BETWEEN

AND

The Hearings into this matter were held in Sydney, Nova Scotia on October 30, 1991, October 31, 1991, December 11, 1991, December 12, 1991, December 13, 1991, January 20, 1992 and March 9, 1992.

As stated in the above quote from Brown & Beatty, Canadian Labour Arbitration (3d), preliminary matters are raised at the commencement of the proceedings and before the merits or substantive issues are dealt with. Obviously, that is why they are called preliminary matters.

Mr. Rosner has taken the liberty of raising this "preliminary matter" at the very tail-end of this proceeding, after the hearings have been completed and all of the evidence has been taken. In his closing argument, which has been presented by way of written submission, he presents this "preliminary matter" for the first time.

Were it not for the most serious nature of this matter and the fact that all employee has been dismissed; coupled with the absence of any objection from counsel for the Corporation in the post hearing reply submission, I would dismiss it summarily.

The relevant section of Article 7 states:

The objection to the requirements of Article 7 is two-fold: First –That the effective decision to terminate was made before the investigation had begun and charges communicated to the Grievor. Second – The Grievor had not received 24 hours notice of the subject matter of the investigation.

Article 7 is divided into two parts. The first deals with the investigation and the second with discipline. The requirement for an investigation is triggered by 7(c) which prohibits an employee from being disciplined or dismissed until the charges against him have been investigated. The "investigation" is the "formal meeting" wherein the parties can address the charges and/or circumstances and proceed in accordance with the outcome. This formal investigation hearing does not preclude the activity of investigating. The substantive or operative section of the article is simply that there must be an investigation meeting or hearing before discipline is involved. The 24 hours' notice of time, place and subject matter is procedural in nature.

There is nothing in the wording to suggest that the procedural requirement of 24 hours notice is "mandatory" and non-compliance would be a bar to discipline; the language and content support no such conclusion.

Rather, the "investigation" meeting or hearing must be viewed as providing an opportunity (a) for the employer to address the circumstances which it considers will or may lead to discipline, and (b) for the employee(s) to respond. If the employee(s) is not given the 24 hours' notice of time, place and subject matter, it can be remedied by simply providing the proper notice. At best, failure to provide proper notice would result in a postponement of the "investigation" until the procedural requirements are complied with. It would not operate to bar an investigation meeting.

In the Grievor's case, he certainly knew that the subject matter was "serious" and that dismissal had been mentioned. In fact he was informed by the Union prior to May 31st that he was being dismissed. If there was any doubt about the "subject matter" or the Corporation's concerns, it would certainly have been clarified by the meeting of May 31st. Consequently when that meeting reconvened on June 3rd, all procedural requirements had been effected.

There was a further investigation meeting on June 17th; a meeting on June 26th in which opportunity was provided to rebut the allegation; and then the June 27th meeting in which the discipline was effected.

It must be concluded that the Corporation complied with the requirements of Article 7.

As to the question of when this decision to terminate was made, the evidence clearly establishes that it was not made until after the investigation and meetings. Whatever may have been expressed prior to May 31st there can be no doubt that the "investigation" did take place and the Grievor was not disciplined until it had concluded. If the Corporation had decided as a result of their own investigation and prior to the Article 7 requirements to dismiss the Grievor, they did not do so until the formal investigation hearings had been concluded. The requirement is that no employee be disciplined or dismissed until charges have been investigated. The Grievor was neither disciplined nor dismissed until June 27th which is after the investigation.

Accordingly, there has been no violation of Article 7. It is my conclusion that the requirements contained therein have been complied with by the Corporation.

This matter is brought to arbitration by the parties and involves the discharge of one Keith Nicoll, a machinist at the Corporation's Rail Centre operation. There were seven hearing days and ten witnesses called to give evidence.

The Grievor, Keith Nicoll, commenced employment with the Corporation in April 1975. Throughout the period of his employment he worked in maintenance and repair of the Corporation's rolling stock, most recently as a machinist at the Corporation's Rail Centre.

During the course of his employment the Grievor suffered a number of workplace injuries. In 1981 he sustained injuries to his knee which resulted in surgery being performed by Dr. Ray Englund, an orthopaedic surgeon in Halifax. In 1985 he reinjured the same knee while repairing locomotive jacks. While no surgery was required, the Grievor did go through a period of physiotherapy.

On August 24, 1989 the Grievor was again injured in the knee area while helping unload a mobile crane from a flat bed. He returned to work on July 26, 1990 and worked five (5) shifts before going on vacation. It was about this time that the Corporation was hit with an illegal work stoppage which lasted from August 13th to September 25th, 1990. The Grievor had a second knee operation in Halifax which was performed by Dr. Wm. Stanish, orthopaedic surgeon, on September 21, 1990. The Grievor had a tibial osteotomy – a realignment of the knee to prevent further deterioration. He has been medically assessed as having a permanent partial disability. He spent the next six months convalescing and taking physiotherapy and returned to work on April 1, 1991.

On Thursday, April 25th, the Grievor, of his own volition, left his place of work and the work site. The circumstances surrounding the Grievor's departure from work subsequent revelations were viewed with suspicion by the Corporation to such an extent that an investigation into the matter was commenced. An investigation meeting involving members of management, the Union, and the Grievor was conducted on May 31, 1991. A second investigation meeting was held on June 3rd and another an June 17, 1991. As a result the following letter, dated June 24, 1991, was communicated:

On June 26, 1991 a disciplinary hearing was conducted wherein the Grievor was given opportunity to respond to the charges. The next day, June 27th, at a follow-up meeting on the matter, the Corporation terminated the Grievor's employment. By letter dated that same date, the Grievor was advised by Al MacNeil, General Manager, Transportation and Coal Processing, that:

On July 2, 1991 a grievance was filed claiming unjust dismissal.

In support of its position on this matter the Corporation provided evidence as follows:

Regarding his reason for being off work the Grievor stated that he was off under doctor's orders not to work. As facts would subsequently show, this was not true. In fact, throughout the course of the investigation the Grievor was evasive, uncooperative, misleading and untruthful. The Corporation's concerns were not alleviated by this hearing (which was completed on June 3rd following an adjournment) and it concluded by Mr. MacIntyre advising that they would be continuing the investigation.

Simply put, the issue to be decided is whether or not the Corporation had just cause to dismiss the Grievor. While there is a certain lack of arbitral consensus on the context in which arbitrators assert jurisdiction over matters of discipline, there is agreement that where the propriety of a disciplinary sanction is questioned, there are two distinct but related issues which bear attention:

1. Has the Employer established just and reasonable cause for some form of discipline; and if so,

The parties have acknowledged that this matter is properly at the arbitration stage and that I was properly appointed and empowered to deal with the matter. By their submissions it is apparent that the parties further agree that the determination of whether or not just cause existed for the discipline imposed is neatly categorized in the grounds cited in the letter dated June 24, 1991. (see p. 2). These grounds will be accessed individually in the order in which they appear in that letter. However, it must be recognized that they do not exist in isolation but are, to greater and lessor degree, intertwined one with the other.

But before getting into the evidence and the determination of fact it must be stated that the Grievor was a most unreliable witness. Time and again he was evasive, uncooperative and steadfast in clinging to untenable positions despite overwhelming evidence to the contrary. Consequently in making determinations regarding facts, I have tended to accept the evidence of other witnesses when there is conflict with the Grievor's testimony, and to question the veracity of the Grievor's testimony when it is self-serving and unsupported.

On April 25th, 1991 the Grievor arrived for the 7 a.m. shift and by his own admission did absolutely nothing until 8:00 - 8:10 a.m. when he informed James Fletcher, lead hand filling in that day for Randy Townsend, that he wasn't feeling well and was going to see the nurse. He arrived back at his worksite between 11:00 - 11:30 a.m. and informed James Fletcher and Angus MacDonald, supervisor, that he had seen the nurse and was going home but first was going to see the Corporation's doctor. As to his condition he stated only that he wasn't feeling well. Angus MacDonald instructed the Grievor to let him know what was going on.

The Corporation Health Services Progress Report (Ex. 8g) indicate that he saw the nurse, D. Moore, at 08:15 a.m. of the morning of April 25, 1991 and complained of back pain and left knee pain. The nurse prescribed tablets of extra strength Tylenol and made an appointment with Dr. Cohen, the Corporation doctor.

Dr. Cohen saw the Grievor at approximately 11:30 a.m. that morning. In his opinion the Grievor's most significant medical problem was one of stress, anxiety and upset. He was tearful and extremely agitated. In Dr. Cohen's opinion the Grievor's condition was emotional (mental rather than physical) and was not work related. He advised the Grievor to see his own doctor. Unknown to Dr. Cohen, the Grievor had just come from seeing his own physician, Dr. Bruce Barrett.

I must conclude that the Grievor did have a valid reason for leaving work on April 25, 1991. Whether due to pain in his knee and/or back, or the emotional distress and anxiety displayed to both Dr. Cohen and Dr. Barrett, both bear witness to the Grievor's incapacity to work that particular day. In Dr. Barrett's opinion the symptoms of pain, distress and upset displayed by the Grievor that day were real – both the physical and non-physical. And even though Dr. Cohen did not believe that the Grievor's attendance in his office that day was related to his compensable permanent partial disability injury and surgery, he was distressed enough to feel he should be off work and that of itself Dr. Cohen accepts as reason.

The Grievor did not simply walk away from work. He informed the lead hand, who he was directly responsible to that day, as well as the Rail Centre Supervisor, Angus MacDonald. He saw the Corporation's nurse and the Corporation's doctor. Whatever the root of his problem, it had clearly manifested itself in an incapacity to remain at work. The reasons for his "feeling sick" or "not feeling well" can be left to the medical professionals, who in this case both agree that he was not well, albeit for different reasons.

But the Grievor continued to remain off work. According to the Corporation they were never apprised of his situation.

The Grievor claims he phoned Angus MacDonald, Supervisor, the following day (April 26th) and informed him that the doctor had advised him to be off work. There is nothing to support this assertion nor does Angus MacDonald remember ever receiving any such call. What is known is that no doctor advised him to be off work. Upon being informed that Keith Nicoll was pursuing a compensation claim, the Corporation decided to investigate the circumstances. The Corporation hired an investigator who on May 19th found Keith Nicoll working aboard a boat, Miss Mira's Shamrock, a thirty foot fibreglass fishing vessel.

The Corporation commenced investigation meetings to get to the bottom of the matter. At the May 31st meeting the Grievor explained that he had left work on April 25th because of pain. When asked what he could do between April 25th and May 31st Keith Nicoll offered that his doctor (Dr. Barrett) had told him to stay off work and that he was off under doctor's orders not to work. In fact this was not the truth.

In their April 25th meeting Dr. Barrett assessed the Grievor as being able to return to work (Exhibit 3, Doctor Progress Report).

On their May 2nd meeting, Dr. Barrett assessed the Grievor as able to return to work – "light duties only" (Exhibit 13, Doctor Progress Report).

Dr. Barrett examined the Grievor again on May 14th and in response to the form's question, "Can worker return to work?" wrote, "No, not to regular employment."

In fact Dr. Barrett testified that he and Dr. Stanish had been six months in determining when Keith Nicoll could return to work and on March 22, 1991 he OK'ed Keith Nicoll for light duties. This assessment remained unchanged throughout May. Meanwhile, Dr. Barrett was led to believe by the Grievor that he had not been assigned light duties on his return to work and was told there were no light duties available for him. This was completely false. Dr. Barrett had not changed his mind regarding Keith Nicoll's ability to return to light duties, but answered the question as he did because he was led to believe by Keith Nicoll that this was all the Corporation had available for him.

When all the circumstances are considered I must conclude that indeed Keith Nicoll did remain off work after April 25, 1991 without valid reason.

There is some suggestion that the Grievor's return to work on April 1st was premature. Reference is made to a letter of Dr. Stanish dated March 21, 1991 (Exhibit 6) which states in part that:

I can give no weight to this suggestion as the Grievor himself had told both Dr. Barrett and Dr. Cohen that Dr. Stanish had OK'ed his return to work during their meeting on March 21st. And both these doctors had assessed him as ready to return to work. The Grievor himself felt ready to return and made no complaint either before or during his return period.

The reasons advanced by Keith Nicoll for being off work between April 25th and May 31st are found in the minutes of the investigation meeting held on May 31st (Exhibit 1, Tab 8, Page 6). In response to Kent MacIntyre's questions the Grievor asserts that he can only do " ... what the doctor tells me – he told me to be off work". And further states "I have a disability, I'm off under doctor's orders not to work." Aside from these direct responses (which as stated earlier are untruthful) the Grievor steadfastly maintained that basically he was constantly in too much pain to work. That the injuries, operations and deterioration in his knee had progressed to a point where he just could not do any work without pain.

Keith Nicoll owns a thirty foot GRP fishing boat called "Miss Mira's Shamrock". On May 19th, 1991 he was observed by Mr. Allan Cathcart, investigator, loading poles and chains into that boat at the wharf in Mira Gut accompanied by two children and one adult. This activity was observed by Mr. Cathcart for approximately one-half hour, then the boat proceeded up the Mira River returning approximately two and one-half hours later. Mr. Cathcart took a series of photos of the Grievor's activities on this date which are Exhibit 7 (items (a) through items (dd).

These photographs received a great deal of attention at this hearing. They illustrate that the Grievor was engaged in some sort of activity involving a boat and the extent of that activity was vigorously contested by the parties. The testimony of Mr. Cathcart and the Grievor himself establish clearly that the Grievor was engaged in performing a job he had with the Coast Guard for placing buoys in the Mira River. This involved work and physical activity. The Grievor was observed carrying poles and other objects from his truck, across the wharf and onto his boat. He was observed bending, squatting, lifting, pushing and jumping with seemingly no trouble or discomfort whatever. Despite all of the attention given these photos there is no disagreement that the Grievor did physical work for an outside agency – at a time when he was supposedly unable to work. The only dispute is the extent of physical labour required to perform those duties as depicted by the photographs, and the correlation between that and the Grievor's physical ability. In the final analysis the parties' positions were exemplified by Doctors Cohen and Barrett. In Dr. Cohen's opinion the activities depicted in the pictures were inconsistent with the level of incapability Keith Nicoll supposedly possessed; while Dr. Barrett felt they were completely consistent with the "light duty" capability of Keith Nicoll – throughout this period – as assessed by himself and Dr. Stanish.

"Light duties" of course is exactly what Keith Nicoll was medically assessed fit for by Doctors Stanish, Barrett and Cohen. "Light duties" was exactly what the Corporation expected him to perform – for them. These activities of Keith Nicoll even in the "light duties" category, must be viewed as inconsistent with his reasons for being off work. That management viewed them as such is understandable and the subsequent evidence has confirmed.

Based on the evidence before me I make the following conclusions of fact:

It must be concluded that this third allegation has been supported. The Grievor did in fact make a claim for compensation on the basis that his absence from work on and after April 25th, 1991 was due to his July 17, 1981 injury. In so doing he made false representation of fact regarding the type of work he was doing to his personal physician Dr. Barrett and through him to the Workmen's Compensation Board. In the Doctor's Progress Report of Dr. Barrett dated May 2, 1991 he responds as follows to the W.C.B. forms question:

This was entirely untrue and the Grievor knew it to be so. I cannot accept that through misunderstanding or inadvertence the Grievor did not fully understand the true nature of his situation with regard to the Corporation's available work. Mr. Nicoll is not an uneducated person. He has completed Grade 12 and became a machinist through the Eastern Institute of Technology. He has worked as a fisherman employing other people and maintains a long term contract with the Canadian Coast Guard placing and maintaining navigational markers on the Mira River. On April 5, 1991 he completed a F.M. Class VI Navigation Course, wrote his collision regulation exam on April 17th last and did his oral exam on April 19th. He does not lack education or intelligence.

The Grievor attempted to lay blame for this misunderstanding on Dr. Cohen. But Dr. Cohen, who was surprised at seeing the Grievor on April 25th, and recognized the extent of his agitation, did nothing more than advise him to see his own doctor. He did not see Keith Nicoll again until May 27th.

Any doubt concerning intent is removed when consideration is given to Exhibit 1, Tab 21 which is a letter to the Corporation from Mr. A. MacNeil, Supervisor Adjudication with W.C.B. wherein he states as follows:

As the evidence shows Keith Nicoll never did a No. 4 inspection on a diesel locomotive. He was assigned as a helper to Mr. Earl Hickman on a No. 4 inspection and specifically instructed to do little if anything which by his own admission is exactly what he did.

The evidence is both clear and compelling in support of a conclusion that the Grievor attempted and intended by false representation of fact to obtain a benefit from his non-attendance at work. This third allegation is upheld.

It is conceded by the Union that the Grievor misled the Corporation during the May 31st investigation. Indeed the evidence fully supports that such in fact was the case. In defence of this activity the Union submits that when one considers that Keith Nicoll is a victim of a permanent partial disability; that given his age and condition, the economy of the region, slim prospects of employment outside Devco, and being dismissed for reasons which he generally cannot understand, he is and was extremely suggestible. That his answers were influenced by well-meaning but perhaps over-eager union representatives. That the Grievor's lies and falsehoods are out of character and resulted from the circumstances and predicament in which he found himself. Furthermore, those "falsehoods" created no mischief or prejudice whatever to the Corporation.

Nothing could be further from the truth. The Grievor lied continuously and relentlessly at the May 31st meeting. The degree of his evasiveness and uncooperativeness is truly extensive. As a result thereof the Corporation was required to adjourn this meeting until June 3rd when further witnesses and evidence could be gathered. The Grievor behaved no differently at that meeting. The Corporation was required to investigate further and hold another meeting on June 17th. All of which could have been avoided had the Grievor been forthright and truthful initially. When all of the facts are in it can be seen that the extent of the Grievor's deceit during the May 31st and June 3rd meetings is indeed overwhelming.

Nonetheless, this allegation is both conceded and supported by the evidence.

The evidence is indeed convincing in support of the allegations of misconduct contained in the June 24, 1991 letter. Apart from the Grievor's leaving work on April 25th without valid reason, it is my conclusion that the Corporation has established just cause for discipline.

In support of its action the Corporation directed my attention to a number of cases in which discharge was upheld for activities involving dishonesty. T.T.C. Bottling Ltd. and Brewery and Soft Drink Workers, Local 361 (Professor T.A. Cromwell) Nova Scotia – May 30, 1991 (unreported) An employee was discharged for mishandling company funds on two occasions. Cromwell at p. 17:

Canadian National Railway Company and I.B.E.W. System Council No. 33 (Michel G. Picher, December 17, 1991, unreported) An employee, while claiming to be unable to work for his employer, was found performing duties in furtherance of his private business which were inconsistent with the medical restrictions he claimed prevented him from performing light duties (Similar to allegation No. 2 against this Grievor) – Picher at p. 4:

In two Canada Post Corporation cases (Canadian Union of Postal Workers, Gilbert, March, 1990, 10 L.A.C. (4th) 393) and Association of Postal Officials of Canada, Gilbert, May, 1990, 12 L.A.C. (4th) 210) Arbitrators B.A. Langille and H.D. Brown respectively, upheld the discharge of an employee for dishonesty in fraudulently claiming for leave by falsification of medical records.

In Re American Motors (Canada) Inc. and United Automobile Workers, Local 1285 (Brown) 21 L.A.C. (3d) 161, an employee was discharged for fraudulent misconduct in that he was found working for another company at a time when he was off claiming sick benefits from his employer. It is of interest that the facts were not disputed and the sole basis of the grievance was that the penalty was too severe given the Grievor's length of service (23 years) and clear record. He had even made restitution to the employer for the amount of sick benefits paid him. Arbitrator Brown states at p. 164:

In Re Ford Motor Company of Canada Ltd. and United Automobile Workers, Local 1520 (Palmer) 8 L.A.C. (2d) 149 the Arbitrator found that the Grievor's doctor had attested the Grievor as totally disabled on the insurance claim form, but it was also found that during that period the grievor had been employed as a driving instructor, a fact that had not been disclosed to the doctor by the grievor. That discharge was upheld. The Union argued that during the entire period of absence the grievor was covered by his doctors' approval of absence for medical leave. The Arbitrator states at p. 152:

I have also reviewed the cases presented for my attention by the Union counsel. In Re City of Dartmouth and Nova Scotia Union of Public Employees (1980) 27 L.A.C. (2nd) 97 suspension was substituted for discharge when the Arbitrator distinguished the misconduct from those cases involving discharge for dishonesty in that it was not directly related to the employment and was not criminal in nature. Also in Re De Havilland Aircraft of Canada Ltd. and United Automobile Workers, Local 112 (1981) 2 L.A.C. (3d) 402 a discharge was changed to suspension when the Arbitrator found that the grievor did not have a fraudulent intent and did not make his sickness and accident claim without any right to do so.

But in the case before me there is no question that the Grievor has fraudulent intent and displayed a level of dishonesty which is somewhat overwhelming in its extent. The evidence is clear and compelling that the Grievor's misconduct was fraudulent in both intent and effect. On all of the evidence before me I am compelled to conclude that the Grievor was intent on carrying on a working life outside the commitment of his employment relationship while receiving compensation and with no intention of carrying out his end of the bargain. By his own actions he has severed the employment relationship.

Counsel for the Union has characterized the Grievor as somewhat of an "innocent victim" in this "comedy of errors". Nothing could be further from the truth. The Grievor was evasive, uncooperative, misleading and untruthful to the Corporation, the doctors, and the Workers Compensation Board throughout the entire process from and after April 25th, 1991 – a practice he continued right into the hearings into this matter. Indeed the extent of deceit exhibited by the Grievor in all aspects and facets of this matter far exceeds any of the misconduct in the above referenced cases.

I wish to note that upon a great deal of reflection I have chosen not to attempt a listing of every incident of evasion, misrepresentation and untruth exhibited and attempted by this Grievor in the evidence before me. Quite simply they are too numerous and no purpose would be served.

Finally, in terms of mitigation, there is only the Grievor's relatively long service (sixteen years) and clear record which can be considered in his favour. Of the remaining generally accepted mitigating factors – as expressed by Arbitrator Harry Arthurs in Re C.B.C. and C.U.P.E. (1979) 23 L.A.C. (2d) 227 at pp. 230-1 – it must be concluded as follows:

All things considered I must conclude that in this case the penalty of discharge is not too severe.

Accordingly, this grievance is dismissed.

DATED AT June 12, 1992.