SHP - 425

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY (MECHANICAL SERVICES)

(hereinafter referred to as the "Railway")

AND

CANADIAN AUTO WORKERS, LOCAL 101

(hereinafter referred to as the "Union")

RE: POLLOCK Ė DISMISSAL

 

SOLE ARBITRATOR: H. Allan Hope, Q.C.

 

APPEARING FOR THE UNION:

Brian McDonagh

APPEARING FOR THE COMPANY:

Ken Webb

 

A hearing in this matter was held in Vancouver, B.C., on September 18, 1996.

 

AWARD

I - DISPUTE

On April 4, 1994 the Railway assessed 45 demerits against the grievor. At that point the grievor had an adjusted total of 44 Brown System demerits. (The adjustment was pursuant to an earlier arbitration decision). The assessment of 45 demerits put him over the dismissal threshold of 60 demerits, with the result that he was dismissed. That dismissal was the subject of separate proceedings which will be addressed in a separate award in which the circumstances giving rise to the imposition of 45 demerits will be addressed in more detail. Here it is sufficient to determine whether the conduct relied on by the Railway constituted just cause for discipline and whether it supported the imposition of 16 demerits, being the number necessary to carry the grievor to the dismissal threshold of 60 demerits.

The reason given for the Railwayís imposition of 45 demerits was set out in a letter to the grievor dated April 4, 1994. It reads in substance as follows:

Please be informed that your record has been debited with 45 demerit marks for your absence from duty at the Coquitlam Car Repair Facility, February 21, 1994, for providing false and misleading information to a supervisor regarding the reason for that absence due to your incarceration, and for conduct unbecoming an employee as evidenced by your arrest, incarceration and charge of theft under $1,000 and obstruction of a police officer, at Maple Ridge, B.C., February 20, 1994.

The joint statement of issue submitted by the parties reads as follows:

JOINT STATEMENT OF ISSUE:

It is the position of the Union that;

Therefore, the 45 demerit marks debited against D.G. Pollockís record should be removed and his record so adjusted.

The Company contends that the discipline assessed was neither excessive nor unwarranted and denies the Unionís contentions and claim.

[page 3]

II - FACTS

At the material time the grievor was assigned to a midnight shift at the Coquitlam Car Shop and was scheduled to report for work at 2400 hours on Sunday, February 20, 1994. At 2315 hours he telephoned and advised the Railway that he would not be able to attend work because he was sick. That explanation was accepted at face value and was not challenged. Approximately three weeks later the Railway learned that, in fact, the grievor had been arrested and was in jail when he made the telephone call.

In particular, on March 15, 1994, the Railway learned from its investigation department that the grievor had been arrested at 1920 hours and had remained in custody until the following morning at 1151 hours. When those facts were put to the grievor in a subsequent investigative interview, he acknowledged that he had been arrested and kept in custody. He said that his statement that he would be unable to attend work due to sickness was truthful in the sense that he had been "maced" during the course of his arrest and felt that he would be unable to attend work because of the effects of that experience.

[page 4]

I digress to note that the position of the Union in that regard was that while the grievor had an obligation to provide a full explanation for his proposed absence, including the fact that he was incarcerated at the time of his phone call, he was not under any obligation to volunteer that information. The assertion of the Union was that it was understood between the parties that employees booking off sick would not be expected to provide details because of the confidential nature of medical information.

The Union stated by way of example that there had been a previous incident in the Coquitlam Car Shop in which an employee who called in sick was asked to provide details of his sickness. He informed the Railway that he was suffering from piles. That information led to a breach of confidentiality in which the nature of the ailment was disclosed to employees generally at the work place and the employee concerned was subjected to ridicule. The submission of the Union, in effect, was that the grievor was not required in the circumstances to disclose that he was in jail unless he was asked to provide more detailed information.

I repeat, the imposition of 45 demerits put the grievor over the dismissal threshold of 60 demerits. However, it is convenient to limit the review of the facts at this stage to a consideration of whether the conduct that gave rise to the imposition of demerits was deserving of sufficient demerits to carry the grievor over the dismissal threshold and to postpone consideration of the full implications of his conduct to the review of his dismissal.

In particular, the investigation following the discovery that the grievor failed to attend work because he was in jail raised questions about the implications of his arrest and whether it signalled a resumption of a drug addiction problem that had affected his employment in years past. Those issues of fact will be addressed in the award reviewing the grievorís dismissal. Here it is sufficient to determine whether the conduct of the grievor in failing to disclose that he was in jail when he booked off sick supported the imposition of 16 or more demerits.

[page 5]

III - ANALYSIS

As stated, the grievor booked off sick approximately 45 minutes before he was due to commence his shift. He failed to disclose that he was in jail at the time he booked off. His explanation for failing to disclose that fact was that he anticipated that he would be released in time to report for work. He said that his reason for booking off was not the fact that he was in jail. He said, in effect, that he expected to be released in time to attend at work. He said his reason for claiming sick leave was because he had been "maced" and he would not be fit to perform his duties as a result. In essence, the grievor said that he had a valid reason for booking off sick and that his failure to disclose that he was in jail did not amount to an attempt to deceive the Railway as to the real reason for his inability to report to work.

In terms of assessing the credibility of the grievorís explanation, it is noted that he made his telephone call approximately four hours after he had been placed under arrest and only 45 minutes before he was due to report for work. The only facts offered in support of his assertion that he expected to be released was his own statement. In light of the surrounding facts, his bare statement was not credible. There was no indication that he had sought his release prior to making his telephone call to the Railway or that he had taken any steps with the arresting officers at the time of his arrest or later to determine his status. The inference compelled by the facts is that the grievor elected to withhold from the Railway the real reason for his absence, being the fact that he had been arrested and was being held in custody.

[page 6]

IV - DECISION

The submission of the Union was dependent in factual terms upon acceptance of the grievorís assertion that at the time he gave sickness as his reason for being absent, he did not realize that he would be kept in jail overnight and that he honestly believed that he would be unable to attend because of illness caused by having been maced. That explanation cannot be to reconciled with the facts. The implication arising from the facts is that the grievor was aware that he would not be released when he placed his telephone call to the Railway and that he offered what amounted to a false explanation with respect to his inability to report for work.

The submission of the Union, in effect, was that the grievorís explanation was uncontradicted and must be accepted. But the fact that disputed evidence is not contradicted in express terms does not compel its acceptance. The assessment of credibility in the face of disputed facts involves an application of the principles addressed in Faryna and Chorny, (1952) 2 D. L. R. 354 (B.C.C.A.). The Court addressed the question of probability on p. 357 as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[page 7]

That test, as indicated in the extract from the decision, applies in particular terms in cases where there is conflict in the evidence, but applies generally to all disputed facts. It is the test that is applied routinely by arbitrators. See Brown and Beatty, Canadian Labour Arbitration (1996), para. 3:5100, p. 3-67 to 3.70. Here the account given by the grievor for not admitting he was in jail failed the test of probability. Having sought to elude police in circumstances that involved violent physical resistance to arrest, and having been placed in custody four hours earlier, the grievor had no factual basis for an honest and reasonable belief at 2315 hours that he would be released in time to report for work but would not be able to attend because he had been "maced" in the course of resisting arrest.

The Union submission on the practice of the Railway in the Coquitlam Car Shop with respect to employees who report sick does not address the facts. Accepting that respect for confidentiality is inherent in the administration of sick leave provisions, it has no application to employees who seek to invoke confidentiality as a basis for withholding facts unrelated to illness that are material to their absence. Employees are required by their employment contract to be at work on scheduled shifts or to account for their absence.

Despite the informality of the process, booking off sick amounts to an application for leave due to sickness. An employee who falsifies the facts given in support of an application for leave commits a serious employment offence. The grievorís assertion that he felt he would be released in time to report to work is not believable. Accepting for purposes of this dispute that the existing practice, in ordinary circumstances, did not require employees to volunteer details of their sickness in an application for sick leave, there remains a clear obligation on the part of employees who are seeking a leave of absence to accommodate the fact that they are in jail to make that fact known to their employer.

[page 8]

In the circumstances I conclude that the Railway was entitled to impose discipline upon the grievor. It is implicit that employees under this collective agreement enjoy a significant measure of discretion with respect to booking off on short duration illnesses. In those circumstances, misrepresentation by an employee is a serious matter and is one deserving of a significant response. The immediate question was whether it justified the imposition of at least 16 demerits.

I digress to note that the grievor had challenged by grievance certain of the events that gave rise to his accumulation of demerits. Those challenges were the subject of separate awards. The Union was successful in part in reducing the grievorís accumulated total by 15 demerits. In the result, his adjusted discipline record at the time of his dismissal stood at 44 demerits. On that basis, the imposition of 16 demerits would carry the grievor to 60 demerits.

In my view, the seriousness of his conduct in deceiving the Railway with respect to the reason for his inability to report for work more than justified the imposition of 16 demerits, thus taking over the threshold for dismissal. The significance of that conduct as a culminating incident in terms of his dismissal will be assessed in the award in which the dismissal is reviewed. At this stage the question of whether the conduct justified the imposition of 45 demerits is academic. In the result, the grievance is dismissed.

DATED at the City of Prince George, in the Province of British Columbia, this 15th day of November, 1996.

(Signed) H. ALLAN HOPE, Q.C.

ARBITRATOR