IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 100
RE: DISCHARGE OF R. A. BROWN
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
B. R. McDonagh – National Representative, New Westminster
J. Burns – Vice-President, Local 100, Langley
R. H. Burns – Grievor
Appearing For The Company:
S. Blackmore – Labour Relations Associate – Pacific Division, Edmonton
S. Michaud – Business Partner HR – Pacific Division, Edmonton
J. Barareski – Assistant Manager, Administration, Edmonton
R. Reny – Human Resources Associate – Pacific Division, Vancouver
A hearing in this matter was held in Calgary on May 8, 2000.
At the hearing the parties filed the following Dispute and Joint Statement of Fact and Issue:
Dismissal of Car Mechanic Ronald A. Brown, Mechanical Line Operations, Edmonton, Alberta.
JOINT STATEMENT OF FACT:
On April 18, 1997 Car Mechanic Ronald A. Brown was advised by letter that “effective immediately” he was being held out of service pending an investigation into:
1.) An alleged violation of the CN policy to prevent workplace alcohol and drug problems.
2.) being absent on April 4, April 5 and April 10, and arriving late and leaving early on April 12, 1997.”
Ron Brown was also directed that upon receipt of the letter to arrange for a drug test with the medical laboratory utilized by the Company. When the results of same were received a Formal investigation would commence.
On May 10, 1997 Canadian National Railway held an investigation of Car Mechanic Ronald A. Brown in connection with:
“being charged with alleged drug related offences while employed in a risk-sensitive position; and into being absent on April 4, April 5 and April 10, and arriving late and leaving early on April 12, 1997.”
According to the Company discipline form, on June 9, 1997 the Company discharged Ron Brown for:
“Conduct incompatible with employment at Canadian National”
JOINT STATEMENT OF ISSUE:
It is the contention of the Union that:
– the Company treated Car Mechanic Ronald A. Brown in an arbitrary, discriminatory and excessive manner in regard to his dismissal;
– the Company did not consistently apply its own Alcohol and drug policy as it relates to testing and reinstatement as it relates to the instant case;
– the Company did not establish culpability sufficient to merit the discharge of Ronald A. Brown.
Therefore, with regard to the foregoing, it is the position of the Union that Car Mechanic Ronald A. Brown should be returned to duty 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 money owing.
The Company disagrees with the Union’s position.
It is common ground that Car Mechanic Brown was discharged following a Company investigation relating to criminal charges brought against him for, among other things, trafficking in a narcotic. The evidence discloses that Mr. Brown was arrested by the Edmonton police on April 16, 1997. He was then visiting two female friends in a house which separately housed a lady who became a co-accused with the grievor. By the grievor’s account, which is unchallenged, he was arrested while leaving the house and was found to have prescription drugs in the pocket of his jacket. It appears that those drugs belonged to one of the ladies he had been visiting, who had apparently borrowed his jacket when she went to retrieve them from the pharmacy and forgot them in the pocket.
In fact some five criminal charges were levied against Mr. Brown, some of them along with Ms. Patricia Woroch. He was charged with two counts of unlawfully trafficking in amphetamines on the 15th and 16th of April 1997. He was further charged with separate counts of being in possession of an amphetamine for the purposes of trafficking on April 16, as well as being in possession of cash derived from the proceeds of an offence under Section 39 of the Food and Drugs Act and, finally, for one count of being in possession of a concealed weapon. By the grievor’s unchallenged account the weapons charge was based on the fact that a personal pocket knife was found in his possession when he was arrested.
When word of the charges against the grievor reached the Company it convened the grievor to an investigation into the charges against him, as well as in relation to certain of his recent attendance problems. The notice of the Company’s investigation, provided to the grievor on April 18, 1997, advised him that he was suspended from service pending the investigation, and that he was to complete a drug test, to be arranged with Dynacare Kasper Medical Laboratories of Edmonton. It is common ground that Mr. Brown did attend at the laboratories for the purposes of a drug test, although it appears that there was some confusion in that he went there directly, apparently without a referral from MedCan, the Company’s medical services provider. In any event the Company takes no issue with the regularity of the drug test taken by Mr. Brown, the results of which were entirely negative. All charges against the grievor were eventually dropped for lack of evidence, save the charge in relation to possession of the knife. His conviction for carrying a concealed weapon resulted in a $200 fine.
At the disciplinary investigation conducted on May 20, 1997, well in advance of the grievor’s scheduled trial, he did not provide a full and detailed account of the charges against him. When asked what the charges were he responded that he was charged with trafficking in amphetamines. He made no mention of the separate charges relating to being in the alleged possession of the proceeds of drug trafficking or the concealed weapon charge. The Company did not accept the grievor’s explanation for the charges against him and drew its own conclusion that he must be guilty. As a result, on June 9, 1997 he was discharged for conduct incompatible with his employment at Canadian National.
The Arbitrator can readily understand the motives of the Company in removing the grievor from service in April of 1997. Upon learning that he was charged with serious offences in relation to alleged trafficking in narcotics, the Company had reason to be concerned for the continued presence in the workplace of an individual who might be involved in the sale of illegal drugs. However, it must be remembered that a charge is not a conviction. It would, of course, be open for an employer to adduce evidence to sustain, on the balance of probabilities, that an individual did commit an offence, even though the Crown might not have sufficient evidence to convict in a criminal trial. However in the instant case there is no evidence adduced by the Company to sustain the conclusion that the grievor was in possession of amphetamines, other than in the relatively innocent circumstance which he related. There is, in other words, no real evidence before the Arbitrator to sustain the conclusion that the grievor did in fact traffic in narcotics or retain proceeds from the sale of a controlled drug.
It would appear to the Arbitrator that in the circumstances it would have been preferable to suspend the grievor pending the outcome of the criminal charges against him. Unfortunately, the Company appeared prepared to infer guilt from the mere fact that the grievor had been charged, and to base its decision to discharge him on that alone. When the Crown dropped all drug related charges against Mr. Brown on April 21, 1998 the Company would have been in a position to properly consider his reinstatement into employment. If it were not then prepared to reinstate Mr. Brown, it must, in the alternative, be prepared to defend its decision by recourse to evidence which would establish, on the balance of probabilities, that Mr. Brown was involved in the trafficking of narcotics. As related above, there is no evidence placed before the Arbitrator, save the fact that the grievor’s arrest and the charges against him, to establish that he was in any way involved in trafficking in a prohibited narcotic.
The Company points to the fact that the grievor was not fully forthcoming with respect to the charges against him when the Company conducted its disciplinary investigation. While that may be true, it is not clear that the grievor was fully cognizant of all of the charges which he faced. Nor does it appear from the record that the discipline against him was based on his failure to give fuller detail of the charges against him. It is clear to the Arbitrator that the criminal charge of major concern, trafficking in amphetamines, was fully communicated to the Company at the time of its investigation.
In the result, as of April 21, 1998 the Company was aware that the Crown had dropped all narcotics related charges against the grievor. It was also aware that he passed a drug test when requested to do so by the Company, on April 25, 1997, registering a negative result. In the Arbitrator’s view the Company had little or no real evidence to conclude that the grievor was deserving of discharge for conduct incompatible with his employment as of April 21, 1998. Nor is the Arbitrator persuaded that the fine levied against the grievor for carrying a pocket knife would have provided meaningful grounds for his discharge.
In the result, the Arbitrator is satisfied that the grievance must be allowed, in part. While the Company did have a reasonable basis to withhold the grievor from service until such time as his criminal charges were disposed of, it did not have just cause to terminate his employment when the charges were pending or following his acquittal, in the absence of any significant evidence to confirm his involvement in drug trafficking. No such evidence has been offered.
In the result the Arbitrator directs that the grievor be reinstated forthwith into his employment, without loss of seniority, and that he be compensated for all wages and benefits lost calculated from April 21, 1998, subject to normal deductions for any earnings he may have made, with due allowance for his obligation of mitigation. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, May 15, 2000
MICHEL G. PICHER