SHP - 426
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY (MECHANICAL SERVICES)
(hereinafter referred to as the "Railway")
CANADIAN AUTO WORKERS, LOCAL 101
(hereinafter referred to as the "Union")
RE: POLLOCK – DISMISSAL
SOLE ARBITRATOR:H. Allan Hope, Q.C.
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Vancouver, B.C., on September 18, 1996.
I - DISPUTE
This award is the last in a series of four awards arising out of separate hearings conducted on the same day. The first two hearings and awards dealt with separate incidents that gave rise to the imposition of demerits which were relied on by the Railway to support its decision to dismiss the grievor. The third hearing and award dealt with what the Railway perceived as a culminating incident which, when considered in conjunction with the grievor’s discipline record, the Railway saw as justifying his dismissal.
The grievor, a carman at the Port Coquitlam Car Shop, was dismissed on April 4, 1994 in response to the fact that he had accumulated "demerit marks in excess of 60 demerits". In addressing the issues raised in the dispute, the parties wrote as follows in their joint statement of issue:
JOINT STATEMENT OF ISSUE:
It is the position of the Union that;
Therefore, D.G. Pollock should be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal including, but not limited to, interest on any moneys owing.
The Company denies the Union’s contentions and claim.
The first of the "3 cases of discipline" referred to by the Union in the statement of facts and issues consisted of the imposition of 30 demerits on October 30, 1989 in response to an allegation that the grievor had threatened his supervisor. As stated, that dispute was addressed in a separate hearing earlier on the same day as this grievance and the grievance was granted in part with a resulting reduction in the demerits from 30 to 15.
The second case involved the imposition of a caution on November 2, 1992 in response to the failure of the grievor to file an abstinence report for the month of September, 1992. The imposition of the caution, which had the effect of maintaining the grievor’s demerits for 12 months, was upheld in the award.
The third incident was the imposition of 45 demerits given in response to the fact that the grievor reported sick on February 24, 1994 but failed to advise the Railway that he was in jail at the time. The grievance challenging that imposition of discipline, as stated, was heard on September 18, 1996 and the grievance was dismissed. In placing the issues in this dispute in perspective, it is useful to refer to the Union’s advancement of the grievance to Step II on April 20, 1994. In that letter the Union wrote in part that the incidents that gave rise to the accumulation of demerits relied on by the Railway to support the decision to dismiss had been challenged by grievance and could not be relied on to support the decision to dismiss. That submission was directed in response to the Railway’s reliance on the fact that the grievor, as stated, had accumulated 59 demerits prior to the final incident. The Railway imposed a further 45 demerits in response to the culminating incident, thus bringing the grievor to a total of 104 demerits.
The position of the Railway in support of the dismissal was outlined in its Step II Reply. It reads in part as follows:
I am writing in response to your letter dated April 20, 1994 in which you have grieved the discipline assessed against former Carman D.G. Pollock who worked in the Car Repair Facility at Port Coquitlam, B.C.
Mr. Pollock’s record was debited with 45 demerits marks for:
The evidence developed in Mr. Pollock’s statement has clearly confirmed that he had in fact been absent on February 21, 1994 (Q&A.08). It is also established that he had been incarcerated during the period of his regular shift on February 21, 1994 but had not shared that information with his supervisor and had withheld the true reason for his absence (Q&A. 11 to 13). Finally, Mr. Pollock confirmed that he had been arrested and charged (Q&A. 17).
Following are extracts from the Railway’s Step II reply to the Union in which the Railway took the position that the number of demerits imposed on the grievor in response to the culminating incident was academic. The Union [sic] wrote as follows:
Prior to this culminating incident, Mr. Pollock’s disciplinary record stood at 59 demerits and a formal caution. You have suggested that the assessment was excessive and, while not conceding that point, it should be noted that any assessment, even as low as one demerit, would have resulted in Mr. Pollock’s dismissal …
Mr. Pollock’s disciplinary record is abysmal and his attendance record is totally unacceptable.
In supporting its decision, the Railway said that in considering whether the circumstances mitigated in favour of reinstating the grievor despite his misconduct, it should be noted that he had a lengthy discipline record over his 14 years of service. A copy of his record was filed and it disclosed that he first received discipline on October 3, 1985 and, as stated, he had accumulated 104 demerits at the time of his dismissal. (That total was reduced by 15 demerits in the arbitration dealing with the September 15, 1989 incident, thus bringing his total at the time of his dismissal to 89.)
In addition to the facts relating to the failure to disclose the real reason for his leave application, the Railway recited facts relating to the grievor’s conduct as measured in light of a lengthy history of drug abuse. In its submission the Railway wrote in part as follows:
30. (T)he Company was faced with genuine concerns over the possibility that Mr Pollock had returned to his drug abuse habits of old, as evidenced by the discovery of a syringe on his person while under arrest. A confirmation that Mr. Pollock returned to drug use would have resulted in a clear violation of the terms of his agreement with the Company to remain abstinent dated November 1991. As was well known to Mr. Pollock, any deviation from his commitment to remain abstinent under the terms of the EAP Agreement to which he was signatory, could have resulted in his immediate dismissal.
31. The investigation of March 22, 1994 developed that, in addition to fighting with the arresting RCMP officer, Mr. Pollock was also in possession of a syringe on his person when arrested. According to the grievor, he had advised the arresting police officer that he is a "heroin addict". As introduced at the investigation, however, the Company was in receipt of information that the grievor had indicated to the arresting officer that he was in fact a "heroin user" …
32. Following Mr. Pollock’s confirmation that he was in fact the individual identified in the General Occurrence Report, he was asked if he would undergo a drug screeninq test in order to demonstrate conclusively that his involvement with illicit drugs was truly in his past, as he claimed. He repeatedly declined offers to attend the Company’s designated medical facility in order to have the required drug testing performed. In the alternative, he did offer to undergo a drug test with his own physician and agreed to provide the company with the results of that test.
33. While Mr. Pollock’s willingness to partake in his own arranged drug test was clearly unacceptable to the Company, it should be noted, in any event, that to date neither Mr. Pollock nor the Union have supplied the Company with any test results from his personal physician and one can only speculate whether or not the grievor ever underwent drug testing as he indicated he would do …
35. Mr. Pollock’s position of Carman is considered by the Company and Union to be a safety sensitive one. As a Carman, Mr. Pollock was responsible for working in and around heaving [sic] moving equipment in the train yard as well as ensuring that repairs of equipment and safety appliances complied with all government regulations.
36. As previously stated, Mr. Pollock was asked repeatedly to undergo a drug screen which had been arranged for him at our Medisys medical facility. He expressed concerns after initially agreeing to undergo the drug test by stating that he would instead attend his personal physician and have the test performed there. This of course was not acceptable to the Company and was not in compliance with CP’s drug control policy. (emphasis added)
In these proceedings the grievor gave evidence that indicated that his drug problem was under control at the time the culminating incident occurred. He was evasive in his answers with respect to that issue throughout his evidence but it was clear that he was inviting the conclusion that his drug problem had been under control for a number of years and, ipso facto, his arrest did not imply a recurrence of his addiction. However, filed in evidence was a copy of the transcript of proceedings in the Provincial Court of British Columbia on August 30, 1994 when the grievor pleaded guilty to charges of theft and obstructing a police officer. The grievor was present in those proceedings. The exchanges recorded in that transcript indicate that the grievor continued to be a heroin user as of February 20, 1994, being the date of the events that gave rise to his arrest, and that he was continuing to struggle with his drug problem as of the date of sentencing, being August 30, 1994.
For example, crown counsel is recorded in the proceedings as having submitted, without contradiction by the grievor or his counsel, that "he has a previous narcotics problem which is of some duration and was (affecting) his behaviour on this occasion". Later, crown counsel made the statement that the grievor has "moved to Saskatchewan where he is trying to make efforts to improve his life and get off of heroin". In making submissions on the grievor’s behalf, defence counsel advised the Court that the grievor was "getting his life together in terms of his drug problem and wouldn’t be opposed to getting the assistance of drug counselling in Regina where he plans to reside until he is clear of this problem". In addressing the Court the grievor said, "I was a heroin addict, I guess, for 11 years".
The understanding of the Union, as reflected in its written submission in this dispute, was that the grievor’s drug addiction, which began in response to events in 1984, came to a head in 1987 when he enrolled in the Railway’s EAP and underwent in-house treatment. The Union wrote in its submission, " (U)nfortunately, like many others do, (the grievor) relapsed and had to re-establish his abstinence. Since November of 1991 (the grievor) has successfully stayed abstinent and continues to be so". The transcript of the August 30 proceedings in provincial court revealed that the Union had been misled and that the grievor’s addiction continued at least as late as February 20, 1994.
II - DECISION
The facts developed in the culminating incident disclose that the grievor, in addition to his failure to disclose the reason for his absence from work, continued to have a drug problem at the time of his dismissal. On the facts the grievor had not been frank in his disclosure of the continued nature of that problem. Rather, it would appear that he took steps to mislead both the Union and the Railway and that he failed to make a frank disclosure of the continuing nature of his drug problem when the investigation into his incarceration was being conducted.
I agree with the Union that facts developed in the course of participation in the Railway’s EAP should be treated as confidential. In particular, facts revealed by an employee in the course of participation in the program should not be disclosed to the Railway and should not form the basis for disciplinary action. But employees in an EAP remain accountable for continuing acts of misconduct and for breaches of any conditions attached to their participation in the program to which they have agreed, particularly those that are subject to the rider that breaches may attract discipline.
Accepting that lapses are an inevitable feature of rehabilitation programs that address drug or alcohol addiction, there remains a question of the implication any such lapses have in terms of the addicted employee’s continuing role as an employee. In particular, an employee on the EAP who resumes the use of drugs exposes the Railway to the risk that he or she will attend work while under the influence of a drug. That risk is the rationale for requiring employees to commit themselves to abstention and to submit to supervision under the EAP to guarantee abstention.
Where the facts support the conclusion that an employee has been in breach of the obligation to abstain from drugs, that fact may or may not support the imposition of discipline, depending on the particular circumstances. In this dispute the fact that the grievor appeared to have succumbed to his addiction was not viewed by the Railway as a separate ground for imposing 45 demerits. Rather, it was the grievor’s lack of candour about the status of his addiction that the Railway relied on in part in assessing 45 demerits. In that context, I am of the view that the facts relating to the grievor’s failure to provide the Railway with the real reason for his inability to attend work on the shift in question, coupled with his evasiveness with respect to the state of his drug addiction, more than justified the assessment of 45 demerits.
In terms of whether the facts mitigate in favour of the grievor’s reinstatement, it must be concluded that there is little basis upon which the Railway can trust the grievor to either remain drug free or, in the event of a relapse, confront his problem frankly through the drug and alcohol program. That absence of trust raises the continuing potential for the presence of an employee in a safety sensitive position who continues to be addicted to heroin. That potential, weighed in conjunction with the grievor’s other conduct in the culminating incident and his discipline record, supports the conclusion that the Railway had just cause to dismiss the grievor and that the facts do not mitigate in favour of his reinstatement. 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.