SHP 356

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Brotherhood of Electrical Workers (System Council No.33)

Grievance re Discharge of R.W. Sesak of Transcona Main Shops, Winnipeg

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Frank Klamph System General Chairman, S.C. #33, IBEW

John J. Honer General Chairman, Prairie & Mountain Regions. S.C #33,

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

S. A. MacDougald Manager Labour Relations, Montreal

W. Gallant Equipment Officer, Motive Power, Transcona

M. Gendreau Assistant Superintendent. Manufacturing, Motive Power, Transcona

R. Hanson Coordinator Injury/Rehabilitation Project, Motive Power, Transcona

J. Watt Research Officer, Labour Relations, Montreal

P. J. Nicholson Coordinator, Special Projects, M.P. & C.E., Montreal

L. F. Caron System Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on December 5, 1991.

 

AWARD

This arbitration concerns the discharge of an employee for an alleged defrauding of the Company in respect of his claim of physical disability. The dispute and joint statement of issue, filed at the hearing, are as follows:

Dispute

Appeal of discharge effective July 5, 1991, of Electrician R.W. Sesak of Transcona Main Shops, Winnipeg, Manitoba.

Joint Statement of Issue

On July 4, 1991, Mr. Sesak provided an employee statement in connection with "the circumstances surrounding his absence from work for all or part of his regular assigned shifts from 26 February, 1991 to date". As a result of the investigation, on July 5, 1991, Mr. Sesak was "Dismissed for defrauding the Company with regards to your claim of disability while on Company payroll."

The Brotherhood contends that Mr. Sesak provided compelling evidence to invalidate the Company's allegation. The Brotherhood requests the reinstatement of Mr. Sesak with full seniority rights and with compensation for lost wages and benefits.

The Company denies the Brotherhood's contention and has declined its request.

***

Mr. Sesak, an employee of some 15 years' service, injured his back while on duty on October 20, 1990. Following a leave of absence during which he received Workers' Compensation benefits, he returned to work on February 26, 1991 to perform light duties in the AR10 repair area of the electric shop. Because of his complaints of pain and discomfort an accommodation was made whereby he was allowed to work four hours per day, between 08:00 and 12:00 hours, instead of his full eight hour tour of duty, while still being paid for a full eight hours. The amount of his work was increased to five hours per day as of March 4, 1991. After a brief assignment to the electric components arm he was returned to the AR10 area of the electrical shop on March 18, 1991. From that date to April 12, 1991 he worked four hour shifts, with occasional attempts to work longer hours. On April 24, 1991 his tour of duty was stepped up to six hour shifts, which was scheduled to continue until May 14, 1991. However, on May 6, 1991 the grievor claimed to have reinjured his back while changing his clothes. On May 7, 1991 the grievor did not report to work, and advised Mr. R. Hanson, the Coordinator of the Injury/Rehabilitation Project at Transcona Main Shops, that he was in pain and had made an appointment with a chiropractor.

At or about that time the Company became aware that Mr. Sesak had purchased an electrical and air conditioning business under the name of "Kilcona Electric" as of March 1, 1991. That information caused the Company to undertake a surveillance of the grievor through the agency of a private investigator.

Mr. Sesak continued to be absent from work. On May 15, 1991 he advised Mr. Hansen by telephone that he thought that he would be back to work on the 17th, stating however that his chiropractor was not certain that he should work for more than four hours per day. In fact the grievor did not report for work on the 17th, and did not call in. On that day he was observed by Mr. Hansen, as well as by an agent of the private investigation company, performing work in relation to his air conditioning company, loading and unloading materials from his company vehicle including some large and heavy objects.

Mr. Sesak finally returned to work on May 21, 1991 after an absence of some two weeks. He again indicated to Mr. Hansen. as well as to Mr. K. Cox, Senior Shop Supervisor of the electric shop, that his chiropractor suggested that he not work more than four hour shifts. No medical documentation in support of that assertion was presented. When the Company declined Mr. Sesak's request, he provided the Company with a Return to Work and Work Limitation Disability Form signed by his chiropractor on May 22, 1991. The grievor was then adamant that he could not return to full duties, indicating, among other things, that he experienced pain even when taking a step off a curb. He was then returned to partial duties. That arrangement continued until his removal from service on July 5, 1991.

The evidence presented by the Company, including video taped material taken during observations of Mr. Sesak's activities on May 17 and June 24, 1991 leave little doubt that the grievor spent substantial parts of his time away from work performing duties in the furtherance of his private business. His activities were physically demanding and generally inconsistent with the medical restrictions which he claimed made it impossible for him to perform other than restricted duties over a four hour period. The evidence discloses that during the period in question Mr. Sesak drove his company van to and from sources of material supplies, as well as to and from work sites. He was seen lifting and handling equipment and tools, and on at least one occasion doing work in relation to the installation of electrical conduit in a manner entirely inconsistent with his claim to be suffering from a serious back injury which prevented him from performing a full day's work for the Company, even though he was being paid accordingly.

On the basis of the material presented, the Arbitrator is compelled to the regrettable conclusion that Mr. Sesak misrepresented his physical condition to the Company for a substantial period of time between February and July of 1991, and continued to receive full pay over that period, while falsely claiming to be unable to perform a full day's work. The work which Mr. Sesak performed on his own behalf, or on behalf of his newly acquired business, particularly in May and June of 1991, was clearly incompatible with the claim of ongoing physical disability which he asserted.

The conduct of Mr. Sesak must, on the balance of probabilities, be characterized as a conscious and calculated attempt to mislead his employer. Such actions are clearly incompatible with the continuation of trust inherent in the employment relationship (See SHP Case #111; SHP Case 252; and CROA 2184). In the circumstances the grievor's actions rendered him liable to discharge and there are no mitigating circumstances disclosed which would suggest that that penalty was inappropriate.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 17th day of December, 1991.

(sgd) M. G. Picher

Arbitrator