SHP 351

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

International Brotherhood of Electrical Workers

GRIEVANCE RE GILLES TESSIER, ELECTRICIAN, ANGUS SHOPS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Abe Rosner Executive Secretary, CCRSU

Ray Langstaff Assistant General Chairman, IBEW

Gilles Tessier Grievor

 

 

There appeared on behalf of the Company:

L. G. Winslow Labour Relations Officer, Montreal

A. Y. deMontigny Supervisor Personnel and Labour Relations, Montreal

C. Thibault Personnel Development Officer, Angus Shops

Dr. G. Farah Medical Consultant, Montreal

S. Gagné Supervisor, Angus Shops

 

A hearing in this matter was held in Montreal on July 3, 1991.

 

AWARD

This arbitration concerns a grievance in protest of the assessment of 20 demerits because of the grievor's purported absence from work, without notice and with no justification, for a one month period in the January and February of 1991. The Joint Statement filed by the parties at the hearing reads as follows:

Dispute:

A dispute between the International Brotherhood of Electrical Workers and CP Rail in the matter of a grievance of Gilles Tessier, Electrician, Angus Shops, Employee No. 239590.

Joint Statement of Fact:

From February 25 to March 10,1991, the grievor was held out of service in connection with an investigation into his absence from work from January 25 to February 25, 1991.

On April 19, 1991, the grievor was advised that his record had been assessed with twenty (20) demerits for "votre absence sans avis et non justifiée du 25 janvier au 25 février 1991".

Joint Statement of Issue:

The Union claims that the imposition of demerits fell outside the permitted time limits, and hence must be rescinded. In any event, the Union claims that the assessment of 20 demerits was unjustified having regard to the facts of the case. Moreover, the Union claims that there was no justification under the circumstances for holding the grievor out of service without pay for the above-mentioned period, and that this was tantamount to a disciplinary suspension. Finally, and in the alternative, the Union contends that the Company violated Rule 28.1 in holding the grievor out of service beyond the five-day period as provided in that rule, without consent of the General Chairman.

The Company denies all the Union contentions and claims.

***

The grievor, Mr. Gilles Tessier, has been employed by the Company since 1956, and at the time material to this grievance was an electrician in the maintenance department of Angus Shops in Montreal. It appears that his discipline record over his years of service is unblemished. It is common ground that Mr. Tessier has a chronic respiratory condition, described by his family physician as asthma. For some 17 years he has taken a period of absence on sick leave during the winter months, when his condition appears to be at its worst. These absences have been relatively lengthy, and have normally been in the order of four weeks.

On January 24,1991 the grievor advised his supervisor, Mr. Serge Gagné that he was feeling ill and would be leaving. It is Mr. Gagné's own evidence that he had the impression that the grievor would be off for some time, but he did not know how long. Nothing further in that regard was said by Mr. Tessier who left the shop during the course of his shift.

While there is some dispute as to when the grievor visited his doctor, it is clear that he did so either on January 24 or January 25. It is also not disputed that his doctor advised him to take a leave of absence. She was aware that he intended to travel to Santo Domingo for a period of rest, and did not advise against it. On January 26 he departed to Santo Domingo with his wife, returning February 23rd. By Mr. Tessier's own acknowledgment, however, he had no further communication with his supervisor, or any other Company officer, after his departure from work on the 24th. In other words, being well aware of the fact that he would be absent for a full month, he made no effort to so advise the Company, nor to provide them with any particulars of his illness and treatment.

Upon his return the Company assessed 20 demerits against the grievor on two grounds. Firstly, it alleges that he wrongly failed to advise the Company of his medical condition and the nature and extent of his absence from work. Secondly, it questions whether he was in fact ill so as to justify the leave of absence which he took.

The Union raises a preliminary issue with respect to the timeliness of the discipline assessed by the Company. In the arbitrator's view that objection cannot succeed on the specific facts of this case. It is common ground that the grievor's formal investigation was completed on March 6,1991, and that the decision to discipline was not communicated until April 19th. On the face of it, that lapse of 44 days exceeds the time limits provided for in the collective agreement. The record discloses, however, that the employer sought an extension of the time limits from the Union's officer, General Chairman Robert Laroche. Mr. Laroche, however, made no reply to the Company's request until the final day of the notice period provided for in the collective agreement, at which point he advised the Company that the Union would not agree to an extension of the time limits.

On the material filed, there is nothing to suggest that the Union was not in a position to respond immediately to the Company's request for an extension of the time limits. Moreover, the history of the parties indicates, without controversy, that an extension of time limits has never before been declined by the Union in such circumstances. It is implicit that parties are to act reasonably and fairly in dealing with such requests. On the whole, the Arbitrator is not satisfied that the Union can equitably rely on the lapse of the time limits of the circumstances of this case. If it were necessary, I would find that it is estopped from so doing.

This Union further protests the fact that Mr. Tessier was kept out of service for more than the five day period during the course of his investigation, as contemplated under the collective agreement. In the Arbitrator's view that position is well founded. While it seems that the Corporation's officers purported to require a longer period of suspension pending a medical opinion as to the grievor's fitness to return to work, it appears to the Arbitrator that it knew, or reasonably should have known that he was in fact able to return. This, is evidenced by a note from his own physician, Ms. Michelin Guilmain, indicating that he would be fit to return to work on February 25, 1991.

While the Company doubts that the grievor was so ill as to require the one month leave of absence which he took, there is no competent medical evidence before the Arbitrator from any physician who has directly examined or treated the grievor which would suggest otherwise. In the absence of any such evidence, I cannot conclude that Mr. Tessier's absence in January and February of 1991 was without medical justification. Given the regularity of his one month absences, and apparent trips to Santo Domingo on a virtual annual basis, the Company's concerns are understandable. This, however, is a matter for discussion between the Company and the grievor, which might include the Company's physician and the grievor's own physician, for the future.

On the second branch of the discipline, however, I am persuaded that the Company is correct. It is clear from the record before the Arbitrator that Mr. Tessier made no effort whatever to advise the Company of his departure from Canada and his eventual date of return to work, even though these were well known to him. It is plainly the obligation of any employee who suffers from an illness to keep his or her employer informed as to the state of the employee's fitness to work and the projected length of any absence due to illness when it is reasonably known. The grievor failed in that obligation and was, in my view, therefore deserving of discipline.

In the instant case there are, however, some mitigating factors to consider. Firstly, the grievor is an employee of extremely long service with no prior discipline. Secondly, the evidence discloses a regular pattern of annual absences at or about the same time of which his supervisors were reasonably aware. In the circumstances, therefore, I am satisfied that the assessment of 15 demerits would be more appropriate. That would serve to bring to Mr. Tessier's attention the importance at all times of advising the Company of his medical condition and the length of any expected absence.

For the foregoing reasons the grievance is allowed, in part. The grievor shall be compensated for all days held out of service in excess of five, and his record shall be corrected to reflect the assessment of 15 demerits for having failed to properly notify the Company of the nature and length of his absence in January and February of 1991. Any reference to his having been absent without good reason shall be expunged from his record.

DATED at Toronto this 22nd day of July, 1991.

(sgd) M. G. Picher

Arbitrator