SHP 317



VIA Rail Canada Inc.


Brotherhood Railway Carmen of Canda







There appeared on behalf of the Union:

J.R. Moore-Gough

A. Ciciarelli



There appeared on behalf of the Company:

K.A. Pride

R. Wesley

E. Salem

R. De Freitas


A hearing in this matter was held in



This matter concerns the assessment of 10 demerit marks against the record of Melbourne Brown.

Mr. Brown began his employment with Canadian National Railways on December 3, 1974. In June of 1985, when the Corporation assumed responsibility for the maintenance of passenger rail equipment, Mr. Brown transferred to VIA Rail as a Carman at the Toronto Maintenance Facility.

In mid-March of 1986, Mr. Brown developed tendonitis in his right elbow and was off work until April 1st of that year. When he returned to work, he was initially assigned to the tool crib, a light duty job normally reserved for employees who are seriously disabled. In early 1987, Mr. Brown was assigned to the rework shop where the job involved rebuilding air brake pistons, putting together air brake kits and replacing defective springs, valves and gaskets. This job was also considered to be light duty and was generally assigned to those with lifting restrictions.

In October of 1989, general management in the Equipment Maintenance Department became concerned about a high degree of absenteeism among the workforce and a review of attendance at the Toronto Maintenance Centre revealed an absenteeism rate of 14%. Management then reviewed individual attendance records and, in Mr. Brown's case, this review indicated that in 1988, he had been absent for a total of 107 days, resulting in an absenteeism rate of 44%. This included two extended periods of absence due to tendonitis for which Mr. Brown provided× × medical certificates and received weekly indemnity benefits. In 1989, Mr. Brown was absent on 34 occasions, resulting in an absenteeism rate of 14.1%. This included a two week period in July of 1989 when he was again absent due to tendonitis for which he provided a medical certificate and was in receipt of weekly indemnity benefits. In 1989, Mr. Brown also left work early on 13 occasions.

On December 6, 1989, Mr. Brown was called to an interview to investigate his "poor timekeeping during the month of November". In fact, he was absent on November 3rd, 17th and 22nd. When questioned about these absences during the investigation, Mr. Brown indicated that, on each occasion, he had been absent due to a flare-up of tendonitis and had rested his elbow as previously advised by his physicians. He also indicated that, in each instance, he had called in and informed his Supervisor that he was ill.

Following the investigation, on December 22, 1989, the Corporation assessed Mr. Brown 10 demerit marks for poor timekeeping during the month of November. A grievance was subsequently filed and the matter proceeded to arbitration.

It was the position of the Corporation that it had gone to considerable lengths to accommodate Mr. Brown's medical condition, including assignments to light duty in the tool crib and the rework shop. Despite this, however, the Corporation submitted that, in 1989, Mr. Brown's absenteeism was excessive. The Corporation further contended that the fact that Mr. Brown worked overtime on a number of occasions in 1989 was inconsistent with his claim that tendonitis prevented him from maintaining regular timekeeping practices. Furthermore, although Mr. Brown claimed that tendonitis was the cause of his absenteeism in November of 1989, the Corporation pointed out that he failed to provide any medical documentation to support this claim. The Corporation noted that such documentation had been provided on a number of other occasions. Finally, it was submitted that Mr. Brown had failed to properly inform his Supervisor of the nature of his illness and had made no inquiry as to whether other less demanding light duty work was available. In the result, the Corporation contended that the assessment of 10 demerit marks was fair and reasonable and was consistent with the penalties imposed in similar cases.

It was the submission of the Union that the assessment of 10 demerit marks was unwarranted because Mr. Brown was absent due to bona fide illness, namely, a flare-up of tendonitis. On each of the days in question, he remained at home and rested his elbow in accordance with his doctors' advice. The Union further contended that Mr. Brown could not be faulted for failing to provide a medical certificate during the investigation because the Corporation had not challenged the reason for his absences, nor requested that a certificate be provided. Moreover, it was submitted that Mr. Brown may have been assigned to the rework shop so that his absenteeism would have a less disruptive effect on the workforce. In any event, having taken no action previously, the Union contended that the Corporation had lulled Mr. Brown into a false sense of security by leading him to believe that his level of absenteeism was acceptable. Finally, the Union submitted that Mr. Brown had properly notified his Supervisor of each absence. Accordingly, there was no basis for the discipline imposed and the Union requested that the demerit marks removed from Mr. Brown's record.

I accept the submission of the Corporation that the assignment to light duty did not relieve Mr. Brown of the obligation to provide regular attendance at work. At the same time, this assignment cannot be construed as a guarantee of regular attendance and the fact of absence alone is not sufficient to warrant discipline. It is only if the absence is the result of blameworthy or culpable conduct on the part of the employee that discipline is appropriate. Absence due to illness is not a basis for discipline.

In this case, Mr. Brown has suffered from tendonitis since 1986 and from time to time, has been absent from work for this reason. The fact that he worked overtime on a number of occasions in 1989 is not, in itself, incompatible with his assertion that he was suffering from tendonitis on the days in question. On the contrary, Mr. Brown's ability to work at certain times while being disabled at other times appears quite consistent with the nature of his condition.

In cases of prolonged periods of absence, Mr. Brown has provided medical certificates in support of claims for weekly indemnity benefits. It does not appear, however, that medical documentation has commonly been provided for absences of short duration. In this context, it is not altogether surprising that Mr. Brown would not have brought a medical certificate to the investigation on December 6, 1989. More importantly, it does not appear that he was challenged with regard to his statement that he was absent on the three days in question as a result of a flare-up of tendonitis, nor was a medical certificate requested. In fact, there was nothing to contradict Mr. Brown's assertion that he was ill and, accordingly, there was no cause for discipline.

Although the Corporation also relied upon the fact that Mr. Brown did not inform his Supervisor of the nature of his illness upon his return to work, Mr. Brown stated at the investigation that he believed his Supervisor was aware of his condition. In any event, there was no indication that any further information was requested from Mr. Brown in this regard. Moreover, any question as to whether other light duty work was available is more appropriately considered in the context of innocent absenteeism whereas, in this case, the Corporation took the position that Mr. Brown's absences in November of 1989 were disciplinary. For the reasons set out, I find that the Corporation has failed to establish a proper basis for discipline and, accordingly, the grievance is allowed. The 10 demerit marks shall be removed from Mr. Brown's record and I remain seized for purposes of implementation of this award.

DATED AT TORONTO, this 17th day of September, 1990.

(sgd) J. H. Devlin