IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 103
RE GRIEVANCE 1386: TERMINATION OF COACH CLEANER ERIN BLOUIN
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
M. J. Restoule – Manager, Labour Relations, North Bay
Tom Burton – Chief Mechanical Officer, North Bay
Ken Duquette – Area Supervisor
Appearing For The Union:
Brian Stevens – Local President, North Bay
Brian Kelly – Chief Steward
Tom McParland – Committee Person
A hearing in this matter was held in Toronto on May 24, 2000
This arbitration involves the termination for innocent absenteeism of Coach Cleaner Erin Blouin, effective January 24, 2000. The nature of the dispute is reflected in the Joint Statement of Fact and Issue, filed at the hearing, which reads as follows:
JOINT STATEMENT OF FACT AND ISSUE:
On January 24, 2000 the Company advised Ms. Erin Blouin that her employment relationship with Ontario Northland was now being discontinued due to her innocent absenteeism.
The Union filed a grievance contending that the closing of Ms. Blouin’s files was unjust, without cause, excessive and in violation of rules 19.1, 34.1, 34.2 and any other related rule of Wage Agreement #12, Memorandum of Understanding, Letters of Understanding, past practice. Additionally the Union took the position that the Company is Estopped from closing the file in the absence of any investigation taking place.
The Union requested that the Company rescind the correspondence of January 24 and that Ms. Blouin be returned to service and be made whole forthwith.
The Company denied the grievance.
The Union advances a number of positions. Among them is the argument that the Company could not terminate the services of Ms. Blouin without first conducting a disciplinary investigation in accordance with the rules of collective agreement no. 12, including rule 34.1. That argument rests, in part, on the fact that on April 27, 1999 the Company’s chief mechanical officer, Mr. Tom Burton, wrote to the grievor warning her of the consequences should her excessive rate of absenteeism continue. That letter reads, in part, as follows:
Therefore, the importance for you to recognize that maintaining a good attendance record both now and in the future is vital to your continued employment with Ontario Northland. Failure to do so will result in an investigation proceeding being conducted which could result in discipline being assessed that may affect your employment relationship with Ontario Northland.
The Union argues, in part, that by reason of the foregoing letter the Company is estopped from purporting to terminate the grievor administratively, on the basis of a non-disciplinary discharge for innocent absenteeism.
The Arbitrator is not persuaded by that initial position of the Union. The collective agreement is clearly the controlling document for the purposes of determining whether the Company was under an obligation to conduct an investigation in accordance with rule 34 of the collective agreement. Rule 34.1 reads, in part, as follows:
No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established.
As can be seen from the foregoing, the import of rule 34 is to deal with culpable conduct for which an individual is responsible, and for which sanctions such as discipline or discharge can be imposed for just cause. The entire import of rule 34 relates to discipline, with specific reference being made, for example, in rule 34.5(a) to “… Any written reprimand, warning or caution” and in sub-paragraphs (b) and (c) to demerit marks and discipline, respectively. There can be little doubt that the rule is addressed to matters of employee misconduct and related measures of discipline. I can find no basis, even allowing for the fact that Mr. Burton may have erred in suggesting the possibility of disciplinary proceedings, that the provisions of rule 34 must apply in the circumstances of the grievor.
A review of the facts makes it clear that the grievor’s termination was for innocent absenteeism. Her attendance record is not in substantial dispute. First hired in 1992, Ms. Blouin recorded a consistently high rate of absenteeism, particularly in 1997, 1998 and 1999 when she was absent for 128.63 days, 138.31 days and 152.69 days, respectively. By any reckoning that degree of absenteeism is beyond acceptable standards, and well in excess of the average absenteeism for other employees, said by the Company to be in the vicinity of .82 days per month.
The parties are not in dispute as to the principles which must apply. In a case such as this the employer’s right to terminate the services of an employee require the demonstration of two elements. Firstly the employee must have recorded an unacceptable level of absenteeism and, secondly, there must be no reasonable basis to conclude that the prognosis for improved future attendance is positive.
I am satisfied that the first element is clearly made out. The evidence discloses that Ms. Blouin was the victim of considerable medical problems, relating to complications surrounding the birth of a child, and subsequent gynaecological procedures and surgeries, the details of which need not be examined. That circumstance also led to a dependency on prescription drugs, a condition which was exacerbated by clinical depression, related in part to the break-up of her marriage and a custody battle which ensued, in 1997.
Of greater significance for the purposes of this grievance is the second element. The grievor’s evidence, which is unchallenged, is that she has had no medical or psychological difficulties since mid-1999. That is to some extent confirmed by a letter from her physician, although certain of the terms of that letter are somewhat equivocal. It does not appear disputed, however, that the grievor has not had need of medical attention, and has not suffered from depression, addiction problems or gynaecological problems requiring medical attention for a substantial period of months.
It appears to the Arbitrator that this is a grievance that can be resolved on a basis which protects the legitimate business interests of the Company while nevertheless giving the grievor the benefit of the doubt with respect to the prospects for her future regular attendance at work. A remedial order can be devised in terms by which, if the grievor’s evidence does not prove true, the Company will be relieved of any further obligations or difficulties with respect to her employment. Conversely, if the indications contained within her physician’s letter and her own testimony prove true, she will be able to return to long term gainful employment.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into her employment forthwith, without compensation for wages and benefits lost, and without loss of seniority. Ms. Blouin’s reinstatement shall be conditional upon her agreeing to be subject to immediate termination should her rate of attendance at work, calculated on the basis of any three months over the period of two years following her reinstatement, exceed the average of the absenteeism rate for the employees within the bargaining unit. Should she accept that condition, her termination shall be without recourse to arbitration, save for the purpose of calculating the grievor’s rate of absenteeism, and the average rate of absenteeism for the bargaining unit.
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 30, 2000
MICHEL G. PICHER