SHP 376

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS

DISCHARGE OF OTTO GENTILE, ALYTH DIESEL SHOP

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

D.A. Mancini President & Secretary Treasurer

Ataco Baccio N.P. System, C.7, Montreal

B. Gascon Local Chairman, Montreal

 

 

There appeared on behalf of the Company:

K.E. Webb Assistant Manager, Labour Relations, HH-C, Vancouver

L.G. Winslow Labour Relations Officer, Montreal

C. Thibault Observer

 

 

A hearing in this matter was held in Montreal on January 26, 1993.

 

AWARD

This is the arbitration of a grievance in respect of discharge following the assessment of demerits for unacceptable absenteeism. The joint statement, filed at the hearing, is as follows:

Dispute:

Dismissal of Engine Attendant O.T. Gentile, Alyth Diesel Shop, Calgary, Alberta.

Joint Statement of Facts:

On December 13, 1991, the record of Engine Attendant O.T. Gentile was debited with twenty (20) demerits for: "unacceptable absenteeism as evidenced by your failure to report for duty on October 12, 20, 23 and 27, 1991 at Alyth, Alberta".

On December 13, 1991, Engine Attendant Gentile was dismissed for: "the accumulation of demerit marks under the Brown System of Discipline, Alyth, Alberta".

Joint Statement of Issue:

It is the position of the Union that the discipline assessed to Mr. O.T. Gentile is unwarranted and far too excessive. His absences from work were due to illness, substantiated by his doctor's notices. Therefore, the Union requests that Mr. Gentile be reinstated and compensated for all lost wages and benefits.

The Company denies the claim.

***

The grievor, Mr. Gentile, has worked for the Company since April of 1983, as both a labourer and engine attendant helper. He occupied the position of labourer at the time of his discharge. In February of 1991, Mr. Gentile's disciplinary record stood at fifty-five (55) demerits. Forty-five (45) demerits had been incurred for various operating infractions during the course of his work as an engine attendant helper between September of 1989 and August of 1990. A further ten (10) demerits were incurred for timekeeping problems which arose in October of 1990 and December of the same year.

In October of 1991 Mr. Gentile was again investigated for a number of time-keeping infractions. Following the investigation he was assessed twenty (20) demerits for absenteeism relating to his failure to report for duty on October 12, 20, 23 and 27, 1991. Thereafter he was dismissed for the accumulation of demerits in excess of sixty (60) as he had a total of seventy-five (75) demerits on his record.

The material before the arbitrator establishes, beyond controversy, that Mr. Gentile was absent on the days for which he was disciplined. The grievor was not disciplined for failing to give proper notice of his absences. Essentially, the Company rested its decision to discipline Mr. Gentile on the basis that his absences were culpable.

The material before the arbitrator confirms that during the course of the Company's investigation Mr. Gentile explained that a number of his absences were due to health problems the nature of which he declined to specify, stating that his medical problems were personal. It appears that on November 12, 1991 Mr. Gentile was asked to supply a doctor's certificate in relation to certain of the absences. This, however, he did not do prior to the resumption of the investigation meeting on November 18th. Shortly thereafter, however, he did submit a note of his physician, Dr. Brian Liggett, dated November 22, 1991 which related, in part, that he was then "... under investigation for stress disorder. Apparently he missed work October 20, 23, 27, due to stress".

The Company chose not to accept the doctor's note as an excuse for the absences, or confirmation as to their legitimacy. Its officers inferred from the language of the medical note that the information conveyed within it was not of the doctor's own knowledge, but rather based on information provided to him, after the fact, by Mr. Gentile. That is not disputed by the Union. Its representative stresses that at the time of the absences there was no request by the employer that Mr. Gentile provide a medical note. Indeed, no such request was made until November 12th, which resulted in the note presented on the 22nd.

At the arbitration hearing a further document, being a letter dated January 26, 1993, signed by Dr. Liggett and transmitted by fax, was tendered in evidence. That letter states, in part, the following:

This man has been my patient for seven years. In fall 1991 he was suffering an anxiety disorder and had counselling for same. He was encouraged to use self-help books and tapes.

What, then, does the whole of the evidence disclose? Firstly, this is plainly not a case of innocent absenteeism on a scale which would justify discharge. Mr. Gentile's absenteeism rate for 1990 totalled six working days for a rate of less than three percent. In 1991 it totalled four days for an annual absenteeism rate of less than two percent. As the Union's representative stresses, the grievor's rate of absenteeism, whether innocent or culpable, was substantially less than the average.

Anxiety disorder is an illness known to cause absenteeism problems among those afflicted by it. The arbitrator accepts the medical evidence tendered as confirming that in October of 1991 Mr. Gentile was suffering from that problem. With respect to each of the four days of absence, he confirmed to the Company that he was sick. No further information was immediately requested, and it was only after the commencement of the investigation, on November 12, 1991 that the Company asked Mr. Gentile to provide medical documentation in respect of certain of the absences in October. During the course of the investigation conducted on October 30, 1991 Mr. Gentile advised the investigating officer that he could not recall the precise nature of the illness which caused him to be absent on October 12, 1991, but that he had been ill on that day. When asked about October 20, 1991 he responded "I called Dr. Liggett on Sunday regarding personal problems. This is also the reasons for missing time on the 23 and 27th". At the conclusion of the October 30th investigation Mr. Gentile volunteered that he could provide a doctor's certificate if one was required, but asked that he be so advised, as it would cost $20 to have one produced. As indicated above, the request for such a certificate was not made until the 12th of November and was complied with on November 22, 1991.

Many of the questions disclosed in the records of the investigation held on November 18, 1991 suggest scepticism on the part of the Company's officers regarding the failure of Mr. Gentile to have provided, prior to that date, a medical certificate as requested. Mr. Gentile explained, in response to the questions put to him, that he had been unable to see his doctor previously, as he was fully booked when he tried to do so, and that the physician was on vacation for a week thereafter.

It is clear from the material before me that the Company did not accept any of the grievor's explanations. I do. It is well established that illness is a legitimate excuse for non-attendance at work. In assessing the merits of the grievance it is, I think, significant that the Company did not request any medical documentation of Mr. Gentile with respect to his absences of October 1991, until well after the fact, on November 12, 1991. While he was perhaps slow to comply with the request, he ultimately did so. A complicating factor is that Mr. Gentile was reluctant to disclose to the investigating officer the precise nature of his illness. That, I think, is understandable, having regard to the nature of the illness and the right of employees, in most jurisdictions in Canada, to a degree of confidentiality in the handling of personal medical information. The investigations officer offered him little, if any, accommodation in that regard.

On the other hand, the frustration experienced by the Company is also understandable. At the investigation of November 18, 1991 Mr. Gentile had not produced a medical certificate, as requested some six days prior. Further, when a certificate was forthcoming it was short and cryptic. Indeed, it was not until the day of the arbitration hearing that a more elaborate explanation was forthcoming from Dr. Liggett, with respect to the nature and extent of the disorder which had been troubling Mr. Gentile in the fall of 1991.

In the circumstances, the arbitrator is satisfied that the grievor was absent due to illness on the dates for which he was assessed twenty (20) demerits. I am further satisfied, however, that he failed to produce adequate medical documentation, sufficient to give the Company a full understanding of the ailment from which he suffered. That failure, which involved delay in obtaining the note when requested and the inadequate degree of explanation given in the initial note from his doctor, caused the Company to draw inferences adverse to Mr. Gentile. While I am satisfied that those inferences are incorrect, I am also persuaded that they were, to some degree, understandable, prompted as they were by Mr. Gentile's failure to be sufficiently forthright in the circumstances. The grievor's concern for his privacy is understandable. However, as an employee with forty-five (45) demerits on his record, and prior offences with respect to absenteeism, it was incumbent upon him to provide a sufficient explanation, with adequate documentation, in response to the Company's request made on November 12, 1991. Moreover, had he wished, he could, in all likelihood, have arranged for more detailed information from his doctor to be conveyed privately to the Company's own physician, thereby protecting his privacy.

On the whole, the arbitrator is satisfied that while justification has been established for the absences in question, and reinstatement is justified, this is not a case for the ordering of full compensation. In my view the grievor and the Company must share the responsibility for the inadequacy of communication disclosed. The arbitrator therefore directs that the grievor be reinstated forthwith into his employment, and without loss of seniority, with compensation for one half the wages and benefits lost, with his disciplinary record to stand at forty-five (45) demerits. It is to be hoped that any further information with respect to any medical condition which may impact the grievor's attendance in the future will be communicated by him in an appropriate manner, and, where appropriate, will be both requested and received more carefully by his supervisors.

I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

DATED at Toronto this 8th day of February, 1993.

(sgd) M. G. Picher

Arbitrator