IN THE MATTER OF AN ARBITRATION
BETWEEN: VIA RAIL CANADA INC.
AND THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
AND IN THE MATTER OF THE GRIEVANCE OF M. SOUFIANE
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Montreal on August 2, 2000.
A. Rosner, for the union.
M Bastien and A. Houlihan, for the company.
In this grievance the union protests the discharge of the grievor. The grievor, an Electrician, was hired by the company on September 6, 1988, and that has become his seniority date. He was discharged on October 13, 1999, for having made false or misleading statements on his application for employment. That application had been made on September 27, 1998. On the date of his discharge, the grievor was also assessed thirty demerits for failure to attend an interview on September 27, 1999, and a further forty demerits for failure to attend an interview on October 4. All three matters, I find, are properly before me.
The grievor had worked as an Electrician for Canadian National from April, 1976 until October, 1978. It would appear that his duties were similar to those he was assigned at VIA. In his application for employment at VIA, the grievor stated that he had worked for Canadian National from April, 1976 until September, 1979. This was of course incorrect, but there is no reason to conclude either that it was deliberate or that it was significant. The length of the grievor’s employment at Canadian National could easily be verified, although the importance of the difference between one and one-half and two and one-half years’ experience a decade previously would be minimal. This incorrect statement would not constitute a proper ground for discipline.
The grievor indicated on his application that he had been employed as an electrician at a mining company in Morocco from April, 1971 until December, 1975. The mining company has advised VIA that the grievor worked as a “monteur d’installations souterraines”, but the accompanying list of job duties would appear to be very similar to those of an electrician in a railway shop. The grievor also indicated that he had had three years’ pre-employment training, whereas the mining company reports that he had had two. Again, I do not consider that this inaccuracy, if indeed it is one, would be of sufficient significance to merit discipline. The mining company also states that the grievor left its employ in April, 1974 “suite à absence prolongée” (and not “for prolonged absences”, as VIA has put it). The union advises, however, that from April 1974 until December 1975, the grievor in fact worked in the Office of Methods and Planning for the same company.
The material before me leads to the conclusion that the grievor did work for a number of years as the equivalent of an Electrician, and that he was in the employ of the mining company for the period referred to in his application. Whether his pre-employment training was two years or three, it would appear to have met the requirement for his being assigned to work. Again, any inaccuracies are minor, and do not support the imposition of discipline.
A more serious question relates to the grievor’s assertion, on his application, that as a “qualifying certificate” or “trade card” he held a “Certificat du Ministère du Québec”. Certainly the grievor did not then possess a “Certificat de Qualification”, or “ “C” licence”, although he has since acquired one. It would appear (although I make no finding about this), that he held a “Certificate of Equivalency” which recognized his training and work experience in Morocco. What was asserted on the application, in any event, was not that the grievor then held a “Certificat de Qualification”. It may be, then, that the grievor’s statement on the application for employment was ambiguous. If a particular certificate of qualification had been a prerequisite for employment, or a legal requirement for employment in the work to which the grievor was assigned, it would surely have been the employer’s obligation to require the production of such certificate at the time the grievor was hired. On the material before me, there was no such prerequisite, and it would not be reasonable to conclude that the grievor deliberately misled the employer in that respect. In the circumstances of the instant case it cannot properly be concluded either that the grievor falsified his application in this respect, or that the employer relied to its detriment on the assertion (which appears to have been true) that the grievor held a “Certificat” relating to his qualifications. Even if the employer had concluded that the reference was to a “C” licence, that was not a necessary or required qualification for the job to which the grievor was hired. Here again, therefore, I conclude that there was no ground for the imposition of discipline on the grievor.
With respect to the imposition of demerit marks for failure to appear at two investigations, I have no doubt that some discipline was properly imposed, although the company acknowledges that a total of seventy demerits would not be justified for those offences. With respect to one of those absences, the grievor had submitted a medical certificate, but it does not appear that that was done by way of excuse for non-attendance at the interview - he made no other attempt to contact the company - but it seems that it was rather a form of justification for absence from work.
On the material before me, it is reasonable to conclude that while the company would appear to have been quite suspicious of the grievor, who has been absent from work for the greater part of his employment with the company, the grievor has not been open and cooperative with the company. There is no substantial ground for me to order, as a part of the remedy requested, that the company issue an apology to the grievor. Having regard to all of the circumstances before me, and finding that the grievor was subject to discipline for failure to appear at investigations, but not properly disciplined for falsification of his employment application, I make the following award:
1. The grievor is to be reinstated in employment forthwith, without loss of seniority, and with compensation from the date of the hearing of this matter (August 2, 2000);
2. His discipline record, as of the date of his reinstatement, shall stand at 30 demerits;
3. It will be proper for the company to require the grievor, on paid time, to pass reasonable tests, to a reasonable standard, of his ability to perform the normal requirements of his position.
DATED AT OTTAWA, this 16th day of August, 2000