SHP - 428
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA), LOCAL 100
RE: DISCHARGE OF F. SANTAGUIDA
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
J. R. Moore-Gough President Local 100
T. Wood National Representative
R. Hanlon Vice President Local 100
APPEARING FOR THE COMPANY:
H. Koberinski Labour Relations Consultant
Greg Search Assistant Manager, Labour Relations
Mario Di Donato Senior Tech. Supervisor, CAR
Mark Stock Labour Relations Officer
M. A. Skopyk Mechanical Officer - Great Lakes District
A hearing in this matter was held in Toronto on February 28,1997.
This is a grievance against discharge. The Company closed the record of Carman F. Santaguida effective September 20, 1994 by reason of innocent absenteeism. The Union alleges that the Company violated the grievor's procedural and substantive rights under the collective agreement. The dispute and joint statement of issue, filed at the hearing, read as follows:
The closing of the record of carman F. Santaguida effective September 20, 1994
JOINT STATEMENT OF ISSUE:
On September 20,1994, the Company wrote to Mr. Santaguida stating:
Please be advised that effective upon receipt of this letter, your services with this Company are no longer required. The reason for this action is your failure, in spite of several interviews regarding your excessive absenteeism, to maintain an acceptable attendance record at work. Your record in fact is much worse than the average of the other employees in your group and has been for some time regardless of attempts by the Company to bring this to your attention for correction.
The Union has grieved the closure of Mr. Santaguida's file on the basis that it was unjust and that the Company did not comply with Rules 23.30 and 28.1 of Agreement 12.35. The Union has requested that carman F. Santaguida be returned to service with full seniority and that he be compensated for all wages and benefits lost, including overtime.
The material facts are not in dispute. Mr. Santaguida was employed by the Company as a carman in its equipment department at Hamilton, Ontario, with seniority dating from November of 1981. It is common ground that the grievor's record of attendance over the years of his employment has been substantially below the average for that of his peers. The average level of absenteeism for carmen in the Hamilton car shop is said to be approximately 8 to 9 percent annually. It is not clear whether the computation of that average includes the grievor. He has, however, at least in some years maintained attendance comparable to that level. In 1990 he recorded an absenteeism rate of 9 percent, which is within the norm. However, the following four years reflect a grave departure from the shop average. In 1991 the grievor's rate of absenteeism was 61.4 percent. In 1992 it was 65.9 percent, improving somewhat to 31.5 percent in 1993 and slipping again to 48.3 percent for the year 1994 to the date of his dismissal on September 20.
The evidence does not indicate that the grievor's di culties with timekeeping have been occasioned by a single problem. His failure to attend at work in the period reviewed above was variously caused by sinusitis, bronchitis, respiratory infections, abdominal pain, cervical and lumbar strain, a sprained ankle, a puncture wound, a peptic ulcer, gastric dif culties, a pulled muscle, a sore tooth, depressive disorder, anxiety, a bruised back and a number of other undisclosed ailments.
Nor can the grievor's problems with absenteeism be said to be restricted to the four year period immediately prior to his termination. A review of the fourteen years of Mr. Santaguida's employment reveals an overall absenteeism rate of 17.9 percent. Moreover, during the two and a half year period immediately prior to his discharge, the Company interviewed or counselled the grievor with respect to his absenteeism problem on some six occasions. A review of the record, however, does not indicate any written warning to Mr. Santaguida to indicate that his pattern of absenteeism could result in the loss of his employment. While it clear that he was told on a number of occasions that he needed to improve his attendance record, the only reference in relation to his job security appears to have been made once verbally by supervisor Mario Di Donato. In an E-mail dated May 26,1994 Mr. Di Donato relates to District Superintendent, Equipment John Dunn that he discussed the grievor's poor timekeeping with him and the need for him to be at work on a regular basis. His communication to Mr. Dunn reads, in part: "I also explained to Frank that his poor timekeeping, has placed his position as an employee with C.N. Rail in jeopardy." When no improvement was shown in the following months, the grievor was terminated on September 20,1994.
The Union submits that the Company violated rules 23.30 and 28.1 of the collective agreement, which provide as follows:
23.30 An employee with more than 65 working days cumulative service shall not be discharged without being given a proper investigation.
28.1 Except as otherwise provided herein, no employees shall be disciplined or discharged until they have had a fair and impartial investigation and their responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.
The Union's representative submits, among other things, that much of the grievor's attendance problems were in fact culpable, noting that on many occasions he would leave work early or absent himself without any medical or other excuse. He argues that in the circumstances the Company should have convened a disciplinary investigation into the merits of the grievor's absences, and that it was compelled to proceed by way of a disciplinary investigation under the provisions of rule 28.1. Alternatively, he argues that the grievor is, in any event, protected against termination, even for non-disciplinary reasons, by reason of his more general entitlement to a "proper investigation" prior to discharge, as provided under rule 23.30.
The Union's representative also stresses that a review of the record indicates that in fact the Company lulled the grievor into a false sense of security with respect to the tolerance of his absenteeism over a substantial number of years. He stresses that Mr. Santaguida was never previously disciplined by the assessment of demerits prior to his discharge, and that the general verbal warning given to him in April of 1994 by Mr. Di Donato could well have been interpreted by the grievor as an indication that he might be susceptible to the assessment of demerits which could, with sufficient accumulation, eventually place his employment in jeopardy. He notes that there is nothing in the record to indicate that the Company's supervisors ever gave the grievor a clear understanding of the concept of innocent absenteeism, or that a failure to improve in that regard could result in his termination without any disciplinary investigation.
The Company's representative argues a different point of view. He submits that the Company was entitled to proceed as it did, treating Mr. Santaguida's long-standing problem of absenteeism as a non-culpable course of conduct. Referring to general principles of arbitral jurisprudence, he submits that the extensive record of absenteeism recorded by the grievor, coupled with the reasonable inference, based on the variety of causes, that there is little prognosis for improvement in the future, justified the Company in its decision to terminate Mr. Santaguida's services. He maintains that this is not a circumstance which required the Company to conduct a disciplinary investigation, as it made no accusations of fault or wrongdoing against the grievor, and it was under no obligation to treat his absenteeism as culpable conduct in respect of which the Company must establish his "responsibility" within the meaning of rule 28.1 of the collective agreement.
The first issue to be resolved is whether the Company was, as it asserts, entitled to treat this matter as a nonculpable, administrative termination. The Arbitrator is satisfied that it could. There is nothing within the collective agreement, or in employment and labour law generally, which would require an employer to look behind the assertion of an employee that he or she is absent by reason of illness, injury or some other incapacity beyond the employee's control. While it is, of course, open to an employer to question an employee's claim of illness and, in appropriate circumstances, to demand the production of a doctor's note or certificate to justify an absence for medical reasons, it is not compelled to do so. It can, as the Company chose to do in the instant case, simply accept the employee's assertion that all absences were for legitimate reasons beyond the employee's control. It is, I think, unseemly, if not inequitable, for a trade union to argue on behalf of an employee that the employer is not entitled to make a decision based on a view of the facts asserted by the employee himself or herself. Having taken the employer down an extensive path of self asserted innocent absenteeism, the employee cannot fairly demand to be dealt with now under a separate set of rules which govern deliberate misconduct and discipline.
On the foregoing basis the Arbitrator is satisfied that the Company was under no obligation to conduct a disciplinary investigation prior to making its decision to terminate Mr. Santaguida for innocent absenteeism. As is clear from the language of rule 28.1, it is intended to deal with culpable or blameworthy misconduct for which an employee is responsible and which, presumably, can fairly be the subject of corrective discipline or, in an appropriate case, discharge. The rule has no application where, as in the instant case, the employer chooses to accept the grievor's attendance record as involving innocent absenteeism, based on the employee's own prior representations, and to make a decision as to his or her employability based on generally acceptable principles governing the termination of an employee for innocent absenteeism.
Has the employer violated a separate obligation of investigation under rule 23.30 of the collective agreement? The parties have referred the Arbitrator to no prior jurisprudence dealing with the meaning of that provision. Absent any such authority, in the circumstances the Arbitrator is first inclined to conclude that the standard of "a proper investigation" contained within rule 23.30 should be construed as something different from the more formalized duty of a fair and impartial investigation entrenched and elaborated within the language of rule 28, which specifically deals with disciplinary investigations and the grievance procedure. On that basis, it would appear reasonable to conclude that, at a minimum, the parties intended that an employee not be terminated arbitrarily, or without a reasonable examination of the merits of his or her case, by the employer, before the decision is made to discharge the employee, in a non-disciplinary circumstance.
Clearly, that standard was thoroughly met in the case at hand. The record reveals a number of meetings and communications within management exhaustively recording and reviewing the absenteeism incurred by Mr. Santaguida, prior to the decision to terminate his services. If, therefore, as I am satisfied, rule 23.30 contemplates a reasoned and non-arbitrary examination of the facts by the employer, that standard has been met.
Alternatively, if I am incorrect in the foregoing analysis of the intention of rule 23.30, I am nevertheless of the view that it has not been violated. The alternative interpretation which the Arbitrator would choose is that rules 23.3 and 28.1 must be read together. In that context, the concept of "a proper investigation" would refer the reader to the provisions of rule 28, which then elaborate the circumstances in which investigatory steps are required, and the procedures and standards to be followed. When that approach is taken, a reading of the two rules together would confirm that the parties intended that the requirement of an investigation is appropriate in the circumstance of alleged culpable conduct which would be deserving of discipline or discharge. On that alternative reading of the collective agreement, I would likewise be compelled to conclude that there has been no violation of rule 23.30 by the Company, as the cause for the grievor's termination was not culpable or disciplinary.
The issue then becomes whether the administrative termination of the grievor was appropriate in the circumstances. Upon a careful review of the record the Arbitrator is not entirely persuaded by the Company's position. Mr. Santaguida is an employee of considerable service, having been employed for some fourteen years. With one exception there is, as the Union's representative argues, virtually no reference in the communications to Mr. Santaguida to the effect that his continued absenteeism could result in the termination of his employment. In the circumstances I consider it equitable to fashion a remedy which will, on the one hand, provide to the grievor an opportunity to demonstrate that he is capable of assiduous attendance at work while, on the other hand, fully protect the Company's interests in the event that he should not.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment, without loss of seniority, and without compensation, subject to accepting the following condition. Should Mr. Santaguida record a rate of absenteeism in excess of the average for employees in his classification at Hamilton, in any three month period during the two years following his reinstatement, he shall be subject to discharge. Such discharge shall be without recourse to arbitration save to resolve any dispute with respect to computing the rates of absenteeism involved.
The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.
Dated at Toronto this 10th day of March,1997.
(signed) MICHEL G. PICHER