SHP – 411
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CAW LOCAL 100
GRIEVANCE RE DISCHARGE OF MACHINIST LANCE GUILD ROCK
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
R. Bateman – Manager, Labour Relations, Toronto
R. Duhamel – General Supervisor, Montrain, Montreal
K. Laviolette – Labour Relations Officer, Montreal
And on behalf of the Union:
Abe Rosner – National Representative
L. Rock – Grievor
A hearing in this matter was held in Montreal on July 22, 1996.
This arbitration concerns the discharge of Machinist L.G. Rock for alleged fraud in relation to a work related injury. The dispute and joint statement of issue, filed at the hearing, are as follows:
Appeal of the discharge assessed to Machinist L. Rock of Tashereau Yard Diesel Shop, Montreal on May 22, 1992 for his attempt to defraud the Company.
JOINT STATEMENT OF ISSUE:
Machinist L. Rock was dismissed from the service of the Company for "fraud in relationship with claims of benefits submitted by you with respect to an alleged injury sustained at work" effective May 22,1992.
The Union has appealed the decision and asked that the Company review its position as they found that the discipline imposed was unwarranted and in any event too severe.
Therefore, the Union requests that Mr. Rock be reinstated without loss of earnings, seniority and benefits as of April 23,1992.
The Company has declined the appeal.
FOR THE UNION: FOR THE COMPANY:
(signed) Abe Rosner (signed) R. Bateman
President Local 100 – CAW Sr. Vice-President – East
The evidence discloses that during the midnight shift of March 16,1992 the grievor sustained an injury to his left knee. He was taken to the Lachine General Hospital for examination by his supervisor, Mr. J.G. Perron. The physician in charge found that he had a sprain to his left knee and advised 14 to 60 days rest.
The following day Mr. Rock had a meeting with supervisor R. Duhamel at the Tashereau Diesel Shop. While there is some conflict as to what was said between the two men, it is not disputed that at that time Mr. Duhamel did offer to provide the grievor with light duties. It does not appear disputed that Mr. Rock responded that he would not accept light duties stating, among other things, that he had difficulty driving his car.
It does not appear disputed that Mr. Duhamel was skeptical about the grievor’s injury, particularly in light of his refusal to perform light duties. Based on his suspicion, he requested surveillance of Mr. Rock, through the Company’s Internal Audit Department. As a result, a surveillance of Mr Rock’s activities was conducted by a private investigation firm on a number of days between March 18 and April 9,1992. The video tapes made by the investigators were filed in evidence before the arbitrator.
It is not disputed that Mr. Rock maintained a certain level of activity during his absence from work. As reflected in the videotape evidence, he can be seen driving his vehicle, as well as that of his female companion, to and from his place of residence. Generally, he walked without apparent difficulty.
The evidence further discloses that the grievor was instructed by his physician to return to work on April 13, 1992, with the only restriction being that he was to avoid squatting. It is also not disputed that he was under medical care and received physiotherapy during the course of his absence from work. Even if it is accepted that Mr. Rock did have an injury to his knee, the record discloses that the grievor was obviously able to drive his vehicle and was not, by reason of any impediment in that regard, prohibited from coming to work. Indeed, as the Union stresses, on a number of occasions during his absence, notably on March 16,17,19 and April 7, he drove his vehicle to the shop where he had business to transact. The arbitrator must agree with the Union that the evidence does not disclose any course of deliberate concealment on the part of Mr. Rock.
On the whole of the evidence, the arbitrator is not satisfied that the allegation of fraud is made out against Mr. Rock. I am satisfied, on the balance of probabilities, that he suffered a genuine injury which was limiting in his ability to perform work. In my view, the fact that he was able to walk, drive his vehicle and to perform occasional functions in relation to his private business conducted outside his employment with the Company does not, of itself, establish a knowing or deliberate course of fraud on his part.
That said, however, the arbitrator is not persuaded that the equities would suggest that the grievor should be entitled to compensation. As is evident from the material before me, Mr. Rock did refuse an offer of light duties made by Mr. Duhamel. While Mr. Rock seeks to explain that refusal based on his own suspicion of Mr Duhamel’s motives, it was plainly incumbent upon the grievor to mitigate his losses and to be cooperative with the Employer in seeking accommodated work during the period of his injury. To the extent that his refusal of light duty work prompted the Company to launch a covert investigation and, ultimately, to discharge Mr. Rock, he can be said to have been the author of his own misfortune. To put it clearly, the arbitrator does not accept that he was incapable of performing light duties when he refused to do so, and cannot dismiss out of hand the subsequent course of action taken by the Company.
For the foregoing reasons, the grievance is allowed, in part. The arbitrator directs that the grievor be reinstated into his employment, without compensation or benefits and without loss of seniority. The time between his discharge and reinstatement shall be recorded as a suspension for the grievor’s unjustified refusal of modified duties. The arbitrator retains jurisdiction in the event of any dispute between the parties in respect of the interpretation or implementation of this award.
DATED at Toronto this 26th day of July, 1996.
(signed) MICHEL G. PICHER