SHP589
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY
MECHANICAL SERVICES
(the "Company")
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
LOCAL 101
(the "Union")
GRIEVANCE RE DISCIPLINE & DEMOTION ASSESSED I. KUSEN
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE COMPANY:
J. H. Bate – Labour Relations Officer, Calgary
P. Watsa – Director, Labour Relations, Calgary
G. Pépin – Labour Relations Officer, Calgary
L. Wormsbecker – Manager, Labour Relations, Calgary
L. Sartesz – Manager, ES/MS Training, Calgary
S. Samosinski – Director, Labour Relations, Calgary
APPEARING FOR THE UNION:
B. McDonagh – National Representative
T.Murphy – President, Local 101
V. Gill – Vice-President, Pacific Region
A hearing in this matter was held in Calgary on July 12, 2004
AWARD OF THE ARBITRATOR
This arbitration concerns the discipline and demotion of Engine Attendant Ivan Kusen of Alyth Yard, Calgary. The nature of the dispute, the basic facts and the issues are reflected in the statement of fact and issue filed at the hearing which reads as follows:
DISPUTE:
Discipline & demotion – Engine Attendant Ivan Kusen’s record being debited 25 demerits, his subsequent demotion to the classification of Labourer for a period of one (1) year and his lost wages for one (1) year.
STATEMENT OF FACT:
On March 24, 2003, Engine Attendant Ivan Kusen’s record was debited 25 demerits and he was demoted to the classification of Labourer for a period of one year and also lost wages for one year:
“… failing to control the movement of CEFX 130 running away and subsequently derailing #6 wheel, a violation of 5 Alive Safety Rules, on February 23, 2003 at Alyth Diesel Shop. In addition you are restricted to the classification of Labourer for a period of one year.”
STATEMENT OF ISSUE:
It is the contention of the Union that:
- the Company did not establish wrong doing on Engine Attendant Ivan Kusen’s behalf sufficient to give the Company cause to discipline him and demote him.
- Engine Attendant Ivan Kusen was treated in an arbitrary, discriminatory and an excessive manner in regard to the 25 demerits debited against his record.
- Engine Attendant Ivan Kusen was treated in an arbitrary, discriminatory and an excessive manner in regard to his demotion.
Therefore, with regard to the foregoing, it is the position of the Union that:
- the discipline of 25 demerits debited against Engine Attendant Ivan Kusen should be removed from his record; and
- the demotion imposed upon him should be removed from his record; and
- he should be reimbursed with full redress for all lost wages, benefits and losses incurred as a result of his demotion, including but not limited to, interest on any moneys owing.
The Company denies the Union’s contentions and claim.
The facts in relation to the grievance are not in dispute. During the course of the grievor’s tour of duty on February 23, 2003 at the Alyth Diesel Shop he became responsible for moving locomotive CEFX 130 to a track designated as West 2, to allow it to be picked up by the fuel track crew. In preparation for that movement the grievor entered the cab of the locomotive and fully released its brakes. When he instructed his workmate to proceed he was advised that they could not because another unit, locomotive 9550 was not “loading” and could not be moved from where it was blocking the movement of CEFX 130. After working with his mate to correct the problem with locomotive 9550 the grievor returned towards CEFX 130. Without adverting to the fact that he had released its brakes, he released the coupling lever which detached the locomotive from unit 9550, which allowed it to roll away freely. The locomotive progressed only a few feet when it encountered a derail causing one of its wheels to leave the track, whereupon it stopped. There was no substantial property damage or injury. Following a disciplinary investigation the Company assessed twenty-five demerits against the grievor’s record coupled with a one year demotion to the classification of labourer.
It appears that the Company’s decision was motivated, in substantial part, by what it viewed as the seriousness of the grievor’s prior disciplinary record. An employee of some twenty-two years’ service, the grievor was disciplined on a number of occasions in the past, including seven incidents involving departures from proper procedures in the handling of locomotive equipment. Most significantly, in the Company’s view, the grievor had been assessed forty demerits and a one year restriction to the classification of labourer for his involvement in a collision between two locomotives in May of 2001.
The Union’s representative submits that the coupling of twenty-five demerits with an additional sanction of a demotion is excessive in the circumstances of the case at hand. Citing the loss of wages to the grievor over the period of a year, in addition to the penalty in the form of demerits, he submits that the treatment was unduly harsh in all of the circumstances. He stresses that what happened was a mere act of inadvertence on the part of the grievor, prompted in part by his willingness to assist his partner in resolving a problem with another locomotive. He stresses that there was no material damage to any equipment and that the unit in question was immediately placed back into service.
The Union’s representative draws to the Arbitrator’s attention prior arbitration awards confirming that, as a general rule, demotion is not considered to be a proper form of discipline absent clear evidence that the circumstances disclose that the employee is incompetent to perform the job from which he or she has been demoted. Reference in that regard is made to Re City of Lethbridge and International Association of Fire Fighters, Local 237, (1988) 34 L.A.C. (3rd) 167 (Beattie).
Upon considering the submissions of the parties, and with the fullest understanding of the concerns which motivate the Company’s view, the Arbitrator is inclined, on the facts of the instant case, to agree with the submission of the Union’s representative with respect to the issue of the appropriateness of the demotion for a period one year. While it is true that the grievor’s prior disciplinary record is less than exemplary, it remains important to view each incident on its own merits. While a culminating incident may be invoked to justify the termination of an employee’s services, there may well be an inherent injustice if an employee with a prior negative record is made the recipient of extremely burdensome penalties short of discharge for a succession of minor infractions by reason of his or her prior serious disciplinary record. In each case, discipline must be commensurate with the offence and generally calibrated to achieve the necessary rehabilitative effect. I am satisfied that in the case at hand the assessment of twenty-five demerits would, of itself, have been sufficient to place the grievor on notice with respect to the need to improve his care in the safe handling of locomotives and to cause him to realize that any future infractions could have the most serious of consequences.
The grievance is therefore allowed, in part. The Arbitrator directs that the demotion be struck from the grievor’s record and that he be compensated, with interest, for the difference in earnings lost for the period of his demotion. 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 21st day of July 2004
(original signed by) MICHEL G. PICHER
ARBITRATOR