BETWEEN:                                         CANADIAN PACIFIC RAILWAY









SOLE ARBITRATOR:                        J.F.W. Weatherill



A hearing in this matter was held at Winnipeg on April 29, 2003.


B. McDonagh, for the union.


J. Bate, for the company.






The Statement of Fact and Issue in this matter is as follows:


Dispute:                      Discipline - 10 demerits debited against Carman James D. Martens’ record.


Statement of Fact:


             In February 2001 Carman James D. Martens’ record was debited 10 demerits for:


“- - failing to carry out instructions of your immediate Supervisor on February 5, 2001, at Winnipeg Car Facility.”


Statement of Issue:


-           the Company violated Rule 44.5 of the Collective Agreement by ignoring J.D. Martens’ right to refuse under the said Rule 44.5.


-           The Company violated the Canada Labour Code, Part II by ignoring James Martens’ Right to Refuse and by not following the procedure laid out when an employee invokes said right.


-           the Company did not establish wrong doing on Carman James Martens’ behalf sufficient to give the Company cause to dismiss him.


-           Carman James Martens was treated in an arbitrary, discriminatory and an excessive manner in regard to the 10 demerits debited against his record.


Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 10 demerits debited against Carman James D. Martens should be removed from his record.


The Company denies the Union’s contentions and claim.


Rule 44.5 (now Rule 44.6) of the collective agreement provides, in subsection (a), as follows:


The Company shall ensure that all employees

 are informed that they have the right to refuse

 hazardous work which may harm them, any person

or the environment and that signs are posted in the

workplace advising them of this right.


This is not a right which may be exercised at the whim of an employee.  The work refused must indeed be hazardous if the protection afforded by the collective agreement is to be invoked.  The provisions of the Canada Labour Code, on which the union also relies, are perhaps somewhat clearer in this regard.  Section 128(1) of the Code provides as follows:


Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or perform an activity, if the employee while at work has reasonable cause to believe that


(a)   The use or operation of the machine or thing constitutes a danger to the employee or to another employee;


(b)   A condition to the employee; or


(c)  The performance of the activity constitutes a danger to the employee or to another employee.


The right to refuse work arises where there is in fact a danger (apart from a danger which is “a normal condition of employment” - see Section 128 (2)(b) of the Code), or at least where the employee has reasonable cause to believe that there is a danger.


In the instant case the grievor and another employee were working at the Tank Track work area in the Winnipeg Car Shop.  There are two work tracks, each capable of accommodating two cars, and two storage tracks.  The grievor and his work mate had located a car they had been directed to repair, and had moved it to one of the work tracks.  They had heard that there would be two other cars brought to the work tracks, and went to call the supervisor to enquire when the yard movement bringing the other car would be arriving, and to ask whether they should jack the car on which they had been assigned to work.  The supervisor arrived at the site at that time, and so the questions were put directly to him.  The employees were instructed to proceed with the work on the car already on the work track, and that it was not certain when the other car would arrive.  The grievor expressed some concern about which track the cars should be on, having regard to the nature of the work to be performed.  The supervisor outlined various options for the grievor over the placement of the cars.  The grievor, who was taking medication for anxiety, became upset, and telephoned the union safety and health co-chair.  He described the situation to him, and then passed the telephone to the supervisor.  Another supervisor arrived a few minutes later, and there was a second conversation with the safety and health co-chair.


It was the union safety and health co-chair’s evidence that he did not consider the grievor’s complaint, as he understood it, to be frivolous.  And indeed, as it appears to have been put to him, it was not.  The grievor, it seems, thought that he was being asked to work on a car on a tank track while another car was being moved on to the track.  If that had been the case then of course the objection would not be frivolous, and there would clearly be reasonable cause to believe that a dangerous situation existed.  Certainly the grievor could properly refuse the work assigned in such circumstances.  Such were not, however, the circumstances of this case.  The track on which the grievor was to work was subject to “blue flag” protection.  There could be no movement on to the track while that was the case.  The company was not proposing to violate the rules, lift the blue flag protection, unlock the track and move a car in while work was being performed.  It may be that the grievor had come to believe that was what might happen, but this was not a reasonable belief; there were no grounds for it whatever.


There was no danger within the meaning of the collective agreement or the Canada Labour Code, and these were not circumstances in which the grievor could be said to have a right to refuse the work assigned him.  There was nothing arbitrary or discriminatory in the company’s handling of the situation.  There was no justification for the refusal, and the grievor was subject to discipline on that account.  I do not consider that the assessment of ten demerits was excessive in the circumstances.


For all of the foregoing reasons, the grievance is dismissed.



DATED AT OTTAWA, this 16th day of May, 2003.