The grievance in this case was filed on April 9, 1991, at step 2 of the grievance procedure and contests the discharge of the Grievor, Mr. P. Goineau, for accumulation of seventy-five (75) demerit marks. The Board will reproduce at the outset the joint statement of issues and facts, which are as follows:

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The Grievor, at the time of the discharge, had been in the service of the Corporation since the month of July 1979. At the time of his dismissal he was classified as a machinist assigned to the 07:00-15:00 shift at the Montreal Maintenance Centre.

It is not disputed that on the morning of February 19, 1991, the Grievor, who had reported for work in the normal course at the commencement of his work shift at 7:00 A.M., was found asleep in the cab of locomotive unit 6905 at 09:40 hours, that is, ten minutes after termination of the break period. The evidence in this regard is to the effect that Mr. J. Bédard, shop foreman, noticed, through the side window of the locomotive during the course of a routine inspection, the Grievor and another employee asleep in the cab. Mr. Bédard then entered the cab and awakened both employees, indicating to them, amongst other things, that the time was 09:40 hours and that the break period was long since over.

A formal statement was given by the Grievor on February 21, 1991, within the context of the investigation into the incident which ensued. The Grievor readily acknowledged the incident and more particularly, that he had been discovered while asleep as alleged. While acknowledging that he was aware of the Corporation rule militating against such conduct and that the Corporation perceived such conduct most serious, he sought to excuse his behaviour by explaining that the state in which he was found resulted from drowsiness provoked by the taking of medication to alleviate pain associated with a knee injury. The particular medication identified was a non-prescription pain killer sold under the trade name "222" which the Grievor claimed he had been taking for knee pain that day.

The Corporation's position is that the Grievor was, or should have been, quite aware of the consequences of his action when he entered the cab of the locomotive in question and permitted himself to doze off. It extended little credence to the Grievor's assertion that the taking of the particular medication served to mitigate the gravity of the Grievor's actions. As far as it was concerned, the particular medication was not normally associated with sedative effects. It concluded in favour of assessment of twenty (20) demerit marks in response to the incident, which it pointed out was the standard response for the form of misconduct identified. According to the Corporation, the fact that the imposition of the assessment culminated in discharge was due to the Grievor's prior accumulation of demerit marks, which prior accumulation should have made it clear to the Grievor that his position as an employee of the Corporation was precarious and that nothing short of his best behaviour was called for.

The Corporation, in support of its decision, relied as well upon the Grievor's work record. The Grievor, by August 26, 1988, had accumulated forty-five (45) demerit marks for absenteeism. On that day a further incident of absenteeism, in effect a sixth like infraction within two years, occurred. The Grievor was, in consequence, subject to dismissal, but the Corporation limited the number of demerit marks for the incident to ten (10) in order to avoid the extreme measure of dismissal.

This lenient approach, the Corporation explained, would not seem to have produced the desired result. Only one month following the discipline, the Grievor was again disciplined for an absenteeism infraction and dismissed from service by reason of accumulation of demerit marks. Following Association appeals on his behalf, he was extended a "last chance" on February 19, 1990, and was reinstated at fifty-five (55) demerit marks. Shortly after reinstatement the Grievor, on February 25, 1990, was found to have damaged Corporation equipment, but the Corporation limited its response to a more "reprimand" so that the Grievor's record remained at fifty-five (55) demerit marks.

Referring to the Grievor's work record and the incidents calling for discipline that manifest themselves in such work record, the Corporation maintains that it had gone as far as it could be expected to go with the Grievor and that it has endured quite enough. It points out in this regard that the Grievor's work record is such that he would have been subject to dismissal on no less than three (3) occasions. On each occasion he was extended a chance, but to no avail.

It is not disputed that the Grievor dozed off while on duty and was discovered asleep. Nor is it disputed that such an infraction in the normal course is a serious matter. The imposition of twenty (20) demerit marks would appear to be in keeping with the norm for infractions of like nature. As well, barring special circumstances, the Corporation's standard has been that accumulation of demerit marks in excess of sixty (60) will subject an employee to dismissal. The only question which the grievance raises is whether the explanation for the incident offered by the Grievor was authentic and if it was, whether it constituted a mitigating factor sufficient to warrant intervention by the Board.

The evidence is to the effect that on July 29, 1990, the Grievor was injured in an automobile accident. As a result of the injury the Grievor was out of service until January 29, 1991, when he returned to work. The injury which he sustained in the accident was to his left knee and was an injury of some gravity. That the Grievor suffered such an injury and that he was inclined to suffer from pain in the left knee by reason of the injury went unchallenged. Nor was any issue taken with the fact that the Grievor had taken medication to alleviate pain on the day of the incident.

Despite the Corporation's belief that the particular medication consumed by the Grievor on the day in question would not normally be associated with sedative effects, the evidence established the contrary to be the case. It was shown to the Board's satisfaction that the medication in question can very well and commonly does carry with it sedative effects in the form of drowsiness.

The Grievor maintains that the fact of his falling asleep during the course of his work shift of February 19, 1991, was associated with consumption of medication taken to alleviate pain and there is nothing in the evidence to suggest that such was not the case. The Grievor's conduct can in no way be considered clandestine and his explanation was consistently maintained throughout. The Board accepts the Grievor's explanation that the taking of medication was associated with the fact of his falling asleep while on duty. This factor, as far as the Board is concerned, serves to mitigate the degree of gravity that should attach to the Grievor's conduct on the day in question. This is because the weight that would attach to the initial element of wilfulness under such a circumstance would be diminished considerably. There must be a marked contrast between the act of falling asleep while on duty in the normal course and the act of falling asleep while under the influence of medication associated with sedative effects taken for good reason, particularly in terms of the degree of culpability that must attach.

Thus, while it is true that the Grievor at the time of the incident stood in the position of an employee who had accumulated fifty-five (55) demerit marks and all that that implied, the misconduct imputed to him by reason of the mitigating factor of which the Board has spoken above does not reflect in sufficient measure, the degree of wilfulness and culpability that the penalty which the Corporation imposed is designed to address. Simply stated, the Grievor, by reason of such mitigating factor, should not in the Board's view have been assessed twenty (20) demerit marks for the incident. This was an unusual circumstance during which an employee fell asleep while under the influence of medication which carried with it a sedative effect. The Corporation would seem to have been under the impression that no such sedative effect was associated with the medication and it is quite conceivable that had it been aware of the true facts, that it may have responded differently. The Board does not believe that the Grievor can be, nor should he be, dismissed upon the basis of his past record alone. The fact that he may have been extended several "last chances" in the past cannot alter the fact that serious mitigating circumstances accompanied a culminating incident upon which the Corporation would have had to rely for the measure which it imposed.

The Board is not stating that the Grievor is blameless. He did fall asleep, albeit while under the influence of medication, but he did fall asleep while on duty nonetheless, knowing full well the gravity of such an indiscretion. What the Board is saying is that the seriousness of the Grievor's indiscretion is significantly diminished because mitigating circumstances. are present, circumstances which must impact not only upon the element of blame attributable to the Grievor as a result of the incident, but also upon the disciplinary response designed to address the incident.

For the foregoing reasons, it is the decision of the Board that the discharge of the Grievor be set aside, and that he be reinstated in his employment forthwith. There shall be no order for compensation and the Grievor's discipline record shall stand at fifty-five (55) demerits as at the date of his reinstatement.

DATED AT MONTREAL.