IN THE MATTER OF AN ARBITRATION
BETWEEN: VIA RAIL CANADA INC.
AND: NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS
UNION OF CANADA
AND IN THE MATTER OF THE GRIEVANCE OF YVAN GERVAIS
BEFORE: J.F.W. Weatherill
A hearing in this matter was held at Montréal, May 3, 2000.
A. Rosner and R. Brosseau, for the union.
M. Bastien and E. Houlihan, for the company.
The grievor, who was hired by the company on May 25, 1979, was discharged on September 29, 1997 (retroactively to September 19, 1997, as of which date he was held out of service). He was discharged for accumulation of demerit marks, having been assessed 40 demerit marks for the incident which will be described, and his record having stood, prior to the incident, at 40 demerit marks. He had thus accumulated 80 demerit marks, which rendered him subject to discharge under the company's system of discipline.
The assessment of 40 demerit marks which precipitated the grievor's discharge was based on an incident which occurred on September 19, 1997. On that date the grievor, a General Worker, was scheduled to work from 15:30 to 23:30. That day, a Friday, he arrived at the company parking lot at approximately 14:35 in the company of another employee. He had, it seems, arranged to meet with a union officer at 15:00, and he arrived in good time, as he stated, since he had anticipated traffic difficulties. On the way to work he had stopped to purchase some groceries and to buy a twelve-pack of beer for the weekend.
When they arrived at the company's parking lot the grievor and the other employee, Mr. Morell, drank some beer, presumably from the case which the grievor had purchased. The grievor admitted to having consumed two sips of beer. There is no evidence to any other effect. The employees were observed, were advised they were suspended, and asked to wait while documents were prepared with respect to an investigation. They did not wait, but the grievor at least went directly to a police station, then to a hospital, and finally to a C.L.S.C., seeking a blood-alcohol test, which he was advised could not be made available. It may be noted that there appears to have been no suggestion by the police or others that the grievor should not be driving.
The significant facts, in my view, are accordingly to be stated as follows having regard to the material before me: the grievor consumed two sips of beer on the company parking lot, prior to the commencement of his shift on the day in question. This, I have no doubt, was an industrial offence. It would appear to be contrary to a reasonable company rule of which the grievor was, or ought to have been aware, but in any event all employees, at least in industrial situations, should - and I believe do - know that consumption of alcohol on company premises is prohibited. The grievor was, I conclude, subject to discipline.
It was contended for the company that the grievor, having consumed even the slightest quantity of alcohol was "under the influence", and it may even be that it was considered that he was "impaired". While it may be that any consumption of alcohol has an "influence", the usual meaning of the expression is that there is some observable effect on the comportment and behaviour of an individual resulting from such consumption and adversely affecting his or her ability to carry out his or her normal functions. There is no evidence at all to that effect in the present case. Nor is there any evidence to establish that the grievor was "impaired" within the meaning of any definition of that term which may be found in criminal or highway traffic legislation. In the instant case, had the grievor consumed his two sips of beer prior to his arrival - even a minute prior to his arrival - on the company's property, I do not believe that he could be considered to have committed any offence whatsoever. In the particular circumstances of this case, however, I think it must be concluded that the grievor, being on the company's premises, did commit an offence, albeit a minor one (again, having regard to the circumstances obtaining in this case).
There can be no real doubt that the assessment of 40 demerits for this particular offence was excessive. The grievor was not subject to Rule "G", and the cases which support a substantial penalty for infraction of that rule are not applicable. An examination of a selection of such cases, however, indicates that, apart from cases of real impairment, a penalty of 40 merits would, certainly in circumstances approximating those of the instant case, be considered excessive. In the present case, were it a case of first discipline, the most minor form of penalty (a warning, or at most 5 demerits) might be appropriate. Allowing for a certain flexibility in the system of discipline, however, and thus bearing in mind that the grievor has had, over the years, a substantial record of discipline, I consider that the assessment of 10 demerits would have been justified. In the circumstances of this case as they are before me, however, I must find that there was not just cause for the imposition of 40 demerits and the consequent discharge of the grievor.
Accordingly, it is my award that the penalty of 40 demerits be amended to one of 10 demerits. Since the effect of this is to reduce the grievor's record at the material time to one of 50 demerits, it is my award that the grievor be reinstated in employment and compensated accordingly, his discipline record on reinstatement standing at 50 demerits.
DATED AT OTTAWA, this 11th day of May, 2000.