SHP – 448
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION (CAW - CANADA)
CONCERNING: THE DISMISSAL OF ROLAND COURTEAU
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
G. St-Pierre – Human Resources Coordinator, St. Luc Shops
A. Y. de Montigny – Labour Relations Officer, Montreal
And on behalf of the Union:
A. Rosner – National Representative, Montreal
S. Levert – Regional Vice-President, Montreal
R. Courteau – Grievor
A hearing in this matter was held in Montreal, Tuesday, July 30, 1996.
This grievance concerns the dismissal of carman Roland Courteau for absenteeism following the accumulation of demerit marks. The joint statement of issue is as follows:
The dismissal of Roland Courteau for the accumulation of over sixty (60) demerit marks after the addition of twenty (20) demerit marks to his record on November 14, 1994 for, "your unauthorized absences from work between August 14, 1994 and September 2, 1994."
STATEMENT OF FACT - UNION:
The Union contends that Mr. Courteau was unjustly held out of service on November 14, 1994, and is requesting his reinstatement in his position without loss of pay for all the time lost.
STATEMENT OF FACT - COMPANY:
The Company holds that the disciplinary measure in each circumstance was justified and therefore denies the Union’s request.
The parties disagree on the total number of demerit marks in Mr. Courteau’s file. According to the Company, the grievor had a total of 45 demerits in his file before the incident which earned him 20 demerits and dismissal for accumulating over 60 demerit marks. The Union claims that he had 40 demerit marks before the last incident. For practical purposes, this disagreement is not significant because the parties agree that the addition of 20 points to the grievor’s record would have led to dismissal in any case. Having said that, the Arbitrator believes that the Union’s calculation of the demerit marks is preferable to the Company’s in that it is based on the Company’s official disciplinary record for Mr. Courteau. I therefore consider the grievor to have had 40 demerit marks on his record at the time of the incident which led to his dismissal.
Some pertinent facts are not in dispute. In the past, Mr. Courteau had often been disciplined for an unacceptable level of absenteeism. It is also agreed that his difficulties in attending work regularly are due, in large part, to an alcohol problem for which he has entered treatment programs several times. It is also not in dispute that Mr. Courteau was absent from work between August 14 and September 2, 1994 without permission and without informing his supervisor of his absence or of the reasons for his absence.
However, there are mitigating factors to be considered. The grievor is a long standing employee; he had been working for the Company for 17 years at the time of his dismissal. Moreover, it appears from a medical certificate from his psychologist, submitted as evidence by the Union, that he was going through a very intense period of stress and personal problems at the time of his absence from August 14, 1994. Although these factors do not completely excuse the fact that Mr. Courteau seriously neglected his obligation to keep his employer informed of the reasons for and duration of all his absences, the Arbitrator believes that the grievor should be reinstated in his position, under certain conditions which would protect the Company’s legitimate interests. In particular, considering the grievor’s past record of absenteeism, it is reasonable to require work regularity equal to the average of his peers, for a set period of time.
The grievance is therefore allowed in part. The Arbitrator orders that the plaintiff be reinstated in his functions, without loss of seniority and without compensation for his loss of pay and benefits, with 40 demerit marks in his file. However, Mr. Courteau will be reinstated at work only if he agrees to maintain an absenteeism rate equal to the average of his peers for two years. The rate will be calculated on a continual three-month basis. If his absenteeism rate is higher than average within a three-month period, he will be subject to dismissal with no right of appeal to arbitration, except for the purpose of resolving a conflict over the calculation of the rate of his absences or the rate of absences of other carmen and carman helpers.
I will continue to preside over this dispute to resolve any disagreement respecting the interpretation or execution of this award, if necessary.
Made in Toronto, this July 31, 1996
(signed ) MICHEL G. PICHER