IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS OF CANADA, LOCAL 100
AND IN THE MATTER OF THE GRIEVANCE OF J. RINDALL (DISMISSAL)
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Winnipeg on October 9, 2003.
B. McDonagh, for the union.
R. Cambell, for the company.
AWARD
The Joint Statement of Fact and Issue in this matter is as follows:
Dispute:
30 demerits debited against the record of Car Mechanic J. Rindall, Employee # 175436 and his subsequent dismissal on August 19, 2002, Car Shop, Winnipeg.
Statement of Fact:
On August 19, 2002 Car Mechanic J. Rindall’s record was debited with 30 demerits for “Conduct unbecoming an employee, abusive language, and insubordination toward a fellow employee and supervisor on July 25th and July 28th, 2002".
Subsequently, on August 19, 2002 Car Mechanic J. Rindall was dismissed for: “Accumulation of Demerits”.
Statement of Issue:
It is the contention of the Union that:
- The Company did not establish wrong doing by Car Mechanic J. Rindall sufficient to debit his record with 30 demerits.
- The Company did not establish wrong doing by Car Mechanic J. Rindall sufficient to give the Company cause to dismiss him.
- Car Mechanic J. Rindall was treated in an arbitrary, discriminatory and an excessive manner in regard to his record being debited with 30 demerits.
-Car Mechanic J. Rindall was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal.
Therefore, with regard to the foregoing it is the position of the Union that:
- the thirty demerits recorded against Car Mechanic J. Rindall’s record should be removed; and
- Car Mechanic J. Rindall be reinstated to employment forthwith, 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, it appears that the grievor’s conduct on the day in question was investigated in the usual way, and was not arbitrary or discriminatory. As the company stated in its reply to the grievance, the grievor “was duly presented with all statements and documentation in the possession of the Company and upon which the Company intended to rely”. At the investigation, the grievor gave his responses to the reports with which he was presented. From all of this material it must be concluded that the grievor did indeed lose his temper, and that his behaviour toward his supervisor was indeed “unbecoming”, in that he raised his voice, and did not leave the supervisor’s office when he should have. He may have used some foul language as, it appears, did the supervisor,
but he does not appear to have directed it at the supervisor in a manner similar to that for which he had been disciplined some five months before.
The grievor had first become angry with the Lead Hand Panel Operator (a member of the bargaining unit), who he considered was playing favorites in making assignments. There is no evidence that that was in fact the case. The Lead Hand, it is reported, became upset and spoke to the supervisor, who subsequently spoke to the grievor, telling him he should change his attitude. That this was good advice appears clear, and would appear to have been accepted, eventually, by the grievor in subsequent letters of apology to the Lead Hand, the supervisor and others.
These events occurred in the earlier part of the shift. The supervisor was, as I have indicated, quite justified in speaking to the grievor as he did. It was not suggested at that time that formal discipline might be imposed, nor do I consider that, as far as events to that point were concerned, it would have been justified, except at the most to the extent of the supervisor’s advice being noted.
Later in the shift the grievor was assigned to inspect a train., which he did. He was then requested to move certain equipment from one track to another. In his statement, he says that while in the course of performing this task he felt dizzy and nauseous. He asked for help, which it appears was provided, an employee from the following shift being already on the property. The material does not show that the grievor improperly refused a task, and from his own statement it would appear that he carried out further procedures on another track. It was when this was completed that the supervisor asked why he was still on the property. The grievor had indicated that he felt poorly and needed help with one task. He did not say that he was leaving work early because he was sick, and the material does not establish that he was sent home. No impropriety on the grievor’s part has been established, and no cause for discipline appears in respect of these events.
After the supervisor asked the grievor why he was still at work, and receiving the answer noted, the supervisor went to his office. The grievor followed him. It is clear that the grievor was angry with the supervisor, and in all of the circumstances, I consider there was some justification for that. The supervisor had apparently told the grievor he would not be paid for the last hour of his shift, and I do not consider there was any justification for that in the circumstances which have been described. The grievor apparently sought to remonstrate with the supervisor. The supervisor became nervous about the grievor’s presence in his office and asked him to leave. The grievor requested a letter explaining why, and the supervisor indicated he would not do that, and that the grievor should go home. The supervisor then left his office, although it does not appear that he did that in order to obtain help to remove the grievor, or that that was necessary as the grievor left shortly after to attempt to contact the union.
In this latter set of events, the grievor’s behaviour was improper. He should not have allowed himself to become angry, even although there was some cause for it. While it was not improper for him to go to the supervisor’s office, he should of course have left as soon as he was asked to. This was an act of insubordination, and the grievor was subject to discipline on that account. I do not consider, however, that in all the circumstances which have been described, a major penalty was appropriate. Only a portion of the allegations against the grievor have been made out, and the assessment of thirty demerits must be considered excessive. In my view, the assessment of fifteen demerits would not have gone beyond the range of reasonable disciplinary responses to the situation.
For all of the foregoing reasons, the grievance is allowed in part. It is my award that the penalty assessed against the grievor be reduced to one of fifteen demerits. Under the Brown system of discipline, the effect of this is that the grievor ought not to have been discharged, since he had not accumulated sixty demerits. While the company considered that the grievor’s record stood at fifty-five demerits, the penalty of thirty demerits assessed in February, 2002, was reduced to one of fifteen demerits in a previous award. Thus his record at the material time stood at forty demerits. The assessment of fifteen demerits in this case leaves his record at fifty-five demerits. Accordingly, the grievor is to be reinstated in employment, without loss of seniority or other benefits, although compensation for loss of earnings is subject to the requirement that the grievor mitigate his losses. This is not a case in which interest should be awarded. I remain seised of the matter for the purpose of determining any issue that may arise with respect to the precise amount of compensation, if any, payable if the parties are unable to agree thereon, and to complete the award.
DATED AT OTTAWA, this 27th day of October, 2003,
Original signed by: J.F.W. Weatherill ,
Arbitrator.