SHP687
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
(the “Employer”)
AND:
CAW – CANADA AND ITS LOCAL 101
(the “Union”)
(Ronald Arjoon – 40 Demerits – SHP687)
ARBITRATOR: Vincent L. Ready
COUNSEL: Shelley Smith
for the Employer
Brian Stevens
for the Union
HEARING: April 17, 2012
Moose Jaw, Saskatchewan
DECISION: June 5, 2012
32697.2
The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.
DISPUTE
In this case, the Union challenges the imposition of 40 demerit points to the record of Ronald Arjoon, the grievor, for causing damage to a Company vehicle on April 12, 2011 and failing to report such damage.
JOINT STATEMENT OF ISSUE
On April 12, 2011, Mr. Ronald Arjoon along with co-workers, Mr. D.J. Martens and Mr. Sam O’Reilly-Towle were directed to perform repairs to a “hot car” located on track IH04 in the Winnipeg yard.
When the crew arrived on the repair pad, they noticed that there were no portable torch sets and would have to make use of the torch set located on their truck to assist in making the necessary repairs. Mr. Arjoon, who was operating vehicle #MO1051 a 2002 GM Silverado 2500 truck, backed up next to the rail car with Mr. O’Reilly-Towle guiding him into the tight spot.
After completing the repairs to the rail car, Mr. Arjoon began to pull ahead when he heard something come into contact with the repair truck and he immediately stepped out of the vehicle to clear away the obstructing operating lever and examine the left side of the vehicle. In their collective assessment, the contact was minor in nature and not necessarily a reportable incident.
Inquiries were made by the Company on April 16, 2011 with the grievor and Mr. D.J. Martens in relation to vehicle MO1051, however all three employees were subsequently called for formal investigations into the April 12, 2011 incident. Following a formal investigation, the grievor was issued discipline on June 6, 2011 in the form of 40 Demerits for “damage to company vehicle MO1051, and your failure to report damage to the vehicle and providing false and misleading information to Company Officer when questioned about the damage sustained by Company Vehicle on April 12, 2011 at Winnipeg MB”.
The Union contends that process of investigating the incident cannot be said to be fair or impartial as required by Rule 28.1 nor is there a consistently administered policy or procedure for employees to report cosmetic dings or scratches of vehicles, nor is there any evidence that the grievor provided false or misleading information when any inquiries were made by supervisors, and on the whole the Union contends there is no just cause to issue any discipline.
The Union is requesting that the Form 104 and all materials related to the instant grievance be removed from the employee’s file and that the grievor be made otherwise whole forthwith.
The Company disagrees with the Union’s contention and has declined the Union’s grievances.
AWARD OF THE ARBITRATOR
When assessing discipline of an employee, arbitration boards must provide a conclusive response to three questions. First, did the grievor’s conduct give rise to just cause for some form of discipline? Second, if so, was the disciplinary response of the employer appropriate having regard to all of the circumstances? And, third, if the discipline chosen by the employer was excessive, what is the appropriate discipline to be imposed?
The evidence is clear that the grievor was responsible for the dent in the door of the truck. It is equally clear that he did not report it. The evidence, however, is not clear and conclusive that the grievor was responsible for the damage to the fender of the truck. Nonetheless, the grievor did commit an offense when he failed to report the damage, irrespective of the extent of the damage.
The real issue in this case is whether the discipline imposed was appropriate or excessive given all the circumstances. In answering that question, I have considered all the evidence, including the following:
i. The grievor is a long term employee (approximately 24 years of service);
ii. Based on the commendation by the Employer, the grievor is a responsible and valued employee;
iii. The grievor has no previous discipline; and,
iv. The grievor was working in tough circumstances at the time of the incident.
I have taken all the above factors into account, however, I cannot overlook the fact that the grievor failed to report this incident, and for that he is deserving of discipline. After carefully reviewing the evidence and hearing the arguments of both parties, I am persuaded that a lesser penalty is appropriate in this case. Therefore, I substitute the discipline and assess 15 demerit points to the record of Mr. Ronald Arjoon.
It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 5th day of June, 2012.
_____________________________
Vincent L. Ready