motives and conduct with a jaundiced eye I do not think I have the right to relax what is a sound principle of law.
The last Union grievance I address is for malicious persecution. The Union seeks a letter of apology if the grievance is successful. The basis of the grievance is the failure of Mr. G. Sampson to carry out a legitimate investigation in accordance with procedures designated to a Company Officer and in the failure of Mr. J. Riley in considering this matter to accept evidence on behalf of the grievor by Mr. Crosby, the Union Representative.
Having heard the evidence of Mr. Sampson and Mr. Riley as well as that of Mr. Rodocker it is evident there was no malice in either the commission or omission of any duties of these supervisory personnel.
The grievor admitted he had accepted both warnings and discipline without question in the past for poor timekeeping. He may now have belatedly realized his right to contest discipline through the grievance procedure but advertently or inadvertently he chose not to do so and led the Company to believe his behaviour was culpable.
The result was a sincere belief on the part of Mr. Sampson and Mr. Riley that the grievor not only was abusing Rule 13.1 but he was in agreement with them that there was abuse by accepting the warnings and discipline meted out to him on prior occasions for basically the same reason.
I cannot leave this area without commenting on the remedy requested and referring to and adopting the position taken in International Association of Machinists & Aerospace Workers, Lodge 2374, v. Glendale Recreational Vehicles (B. Wellington), June 8, 1987:
I find [the presence or absence of an apology] to be bizarre, antiquated and dangerously ethnocentric. The Company noted in this case that the grievor had not ‘apologized’ for what he did. The grievor is a proud man of Portuguese ancestry who now lives in North America. He must conform to many workplace rules and community standards. But it is unacceptable to me that the Company should demand that when he has violated a workplace rule and anticipates discipline, his reaction should be to imitate the behaviour of an miscreant English schoolboy who is required to mouth platitudes which he does not at all mean, but has been directed to utter by his mother. The grievor is an honest and grown man, not a craven toady who will say whatever some arcane set of rules deems appropriate. I deprecate the attitude implicit in the ‘apology’ factor noted above, I find it inappropriate to a workplace such as this, and I hope to see it disappear from consideration when serious labour-management problems involving adults are discussed. (emphasis added)
The last issue I deal with is the no evidence or non-suit motion put forth by Counsel for the Union at the close of the Company’s case. I was referred to The Law of Evidence in Civil Cases (Sopinka and Lederman). This tome at page 522 states:
If the plaintiff has failed to prove a prima facie case in his evidence in chief and the plaintiff’s brings a successful non-suit motion, then the plaintiff’s action will be dismissed.
In keeping with the adversary nature of the trial process, it is clear that a trial judge should not exercise this judicial until counsel so moves. When a plaintiff finishes tendering all of his evidence and has completed his case, defence counsel, if so disposed, may move for a non-suit on the ground that there is insufficient evidence to give rise to a reasonable inference in the plaintiff’s favour. The trial judge must then put defence counsel to his election as to whether he wishes to call evidence. If he elects to call no further evidence, the trial judge must then exercise his judicial function and assess the evidence for probative sufficiency. It is rare that a defendant’s counsel will elect to call no evidence if he has evidence to call because if the trial judge dismisses his motion for a non-suit, he is precluded from lending evidence for the purpose of raising his defence to the plaintiff’s case. Therefore, defendant’s counsel must be sure of his success on the motion for non-suit before making such an election. If defendant’s counsel desires to lead evidence, the trial judge will not decide the motion at that time, but, will reserve the motion until all the evidence in the case is adduced.
Counsel for the Union made the decision to call evidence and I reserved the motion until all the evidence was adduced. The absence of direct evidence is not the equivalent of any evidence and I find the testimony surrounding the July 2 and October 13, 1987 incidents, the dialogue and communications between Mr. Riley and the grievor, and the testimony of Mr. Sampson regarding the grievor’s anticipation and response to the letter of discipline given on July 3 sufficient to raise an inference that the grievor may have abused his right under Rule 13 of the Collective Agreement. I dismiss the motion.
In relation to the grievances arising out of the July 2, 1987 and October 13, 1987 incidents the grievor is entitled to four (4) days pay and any reference to these incidents are to be removed from his disciplinary record.
The third grievance regarding malicious persecution is dismissed.
Finally, I must conclude with the observation that the evidence shows the Company considers Mr. Rodocker a good worker and that there was no further absences from work from October 13, 1987 to the date of arbitration.
Dated at the City of Vancouver, Province of British Columbia, this 22nd day of April, 1988.
(signed) Denis T. LaCharité