SHP - 377
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA, LOCAL 100
GRIEVANCE RE DISCHARGE OF CARMAN G.E. WillIAMS
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
Tom Wood – System General Chairman
J. R. Moore Gough – General Chairman, Great Lakes Region
APPEARING FOR THE COMPANY:
Walter Agnew – Manager, Labour Relations, Moncton
Fred Orchard – General Supervisor, Equipment, Moncton
Denis Laurendeau – System Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on February 24, 1993.
This arbitration concerns a grievance against discharge for innocent absenteeism. By notice dated April 22, 1991, the Company advised the grievor, Mr. Gene E. Williams that he was discharged because of his innocent absenteeism over a period of several years. The dispute and statement of issue filed by the Union are as follows:
Appeal of the suspension and subsequent discharge of Carman G.E. Williams of Halffax, Nova Scotia, for his failure to demonstrate his ability to maintain an acceptable attendance at work.
UNION STATEMENT OF ISSUE:
Effective July 7, 1990, Mr. Williams went on leave of absence due to injury. By letter dated August 27, 1990, Mr. Williams was advised that he was required to have a medical examination by a Canadian National doctor, and provide an employee statement concerning lost time prior to his return to work.
On April 2, 1991, Mr. Williams, attended an investigation. Immediately following the statement, Mr. Williams was suspended from service pending the outcome of the investigation.
By Canadian National Form 780 dated April 22|, 1991, Mr. Williams was discharged effective April 2, 1991, for "failure to demonstrate his ability to maintain acceptable attendance at work during 1988, 1989, 1990 and 1991."
On May 7, 1991, the Union progressed a grievance at Step III of the Grievance Procedure contending that Mr.Willaims was improperly discharged. The Union further contends that the Company violated Rule 16.1 of Agreement 1235.
The Union advances the following reasons:
(1) Mr. Williams has bona fide medical evidence to support his reason to be off duty;
(2) Mr. Williams has medical evidence which proves he would be able to resume his normal |carmen duties and his future time keeping will meet Company Standards;
(3) By refusing to allow Mr. Williams to retum to work in face of the medical evidence available, the Company discriminated against and failed to accommodate him in violation of Rule 16.1.
The Union requests that Mr. Williams be immediately re|fumed to service and that he be made whole for all his monetary losses including interest for any lost compensation.
The Company made a preliminary objection with respect to the application of Rule 16.1. It is common ground that in the drafting of grievance documents, and at various stages of the grievance procedure, the Union erroneously cited Rule 6.1, rather than Rule 16.1, as having been violated. This was clearly an inadvertent error. Rule 6.1 deals with emergency calls and wrecking service, and could have no plausible bearing on the dispute at hand, while Rule 16.1 speaks directly to the issue of absence from work and provides as follows:
16.1 In case an employee is unavoidably kept from work he will not be discriminated against. An employee detained from work on account of sickness or for any other good cause, must, if possible, advise the foreman in time so he can arrange for relief, and in all cases men will make arrangements with the foreman to lay off.
The Company maintains that the Union should not be permitted to rely upon the application of Rule 16.1 in these proceedings, as the pleading of that article was not specified until it appeared in the Union’s ex parte statement of issue. The Company relies, in part, on the application of Rule 28 of the collective agreement. Rule 28.7 requires, at step 3 of the grievance procedure, that an appeal "… shall identify the Rule(s) and clause of the Rule(s) or Appendix involved".
I find it unnecessary to rule on the strict letter of the issue raised by the Company in the instant case. The material before me confirms, without dispute, that in fact a Company officer, at the national level, had discussions with the system general chairman in January and April of 1992 in which it was recognized that, in fact, the Union was relying on Rule 16.1, and that the typing of the Rule in question as 6.1 had been an error. In other words, for a period of approximately a year central authorities of the Company were aware that the Union was relying on Rule 16.1. It appears that the clarification of that error reached between the Company’s national officer and the system general chairman was never communicated to the regional authorities of the Company responsible for the progressing of the grievance. While that may be unfortunate, it cannot diminish the rights of the Union and the grievor. In the circumstances, I am satisfied that what transpired was an innocent error, the nature of which was effectively communicated to the Company well in advance of the arbitration hearing. There is, moreover, no real prejudice to the employer. For these reasons, there are no grounds to sustain the objection advanced by the Company.
The grievor has been employed since March 13, 1978. Prior to his discharge he worked as a carman in the Fairview Equipment Diesel and Car Shop in Halifax, Nova Scotia. The record of the grievor’s absenteeism through the entirety of his employment was extraordinarily high. He was discharged for absenteeism effective April 16, 1984 and was subsequently reinstated, subject to conditions concerning his future attendance at work. While it may be noted that the discharge of the grievor is based on his attendance in the years 1988 through 1991, over the entire 13 years of his employment his rate of absenteeism was no less than 35%, on average. It is not disputed that the rate of absenteeism within his department normally averages between four and five percent per year. Most significantly, during the period between November 1988 and April 1991 the grievor’s rate of absenteeism was 63%.
Innocent absenteeism is an appropriate grounds for the termination of employment, where certain standards are met. The governing principles were summarized as follows in SHP 284:
It is well-established that an employer is entitled, where circumstances justify it, to terminate the employment of a person whose innocent absenteeism reaches a degree incompatible with the fundamental contract of service to the employer. As was stated by Arbitrator Shime in United Automobile Workers, Local 458 and Massey Ferguson Industries Ltd, reported at 24 LA.C.344:
Initially, I accept the Company’s submissions that excessive absenteeism may warrant termination of the employment relationship and that discharge is justified in a non-punitive sense because the employment relationship is contractual and where an employee cannot report for work for reasons which are not his fault he imposes loss on an employer so that after a certain stage of accommodation of legitimate interests of both employer and employee requires a power of justifiable termination in the employer.
It is generally accepted that for an employer to be entitled to invoke its right to terminate an employee for innocent absenteeism it must satisfy two substantive requirements, namely that the employee has demonstrated an unacceptable level of absenteeism as compared with the average of his or her peers over a sufficiently representative period of time, and, secondly, that there is no reasonable basis to believe that his or her performance in that regard will improve in the future. In addition, it has been suggested that it may be appropriate for the employer to give some advance warning to an employee when his or her rate of absenteeism threatens to jeopardize continued employment (See Re Denison Mines and United Steelworkers (1983), 12 L.A,C. (3d) 364 (Adams).
The evidence discloses no predictable pattern in the ailments that have occasioned the grievor’s attendance problems. Since 1978, the reasons for his lost time have included knee injuries and shoulder injuries, some of which were occasioned by sporting activities. He also suffered an elbow injury, a fractured metatarsal, a skin infection and a perforated ear.
The length of Mr. Williams’ absences are equally unpredictable, ranging from a few days to nine months. In 1988, Mr. Williams was absent for 33 days for an absenteeism rate of 14% of scheduled working time, some three times the shop average. In 1989, Mr. Williams was absent for 58% of the scheduled working time for that year. In 1990, he was absent for 50.7% of the time, as compared with the shop average of 2.77%. During 1991, he was absent for 100% of the scheduled time up to the date of his termination. Given the consistency and overwhelming frequency of the grievor’s absenteeism, the Company came to the conclusion that he was unable or unwilling to maintain assiduous attendance at work, and that it had no reason to believe that his performance in that regard would improve in the future.
The material before the arbitrator confirms that, for reasons which he must best appreciate, Mr. Williams was clearly unable to provide the Company with a reasonable rate of attendance at work in the period of time between 1988 and 1991. He was put on notice, as of his reinstatement into employment in 1985, that his attendance at work must improve if his contract of employment was to be maintained. Further, it is not disputed that on a number of occasions the grievor was investigated, cautioned and given demerits for his poor timekeeping.
The arbitrator cannot sustain the objections with respect to procedure raised by the Union’s representative. While it is true that the Company made reference to the entirety of the grievor’s employment for the purposes of assessing his performance as regards attendance, that is entirely appropriate in a case of this kind. The termination of Mr. Williams is not for culpable conduct, and the Company did not seek to discipline him for events prior to 1988. Rather, as it was entitled to do, it looked to the entire pattern of his attendance over an extended period of years to establish the elements of innocent absenteeism justifying termination. In other words, it has shown that the record of attendance registered by Mr. Williams in the period 1988 through 1991 was not unusual or out of keeping with his prior record of absenteeism, a factor which is relevant to the Company’s submissions that there is no reason to believe that his attendance will improve in the future. There is, moreover, nothing in the procedure followed by the Company, or in its ultimate decision to terminate the grievor, which would constitute a violation of Rule 16.1 of the collective agreement. There is nothing in the evidence before the arbitrator to suggest that the Company’s treatment of Mr. Williams has been discriminatory.
Nor is this a case where the Union has made out grounds for the application of a duty to accommodate a disabled employee. The grievor’s record demonstrates that he is an employee who had been and, in all likelihood, will continue to be, absent at a minimum one day out of three and at a maximum two days out of three for injuries and ailments, both minor and serious, which are unpredictable and unrelated. His circumstances are to be distinguished from those of an employee who, for example, suffers a chronic back injury which can be accommodated by the assignment of light duties. In the circumstances of Mr. Williams, accommodation would merely mean that the Company must continue to suffer, indefinitely, his absences from work for sustained periods of times, and in unpredietable patterns, without any genuine possibility to plan for them. With respect, the arbitrator cannot find that the duty of accommodation can or should extend so far.
On the whole, the evidence discloses a pattem of clearly unacceptable absenteeism over a sustained period of time. Moreover, the grievor was warned by the Company, both in 1985, and subsequently, that the failure to improve his rate of attendance could result in the termination of his employment. His rate of absenteeism in the period between 1988 and 1991 is so extraordinarily high as to seriously question his commitment to his employment relationship, even if one accepts that there was a medical basis for certain of his absences. In the face of the record, the arbitrator cannot reject the conclusion drawn by the Company, namely that the employer has little reason to believe that there is any probability that Mr. Williams’ attendance will improve significantly in the future. I must find that the Company was entitled, in all of the circumstances, to consider his employment as being at an end. Nor can I find, in the particular circumstances of this case, any significant violation of the terms of Rule 28.3 of the collective agreement, in that the grievor was held out of service pending a decision following his investigation, particularly in light of the fact that he had been continuously absent up to the time of the investigation.
For the foregoing reasons, the grievance must be dismissed.
DATED at Toronto this 8th day of March, 1993.
(Signed) MICHEL G. PICHER