SHP 372
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
THE COMPANY
AND
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 33
THE UNION
AND IN THE MATTER OF THE GRIEVANCE OF ALAIN MAHEU, February 25, 1992
SOLE ARBITRATOR: Harvey Frumkin
APPEARING FOR THE COMPANY:
Laurent F. Caron, Labour relations officer
Scott A. MacDouaald, Manager Labour Relations
APPEARING FOR THE UNION:
Mr. Frank Klamph, System General Chairman I.B.E.W.
S. Ekisian, General Chairman, No. 33.
A hearing in this matter was held in Montreal on November 30, 1992.
The grievance in this case which bears date February 25, 1992 is
directed against the discharge of the Grievor, Mr. Alain Maheu,
effective February 6, 1992. At the time, Mr. Maheu had been out of
service since August 10, 1990, due to occupational asthma, a medical
condition synonymous with permanent physical disability given that
the Company was not in a position to offer him a contaminant free
environment which his condition demanded. The discharge was the
Company's response when it learned that the Grievor had allegedly
received remuneration from employment which he failed to report to La
Commission de la Sante et Securite du Travail from whom he was
receiving Company sponsored benefits at the time.
The Joint Statement of Issue furnished by the parties on the
grievance is to the following effect:
JOINT STATEMENT OF ISSUE
in a dispute between
CANADIAN NATIONAL RAILWAY COMPANY
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
DISPUTE:
Appeal of discharge of Electrician Alain Maheu of AMF, effective
February 6, 1992.
JOINT STATEMENT OF ISSUE:
On August 10, 1990, Mr. Maheu left his position. at AMF following
the development of a permanent physical disability.
On August 25, 1990, the employee began receiving benefits from
the Commission de la Sante et Securite au travail (CSST).
In December 1991, an investigation revealed that the employee was
receiving earnings from an outside company without declaring it to
the CSST.
In light of these facts, an investigation was held on January 23,
1992, after which Mr. |Maheu was discharged for:
'Pour avoir omis de rapporter ses gains d'un emploi a
l'exterieur du Canadien National et ce, en relation avec la
loi de la Commission de la Sante et Securite au travail.'
The Brotherhood contends that the employee was wrongfully discharged
and requests that he be reinstated with full compensation.
The Company denies the Brotherhood's contention and declines its
request.
FOR THE COMPANY: FOR THE BROTHERHOOD:
(s) S.A. MacDougall (s) Frank Klamph
For: Assistant Vice-President System General Chairman
Labour Relations International Brotherhood of
Electrical Workers"
The facts, as the Arbitrator has been able to determine them upon the
evidence, are as follows. The Grievor was first hired by the Company
on July 26, 1979. On August 10, 1990, as stated above, he was
obliged to withdraw his services due to a medical condition and has
remained out of service since that time. His medical condition
qualifies as a permanent physical disability since the Company was
not in a position to provide for him a contaminant free environment
compatible with his medical condition.
The Grievor was eligible for and did receive benefits from La
Commission de la Sante et Securite du Travail as and from August 25,
1990. As an employee labouring under an occupational incapacity
receiving such benefits, it would have been incumbent upon the
Grievor to report any remunerative employment which he might secure
while in a state of incapacity. Any such remuneration would then be
taken into account for purposes of determining the extent of his
entitlement, if any. It should be said that the Company, under its
arrangement with La Commission de la Sante et Securite du Travail
bears the full amount of employee benefits in addition to an 18.8%
administration charge.
In early September 1991, information came to the Company's attention
that the Grievor was working for remuneration for an outside
employer. It immediately initiated an investigation. The
investigation revealed that the Grievor had in fact been working for
a sub-contractor of Canada Post Corporation since the month of
February 1991 and had received approximately 3 700,00$ over the
period. The work consisted of the sorting and delivering of mail.
Neither the employment nor remuneration received was reported as
required under the applicable statute.
Following conclusion of the Company's investigation the Grievor was
convoked to a meeting in accordance with the Collective Agreement and
confronted with the allegations which the Company had investigated.
When the Company was not satisfied with the Grievor's explanations it
proceeded on February 6, 1992, to discharge him for "avoir omis de
rapporter ses gains d'un emploi a l'exterieur du Canadien National et
ce, en relation avec la Loi de la Commission de Sante et Securite au
Travail".
Both during the course of the Company's inquiry and at the
arbitration hearing, the Grievor insisted that his activities over
the period February 1991 to September 1991 did not qualify as
remunerative employment and as such could be of no concern to the
Company. He stated that rather than remain idle he preferred to
offer his services to a friend for what was effectively no
remuneration. He conceded that he received 20,00$ per day from the
"friend" for gas and wear on the vehicle he was using. He describes
what he was doing as a "pastime' while awaiting his return to work
with the Company. He acknowledged that his activity involved driving
some 60 to 100 |kilometres per day, over a period of some 6 to 8
hours. He did not deny that over a period of some 5 five weeks,
during which he served as a replacement for his "friend', that he was
receiving 45,00$ per day.
In effect therefore, the Grievor is claiming that his activities
over the period February 1991 to September 1991, do not amount to
remunerative employment. All that he received was reimbursement for
expenses which he incurred occasioned by the use of the vehicle
employed while assisting a friend in order to keep busy.
The fact remains however that the Grievor was performing work six to
eight hours per day, Monday through Friday, over a prolonged period,
even to the point of serving as a replacement of a person gainfully
employed during the course of the latter's vacation. Throughout the
entire period he was receiving benefits from La Commission de la
Sante et Securite du Travail. Sums were paid him which were not
officially recorded and as such, not susceptible of control or
verification. In the final analysis the Arbitrator has before him
the portrait of an individual working virtually full- time without
any reliable basis for determining the remuneration being received
other than his own assertions and those of an employer who it would
seem, has chosen to maintain no official record of the employment or
the amount paid.
Where an individual performs work on a regular basis where that work
under normal circumstances, would qualify as remunerative employment,
the individual, where challenged, must bear the burden of
establishing that the work performed was gratuitous or charitable and
without remuneration. Otherwise, an individual receiving benefits
under circumstances such as the ones which present themselves in this
case, could assume unrecorded full-time employment with impunity by
claiming that no remuneration was received. In effect, regulatory
bodies such as La Commission de la Sante et de la Securite du Travail
would find themselves without means of enforcing laws and regulations
designed to ensure that benefits are paid only to those entitled to
them.
In the present instance, the Grievor was working on a virtually
full-time basis for which he received moneys. In the aggregate, the
amounts received were not trivial. Under normal circumstances, what
the Grievor was doing would have qualified as remunerative employment
and on the evidence, the Arbitrator is not in a position to say that
it was not. On the whole, the finding of the Arbitrator must be that
the Grievor had accepted and assumed remunerative employment which he
was obliged to report but which he did not report to the regulatory
authority from whom he was receiving benefits which may well have
been affected by disclosures that the Grievor was obliged to make.
It is not disputed that the Company bears the full onus of all
benefits paid by La Commission de la Sante et Securite du Travail so
that the Grievor's actions would have impacted adversely upon the
Company's legitimate interests. In effect the Grievor, in failing to
report his employment and the income derived therefrom, caused the
Company to pay sums greater than what it otherwise would have been
obliged to pay.
The situation which presents itself to the Arbitrator is not without
precedent. In the case of Canadian Pacific Ltd., and Canadian
Division, Brotherhood Railway Carmen, decision of June 29, 1987,
Arbitrator Weatherhill maintained the discharge of an employee, who
failed to disclose outside earnings while receiving job security
benefits. In concluding as he did the Arbitrator states:
"Having regard to all of the evidence before me in this
matter, it is my conclusion that the grievor was familiar
with the Job security benefit plan, and that he understood
the import of the questions put to him in respect of outside
work. It was only when he knew that the company had found
out that he had indeed had outside work that he began to
suggest that he had not understood the questions relating
to it. What the grievor puts forward as his understanding of
the questions, however, is to naive (the grievor being
experienced with the plan), too contradictory and too self-
serving to be credible. At the investigation, the questions
were repeated and clarified, and I do not believe were
misunderstood by the grievor.
On the evidence, then, it is my conclusion that the grievor
did fraudulently obtain benefits to which he was not
entitled. While there has, it appears, been restitution,
that does not affect the offence itself. Discharge is, in
General, the penalty appropriate in such cases, and the
material in the instant case does not establish the sort of
circumstances which might justify some exception.
There was, I find, just cause for the discharge of the
grievor, and the grievance is accordingly dismissed."
In another decision of I. B. L. Industries Limited and the National
Union, United Automobile, Aerospace and Agricultural Implement
Workers of Canada, decision of February 23, 1989, E.E. Palmer, Q.C.,
Arbitrator, the Arbitrator maintained the discharge of an employee
receiving workmen's compensation benefits while working in his own
business and earning sizeable amounts of money in relation to his
work. Again the comments of the Arbitrator are instructive.
"On this latter point, the Union takes the view that the
evidence does not disclose any fraud against the Company.
With this I disagree. Clearly the evidence is that the
grievor did not disclose facts relevant to his monetary
claims against not only the Worker' Compensation Board, but
also the Company. Indeed, he went further and misled both as
to the true state of affairs. As a result of these
activities both were unable to determine the true nature of
the grievor's claim. This, in my opinion, is an extremely
serious offense. The administration of these systems of
providing assistance to injured employees is of great
importance to the Union and employees, as well as the
Company. Truthfulness on the part of applicants for these
claims is a central component in their efficacy. Mr.
Singh's activities strike directly at this point. Thus,
while I agree with the Union that the acts of the grievor may
not violate 8 directly clauses like Article 19.06, these
clauses implicitly show how this system works and, it must be
remembered, one of the rights of the Company established
under this collective agreement (see Article 7) is to be able
to discipline employees for just cause. In this case,
manifestly such cause exists."
The issue in this case is not whether the Grievor is prevented from
working for the Company by reason of a medical condition. It
concerns rather a matter of the Grievor's failure to report income
earned where he was obliged to do so and in the process securing for
himself benefits greater than those to which he would otherwise have
been entitled. The corollary of such failure is that the Company,
for its part, was obliged to pay a sum greater than the one which
would otherwise have been the case. Against such a background the
question which presents itself is whether the Company's response to
the Grievor's actions was appropriate.
Of primary concern in cases such as these is the integrity of a
system designed to help those in need. Inherent in such a system is
the possibility for abuse. Arbitrators who have been called upon to
address abuses have been inclined to respond most harshly. Such an
approach is quite understandable since the workings of the system
itself rely to a very considerable extent upon honesty and trust.
When weighed against the Grievor's entitlements as an employee unable
to work by reason of an occupational incapacity, remuneration which
the Grievor received over the period February to September 1991,
whatever that remuneration may have been would undoubtedly be
insignificant. But the Grievor's failure to report that income,
however insignificant by comparison, cannot be characterized as
insignificant at all because what he did strikes at the very heart of
the system from which he was benefiting. The system leaves no room
for abuse and that is why discharge has been considered by
arbitrators to be the appropriate response where abuse has been
found. There may, in any given case, to be sure, be present
mitigating circumstances that might militate against discharge but,
this notwithstanding, discharge will be the general rule.
For these reasons the Arbitrator cannot take issue with the Company's
desire to deliver the clear and unequivocal message which it did so
that there would exist no basis for intervention. The grievance is
accordingly dismissed.
Montreal, December 8, 1992
HARVEY FRUMKIN - ARBITRATOR