PICHER AD HOC

SUPPLEMENTARY AWARD

This arbitration concerns a dispute between the parties with respect to the interpretation and implementation of a prior award. By an award herein dated May 30, 2000, the Arbitrator reinstated the grievor, Coach Cleaner Erin Blouin, into her employment subject to certain conditions attaching her rate of absenteeism over a period of two years. The Company maintains that the grievor failed to meet the conditions established, and that it was therefore justified in terminating her employment, as it did on November 29, 2000. The Union alleges that the Company misdirected itself in the calculation of the grievor’s rate of absenteeism as compared with the rate of absenteeism of other employees, as specified in the prior award.

The foregoing is more elaborately reflected in the joint statement of fact and issue filed by the parties at the hearing, which reads as follows:

JOINT STATEMENT OF FACT AND ISSUE:

On January 24, 2000, the Company wrote to Ms. Erin Blouin to advise that her employment relationship with Ontario Northland was terminated due to her innocent absenteeism. The Union appealed the termination and the grievance was heard in Toronto, Ontario by Arbitrator M.G. Picher on May 24, 2000. The Arbitrator ruled that Ms. Blouin was to be reinstated into employment subject to certain criteria for maintaining her attendance at work.

Ms. Blouin was reinstated to employment on June 4, 2000. On November 29, 2000, the Company issued a letter to Ms. Erin Blouin notifying her that she was terminated as a result of her failure to meet the attendance criteria as set out in Arbitrator Picher’s award in Shopcraft Case No. SHP 524.

The Union contends that the Company has improperly calculated the absenteeism rate as set out in the award and filed Grievance #2297 requesting that Ms. Blouin be reinstated forthwith and be made whole.

The Company contends that it has followed the criteria set out in the award and has refused to reinstate Ms. Blouin.

The Company’s representative relates that an examination of payroll records discloses that when the grievor’s rate of absenteeism over a three month period was compared to that of other employees in the mechanical department, she failed to meet the average and was therefore liable to discharge in accordance with the Arbitrator’s award of May 30, 2000 which provides, in part, as follows:

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.

According to the Company reports made to Chief Mechanical Officer Tom Burton with respect to the grievor’s poor attendance at work caused him to direct a specific inquiry as to her record of attendance over a three month period, as compared with that of all other employees in the Mechanical Department. In the result a three month period, commencing roughly at the time of Mr. Burton’s request, was examined. The period in question was from August 18, 2000 to November 18, 2000. During that period Ms. Blouin was found to have 10.98 days of absence. An examination of payroll records disclosed that the average of all employees in the Mechanical Department represented by the Union was 2.86 days during the same period. Its representative also notes that the grievor’s absenteeism well exceeded the average for other workers at her place of employment, the Cochrane Shop, which, calculated over the same three month period, reflected an absenteeism rate of 2.63 days per employee, on average.

The figures so arrived at were based on all absences of employees without leave (AWOL), persons away with permission because of illness (SIC), persons who were given permission to be away from work (ALOA) and persons who might have been absent for other reasons besides illness (MISC). It is common ground that the Company did not include within its calculations any absence due to a work related compensable injury.

The Union attacks the approach taken by the Company on four separate grounds. Firstly it submits that the Company erred in the interpretation of the award by having reference to a period of three months other than three calendar months. Its representative submits that, in keeping with the intention of the award, the Company could only have reference to three actual calendar months, for example all of August, all of September and all of October. It was not at liberty, it maintains, to establish the beginning and end of the three month period at any point other than the beginning and end of a calendar month.

Secondly, the Union argues that the Company was required to find that in each one of the three consecutive months examined Ms. Blouin would have exceeded the average rate of absenteeism for the bargaining unit. In other words, if she had exceeded the rate of absenteeism for the unit in each of the first two months, but had met or bettered the average for other employees in the third month, she would not be liable to discharge, even if her overall three month average should be worse than that of the other employees. When reference is had to what he characterizes as the “three strikes” approach so described, with each month being considered individually, he submits that she did not fail to meet the standard of the conditions established.

Thirdly, the Union challenges what it characterizes as the failure of the Company to properly calculate the average of bargaining unit absences. Firstly, it does not understand on what basis the Company chose to exclude Workers Compensation Benefit leaves of absence from the calculation when, for example, it opted to include long-term absences such as those covered by long term disability benefits (LTD). Its representative points to a number of employees who were absent for extensive periods of time, in the case of one employee for up to seventy-one days, during the period of comparison, by reason of being on leave due to a work related injury. Even more fundamentally, the Union’s representative stresses that the Company did not in fact have reference to the average absenteeism rate of all employees in the bargaining unit. He notes that the bargaining unit includes more than the Mechanical Department, and also encompasses employees represented by the Union in the Maintenance of Way Department, as well as in the Company’s bus transportation department. That, the Union submits, is the bargaining unit which must be referred to for the purposes of applying the award of May 30, 2000. As the Company admittedly made reference only to the absenteeism of employees within the Mechanical Department, thereby excluding employees in either Maintenance of Way or bus service, some of whom had relatively extensive absences on LTD, the Company did not properly apply the conditions established by the award.

Finally the Union submits that the grievor was subjected to treatment which placed her at a disadvantage as compared with other members of the bargaining unit. Specifically, its representative notes that upon her initial termination on January 24, 2000, Ms. Blouin’s accrued vacation entitlement was paid out to her. In the result, when she was reinstated into employment by the award of May 30, 2000 she did not, as other employees do, have the ability of bringing her vacation days to bear in a possible reduction in her rate of absenteeism. Specifically, as it appears she had eighteen days of accrued vacation entitlement to her credit, but for the paying out of those days she could have utilized them to reduce the number of days on which she would have been recorded absent. The unchallenged representation of the Union’s representative is that the number of days in question would, even by the Company’s method of calculation, have placed her in a better position than the average of the Mechanical Department for the purposes of the conditions established, and that she would therefore not have been liable to discharge. The Union also points to the fact that the grievor was apparently denied the opportunity to apply banked overtime credits against her days of absence, albeit the specific circumstances of the Company’s refusals to allow her to do so were not elaborated in evidence. It does appear that in some circumstances the Company may properly deny an employee’s request to so utilize banked overtime, as for example when the request is made after the commencement of a given working day.

I turn to consider the submissions of the parties. In doing so, the Arbitrator must stress that he is bound to honour the language and terms of the award of May 30, 2000. While I may be the author of the conditions which are the subject of this dispute, I am not at liberty to now change their terms or vary them, no matter how persuasive the argument of either party may be in that regard. Among the operative words of the award of May 30, 2000 for the purposes of this dispute are “her rate of attendance at work, calculated on the basis of any three months over the period of two years following her reinstatement,”. It is clear that the parties are, at the outset, disagreed on how the concept of “any three months” is to be approached. On this issue I am satisfied that the position of the Company must be preferred. In normal parlance a month is a period which can be calculated from any point within a given calendar month to the corresponding point in either the previous or the following calendar month. The award does not specify that the calculation is to be on the basis of “any three calendar months”. In the result, there was nothing irregular in the Company commencing the calculation of the three month period at any point within a given calendar month, as it did.

Secondly, the Arbitrator is compelled to sustain the Company with respect to the making of a single three month calculation. That is clearly more consistent with the concept of “the basis of any three months” than the Union’s submission that what was intended was the separate examination of three individual months, each consecutive, in which the employee must fall below the average attendance rate. Very simply, the language of the phrase does not compellingly sustain the suggestion that a “three strikes” approach was intended by the award. The phrase “the basis” obviously refers to a single basis, and that basis was intended to be a single cumulative period of three consecutive months.

The Arbitrator has greater difficulty with the Company’s position, however, where two other objections of the Union are concerned. Firstly, the conditions established by the award refer in the broadest sense to the rate of absenteeism or, more accurately, the grievor’s “rate of attendance at work” as compared with “the absenteeism rate for the employees within the bargaining unit”. As the case dealt from the outset with innocent absenteeism, the reasons for an employee’s non-attendance at work have no bearing on the calculation so intended. I am therefore compelled to agree with the Union that the Company’s exclusion of absences occasioned by a work related injury has no basis in the conditions of the award. Nor, in my view, could it be justified on the supposed grounds that some work related injuries may occasion unduly long periods of absence. As true as that may be, it is also true for situations of long term disability, some of which may involve grave illnesses and extended absences. The fact that the Company excluded work related injuries while including absences on LTD benefits introduces an inconsistency in the calculation of absenteeism as contemplated in the award. In my view consistency with the award would have required the full calculation of all absences, for whatever reason.

Finally, and perhaps most fatally to the position of the Company, it did not in fact compare the grievor’s rate of attendance at work during the three month period which it selected with that of all employees in the bargaining unit. That is clear from the Company’s own admission that comparison was made only to employees within the Mechanical Department for the purposes of determining that Ms. Blouin should be dismissed. That is plainly not what was intended by the award which, on its face, makes no reference to comparisons by department or by location, but expressly refers only to “… the absenteeism rate for the employees within the bargaining unit” and in the next sentence “… the average rate of absenteeism for the bargaining unit.” Unfortunately, that calculation was never made, and was not applied in the decision to terminate Ms. Blouin.

The grievance must therefore be allowed. The Arbitrator directs that the grievor be reinstated into her employment forthwith, with compensation for any wages and benefits lost, subject to the normal duty of mitigation, and without loss of seniority. In keeping with the intention of the original award of May 30, 2000, the conditions applied to Ms. Blouin shall continue in effect. More specifically, the period between the date of this reinstatement and her second termination of November 29, 2000 shall not be included in the calculation of the two year period of the condition. To do otherwise would be to unfairly advantage the grievor, and improperly frustrate the condition originally established, which plainly contemplates that the grievor must prove herself over a period of active employment. For the purposes of further clarity, the Arbitrator is not persuaded that the grievor should be entitled to the equivalent of the paid out accrued vacation totalling eighteen days. Bearing in mind that the original grievance was allowed only in part, and she was reinstated by the exercise of the Arbitrator’s discretion in the first instance, that entitlement was properly extinguished.

I continue to retain jurisdiction in the event of any further dispute between the parties concerning this matter.

Dated at Toronto, this 16th day of March 2001

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MICHEL G. PICHER

ARBITRATOR