SHP 352

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

CAW-TCA CANADA, RAIL DIVISION,LOCAL 101

GRIEVANCE RE J.C BOUCHER

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

B.R. McDonagh President, System Local 101, Rail Division, CAW-TCA Canada

L. Carozza Vice-President, Atlantic Region, System Local 101, Rail Division, CAW-TCA Canada

 

 

There appeared on behalf of the Company:

J. J. Worral Assistant Supervisor, Labour Relations, IFS

L. G. Winslow Labour Relations Officer, Montreal

A. Meilleur Assistant Manager, St. Luc Diesel Shop (Witness)

 

A hearing in this matter was held in Montreal on September 4, 1991.

 

AWARD

At the hearing the following dispute and joint statement of facts and issue were filed:

Dispute:

Dismissal of Carman J.C. Boucher, St.Luc Yard, Montreal, Quebec.

Joint Statement of Facts:

On October 5, 1989, Carman J.C. Boucher's record was debited 40 demerits for: (as translated)

"... unauthorized absence from work and for not informing your immediate supervisor that you would be absent from your work on August 17, 1989 and August 23, 1989 at the Diesel Shop, St. Luc."

On October 5, 1989, Carman J.C Boucher was dismissed from service for: (as translated)

"... accumulation of demerit points.

Joint Statement of Issue:

It is the position of the Union that:

- the Company acted in an arbitrary and excessive manner with respect to the dismissal of Mr. Boucher.

- the Company discriminated against Mr. Boucher with respect to Rule 16.1 and its own absentee policy.

- the Company violated Rules 16.1 and 28.1.

Therefore, Carman J.C Boucher should be reinstated to employment forthwith, without loss of seniority, without loss of benefits and reimbursed for all time lost as provided for in Collective Agreement 52.1.

The Company denies claim

***

It is not disputed that Mr. Boucher was absent from work on both August 17, 1989 and August 23, 1989. In neither case did he advise the Company of his absence or obtain a prior authorization. The position of the Company is that the absences on those dates constitute a culminating incident which, in light of the grievor's record of poor timekeeping and prior accumulation of demerits, justified his termination.

It is difficult to dispute the Corporation's characterization of Mr. Boucher's prior record. At the time of his discharge be had 55 demerits. Between November of 1987 and the incident giving rise to his termination he was either cautioned or assessed demerits for poor timekeeping or unauthorized absences from work on five separate occasions, involving a substantial number of days. In the Arbitrator's view, on the face of the grievor's record, the Company was justified in concluding that his further failure to give notice of his absence on August 17 and 23, 1989 constituted just cause for the assessment of further demerits, and ultimately his termination However, as the arbitrator noted in CROA 1127, the doubling of demerits assessed is not an inherent aspect of the Brown system of discipline. In other words, 40 demerits may not be the appropriate measure of discipline in the circumstance. There could be little doubt, however, that an assessment of 10 or 20 demerits would be amply justified in the circumstances. On the face of the material before the Arbitrator, therefore the termination of Mr. Boucher's employment would appear to have been for just cause.

The issue then becomes whether there is reason for the Arbitrator to exercise his discretion to substitute a lesser degree of penalty. On a careful review of the evidence I am satisfied that there is. It emerged from evidence given by Mr. Boucher, in camera, that his absence of August 23,1989 was occasioned by a serious family problem for which be had previously received some formal counselling. I am satisfied, on the evidence before me, that the same difficulties contributed substantially to much of his previous difficulty with absenteeism and poor timekeeping. These facts were never disclosed to the Company, and it had no reason to apply compassionate considerations to Mr. Boucher's case, or to extend to him the kind of support which might be made available through the Employee Assistance Program In light of the facts disclosed at the arbitration, however, the grievor's chronic absenteeism is more fully explained, and the prospects for improvement in the future are better understood.

In the Arbitrator's view there are a number of mitigating factors which support the conclusion that a lesser penalty should be substituted. Firstly, the grievor is an employee of some 13 years whose attendance and timekeeping performance deteriorated in an uncharacteristic fashion over a two-year period between October of 1987 and October of 1989. Even within that time period, his attendance record did improve somewhat in the period immediately before the culminating incident. Most significantly, as noted above, the grievor's failure of attendance was, in substantial part, the result of serious emotional and family problems which he never communicated to his employer. In all of the circumstances the Arbitrator is satisfied that this is an appropriate case for a reinstatement, without compensation, and on conditions that will ultimately protect the interests of the Company.

For the foregoing reasons the Arbitrator directs that the grievor be reinstated into his employment, without compensation, and without loss of seniority. Mr. Boucher's reinstatement is conditional on his maintaining an attendant record equal to that of other carmen at his location over a period of two years. Should his attendance fall below the average of other employees in his bargaining unit, at his location, in any six-month period during that two years, his reinstatement shall be liable to termination at the discretion of the Company. Additionally, Mr. Boucher's reinstatement is conditional on his meeting with a representative of the Company's Employee Assistance Program to discuss the emotional and family problems which have impacted his attendance, and to follow any program of counselling which the EA officer and Mr. Boucher mutually determine to be appropriate.

The Arbitrator retains jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.

DATED at Toronto this 20th day of September, 1991.

(sgd) M. G. Picher

Arbitrator