IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA, LOCAL 100
AND IN THE MATTER OF THE GRIEVANCE OF W. LANE
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Toronto on April 15, 2003.
J. Moore-Gough, for the union.
D. Veenis, for the company.
The grievance in this matter relates to the dismissal of the grievor for failing to meet the terms of a formal reinstatement agreement (a “last chance agreement”) governing his retention in the service of the company, following an earlier dismissal for unacceptable attendance.
The grievor’s service date is January 30, 1989. He was hired as a Coach Cleaner. He became a Car Helper in June, 1997, and at the material times was working in that capacity at the MacMillan Yard.
The grievor was first discharged on July 10, 2000. He had, it appears, failed to improve his attendance record to an acceptable standard following disciplinary actions taken in October and December, 1997, in November 1999 and in February, 2000. On the latter occasion he was advised that if he failed to maintain an attendance record equal to the shop average (which, it appears, was then at 4%), his employment would be terminated. The grievor’s attendance did not improve and, as noted above, he was discharged on July 10, 2000. A grievance was filed and following negotiations the parties came to a “last chance agreement” on September 12, 2000, which resulted in the grievor’s reinstatement at that time.
The essential terms of the last-chance agreement are as follows:
1. [The grievor’s] time out of service will be considered a disciplinary suspension and will be without compensation or benefits and without loss of seniority.
2. [The grievor’s] discipline record will reflect his termination of employment and subsequent reinstatement.
3. [The grievor’s] attendance will be monitored for a period of two years following his reinstatement, and will be compared against the average absenteeism rate of the MacMillan Yard Car Shop for any two month period.
4. A failure to meet the minimum standard of attendance (Car Shop average absenteeism rate) for any two month period of review shall result in the termination of [the grievor’s] employment from the Company with no opportunity for re-employment.
5. Should the exercise of seniority through Collective Agreement bulletin or displacement provisions result in [the grievor’s] moving to another work location, he shall continue to be covered by this agreement and subject to the attendance average of the new work location, or a combination of two work locations depending on the timing of transfer.
6. Other than a dispute concerning the Company’s method of calculating attendance, any termination of [the grievor’s] employment for failing to satisfy the conditions of continued employment will not be subject to appeal or arbitration.
The grievor returned to work in September, 2000, in accordance with the last-chance agreement. The material before me does not refer to his attendance in September or October of that year. In November, it would appear that he was absent on one occasion. In December, he was absent on four occasions and in January 2001 he was absent on six occasions. For the two-month period of December, 2000 and January, 2001, the grievor was absent on ten occasions. This amounted to a twenty-five per cent absenteeism rate (the calculation, of course, is made as against scheduled working days, and not calendar days). In respect of that period the comparable shop absenteeism rate was five per cent.
From February 7 until April 9, 2001, the grievor was absent from work due to a back injury which he asserted was due to an injury occurring off duty. On February 22 he submitted a claim for benefits due to this injury. The claim was granted, and the grievor received benefits in respect of this period of benefits. Subsequently (following his discharge), the grievor alleged that his absence had been due to an injury at work, and a workers’ compensation claim was filed in that regard. That claim was ultimately denied.
On April 9, 2001, the Car Shop Manager met with the grievor and advised him that his employment was terminated because he had not met the standard of attendance required by the last-chance agreement. The Manager wrote the grievor that day as follows:
In conclusion to our discussion held today, Monday April 9, 2001, with reference to your letter of reinstatement dated September 12, 2001 and signed by yourself, this letter is to advise you that your employment with Canadian National Railways has been terminated.
Your termination is the result of your failure to meet the terms of the letter of reinstatement. Your year to date attendance rate of 25.40% did not meet the shop average of 85.15% attendance.
It will be noted that the letter refers to “attendance rate”, rather than “absenteeism rate”. Further, the calculation of the average rate of attendance for the shop reflected all recorded absences including long term illnesses, workers’ compensation cases, jury duty, bereavement leave, and union business which would not be included in a proper basis of comparison for the purposes of the last-chance agreement. For the purposes of the comparison contemplated by that agreement, the average shop attendance was ninety-five per cent (a rate of absenteeism of five per cent).
The company raised the preliminary objection that the matter was not arbitrable under the terms of the last-chance agreement. It was the union’s position that the grievance raises a question of the company’s method of calculating attendance; I think this may be said to be the case, although the issue may more properly be put as to whether or not the last-chance agreement was properly invoked by the company in the circumstances. At the hearing, following the parties’ presentations on the preliminary objection, both parties were content to proceed on the merits.
In my view, the preliminary objection is not well-founded. There is clearly an arbitrable question of the sort formulated in the preceding paragraph. To put the matter in this way does not
in the least undermine the effectiveness of a last-chance agreement. I am in agreement with the many arbitration cases supporting such agreements, and would quote, by way of example, CROA case no. 2632:
To [interfere] would be tantamount to disregarding or amending the conditions agreed to between the parties - - As a matter of general policy, such settlements should be encouraged. As reflected in Canadian arbitral jurisprudence, arbitrators do not interfere with the terms of such settlements, as to do so would tend to discourage parties from resorting to them and, ultimately, undermine their utility as an important instrument for resolving disputes.
Although the letter of discharge noted that the grievor had signed the agreement, its real force, of course, is due to its having been agreed to between the employer and the bargaining agent. Its real effect is not to deprive an arbitrator of jurisdiction but to limit that jurisdiction to the determination of whether or not the conditions of the agreement had been met, and not to the determination of any more general disciplinary issue which might otherwise be thought to arise in a particular case.
The union noted, in argument, that the letter of discharge referred to the grievor’s “year to date” attendance. The last-chance agreement, of course, refers to a two-month period. That is not to say, however, that the company is somehow changing the grounds on which the grievor was discharged. It relied generally on the last-chance agreement. And it is clear that for the two-month period preceding the grievor’s last day at work prior to April 9, his rate of absenteeism was substantially greater than the shop average. Both parties are agreed that the agreement was not intended to be applied in cases of “drastic” absences, and whether or not the grievor’s absence from February 7 to April 9 could be considered to be due to some drastic cause, the company’s delay, if it can be called that, in not invoking the agreement until the grievor’s return to work was not prejudicial to him. Indeed, he was able to enjoy insurance benefits which would not otherwise have been available to him for that period.
For all of the foregoing reasons I find that the grievor did not maintain the level of attendance required by the last-chance agreement. Accordingly, I must give effect to that agreement, of which the grievor has had the full benefit. There has been no violation of the agreement or the collective agreement in the circumstances, and the grievance is therefore dismissed.
DATED AT OTTAWA, this 25th Day of April, 2003.