SHP - 385

IN THE MATTER OF AN ARBITRATION

BETWEEN

VIA RAIL CANADA INC.

(the "Corporation")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Brotherhood")

GRIEVANCE OF PROBATIONARY EMPLOYEE R. WYATT

 

SOLE ARBITRATOR: Harvey Frumkin

 

APPEARING FOR THE UNION:

A. Rosner – Executive Secretary C.C.R.S.U.

R. Laroche – System General Chairman I.B.E.W.

J. Hurtubise – International Rep. I.B.E.W.

APPEARING FOR THE COMPANY:

Ken Taylor – Counsel

Josee Ouellet – Sr. Officer Labour Relations

 

A hearing in this matter was held at Montreal on September 3, 1993.

 

AWARD

By his grievance the Grievor, Mr. R. Wyatt, who was hired on August 11, 1992, as an electrician for a position at the Vancouver Maintenance Centre, contests his discharge on November 13, 1992. At the time of discharge Mr. Wyatt was still in his probationary period and so the Corporation, in support of its decision, relies upon rule 11.1 of the Collective Agreement which reads as follows:

11.01 A new employee shall not be regarded as permanently employed until he has actualy worked sixty- five (65) days. Management may extend the probationary period up to a maximum of one-hundred-thirty (130) days with the written consent of the Local Chairman. In the meantime, unless removed for cause which, in the opinion of the Corporation renders him undesirable for its service, the employee shall accumulate seniority from the date he enters the respective classification under his Agreement.

Invoking this provision the Corporation maintains that it discharged the Grievor for cause which, in its opinion, rendered him undesirable for its (the Corporation’s) service.

The cause to which the Corporation refers is reflected in two incidents during the course of which Mr. Wyatt is alleged to have demonstrated his refusal or inability to follow instructions and was uncooperative. The first of these incidents occurred on October 21, 1992, when Mr. Wyatt absented himself from work and did not advise the Corporation of his status. In a second incident he allegedly failed to follow Corporation regulations by reporting to work on November 9, 1992 and again on November 13, 1992 without a doctor’s note certifying his fitness for work following an absence from work as a result of a work related hip injury which commenced on November 4, 1992.

Since Mr. Wyatt was a probationary employee as opposed to a permanent employee it would not have been incumbent upon the Corporation to demonstrate "just" or "proper" cause for termination of his employment. Quite to the contrary, all that the Corporation need show under such circumstances would be a cause "which, in the opinion of the Corporation, renders him (the employee) undesirable for its service…". Needless to say the standard of cause in the case of a probationary employee would be significantly less stringent than it would be for a permanent employee given that the opinion of the Corporation as to the suitability of the employee, reasonably arrived at (it is to be assumed), will be the determining factor. In effect, all that the Corporation need demonstrate is that there exists reasonable grounds for its opinion and that the decision which issued was not discriminatory, arbitrary, taken in bad faith or based upon unreasonable standards to which it subjected the employee concerned.

In the instant case it is true that Mr. Wyatt did not report his absence on October 21, 1992, as he should have. His explanation is that he did not have and was unable to obtain the telephone number of the Maintenance Centre where he was to call. He states that he was aware of the requirement and made every effort to comply but was unable to do so for the above reason. Upon his return to work he met with his supervisor whereupon the procedure regarding booking off was explained to him once again and a plastic card containing the contact number (which should have been furnished to him at the time he was hired, but apparently had not been) was handed to him. No further action was taken.

On November 3, 1992, the Grievor felt a sharp pain in his right hip. On the following day, while at work, he reported his condition to his supervisor and booked off. On November 5, 1992, his condition was diagnosed by a physician as a hip sprain and a leave of absence of seven days (that is, until November 11, 1992), was recommended. A medical certificate was issued to such effect.

It would appear that Corporation representatives contacted the Grievor, during the first several days of this latter leave of absence with the suggestion that he report for light work. The Grievor initially declined, indicating that his physician had prescribed complete rest. He did, however, call in on November 8, 1992, to advise of his intention to report for work the following day, at which time he was informed that a certificate declaring him fit for work would in all likelihood be required. Despite the fact that the Grievor’s follow-up examination with his doctor was not scheduled until November 10, 1992, the Grievor nonetheless attempted to report for work on November 9, but he was sent home insofar as he did not furnish the requisite certificate declaring him fit for duty.

The Grievor was declared fit for work following medical examination by his own physician on November 10, 1992. November 10 and 11 were his rest days and November 12 was a statutory holiday so that his next scheduled day of work would have been November 13, 1992. He did report for work on November 13, 1992, but again without a doctor’s note certifying him fit for work. He was notified of his discharge later that day.

Although the Brotherhood has invoked a number of procedural grounds in support of the grievance the Arbitrator does not believe that it is necessary to deal with these since he has concluded upon the evidence that there existed no cause which could reasonably serve to support a decision to discharge even of a probationary employee.

The incident of October 21, 1992 was dealt with by Mr. Wyatt’s supervisor at the time when, following Mr. Wyatt’s explanation, the supervisor handed to him a plastic card containing the appropriate contact number which, according to Mr. Wyatt, had never been given to him. While the incident might reflect a degree of blameworthy conduct in the sense that Mr. Wyatt should have made it his business to know the telephone number that he would be required to call in the case of a booking off, the incident would have taken on no importance but for the second incident that followed. However, the Arbitrator is unable to identify any basis for Corporation action or even concern over the conduct of the Grievor during the course of the second incident.

The Grievor experienced a work related hip sprain necessitating his absence for an estimated period of not less than seven days. In the event that the Grievor would attempt to return to work within this minimum period the Corporation would have been entitled to require a certificate attesting to his fitness for work. This is precisely what happened and when the certificate was not forthcoming the Grievor was not permitted to assume his duties. Beyond the seven day period, the Arbitrator cannot see why a certificate would have been required. Under such a circumstance the leave of absence conferred in the original medical certificate should have been seen as having run its course. To have insisted upon production of a medical certificate attesting to fitness and to have discharged the Grievor despite his self declared fitness and willingness to return to work for not having produced such a certificate would, in the opinion of the Arbitrator, be patently unreasonable.

That the Grievor attempted to return to work on November 9, 1992, within the period of authorized absence cannot operate to his detriment nor be perceived as blameworthy conduct. If anything, such occurrence must be viewed as having no significance and certainly could in no way amount to a violation of Corporation rules. Similarly the Grievor’s actions or omissions of November 13, 1992, when he returned to work simply do not even remotely give rise to grounds for discharge. The Grievor merely returned to work on that day following notice and in accordance with a medical certificate which had issued previously. It is true that he neglected to bring with him a certificate issued following his medical examination of November 10, 1992, declaring him fit for work but he did instruct his physician to communicate a copy of that certificate, an instruction which the physician apparently neglected to carry out. Again, the element of violation of Corporation rules is simply absent.

In summary therefore the Arbitrator can find no reasonable grounds which could have justified the Corporation in forming the opinion that the Grievor was undesirable for its service so that, notwithstanding his probationary status at the time of discharge he should be reinstated.

For the foregoing reason it is the decision of the Arbitrator that the grievance be maintained, that the discharge of the Grievor on November 13, 1992 be annulled and set aside and removed from his record, that he be reinstated with full compensation for all loss incurred since the date of discharge and that he resume his probationary period at the point where it was interrupted by reason of the discharge.

The Arbitrator retains jurisdiction for purposes of determining any issue of quantum that may arise.

Montreal, Septembre 15, 1993

(signed) HARMEY FRUMKIN

ARBITRATOR