SHP682
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
(the “Employer”)
AND:
CAW – CANADA AND ITS LOCAL 101
(the “Union”)
(Rodney Zdrill Grievance KMS0027 – 30 Demerits & Termination)
ARBITRATOR: Vincent L. Ready
COUNSEL: Shelley Smith
for the Employer
Brian Stevens
for the Union
HEARING: February 7 and 8, 2012
Winnipeg, Manitoba
DECISION: March 16, 2012
32698.5
The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.
DISPUTE
Appeal of discipline and accumulation of demerit marks assessed to the record of Rodney Zdrill, the grievor.
JOINT STATEMENT OF ISSUE
Beginning on September 8, 2010 Rail Car Mechanic Rodney Zdrill attended a series of disciplinary investigations in relation to his “unauthorized absence from the workplace since July 3, 2010”
Following the disciplinary investigations, on November 3, 2010 the grievor was issued 30 demerits for “being absent without authorization and for abandoning your employment from July 1, 2010 through August 31, 2010, and for failing to provide the requested information to the Company pertaining to your continued absence from the workplace”.
The assessment of 30 demerits added to his current discipline record resulted in the termination of the grievor’s service as a result of “the accumulation of demerit marks in accordance with the Brown System of Discipline”.
The Union contends that there were mitigating circumstances which the Company did not take into consideration and that the discipline assessed is without just cause and in any event is excessive and that Mr. Zdrill should be reinstated with full compensation.
The Company disagrees with the Union’s contention and has declined the Union’s grievance.
AWARD OF THE ARBITRATOR
The grievor is a long-term employee who has been with the Employer since 1984 and was named CP Rail’s Apprentice of the Year. His work record was unblemished until a recent series of events resulting from poor choices by the grievor. The latest, a virtual disappearance for several weeks without leave, was a valid concern for the Employer and gave rise to just cause for discipline. The grievor has worked for this Employer for many years and must have known of the precarious status of his employment under the Brown Discipline System. I am troubled by the grievor’s patent failure to make a true effort to save his own job. The grievor should have taken steps to communicate and seek leave as he is required to do. His purposeful dissociation from the responsibilities of his job is not characteristic of a long-term employee with a spotless record for most of his career. It leads to the conclusion that there must be another explanation for the dramatic change.
The grievor’s previous discipline for attending work in an impaired state provides an important insight into the situation and supports the Union’s assertion that this is a case that requires the compassionate creation of a last chance opportunity. Put bluntly it points to a long term employee who suffers from a serous alcoholic problem that needs to be brought under control. That in turn points to a necessity to accommodate the grievor in a manner that allows him to deal with his illness and at the same time protect the interests of the Employer. Put another way, more help than punishment. Accordingly, I have concluded, not without difficulty, and after taking into consideration the grievor’s overall work record spanning over 25 years with the Employer, that the appropriate determination in all of the circumstances of this case is to rescind the dismissal of the grievor and substitute 5 demerit points which brings his discipline to a total of 55 demerit points.
In the result the grievor is to be reinstated subject to the conditions set out below.
1. The grievor shall be medically examined by a physician appointed by the Employer and will not return to work until such time as he is deemed to be physically fit to work in a safety-sensitive environment by the Employer’s Chief Medical Officer. Such medical assessment may include an assessment for addiction problems, or any other assessment which the Company’s Chief Medical Officer determines is appropriate.
2. Once confirmed to be fit to return to work in a safety-sensitive position and environment the grievor will be subject to the following conditions for a period of time not less than two years:
a) The grievor shall refrain from the consumption of alcohol, illegal drugs and prohibited substances;
b) In order to ensure his continued fitness and health, the grievor agrees to be subject to random, unannounced drug and alcohol testing, to be appropriately administered (in a non-abusive fashion) for the next two years. His continued employment relationship shall be conditional upon his abstaining from the use of alcohol, illegal drugs and any other prohibited substances;
c) The grievor will participate in the EFAP program in a manner agreed upon by the parties or, failing agreement, in a manner imposed by this arbitration board;
d) His attendance at work will be reviewed quarterly and must be maintained at a rate not less than the average for the employees at his location for the next two years.
3. If the grievor fails to adhere to any of the above conditions which are allowing for his reinstatement, his employment will be terminated immediately.
Under the foregoing conditions, and as stated earlier, I award that the 30 demerits issued to the grievor be reduced to 5 demerits. The grievor will be reinstated to his employment immediately with seniority accumulation for the period of dismissal to the date of this award but without compensation for the same time period.
The grievor is at a significant crossroads in both his personal life and working career. He must take this situation more seriously if he wishes to continue to be employed. There is simply no more direct way to put it. He must take responsibility for the circumstances he has created; circumstances which have eroded more than 25 years of hard work and good service with this Employer. This award should serve as notice to the grievor that it is his last opportunity to correct his behaviour and become a responsible employee once again.
It is so awarded.
I retain the necessary jurisdiction to resolve any issues arising from implementation of this decision.
Dated at the City of Vancouver in the Province of British Columbia this 16th day of March, 2012.
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