SHP 287

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

IN THE MATTER OF THE GRIEVANCE of K. CHESSER

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Tom Wood System General Chairman

 

 

There appeared on behalf of the Company:

D.A. Watson System Labour Relations Officer, Montreal

S.A MacDougald Manager, Labour Relations, Montreal

L.G. Tassone Shop Supervisor, Thornton Yard, P.J.Nicholson Coordinator, Special Projects, Montreal

 

 

A hearing in this matter was held at Montreal on January 4, 1990

 

DISPUTE

Appeal of 60 demerits assessed to the record of Carman K. Chesser of Vancouver, British Columbia, and his consequent discharge for accumulation of demerits.

JOINT STATEMENT OF ISSUE:

On June 3, 1988, Carman Chesser reported for an investigation in connection with his timekeeping record from February l, 1988, up to and including June 3, 1988. Following the investigation, the Company issued two CN forms 780 which resulted in Mr. Chesser's discharge. The reasons for the discipline and discharge read as follows:

1. Effective June 3, 1988 - 60 demerits: Twenty demerits assessed for poor timekeeping from February l, 1988 to March 24, 1988; twenty demerits assessed for failure to appear for an investigation on March 25, 1988; and, twenty demerits assessed for failure to advise his Supervisor of his whereabouts and health condition for the period March 26,1988 to June 3, 1988.

2. Effective June 22, 1988 Discharge for accumulation of demerits in excess of sixty.

The Brotherhood contends that Mr. Chesser was unavoidably kept from work as provided for by Rule 16.1 of Agreement 12.35 and the discipline assessed was unjust because Mr. Chesser was medically incapable of meeting is normal employment obligation during the period of absence. The Brotherhood requests that the discipline assessed be removed and that Carman Chesser be returned to service with full wages and benefits. The Company has declined the Brotherhood's request.

A W A R D

The grievor, who is an alcoholic, was discharged by the Company for various offences relating to his timekeeping, his failure to appear at a disciplinary investigation and his failure to advise the Company of his whereabouts in the period between March 26, 1988 and June 3, 1988, as related in the joint statement. The facts of the grievor's failure in respect of his obligation to the Company are not challenged by the Union. The only issue is whether there were mitigating circumstances, relating to the grievor's medical condition, which either justify what occurred or should be weighed in mitigation.

The grievor's original employment with the Company dates from June 21, 1973. He worked initially as a carman from that date until October 14, 1980. At that time his condition as an alcoholic caused serious attendance and timekeeping problems, resulting in an accumulation of more than sixty demerits, which culminated in his discharge. He then sought help from his local Employee Assistance Committee and admitted himself into a detoxification treatment centre. The grievor's efforts at rehabilitation were successful, and he was rehired by the Company on May 12, 1983. It is not disputed that his attendance and performance were without incident between May of 1983 and early 1987.

Mr. Chesser's alcoholism reasserted itself in 1987. In the period between February 5 and July 8 of that year he accumulated a total of fifty-five demerits for infractions relating to attendance: unauthorized absence, failure to notify the Company when he would be absent, and his failure to attend at an investigation meeting. On July 2, 1987, Mr. Chesser sought in-patient treatment at a detoxification centre and, again having achieved rehabilitation, returned to work on August 1, 1987.

In the period from February 1988 to June 1988 the grievor's attendance record deteriorated once again. He suffered extensive periods of absence in February, March, April and May. On a number of occasions he failed to notify his supervisors that he would not be at work, and in fact failed to respond to repeated telephone calls from his supervisor. On March 25, 1988 he failed to appear for a scheduled investigation, in consequence of which he was removed from service and notified by registered letter to contact his general car foreman. On March 29, 1988 the Company notified him, again by way of registered letter, that his discharge would be effective in ninety days if he should fail to respond. On May 26, 1988 the grievor advised his supervisor that he was fit to return to work, which he did until his discharge on June 22, following a disciplinary investigation held on June 3,1988.

The material before me establishes to my satisfaction that Mr. Chesser's problems of attendance and failure to communicate with his employer between February and June of 1988 are not alcohol related. There is no evidence whatsoever to rebut the grievor's assertion that he remained fully sober since July of 1987. Moreover, the record includes confirmation of that fact by his physician, as well as a bloodtest demonstrating him to have been alcohol free. It is also not disputed that he has been an active participant in support programs, including the regular meetings of Alcoholics Anonymous.

The medical condition causing the difficulty which the grievor had with attendance and reporting obligations in early 1988 is disclosed in a letter provided by his physician, dated September 12, 1989. That document reveals that from February through May of 1988 Mr. Chesser suffered from severe depression. His symptoms included irrational fear and paranoia, inability to sleep and eat, weight loss, bouts of crying, and a tendency to isolate himself in his home. The grievor's personal physician, Dr. Michael F. Madsen, who describes his condition as "severe acute depression, with features suggestive of a panic disorder" treated him continuously, and prescribed medication from April 7 through May 25, 1988. His report confirms that the grievor appeared to be recovered from his condition as of the end of May, 1988. He further advises that he has seen the grievor regularly since that time and has observed no symptoms suggestive of the recurrence of depression. Dr. Madsen concludes his report with the statement "there is no medical reason at present why he could not return to the work he was previously performing".

It is well established that innocent absenteeism may, in some circumstances, justify the termination of an employee. Where an employee's attendance demonstrates a chronic inability to conform to expected norms, and where there is no reason to believe that his or her attendance pattern will improve in the future, arbitrators have consistently sustained the right of the employer to consider the employment relationship as at an end. Where, however, it can be demonstrated that an employee's absences are the result of a specific cause, such as an illness, and that that cause has been brought under control and should, based on a competent medical prognosis, not be a problem in the future, different considerations may apply.

In my view the instant case falls into the latter category. The evidence plainly reveals that Mr. Chesser did not suffer a relapse related to his alcoholism. He was, apparently for the first time in his life, afflicted by an entirely different medical condition, severe acute depression. By his own unchallenged account this led him to shut himself into his own home and, for certain periods of time, to avoid contact with all others, even to the point of refusing to answer his telephone. The material reveals that the grievor sought help for this condition, was treated under medication by his family physician for a period of months, and became well again. The misfortune which befell the grievor in the period of February-May, 1988 is not unlike an absence which may have been caused by injury sustained in an automobile accident. As such an occurrence could have no relationship with his record of attendance problems in the past, it is, in my view, more difficult to resurrect that past to assert a continuing pattern as a justification for his termination for the events of 1988.

According to my understanding of the accepted jurisprudence, regard must be had to the specific facts of the grievor's case to determine whether there is a substantiated basis for a better prognosis as to his attendance in the future. The material before me, including competent medical opinion, suggests that in Mr. Chesser's case there is.

On the other hand, the Company has valid concerns. Firstly, the grievor does have a negative prior record in respect of attendance, albeit it relates to a separate medical problem. Secondly, the grievor failed, over a substantial period of time, to provide the Company an adequate explanation as to the medical cause for his extended absences in the period February through May of 1988, even after he had obtained medical treatment. Up to the time of the investigation held by the Company on June 3, 1988 he provided the Company with only a cryptic note from his doctor stating that he had become depressed in early February. I am satisfied that in the circumstances, notwithstanding Mr. Chesser's medical condition, he did fail in his obligation to the Company, both during his illness and afterwards, to provided a sufficient explanation to justify his extensive absences. While I am satisfied that some discipline was appropriate, however, I am not persuaded that discharge is. By the same token, given the grievor's failure to adequately explain his case to the Company, at least until the arbitration stage, this does not appear to be an appropriate case for an order as to compensation. Lastly, any reinstatement of the grievor should be framed to protect the Company's legitimate interests, and be conditioned on his adhering to acceptable standards of attendance in the future.

For the foregoing reasons the grievance is allowed, in part. The grievor shall be reinstated into his position, without compensation and without loss of seniority, with his disciplinary record to stand at fifty-five demerits. Mr. Chesser's return to work will, however, be conditional upon his maintaining an attendance record at least equal to the average of other carmen in the bargaining unit at Vancouver for the period of two years following his reinstatement. Attendance comparisons may be based on any six month period. During that time should his attendance, for whatever reason, fall below the average the Company shall be justified in terminating Mr. Chesser's employment. For the purposes of clarity, the Arbitrator makes an additional directive. If the grievor's record was discipline free from August 31, 1987 until January 31, 1988, because of the medical cause of his problem thereafter, for the purposes of the calculation of demerits he should be considered as returning to work accredited with five months of discipline free service as at the date of his reinstatement.

It should be stressed that the conditions imposed are not intended as a negative reflection on the grievor, but are rather intended as a means of protecting the Company's legitimate interests. The Arbitrator is impressed with the control which Mr. Chesser has succeeded in asserting over his alcoholism, as well as his recovery from depression and accepts the optimistic prognosis of his personal physician with respect to his future employability. I am sure he will appreciate, in all of the circumstances, the importance of being regular in his attendance and providing adequate notice to his employer in the event of any absence.

DATED at Toronto this 17th day of January, 1990.

Michel G. Picher

Arbitrator