BETWEEN:                                         CANADIAN PACIFIC RAILWAY







SOLE ARBITRATOR:                        J.F.W. Weatherill



A hearing in this matter was held at Winnipeg on April 30, 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 - 9 demerits debited against Carman James D. Martens’ record on August 30, 2001.


Statement of Fact:


On August 30, 2001 Carman James D. Martens’ record was debited 9 demerits for:


“ - - your failing to operate a forklift with due care and attention, resulting in an accident that caused significant damage to the Winnipeg Car Facility on July 30, 2001.”


Statement of Issue:


It is the contention of the Union that:


-           the Company did not establish wrong doing on Carman James Martens’ behalf sufficient to give the Company cause to discipline him by debiting his record with 9 demerits.


-           Carman James Martens was treated in an arbitrary, discriminatory and an excessive manner in regard to the 9 demerits debited against his record.


 Therefore, with regard to the foregoing, it is the

 position of the Union that the discipline of 9

 demerits debited against Carman James

 D. Martens should be removed from his

 and claim.


The substantial question is whether or not the grievor was careless in the operation of the machine.  It was a heavy forklift Loadlifter, some 82 inches in width and 16 feet in length.  It was being operated along a narrow lane, with about two feet of clearance on either side.  The lane was paved for a certain distance, and then became gravel.  The lane was not a “designated roadway” but was frequently used by employees, and that fact that the grievor was using that laneway is not a ground of discipline.  In the personal injury report which he completed, the grievor stated:



At 17:15 I was operating forklift Loadlifter 2400 and on my way to the car repair lunchroom to enter my time on the computer.  As I drove along the Northside of the Car Shop and left pavement and drove onto gravel I entered a large dip in the road and lost control of forklift striking the old north material shed.  This happened approximately 18 yards from end of pavement.  When I struck the building I jarred my wrist in the steering wheel and struck my head on the windshield.


The supervisor’s report of the accident states as its cause:


striking building with out of control forklift,


and notes as “Rules violated”,


Operating a vehicle must be done at a safe speed, to maintain control.


At the grievor’s investigation, he stated that he had used the laneway on a daily basis, and that he had driven the loadlifter there many times.  The weather and visibility were good and the vehicle, he stated, was in good operating condition.  The immediate investigation following the accident revealed that the pressures were correct.  Some time later, it is said that the lug nuts had to be tightened, and at the hearing, a worn lug bolt was produced.  On the material before me, however, it cannot properly be concluded that the accident was the result of a mechanical defect. 


The grievor stated that the accident occurred because of a large dip in the path of travel, a short distance after the pavement had ended.  He stated that he was traveling at approximately five kilometers per hour.  When the machine hit the building, it ripped the corrugated steel siding along a length of some seventeen feet.


The nature of the machine and of the terrain along which it was operated clearly called for a reduced speed and considerable caution, particularly at the point at which the paved roadway ended.  The grievor was familiar with the laneway.  Mechanical failure has not been shown to have contributed to the accident, and in my view it must be concluded, on the balance of probabilities, that the grievor was not exercising the degree of care required by the particular circumstances to maintain control of the machine when it left the paved portion of the lane.


The grievor was, I find, careless, and was subject to discipline on that account.  It may be that a penalty of as much as fifteen demerits would not have been excessive, given the grievor’s discipline record, but it is not necessary to decide that point.  It was considered that the grievor’s record stood at fifty demerits, and the assessment of fifteen would have led to his discharge.  The company determined on the assessment of nine demerits in order to avoid that outcome.  In fact, the grievor’s record has been adjusted as a result of arbitration.  The nine demerits imposed on this occasion is not affected by that.


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



DATED AT OTTAWA, this 26th day of May, 2003.