IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD RAILWAY CARMEN OF CANADA
AND IN THE MATTER OF GRIEVANCE OF D. TOOPE
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on July 25, 1988.
This is a grievance relating to the discharge of the grievor for accumulation of demerit points. The joint statement of facts and issue is as follows:
Mr. D. Toope, Coach Cleaner, Montreal Maintenance Centre (MMC) was assessed 25 demerit marks for allegedly sleeping on duty during his tour of duty commencing November 26, 1987. The 25 demerit marks, when added to his current discipline record, resulted in his accumulating 65 demerit marks. He was subsequently discharged from the service of the Corporation for accumulation of demerit marks.
During his tour of duty commencing on November 26, 1987, Mr. D. Toope and trio other employees were observed in a passenger coach, to which Mr. Toope was not assigned, allegedly asleep.
Mr. Toope attended an investigation into this incident on December 3, 1987, during which he admitted to being absent from his work location but denied being asleep. He was assessed 25 demerit marks for sleeping while on duty which when added to his current discipline, resulted in him accumulating 65 demerit marks and his subsequent discharge.
The Brotherhood appealed the discipline and requested that Mr. Toope be reinstated into service. The Corporation has declined the Brotherhood’s request.
The grievor, who was hired by the predecessor employer in February, 1979, was classified as a Coach Cleaner and worked on the 23:30 - 07:30 shift. At about 04:40 on the day in question, the grievor, along with two other employees, was found in a seat in a passenger car (to which he had not been assigned), apparently asleep. The grievor insists that he was not in fact sleeping, but there is no doubt that he had left his assigned work area and that he and the others were, at best, resting. They had not advised the foreman of their whereabouts and could not appropriately be said simply to be awaiting their next assignments. The foreman’s evidence is that the grievor had not completed the assignment he had previously been given.
The grievor was seen by two supervisors, Mr. Lechasseur and Mr. Frenière. Two other supervisors were on an adjoining track and apparently had the situation drawn to their attention. It does not appear that they in fact saw the grievor and the others asleep or resting, although there is no doubt that the employees were in fact at least resting in a car to which they had not been assigned.
The grievor maintained that Mr. Lechasseur (Mr. Manny, one of the other employees involved, referred in his evidence to Mr. Frenière), had come through the car a few minutes earlier and had said nothing. Mr. Lechasseur denies having been through the car before. It is not necessary to decide the point, since even if he had passed the apparently sleeping employees without saying anything, Mr. Lechasseur could not be said to have lulled them into a false sense of security or to have set some sort of trap for them. It would not be improper for him, finding employees in apparent violation of the rules, to seek someone else to verify his observations.
The grievor knew that sleeping on the job was an offence, having been disciplined for it on several occasions, one (still on his record) quite recent. The company had, in the past, allowed employees to sleep when their work was completed, but it had taken steps to change that practice, and both employees and supervisors had been disciplined for the offence. It was well known that sleeping on the job was not permitted, even when assigned work was completed. In the instant case, of course, there is doubt as to whether or not the grievor’s work was in fact completed. Even if it was, it would have been an offence to do what the grievor did, and there is no real doubt that in the circumstances there was just cause for the imposition of discipline.
As to the extent of the penalty, that is a matter to be considered in the light of the incident itself, the employee’s discipline record, and any other material considerations such as, in this case, the penalties meted out to the other employees involved in the same incident. In any case of sleeping, or of conduct equivalent to sleeping on the job, there is no doubt that a substantial penalty is appropriate. The grievor had been assessed 20 demerits for a similar offence some two months previous to the incident in question. His record stood at 40 demerits. In 1986, he had been disciplined on two occasions for absenteeism, and although he had, since that time, had a discipline-free year, and had recently received a commendation for good work and attendance, the fact remains that his accumulated record still stood at 40 demerits.
Having regard to the foregoing, and to the fact of the recent imposition of 20 demerits for a similar offence, I think it cannot be said that the assessment of 25 demerits in the instant case went beyond the range of reasonable disciplinary responses to the situation. The two other employees received somewhat different penalties. One, an employee of nine years’ service with a clear record, was assessed 20 demerits (subsequently removed on account of defects in the investigation procedure) . That was the same penalty which the grievor had received in October for a similar offence. The other employee, a junior employee with a bad record, was assessed 30 demerits. Whether or not the discipline assessed in those cases was proper is not a question before me. The variation between what was done in those cases and what was done in the grievor’s case is, however, a proper one, and is accounted for by the differences in the employees’ records.
It was alleged that the investigation was not proper and that the grievor was "framed". The investigation, however, appears to have been properly conducted: the grievor put forth his account of the matter, and acknowledged, (quite properly, from what appears on the record of the investigation), that he was satisfied with the manner in which it was conducted. While it was suggested that the grievor had a bad relationship with Mr. Frenière, there is no evidence as to any real basis for that, or to support the conclusion that both Mr. Frenière and Mr. Lechasseur have dishonestly plotted to get rid of him.
Having regard to all of the foregoing, I do not consider that this is a case in which it can properly be said that an excessive penalty was imposed. The grievor’s accumulated demerits exceeded 60, and he accordingly became subject to discipline under the system of discipline In effect. In fact, the grievor had been disciplined for the same serious offence on a number of occasions, and no special reason appears which might prevent the usual result in cases of excessive demerits. There was, I conclude, just cause for the discharge of the grievor.
For all of the foregoing reasons, the grievance is dismissed.
DATED AT TORONTO, this 4th day of August, 1988.
(signed) J. F. W. Weatherill