SHP – 479

IN the MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED
(ST. LAWRENCE & HUDSON RAILWAY COMPANY)

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)

(the "Union")

re: DISCHARGE C. L. HARRIS

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

Abe Rosner – National Representative, Montreal

R. Laughlin – Regional Vice-President, Local 101

C. Harris

J. Pazzaro – Local Chairman, Diesel, Local 258

Appearing For The Company:

Alain Y deMontigny – Labour Relations Officer, Montreal

Russ Degnan – Locomotive Service Specialist, Toronto

Paul Millett – Diesel Facility Manager, Toronto

Chris Bartley – Car Department, Toronto

A hearing in this matter was held in Toronto on April 21, 1999.

AWARD

This arbitration involves two grievances in relation to the assessment of ten demerits and twenty demerits respectively, as well as the discharge of the grievor, Mr. C.L. Harris, for the accumulation of demerits in excess of sixty. An engine attendant at the time of his discharge, Mr. Harris entered the service of the Company in March of 1988. The Company submits that the grievor’s attendance record in the fall of 1996 merited the assessment of ten demerits, and that continued absenteeism problems in the period between July 11 and September 27, 1998 gave just cause for the assessment of a further twenty demerits, which led to the termination of Mr. Harris of the accumulation of sixty-five demerits. The Union submits that the Company had no basis whatsoever for the assessment of the first ten demerits against Mr. Harris, and that the assessment of twenty demerits is substantially excessive in the circumstances. Additionally, in light of what it submits was the erroneous assessment of the initial ten demerits, it argues that there should have been a reduction in the demerits maintained on his record, and as a result the assessment of twenty demerits for the events of 1998 would not have justified his discharge. In that circumstance the Union requests the grievor’s reinstatement with full compensation.

It is common ground that the instant grievances do not concern discipline for innocent absenteeism. Rather, the Company has maintained throughout that the grievor’s timekeeping practices, in respect of lateness, absence from work, leaving work early and failure to notify his supervisors when he will be absent or late are culpable actions deserving of discipline. This is not, therefore, a matter which concerns an administrative termination on the basis that an employee has, for reasons beyond his or her control, demonstrated an inability to maintain a sufficient level of attendance at work.

The first grievance relates to the assessment of ten demerits registered against Mr. Harris’ record on February 3, 1997. That discipline results from the grievor being absent from work on November 23, December 15 and December 22, 1996, as well as his having been late for work on November 24 and 29, and having left work early on December 14, 1996. Upon a review of the above incidents the Arbitrator is compelled to the conclusion that, with one exception, they all denote some failure on the part of Mr. Harris with respect to his obligation to his employer. The evidence confirms that the grievor’s absence on November 23, 1996 was in relation to obtaining medical treatment for his son, who apparently suffered an asthmatic condition. It does not appear disputed that he gave prior advice to the Company of the absence in question. In my view this is a situation in respect of which the Company could not reasonably refuse to give the grievor leave from work for the purpose so described.

Different considerations, however, arise in respect of the remainder of the incidents in question. The Company’s records, which the Arbitrator accepts as accurate, indicate that on both December 15 and December 22, 1996 Mr. Harris failed to appear at work and also failed to advise that he would not be at work on either occasion. While Mr. Harris maintains that he had previously made an arrangement with Supervisor R. Degnan to utilize a day from his lieu time bank on that occasion, the evidence of Mr. Degnan persuades the Arbitrator that no such arrangement was in fact made or agreed upon. Mr. Harris asserts a similar understanding in respect of December 22nd. Again, Mr. Degnan denies having approved any such arrangement. I as satisfied that the evidence of the supervisor is to be preferred to Mr. Harris in this regard. I note that during the course of the investigation Mr. Harris maintained that he spoke with Mr. Degnan on the day following his absence, Monday December 23rd to “remind him” of the arrangement in respect of utilizing his bank to cover December 22nd. I find that evidence to be more self-serving than compelling, as it raises questions as to why such a reminder would be necessary if, as he maintains, a clear understanding existed between them in advance. Mr. Degnan’s evidence is to the effect that banked lieu time is not generally made available to employees to cover absences during peak holiday periods, including the period of mid-December to Christmas. Such documentary evidence as is available tends to support the supervisor’s evidence, and does not give meaningful substance to the assertion of Mr. Harris that he had prior approval to utilize banked time for the two days in question. Nor is there any dispute that he failed to call the Company to advise of his absence on both occasions. When those circumstances are coupled with the events of November 24 and 29, where Mr. Harris was admittedly late to work without having called in advance, and the incident of December 14, prior to his absence on December 15, when he left early without permission, I am compelled to the conclusion that these incidents do reflect a failure of responsibility on the part of the grievor in the discharge of his obligation to the Company. In the circumstances, having regard to the grievor’s prior record, which includes a warning, a caution, and the assessment of demerits on four previous occasions for his timekeeping problems, I am satisfied that the assessment of ten demerits was warranted in the circumstances.

As a general matter, I find the evidence in relation to the assessment of twenty demerits registered against the grievor on October 26, 1998 to generally support the perception advanced by the Company. Without covering the detail of each incident, the record reveals that between July 11 and September 27, 1998 Mr. Harris was absent from work on some fifteen occasions. Among those incidents it would appear that he properly called the employer to advise of his absence in advance on August 25, 1998 when he absented himself to be with a sick friend, as well as on September 21, when he was ill and properly notified his employer.

On a number of other occasions, however, he was not so diligent. The record discloses that on August 1 and 2 he absented himself to move to a new apartment, notwithstanding that his request for a leave had been specifically denied by the Company. He did, however, on that occasion give proper advice to the employer. No advance notification, however, was provided in respect of absences registered on August 7, August 10, August 24, August 30 and September 7. Additionally, in certain circumstances, although he did call to advise of his absence, the validity of the reason advanced was extremely dubious. For example, it is not clear to the Arbitrator that Mr. Harris could justify his absence from work on July 27, on a midnight shift, by reason of his decision to transport certain relatives to the airport, or his absence on the midnight shift on July 20, to allow him time to deal with business relating to his deceased mother’s estate. Even if those incidents are viewed as less than deliberate, they are at best questionable. On the whole, there is a clear pattern of irresponsibility demonstrated on the part of Mr. Harris, both in respect of failing to provide justifiable excuses for a number of his absences, and for his repeated failure to notify the Company in a timely fashion that he would not be at work.

The issue then becomes the appropriate measure of discipline. In the instant case there are two mitigating factors which suggest that it may be appropriate to consider a reinstatement of the grievor into his employment on a last-chance basis. Firstly, it would appear that the grievor has suffered a degree of personal hardship in respect of family difficulties which contributed in some degree to the prior absenteeism record which became part of the accumulation of demerits culminating in his discharge. Additionally, although the evidence is not extensive in this regard, there is some indication that he suffered from drinking problems for a time, although it is not clear on the material before the Arbitrator that the grievor is himself an alcoholic. In all of the circumstances, bearing in mind that the grievor apparently did register faithful attendance at work for a substantial number of years prior to 1993, the Arbitrator considers that a remedial order can be fashioned to protect the legitimate interests of the Company, and to make it clear to the grievor that any continued failure on his part to be responsible in respect of his obligations of attendance and proper notice to his employer on occasions when he will be absent will have the most serious of consequences.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for wages or benefits, and without loss of seniority, with his discipline record to stand at fifty demerits. The grievor’s reinstatement is conditional upon his agreeing to maintain, for a period of not less than two years from the date of his reinstatement, a record of absenteeism that is not more than the average for employees within his bargaining unit and location. During that period of two years should Mr. Harris register, for any three month period, an absenteeism rate greater than the average of his working peers, he shall be subject to discharge without further recourse to arbitration, save to resolve any dispute between the parties in the calculation of the appropriate rates of absenteeism. During that same two year period any unreasonable failure of Mr. Harris to notify the Company in advance of any absence shall result in the assessment of five demerits, at the discretion of the Company. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Toronto, April 30, 1998

(signed) MICHEL G. PICHER

ARBITRATOR