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 E. DURANTE
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Winnipeg on May 8, 2003.
B. DeBaets and D. Wray, for the union.
R. Campbell and D.S. Fisher, for the company.
The Joint Statement of Issue in this matter is as follows:
The violation of Rule 27 regarding the dismissal of Electrician [the grievor] 16 October 2001. [The grievor] was discharged for “physical attack on fellow employee, October 03, 2001”.
Joint Statement of Issue:
On October 05, 2001, [the grievor] was required to attend an investigation concerning “an incident between yourself and Gordon Dunn”. On 16 October 2001 the Company issued a CN 780 Disciplinary Measure form indicating that [the grievor] had been dismissed, effective 16 October 2001 for “physical attack on fellow employee, October 3, 2001".
It is the Union’s contention that [the grievor] was unjustly dealt with in the level of discipline assessed as a result of his reaction to a seemingly harmless provocation. The Union contends, [the grievor’s] efforts to seek assistance have resulted in positive results and successful counseling to resolve his problems that resulted in his dismissal. Furthermore the Union contends that the discipline is overly severe. [The grievor] has initiated his own efforts to remedy the management of his anger problem by attending counseling, anger management and extended his regret and remorse throughout the investigation.
It is the Company’s contention that discipline assessed to [the grievor] and his discharge from service was fully justified and appropriate and that there was no violation of Rule 27 or any other provision of the Collective Agreement.
Rule 27 of the collective agreement deals with investigations and the grievance procedure, and with the requirement of just cause for discipline. This case was investigated in accordance with the requirements of Rule 27, and the issue is whether or not there was just cause for the discharge of the grievor, who has been employed by the company since 1977.
That there was cause for the imposition of discipline is clear. On October 3, 2001, the grievor arrived at work shortly before the start of his shift, and stopped to talk with Mr. Bennett, a fellow employee. Other employees were in the area, some of them lining up to get hot dogs as part of the CN Employee Federated Payroll Giving Plan campaign; there were also some visitors from the various charitable organizations involved. Another employee, Mr. Dunn, came up to the grievor and Mr. Bennett. There is no suggestion that Mr. Dunn approached in an antagonistic way, and the grievor stated at his investigation that he was friends with Mr. Dunn. Mr. Dunn came up to the grievor and tugged on his, the grievor’s, hat. It seems that this pushed the grievor’s glasses down against the bridge of his nose. There was some suggestion that this was “provocative”, but from the material before me I do not think Mr. Dunn’s action can be considered provocative in any serious way.
The grievors’s response was to kick Mr. Dunn in the groin. It was a serious kick; Mr. Dunn collapsed. He was taken to the office, and after about half an hour, was able to leave, although he went to the hospital a couple of hours later, and was held overnight for observation. The next day diagnostic tests were performed, and it was confirmed that he had incurred significant trauma to his testes evidenced by swelling and contusions of the left testicle. He was then released from hospital and advised to stay away from work until October 16. While Mr. Dunn did, it appears, receive certain benefits on account of his absence, he did suffer a net loss of earnings, to say nothing of pain and suffering, as a direct result of the grievor’s action.
Even if it be considered that the grievor perceived Mr. Dunn’s tugging of his hat as a provocation (and I do not think that it was), it is clear that his reaction thereto was excessive. It can properly be described as a vicious assault, and there is no doubt that the company was justified in imposing discipline on the grievor because of it. On the basis of the incident taken by itself, a severe disciplinary penalty would be appropriate. In March, 1999, the grievor had been assessed 20 demerits, with a suspension for time out of service (some two days, it seems), for a “physical attack on a fellow employee”. In light of this, it would be difficult, absent some special consideration, to say that discharge constituted a penalty which went beyond the range of reasonable disciplinary responses to the situation. The union has, however, established to my satisfaction that the grievor is genuinely regretful and remorseful (as of course he should be), and that he has taken serious and effective steps to deal with a serious psychiatric problem.
Although it had been recommended to him, the grievor did not proceed seriously with counseling at the time of his previous discipline in 1999. The grievor did do so immediately following the incident described above. In fact, he began therapeutic counseling, arranged through the employee assistance program, on October 9, even before the notice of discharge had been issued. This initial counseling lasted until November 12, 2001, and was for some six sessions.
On October 18, 2001, the grievor sought medical advice, and he has been under “medical management” ever since. The diagnosis, apparently made by a family practitioner, and concurred in by a psychiatrist following consultation, was “major depression with anxiety symptoms” and “associated difficulties with anger management”. He received, and continues to receive medication. He has received psychotherapy at the doctor’s office on a monthly basis throughout the intervening period. As well, he attended a course of therapy at the Interfaith Marriage and Family Institute from January to July, 2002 (some 17 sessions), and completed an 8-session course at a men’s anger management group from January to March, 2002. In addition to this, he began regular psychotherapy in January 2002, and continues those sessions. He had attended a total of 89 such sessions by the end of March of this year.
In a substantial report dated April 24, 2003, the grievor’s doctor put forth these conclusions:
In summary, [the grievor] presented to this office in October of 2001. He was diagnosed with a major depression with anxiety symptoms. The ongoing therapy has demonstrated that he required anger management control. He has clearly shown an excellent improvement with his anger management. Some of his childhood issues, which have been a complication to [the grievor], have been worked through in therapy and will continue to be done in future sessions. He has shown sufficient insight and progressive development of alternate management skills for anger management and inter-personal communications. He is ready to return to the workplace. This is strongly recommended following medical review on April 17, 2003.
It is also, I think, significant to note the following from the brief report of the psychotherapist with whom the grievor has been working regularly since January, 2002:
It is my belief that [the grievor] has engaged sincerely in his psychotherapy. - - - - - - - I expect that [the grievor] will continue to work through these issues because he has faithfully attended all of his sessions and, despite the financial hardship of his current situation, has paid for his treatment.
Having regard to all of the foregoing, including particularly the fact that it has been shown that the grievor was, at the time of the incident, suffering from a serious psychiatric disorder relating to the sort of behaviour for which he was disciplined, it is my conclusion that the penalty of discharge was, in these particular circumstances, excessive. A substantial period of suspension would, however, have been appropriate.
Having regard to all of the foregoing, it is my award that the grievor be reinstated in employment forthwith, without loss of seniority but without compensation for loss of earnings or other benefits. As of the date of reinstatement, the grievor’s discipline record shall stand at fifty demerits. It is noted that an appropriate medical certificate was presented at the hearing, stating that the grievor was ready to return to work.
DATED AT OTTAWA, this 2d day of June, 2003,