SHP561D

IN THE MATTER OF AN ARBITRATION

BETWEEN:                                         CANADIAN PACIFIC RAILWAY

AND                                                    NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW/TCA), LOCAL 101

AND IN THE MATTER OF THE GRIEVANCE OF J.D. MARTENS (DISMISSAL)

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.

                                                                       AWARD

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

Dispute:          Dismissal of Carman James D. Martens, from Winnipeg Car Shops on July 2, 2002.

Statement of Fact:

On July 2, 2002 Carman James D. Martens’ record was debited 15 demerits for:

“ - - reporting for work unfit for duty; failing to advise your supervisor that you were unfit for duty; sleeping while on duty and failure to manage your medication in a manner consistent with the instructions received from the Regional Physician, thereby placing your own personal safety and the safety of your fellow employee at risk, Winnipeg Car Department May 30, 2002.”

On July 2, 2002, Carman James D. Martens was advised that he was dismissed from Company Service for:

“- - the accumulation of demerit marks under the Brown System of discipline, Winnipeg, July 2, 2002.”

Statement of Issue:

It is the contention of the Union that:

-           the Company violated J.D. Martens’ rights in regard to the accommodation of his disability under the Canada Human Rights Act.

-           the Company violated J.D. Martens’ rights in regard to the accommodation of his disability under Rule 17 of the Collective Agreement and the Company Return to Work Policy.

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

-           Carman James Martens was treated in an arbitrary, discriminatory and an excessive manner in regard to the 15 demerits debited against his record and his dismissal.

Therefore, with regard to the foregoing, it is the position of the Union that:

-           the discipline of 15 demerits debited against Carman James D. Martens should be removed from his record; and

-           Carman James D. Martens should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any moneys owing.

The Company denies the Union’s contentions and claim.

From the material before me, I am satisfied that the grievor was indeed asleep while at work on the day in question.  The grievor’s shift began at 16:00.  The supervisor’s account of the matter, prepared later that day and confirmed at the hearing, is as follows:

I arrived at the tank track trailer at approximately 16:30 and I handled L. Weise [the grievor’s workmate] a list of badorder cars as he was seated close to the door and asked how they were, then proceeded to where [the grievor] was seated.  As I got no response from [the grievor] I moved right in front of him and still did not get response as his eyes were closed.  He woke as I fanned the sheet of paper in front of him and he said it was 9:30.  I stated it was 4:30 and he stated he had taken a couple of his pills this afternoon as he had a panic attack and he would not be able to work and shouldn’t work around any heavy machinery, but he needed to cut a couple of straps which he measured out.

I informed him he could not work or cut any straps as he tried to explain the project.

I again stated he could not do anything as the possibility of him hurting himself or someone else.

He said “should not have fallen asleep” but he needed to make couple of cuts to some strapping for his project.  I repeated I could not let him do anything, as he was aware he was not to take any pills before coming to work, again he stated he should not have fallen asleep.

He got up from his chair and went to the back of the Trailer and started to undress from his work clothes; I went back to ask him what had happened this afternoon that caused him to take the pills, he stated he had a thing with his son.

He asked if he was going to get escorted off the property, I said that was not necessary and at that point I returned to Larry Weise and discussed the change in work assignments and left to quickly reassign everyone else.  I returned to the Tank Track Trailer at 1700 hours to find [the grievor] gone.

When asked at the investigation for his comments on the supervisor’s report, the grievor first corrected the spelling of his medication (referred to at the beginning of the report, not cited here), and denied that he asked whether he was going to be escorted off the property.  Later in the investigation, however, he denied having said he had taken medication in the afternoon because of a panic attack (although the medical evidence is clear that the grievor is subject to panic attacks), and then went on to say that the supervisor’s whole statement was incorrect.  Asked for an explanation of that, he replied that he did not remember, as he had been incoherent.  He had, he explained, been assaulted when getting out of his car in front of his home at the end of his shift on the morning of the previous day.

The grievor had come to work that previous day, but in “a clouded state”, so that his workmate operated the forklift and trackmobile when that was necessary.  The clouded state of the previous day may well have been attributable to the assault which the grievor described, and to the prescribed medication which he took during that day.  The grievor denies taking his medication at other than the regular times on May 30, but whether that is true or not it remains that he was asleep on the job and, as he said, incoherent.

The grievor was, I find, asleep while on duty on May 30, and for that he was subject to discipline.  Fifteen demerits is not an excessive penalty for such an offence.

It was argued in a general way that the company was under a duty to accommodate the grievor because of his disability.  The grievor does, indeed, suffer from clinical anxiety, for which he takes prescribed medication on a daily basis.  He takes an antidepressant and an anxiolitic.  He is restricted from taking such medication during a certain time before reporting to work.  The grievor’s condition would appear to be reflected in (whether or not caused by) problems of interaction with certain fellow-employees and certain supervisors.  The evidence is that the company has, to a degree, attempted to accommodate his condition by a shift change, by changes in work areas and immediate associates.  There is no precise allegation as to the way in which either Rule 17 of the collective agreement (which deals with disabled employees) or the provisions of the Canada Human Rights Act may have been violated.

In any event, while accommodation of the grievor’s condition, whether or not it constitutes a “disability” under the collective agreement or under the Act is desirable, even an employee who has been accommodated must adhere to accepted rules of the shop and of workplace conduct.  Where it is open to the grievor to control his condition or certain of its symptoms through a regular course of medication, then it is, in this workplace situation at least, his responsibility to do so.  I do not consider that a lack of responsibility - at least in the case of an intelligent, skilled tradesperson such as the grievor - constitutes a “disability”, and it is certainly not an excuse for sleeping on the job.

Accordingly, the grievance in respect of the imposition of 15 demerits must be dismissed.

At the time that penalty was imposed, the grievor’s discipline record appeared to stand at 59 demerits.  The addition of fifteen meant that he was subject to discharge in accordance with the Brown system.  In an arbitration decided just before the present case, however, one of the elements of the record - 40 demerits for leaving without permission and for uttering threats - was altered, it being found that the grievor had not in fact uttered threats as alleged, and that the 40 demerits should be reduced to 20.  Thus the grievor’s record would have been considered as standing at 39 demerits, which with the addition of the 15 in the present case would bring the total to 54. 

The grievor’s discipline record is not, then, such as to subject him to discharge under the Brown system.  It will be my award that he be reinstated in employment.  It does not necessarily follow that he is entitled to full redress for time lost.  Although the “countable” points under the Brown system have been accumulated since February, 2001, the fact is that the grievor had a long and serious discipline record before that.  He was discharged in October, 1996, and was reinstated in employment by the award of arbitrator Michel Picher in April, 1998.  The reinstatement was without compensation, and was conditional upon a physical and medical examination by a physician mutually acceptable to the parties or appointed by the arbitrator failing their agreement, and a determination that the grievor is fit to return to his duties.  In my view, a similar disposition is appropriate in the instant case.  If it is determined that the grievor is disabled within the meaning of the collective agreement, then the company and the union have a joint obligation to review the matter pursuant to Rule 17.2.

For all of the foregoing reasons, the grievance is allowed in part.  The grievor is to be reinstated in employment forthwith, without loss of seniority, and with compensation for loss of earnings from the date of the hearing of this matter, April 30, 2003, until the date the grievor actually returns to work or any other arrangement is made acceptable to the parties.  Reinstatement is, as in the previous case, conditional upon the grievor’s being medically examined in respect of his physical and medical condition by a physician mutually acceptable to the parties, or appointed by the arbitrator failing their agreement, and found fit to return to his duties.  I retain jurisdiction for the purpose of dealing with any issues relating to the implementation of this award, and its completion.

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

 ,

Arbitrator.