IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA, LOCAL 100
IN THE MATTER OF THE GRIEVANCE OF J. DeCAYETTE
ARBITRATOR: J.F.W. Weatherill
Hearing held in Montreal, on June 5, 2002.
A. Rosner et al appearing for the Union.
D. Laurendeau et al appearing for the Company.
This grievance concerns the termination of the complainant, a Heavy Duty Mechanic, who has been working for the Company for 22 years. The complainant learned that his job had been terminated when he went to pick up his vacation pay cheque in December 2000. He had been absent from work as a result of the circumstances described below.
On January 12, 2001, the Union submitted a letter of grievance, which stated:
Please accept this as Step I of the grievance procedure, pursuant to Article 27.1 of Collective Agreement 12.
Mr. DeCayette had been absent from his employment for some time. He contacted us recently requesting some information. We apprised him of a letter from Yves Goulet dated August 1, 2000, addressed to him at 307 Lahaie #4, Pont Viau, Laval, QC, H7G 3B5. This letter stated that the Company considered Mr. DeCayette to have [resigned] from his job.
Mr. DeCayette then told us that the address written on the letter was incorrect. His mailing address should be:
8395 Acadie E # 4
Mr. DeCayette contends that he never resigned from the Company. He stated that his physical and medical condition allow him to be reinstated to his position.
We believe that the process defined in Appendix III allows the Company to shed light upon the reasons for Mr. DeCayette’s absence, and if there is any evidence which allows us to conclude that Mr. DeCayette had [resigned] from the Company, the Union should be notified.
Consequently, we demand that the Company allow Mr. DeCayette to be reinstated.
The Company’s reply was as follows:
You letter confirmed that Mr. DeCayette [had been] absent from his job for some time. Furthermore, you state that the Union had notified Mr. DeCayette that CN management had [sent] him a letter notifying him that he had [resigned] from his job.
Again in reference to your letter, Mr. DeCayette then notified you that the address written on said letter was incorrect and should be:
8395 Acadie E app: 4
A3N 2W4 [sic]
In view of the steps you took with Mr. DeCayette, to his conversation, he adds that he never resigned from the Company and says that his physical and medical condition allow him to be reinstated to his position.
Based on these facts, you are claiming the reinstatement of Mr. DeCayette.
We cannot agree with your claim as a review of the [facts], clearly [shows]:
Firstly, Mr. DeCayette had received several [letters] at the indicated address, i.e.:
8395 Acadie E. app: 4.
Secondly, our files show that Mr. DeCayette has been absent from work since November 1, 1999 without authorization. In addition, Mr. DeCayette submitted a request to Sun Life, which was declined on February 10, without having [notified his] employer.
On May 2, Mr. DeCayette [reported] for duty without a medical certificate from his physician. Afterwards, Mr. DeCayette was absent from work until December 7, the day on which he picked up his pay cheque for his vacation and termination [of employment].
In brief, Mr. DeCayette did not [respond] to the numerous letters sent to him by his employer, was absent from work for more than one year [without] authorization from management, and was not [able] to provide us with information such as a medical certificate.
In view of these facts, we respectfully decline your request at Step 1 of the grievance procedure.
To better understand this position, it must be considered in context. The complainant was injured in a road accident on March 19, 1998 while he was off duty. He injured his lower back and was absent from work (authorized absence) until November 12, 1998. In November 1999, the back pain recurred, and despite medical treatment, the complainant had to take time off work as of mid-November. Once again, this was an authorized absence. At that same time, the complainant was experiencing marital problems; he moved out of his family home at 307 Lahaie and moved in with his nephew at 8395 Acadie. It appears that he did not notify the Company about his change of address.
The complainant was absent, with authorization, until February 2000, when he reported to work with a certificate from his physician stating that he could return to work with some restrictions. The supervisor, Mr. Goulet, asked the complainant to undergo a physical exam with a Company physician, and the complainant did so. The Company physician appears to have arrived at the same opinion as the complainant’s personal physician and has issued the following “temporary” certificate:
As a preventive measure, the employee should avoid lifting weights of more than 25 lbs. In addition, the employee should avoid working in a bent position for a [prolonged] period.
The employer deemed it could not keep the complainant on the job with such restrictions. The merit of this decision is not at issue in this matter. The complainant subsequently submitted an application to Sun Life for weekly indemnities. This application was declined. Once again, this point is not at issue in this matter. However, it should be noted that the complainant’s application to Sun Life included notification of his new address, and a copy of this application was sent to the employer.
In May 2000, the complainant reported to the Company’s Occupational Health Services. He obtained a medical certificate stating that he could resume his work without any restrictions. The certificate, dated “4/4/00,” states:
This patient was under our care from Nov. 2, 1999 to Feb. 7, 2000 for low back pain due to exertion at home.
In our opinion, this patient could have resumed his regular duties without any restrictions as of March 15, 2000.
The complainant apparently provided this certificate to the shop office, but the supervisor did not see it and the complainant did not follow up until May 2, 2000, when he reported to Occupational Health Services, where he saw a nurse who asked him to meet with the Company physician in order to determine whether the restrictions should be maintained or if he could be reinstated to his position. The complainant refused to see the Company physician.
The Union claims that the complainant was within his rights to refuse to see the Company physician and refers to CROA decision no. 1850. The circumstances of that case do not appear to be the same as this case; but this point is not at issue here. Since the complainant refused to see the Company physician, the nurse contacted the supervisor, Mr. Goulet, who went to the clinic to see the complainant. The complainant told Mr. Goulet that he had no medical follow-up since February 2, 2000, and Mr. Goulet asked the complainant to present a medical certificate from his attending physician within two weeks. The complainant did not comply with this request.
In mid-June, Mr. Goulet tried to contact the complainant by phone without success. Then, on July 11, the Company sent a registered letter to the complainant at 307 Lahaie, summoning him to an investigation on July 14. The complainant no longer resided at this address, and there is no indication that the letter was received. On July 19, the Company wrote to the complainant again, summoning him to another investigation to determine the reasons for his absence from work since May 2 and to explain why he did not appear for the July 14 investigation. This time, the letter was sent to 307 Lahaie and 8395 Acadie. However, there is no proof that these registered letters were received and the complainant denies having received them.
On August 1, 2000, the Company wrote to the complainant again, at 307 Lahaie, informing him that he would be presumed to have resigned from the Company if he did not respond within 10 days. There is no proof that the complainant received this letter. As the Company did not hear from the complainant, a letter was sent to him on August 25, 2000, advising him that his file was closed “due to your failure to perform the assigned duty.” The Union was not advised of this action. It was only on December 7, 2000 that the complainant understood he had been terminated, as noted earlier.
The Company claims that this was not disciplinary action, and that the complainant had resigned. Of course the complainant never submitted a formal resignation. However, we can, as the Company did, presume a resignation in certain circumstances, particularly when an employee fails to comply with a (reasonable) request to contact the Company within a certain timeframe, where the employee would be presumed to have resigned upon failure to contact the Company. In this case, I think it was reasonable that the Company wrote the complainant as it did on August 1, 2000.
Unfortunately, the Company did not send the letter to the correct address – while it did have the correct address in its possession. It is not claimed that the collective agreement contains provisions to deal with this type of matter, or that require an employee to notify his or her employer of a change of address. In order presume that an employee has resigned under such circumstances, the employer would have to establish that the employee has in fact been notified of the resulting conclusion if the Company did not hear from the complainant within the established deadline. Thus, in this case it was not established that the complainant had received the August 1, 2000 letter, and consequently I believe the Company was wrong to conclude that the complainant had resigned.
Secondly, if the complainant is considered to be subject to discipline for having been absent without authorization, or for “failure to perform the assigned duty” as stated in the August 25 letter, it should be noted that the collective agreement requires an investigation in such case. Despite the Union’s subsequent request for an investigation, one was not conducted. In these circumstances, if closing a complainant’s file is considered discipline, then it is void. In any case, the Company cannot find fault with the complainant for failing to perform duties which the Company refused (even reasonably) to assign to him.
As a result, I conclude that the complainant should be reinstated – without loss of seniority or fringe benefits. With respect to salary, it should be noted that the complainant certainly did not show reasonable attendance as required by the situation. Under the circumstances, I consider no compensation would be appropriate for the period before January 12, 2001. For salary compensation for the period between January 2001 and the date on which the complainant would have been reinstated, the calculation should take into account that the complainant has to mitigate his losses. If the parties cannot agree on the matter of compensation, I reserve jurisdiction on this matter to render a final award.
RENDERED AT OTTAWA, on this 18th day of June, 2002.