IN THE MATTER OF AN ARBITRATION

BETWEEN:

VIA RAIL CANADA INC.

(hereinafter referred to as the “Railway”)

AND:

NATIONAL AUTOMOBILE, AEROSPACE TRANSPORTATION AND

GENERAL WORKERS UNION OF CANADA

(hereinafter referred to as the “Union”)

(Spatling Arbitration – Five Demerits)

Arbitrator:                  H. Allan Hope, Q.C.

Counsel for the Railway:          Edward J. (Ed) Houlihan and

                             Dino Trubiano

Counsel for the Union:       Brian McDonagh and John Burns

Place of Hearing:            Vancouver, B.C.

Date of Hearing:             March 14, 2002

A W A R D

I – Dispute

          On February 7, 2000 the Grievor was assessed five demerits for “being out of [his] assigned work area without [his] supervisor’s permission”.  The demerits were assessed with respect to an incident that occurred on January 14, 2000.  The Grievor was discovered taking a shower in the men’s locker room at the Vancouver Maintenance Centre (VMC) at approximately 5 p.m. on January 14, 2000.  His shift was not due to end until 5:30 p.m. 

The sound of the shower attracted the attention of Marc Beaulieu.  His title at the time was that of Director, Equipment Maintenance (West).  Mr. Beaulieu contacted the foreman of the VMC, Keith Dagg, by telephone and confirmed that there should be no employees in the locker room at that time.  He investigated and found the Grievor in the act of showering.  In response to his inquiry, the Grievor told Mr. Beaulieu, “I had some [human excrement] dumped on my head as a plugged the train”.  Mr. Beaulieu confirmed that the Grievor had not advised his foreman of the circumstances.  He made some visual observations that caused him to later question the legitimacy of the Grievor’s explanation.  However, he did not challenge the Grievor at that time. 

Five days later a letter dated January 19, 2000 was sent to the Grievor advising him that a formal investigation would be conducted on January 21, 2000 into an allegation summarized as follows:

Being out of your assigned work area without supervisor’s permission on Friday, 14 January 2000, namely being in the locker room prior to end of shift.

          In the resulting investigation the Grievor was questioned about the circumstances that led to him coming in contact with excrement.  He was also questioned with respect to why he had not informed his foreman.  In addition to the questions and answers recorded in the investigation, the Grievor filed a written statement in which he explained the circumstances. 

The Grievor advised that he was required in the course of his duties to crawl under cars and that he later discovered excrement stains on the back of his shirt.  That discovery caused him to approach the “punch clock area” for the purpose of informing his foreman.  As he approached he noticed his foreman leaving the VMC.  He then went to the locker room to take a shower.  He said that he understood that he was permitted, with or without express permission, to shower after exposure to potentially harmful substances such as excrement.  He would have advised his foreman, said the Grievor, if he had been present in the VMC.

II – Position of the Railway

          The submission of the Railway, in effect, was that the Grievor’s explanation for his presence in the shower was not credible and should be rejected.  The Railway conceded that a ruling from Human Resources Development Canada authorized employees, with or without the consent of their supervisors, to take showers in the circumstances confronted by the Grievor.  The ruling reads in part as follows:

It is my understanding that employees are allowed access to showers if they have become contaminated by a hazardous substance during the performance of work related duties.

          The position of the Railway, in effect, was that employees wishing to exercise that prerogative are required to inform their supervisors.  However, it was conceded that employees are not required to wait in circumstances where supervisors are not readily available.  Here the facts confirmed that the Grievor could have sought to contact his foreman by other means but it was not established that failing to pursue that option was a breach of any rule governing the particular circumstances. 

In short, the Railway can be seen to have acknowledged that if the Grievor’s account of his reason for leaving the workplace to take a shower was believable, and if his explanation that the supervisor was not reasonably available was also believable, his actions did not justify the imposition of discipline.  Hence, the issue turns on whether the facts invite a finding that the Grievor’s explanation was true or that it was not true.

III – Position of the Union

          The position of the Union was that the accumulation of human excrement on the undercarriage of cars is not an unusual event, particularly in winter conditions.  That fact was not challenged by the Railway.  There was nothing unbelievable about the Grievor’s explanation in that regard, said the Union.  Its position was that if the Railway wished to challenge the Grievor’s explanation, it should have done so at the time when the Grievor was in a position to demonstrate the truthfulness of his assertion.  A simple examination of his clothing, said the Union, would have supported or put a lie to the explanation. 

The Union’s position was that the Railway should not have left the incident without alerting the Grievor to the fact that his explanation was being challenged.  The Union said that raising the issue five days later when the Grievor was beyond being able to prove the veracity of his explanation served to deny the Grievor his right to a “fair and impartial investigation” of the incident pursuant to Rule 27.1.  Its submission was that the Railway had failed to prove that the Grievor’s conduct in the circumstances was deserving of discipline.

IV – Decision

          I agree with the submission of the Union.  Employees are required to account for any unauthorized absence from their workplace and the onus is upon them to provide an acceptable explanation.  Here the Grievor offered an explanation immediately upon being confronted and the explanation was not challenged nor investigated at the time.  There was an issue raised with respect to the Grievor’s discipline record and whether it demonstrated a propensity to engage in the misconduct alleged.  That issue was rendered moot by the fact that the Railway did not provide evidence that the explanation of the Grievor was not true.

          An allegation of dishonesty is a serious matter in an employment relationship and facts to support the allegation must be proven to a high degree of probability.  Here the facts were sufficient to raise suspicion about the Grievor’s motivation.  The incident occurred late in the shift, the Grievor failed to pursue notifying his supervisor and he had laid out his street clothes, indicating that he did not intend to return to work.  Finally, his discipline record was less than impressive in terms of his dedication to the performance of his duties.  However, the facts did not establish that the Grievor’s explanation was improbable.  His account could reasonably be true and could have been proven or disproven at the time.  In the result, the Railway failed to establish that it had just cause to discipline the Grievor and the grievance must be granted.

          DATED at the City of Prince George, in the Province of British Columbia, this 25^th day of March, 2002.

  “H. Allan Hope, Q.C.”             

                     H. ALLAN HOPE, Q.C. – Arbitrator