SHP 300

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

Brotherhood Railway Carmen of Canda

re GRIEVANCE of G. BASTIEN - TEN DEMERITS FOR A FALSE STATEMENT TO THE COMPANY

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

B.R. McDonagh System General Chairman

L. Carozza General Chairman, Atlantic Region

 

 

There appeared on behalf of the Company:

D.J. David Labour Relations Officer, Montreal

A.Y. deMontigny Supervisor, Personnel and Labour Relations, Mechanical Department

C. Thibault Personnel Development Officer, Angus Shops

 

A hearing in this matter was held in Montreal on April 4, 1990.

 

AWARD

This is a grievance against the imposition of ten demerits for having made a false statement to the Company. The following Statement of Dispute and Joint Statement of Fact and Issue was filed at the hearing:

DISPUTE

Discipline assessed to Mr. G. Bastien, Angus Shops, Montreal, Quebec on February 19,1988.

JOINT STATEMENT OF FACT

On February 19, 1988, Carman Bastien's record was debited 10 demerit marks for:

Avoir fait une fausse déclaration le 16 décembre 1987. Antécédents: 25 Total à date: 35"

JOINT STATEMENT OF ISSUE

It is the position of the Brotherhood Railway Carmen that the Company has treated Carman G. Bastien in an unjust and excessive manner and has violated Rules nos. 283 and 16.1 of the collective agreement, therefore, the 10 demerits debited to Carman G. Bastien's record should be removed forthwith.

The Company denies the claim.

The material establishes that Mr. Bastien was absent from work from November 5 to November 16, 1987. Although he did not produce a medical certificate, he claimed that he was ill with gastroenteritis during that period. This was the explanation which the grievor gave to the Company during the course of an investigation conducted on December 16, 1987. It appears that the Company accepted the grievor's explanation and no discipline was assessed against him.

At the time of the investigation the Company did have other sources of information, however. On November 12, 1987 it had received a report from a private investigator hired by the Company to establish the grievor's whereabouts. The investigator advised the Personnel Development Officer at Angus Shops, Mr. C. Thibault that he had spoken with the grievor's daughter by telephone that day, pretending that he was taking a survey. He states that she then told him that her father was gone deer hunting and would not be back until Monday, November 16. As noted, this knowledge was in Mr. Thibault's possession when the Company conducted the investigation of the grievor on December 16, 1987 and purported to accept his explanation without assessing any discipline against him. Subsequently after obtaining a written statement from the private investigator several weeks later, the Company convened a separate investigation on January 25, 1988 alleging that the grievor had made a false statement at the earlier investigation of December 16.

The second investigation was in fact about the same subject matter as the first. If the Company wished to confront the grievor with the information obtained from the private investigator, it would appear to the Arbitrator that it was incumbent upon it to do so at the time of the initial investigation on December 16, 1987. In substance the attempt to re-open the investigation under the guise of disciplining the grievor for the separate charge of having made a false statement at his investigation is tantamount to investigating him twice for the same offence. The fact that he may have been absent from work without a valid excuse, and that he continued to conceal that fact during the investigation is, in my view, a continuation of a single disciplinary infraction. The Company knew that it had information contrary to the grievor's assertion at the time of the initial investigation. Notwithstanding that knowledge it purported to accept his explanation and exonerate him from any discipline. Having done so, in my view it cannot fairly re-open the disciplinary process under the guise of investigating him separately for a false statement made during his first investigation.

In the circumstances, and without making any finding of credibility as to the grievor's stated reasons for his absence in the period of November 5 to 16, 1987, the Arbitrator cannot find that the course of conduct pursued by the Company reflects a fair and impartial investigation of the type contemplated under Rule 28 of the collective agreement. Having accepted the grievor's first explanation for his absence, it is not open to the Company to subject him to a form of double jeopardy by engendering a second investigation about the truth of his statement. If the Company had rejected the truth of his statement, it was open to it to impose discipline in the first instance. Having failed to do so, it cannot fairly attempt to do so later.

Alternatively, if the second investigation were found to be proper, there is no direct evidence before the Arbitrator to discharge the onus of proof of which resides with the Company. The written report of the investigator, filed with the Arbitrator, is heresay evidence. Absent the direct testimony from the investigator at the hearing, there is nothing to rebut the contrary assertion of the grievor, who was present at the arbitration. On that separate basis, this grievance must succeed.

For the foregoing reasons the grievance is allowed. The ten demerits assessed against the grievor for having made a false declaration on December 16, 1987 shall be removed from his record forthwith.

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

(sgd) M. G. Picher

Arbitrator