SHP 581










(the "Company")








(the "Union")






SOLE ARBITRATOR:                                Michel G. Picher




Gilles Pepin                           – Labour Relations Officer, Calgary

John H. Bate                          – Labour Relations Officer, Calgary

John Dubreuil                        – Employee Resources Specialist, Scarborough

Chris Bartley                          – Process Manager, Scarborough

George Anderson                 – Process Coordinator, Scarborough




B. R. McDonagh                    – National Representative, New Westminster

Ron Laughlin                          – Regional Vice-President, Oshawa

Christopher Y. Senior           – Local Representative, Uxbridge

Ken Hewitt                             – Grievor


Hearings in this matter were held in Toronto on March 4 and 5, 2004




            The Union grieves the assessment of forty demerits to the record of Carman K. Hewitt of Toronto. The outline of the dispute is contained in the Joint Statement of Fact and Issue filed before the Arbitrator at the hearing, which reads as follows:




Discipline – Carman Ken Hewitt’s record being debited 40 demerits on [April 29] 2002.



In April 2002, Carman Ken Hewitt’s Record was debited 40 demerits for:


“… inappropriate and unacceptable conduct while attending job briefing during his shift as evidenced by his use of profanity towards a Supervisor and leaving the meeting without authorization, on March 7, 2002, Toronto, Ontario.”



It is the contention of the Union that:


·         The Company did not establish wrong doing on Carman Ken Hewitt’s behalf sufficient to give the Company cause to discipline him.


·         Carman Ken Hewitt was treated in an arbitrary, discriminatory and an excessive manner in regard to the 40 demerits debited against his record.


Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 40 demerits debited against Carman Ken Hewitt should be removed from his record.


The Company denies the Union’s contentions and claim.


            The record establishes, beyond dispute, that the grievor engaged in a form of extreme verbal abuse of his supervisor, during the course of a work briefing in the Toronto Yard on March 7, 2002.


            Evidence in the form of the memorandum of Process Manager Chris Bartley, dated March 7, 2002, relates certain of the facts pertaining to the encounter between himself and the grievor which gave rise to this discipline. It appears that during the course of the briefing there were two areas of concern in the mind of Mr. Hewitt. One related to the days off being provided to junior employees, a second was a safety concern having to do with notification to mechanical crew members of train movements in the yard where they were working. It appears that the topic of yard movement announcements had been discussed in the job briefings of the previous three days. It seems that Mr. Bartley had expressed the view, albeit erroneously, that notification of train movements was a courtesy, and not an obligation. The memo of Mr. Bartley, the accuracy of which the Arbitrator accepts without reservation, confirms that he was corrected in his misunderstanding and ultimately confirmed that the standing policy was that all moves were to be broadcast, and that he would take the matter up with the operator of Field Operations who apparently had led him to his misunderstanding of the policy.


            It appears that at or about that point in the job briefing the grievor commenced using profanity, referring in part to the days off of the junior employees. Mr. Bartley commented that he did not appreciate profanity being addressed to him in the meeting, and in particular the word “fuck”. Mr. Hewitt responded that he was using shop talk and that if Mr. Bartley did not like it he could leave. Mr. Bartley stood his ground and indicated that he would not tolerate swearing, which prompted the grievor to continue, in the words of Mr. Bartley: “I again told him to stop swearing however he continued saying he is tired of me fucking lying to him and he started walking towards me to leave the room. As he was passing me he looked at me and said he can’t stand to fucking look at me as I was a fucking liar and left.”


            Unfortunately that was not the end of the matter. As related in a companion arbitration, the grievor left the briefing meeting and promptly drove a Company vehicle in the yard in such a manner as to cause two of its tires to be destroyed by misjudging the crossing of a roadway and track intersection. Following that incident he was returned to the supervisor’s office where he again encountered Mr. Bartley and Supervisor G. Anderson. The statement provided by Mr. Anderson confirms that when Mr. Hewitt returned to the office after the incurring the damage to the vehicle, when a replacement vehicle was being provided, he indicated to Mr. Anderson that he didn’t feel that he should have been driving as his mind was not on what he was doing. When Mr. Anderson inquired as to what was wrong Mr. Hewitt related to him that during the briefing meeting Mr. Bartley had been “laughing at the people who had to be here on the weekends” and that Mr. Bartley was a liar. When Mr. Bartley entered the office shortly thereafter, Mr. Hewitt stated that he did not want to talk to him and couldn’t stand to be around him. When Mr. Bartley asked the grievor whether he would be fit to work he responded that he “would be fine as long as he was away from [Mr. Bartley]”. In the result, the Process Manager instructed the grievor to go home as he was too upset to work. Mr. Hewitt again called Mr. Bartley a “fucking liar”, stating “I hate your fucking guts”.


            During the course of the Company’s investigation, conducted initially on March 20, 2002, the grievor did not deny the use of profanities, save that he could not remember exactly the words that he used. In answer to an early question he responded “It was inexcusable and I should not have said it.” As the remainder of the investigation process indicates, however, that statement was far from an indication of any change of attitude on the part of Mr. Hewitt. As the questioning proceeded Mr. Hewitt related his view that Mr. Bartley had been instrumental in his earlier termination from employment in relation to an incident in 1997 concerning the refusal of what the grievor considered to be unsafe work. He stated, in part, that at the arbitration hearing the supervisor had been found to be involved in “manipulation of evidence, outright lies and general abuse of managerial authority …”. He added, “The arbitrator agreed, and awarded me my job back with full CCS.”


            As agreed at the hearing, the above statement is simply not correct. While this Arbitrator was seized of the dismissal grievance of Mr. Hewitt, and he was reinstated, that reinstatement was by the mutual agreement of the parties, without any award having issued, or any findings being made.


            Undeterred by the possibility of discipline, Mr. Hewitt proceeded to serious attacks upon the integrity of Mr. Bartley. During the course of the investigation he said, among other things: “I have absolutely no respect for Mr. Chris Bartley.” “CP Rail nepotism has once again spoon-fed Mr. Bartley in a position for which he is totally incompetent.” “I fully expect to be demeritized either right out of work or at least to the brink of unemployment.” The grievor also related that during the course of the meeting in which he called the Process Manager a “fucking liar” other employees were addressing similar phrases of abuse to Mr. Bartley.


            In light of the serious allegations raised in the course of the grievor’s investigative statement the Company reconvened a supplementary investigation on April 10, 2002. During the course of that interview it sought clarification from the grievor as to the alleged wrongdoing of Mr. Bartley in relation to the safety issue in 1997. In one of his answers the grievor again reiterated his view of Mr. Bartley stating, in part: “These facts constitute the very definition of unethical management misconduct.” When pressed on the issue of his earlier reinstatement from discharge the grievor did concede that there had not been an arbitrator’s award sustaining his grievance, and that he had been reinstated on the basis of a deal reached between the Company and the Union.


            A review of the evidence clearly establishes that Mr. Hewitt was at all times convinced that from the time he returned under the supervision of Mr. Bartley he was a marked man. Part of his view appears to have been prompted by a comment made to him by another member of management, who Mr. Hewitt refuses to identify, who allegedly stated to him after his reinstatement from discharge that Mr. Bartley was out to get him. Unfortunately the truth or value of that statement can obviously not be tested, to the extent that the grievor refuses to identify its source.


            I turn to consider the merits of the grievance. The Arbitrator has substantial difficulty with the defence of conspiracy and provocation advanced by Mr. Hewitt. Even if, as the grievor alleges, Mr. Bartley has demonstrated questionable judgement in his management practices, and has lied to employees, a matter which I expressly find not to be demonstrated on the evidence before me, the fact remains that Mr. Hewitt plainly exceeded the bounds of workplace civility in his treatment of his supervisor. It is trite to say that the collective agreement gives ample opportunity, through the grievance and arbitration process, for the airing of complaints about the unsafe or improper conduct of management. Under no circumstances, in the Arbitrator’s view, can an employee be justified in openly attacking a supervisor before an assembled group of employees, calling him or her “fucking liar”. A more serious attack on managerial authority can scarcely be imagined. Such statements are plainly calculated to make the position of any manager or supervisor untenable in the workplace, and clearly cannot be tolerated.


            Can it be said that the incident in question was an isolated outburst, generally out of character with the employee’s normal behaviour? Regrettably not. The record before the Arbitrator confirms that the grievor has repeatedly been disciplined for profane and abusive language towards supervisors and fellow employees over the period of his employment. On November 22, 1995, he was assessed twenty demerits for engaging in a verbal altercation with a fellow employee at Oshawa. On August 26, 1997 he was assessed a further twenty demerits for the use of profane language directed to Supervisor G. Cutts. On March 11, 1998 he was assessed four demerits, to shelter him from possible discharge, for the use of profane language towards Supervisor Cutts on a second occasion. On February 11, 1999 Mr. Hewitt was again assessed twenty demerits for the use of profanity towards a supervisor and leaving his work assignment without authorization. It appears that it is the latter incident which resulted in his earlier dismissal, which resulted in his reinstatement into his employment.


            What the record discloses is an individual who appears to have utter disregard for the need to maintain civility in his relations with other employees and supervisors, including supervisors other than Process Manager Chris Bartley. When principles of progressive discipline are applied, the repeated assessments of discipline against Mr. Hewitt for conduct similar to that giving rise to the assessment of forty demerits in the case at hand seem to have had no rehabilitative impact. For reasons he best appreciates, he sees himself as the victim of a conspiracy, the sole protector of truth in the workplace and the denunciator of incompetent managers. Given well established principles that the workplace is not to be treated as a debating society, and that differences between employees and supervisors are to be properly channelled through the grievance procedure, as well as the principle that employees are to be governed by the “work now – grieve later” rule, the regrettable conclusion to which the Arbitrator is drawn is that Carman Hewitt has little understanding of or respect for those principles. Given that he was assessed twenty demerits on a number of occasions for similar conduct in the past, the Arbitrator cannot find that the doubling of that discipline in the face of his unacceptable words and conduct on March 7, 2002 should be disturbed.


            For all of the foregoing reasons the grievance must be dismissed.



Dated at Toronto, this 15th day of March 2004



                                                                               (original signed by) MICHEL G. PICHER