IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA) LOCAL 101
RE GRIEVANCE OF CARMAN R. COOK
DISCIPLINE FOR ABSENTEEISM – JUNE & JULY 2002
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
John H. Bate – Labour Relations Officer, Calgary
Gilles Pépin – Labour Relations Officer, Calgary
Appearing For The Union:
Brian McDonagh – National Representative, CAW-TCA
Vinod Gill – Vice-President, Pacific Region CAW Local 101
Tom Murphy – President, CAW Local 101
Brian Hardy – Financial Secretary, CAW Local 101
Ray Lawson – Local Chair, CAW Local 101, Golden
R. Cook – Grievor
A hearing in this matter was held in Calgary on June 24, 2003
This is the arbitration of the second of two grievances heard concurrently in relation to the alleged wrongful absenteeism of Carman Robert Cook of Golden, British Columbia. The issues in dispute are described in the Joint Statement of Fact and Issue filed at the arbitration which reads as follows:
Discipline assessed (20 demerits) Carman B. Cook, Golden, B.C. for his absence on June 28, July 11, July 18 and July 19.
STATEMENT OF FACT:
After an investigative statement was taken by the Company on August 18, 2002, Carman B. Cook was issued the following Form 104:
“Please be advised that your record has been debited twenty demerit marks due to your unacceptable absenteeism record: absent Jun 28, July 11, 18 and 19, 2002.”
STATEMENT OF ISSUE:
It is the contention of the Union that:
– On the occasions that Mr. Cook left work early he was granted permission to do so by his supervisor and therefore cannot be held culpable;
– Mr. Cook has followed the provisions of Rule 16.1 of the collective agreement and therefore cannot be held culpable;
– Therefore, with regard to the foregoing, it is the position of the union that the discipline of 20 demerits debited against Carman B. Cook should be removed form his record.
The Company believes the discipline is warranted and denies the Union’s contentions.
A companion award, issued on this same date, reviews the workings of the absenteeism policy adopted by the Company’s Mechanical Services Department and it’s application to the employees of the Golden Car Repair Facility, as well as the grievor’s own record in respect of absenteeism. They need not be repeated here.
The instant case arises by reason of the Company’s discipline of the grievor, by the assessment of twenty demerits, for early quits, late arrivals and absences registered on June 28, July 11, July 18 and July 19, 2002. As noted in the prior award, if the Company chooses to treat an employee’s absences in a disciplinary fashion, it bears the burden of proof to establish that they were in fact culpable, in the sense that they would have been avoidable by proper conduct on the part of the employee. Upon a review of the evidence, the Arbitrator is satisfied that in some particulars the Company has not discharged the burden which is upon it. In one case, however, it has.
On June 28 the grievor left work early, apparently with his supervisor’s approval, stating that he was suffering from dysentery and cramps. No one on the part of the Company then challenged his claim of illness nor directed that he must obtain medical certification to justify his partial absence for that day.
On July 11, the grievor called in to state that he had been doing yard work in the sun, had a headache and felt that he might be suffering from possible sunstroke, as a result of which he would not be coming to work. Again, the Company did not demand that the grievor provide medical certification to justify his absence on that day.
On July 18, Mr. Cook appeared for work thirty minutes late. When asked for an explanation he related that he was required to transport his daughter to the bus depot.
July 19th concerned an absence occasioned by a tooth abscess which required Mr. Cook to travel out of town to see a dentist for treatment. Again, on that occasion, the Company requested no documentation from the grievor’s dentist to substantiate the reason for his absence.
For the reasons touched upon in the prior arbitration award concerning Mr. Cook, this is not a case of the employer dealing with an individual on the basis of innocent absenteeism. For reasons it best appreciates, the Company decided that each and every one of the grievor’s absences, early quits or late arrivals were the result of his own avoidable misconduct. The Arbitrator cannot agree. While it was open to the Company to insist, particularly given Mr. Cook’s absentee record, that he produce medical documentation for his claims of stomach cramps, sun stroke or his tooth abscess, it did not do so. It gave the grievor no reason to believe at the time that it believed he was then engaging in a measure of deceit or fraud against the Company. Obviously the failure to produce medical certification following a timely request to do so might give rise to inferences of malingering on the part of the employee. That is not substantiated on the evidence before me, however, as regards the incidents of June 28, July 11 and July 19, 2002.
The incident of July 18, 2002, however, is different. It is not disputed that on that occasion Mr. Cook arrived at work late, and that his late arrival was due entirely to the management of his personal life, relating to the transportation of his daughter to a bus depot. While the Arbitrator appreciates that family obligations can be important, they do not, of necessity, override an individual’s contractual obligations to his or her employer within the normal expectations of an employment relationship. While unforeseen emergencies may justify lateness or absence in an appropriate case, at most what the case at hand discloses is a failure on the part of the grievor to organize himself so as to ensure the timely delivery of his daughter to a bus depot, either by himself or by someone else. On balance, the material before the Arbitrator does not excuse the lateness registered by Mr. Cook on July 18, 2002. Neither through the investigation nor at the arbitration did Mr. Cook offer any explanation which would suggest that he was without any viable alternative for the timely and safe transportation of his daughter to the bus depot on the date in question. In the circumstances, the Arbitrator is compelled to conclude that the grievor did fail in his obligation to his employer and that he was liable to a degree of discipline for the incident in question.
The issue then becomes the appropriate quantum of discipline. The record discloses that on a prior occasion, in December of 2001, the grievor was assessed ten demerits for absenteeism problems. In the circumstances, in keeping with principles of progressive discipline, I am satisfied that the assessment of fifteen demerits would have been adequate to convey to Mr. Cook that it was unacceptable for him to be late without justifiable excuse, as occurred on July 18, 2002.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor’s disciplinary record be corrected to strike from the reasons for discipline the incidents of June 28, July 11 and July 19, 2002, and to substitute the assessment of fifteen demerits for the grievor’s late arrival at work on July 18, 2002.
The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, this 14th day of July 2003
(original signed by) MICHEL G. PICHER