SHP 695

IN THE MATTER OF AN ARBITRATION

BETWEEN:                                                    VIA Rail Canada Inc.

AND                                                               CAW/TCA, LOCAL 100

AND IN THE MATTER OF THE GRIEVANCE OF P. DESGAGNÉ

ARBITRATOR:                                             J.F.W. Weatherill

A hearing in this matter was held at Montreal on July 31,2012.

B. Stevens, for the union.

G. Sarazin. for the employer.

AWARD

The Dispute and Joint Statement of issue in this matter is as follows:

Dispute:

The dismissal of Heavy Duty Mechanic Patrick Desgagné.

Joint Statement of Issue

1. On December 25, 2011, Heavy Duty Mechanic Patrick Desgagné was working from 21h30 to 07h30 in the Servicing area.
The Union contends that there is no just cause for Mr. Desgagné's discharge and that the penalty is unwarranted and excessive in all the circumstances.

2. The Union requests that the discipline be removed and that Mr. Desgagné be reinstated without loss of seniority and benefit, and that they be made whole for all lost earnings with interest.

3. The Corporation submits that Mr. Desgagné committed a serious  safety violation by standing on a trailer pulled by a Motrec and  constituted the final incident that led to his  dismissal.

4. As such, the bond of trust between employer and employee has been  breached and it cannot be restored. Under the circumstances, the  dismissal of Mr. Desgagné is warranted and appropriate.

There is no dispute as to the facts. On the night in question, the grievor,  who was hired by the Corporation on June 19, 2000, was working in the Servicing  department, inspecting outbound trains and performing repairs on coaches. Heavy  Duty Mechanics generally use a "Motrec" to move from one work location to  another, and the Motrec is also used to pull coach wheel sets on trailers from the external wheel bay to the servicing area. On the occasion in question, another  employee was driving a Motrec hauling trailers, and as this convoy was passing his  area, the grievor ran and jumped on the last  trailer. In his investigation, the grievor  states that he did not lose his balance, but that  only means that he did not fall down and injure himself. To jump on a moving trailer was obviously a dangerous thing to do, and constituted a breach of safety regulations. I have no doubt that the grievor was subject to discipline for this behaviour.

The grievor was assessed 10 demerits for this offence. The union argued  that a fair and impartial investigation of the matter did not take place, since the  grievor's supervisor, who observed the grievor passing his office riding on the trailer, did nothing to stop him, but later looked at a surveillance video before  deciding to take disciplinary action. The surveillance video was not presented at  the investigation, but it is said simply to show that the grievor was standing on the  moving trailer, which is a fact on which all agree. The supervisor, seeing the grievor pass by his office on the trailer, took no immediate action because he did  not want to frighten the grievor and cause an accident. In my view, that was not an unreasonable reaction. I find no violation of the collective agreement with respect to the investigation of this matter.

In the particular circumstances of this case, I do not consider that the assessment of 10 demerits would be beyond the range of disciplinary responses to the situation, although if it were a case of a first offence, a lesser penalty might have been appropriate.

The grievor's disciplinary record, however, stood at 55 demerits. Under the Brown system of discipline, the grievor was subject to dismissal for the accumulation of 60 demerits. In 2008 and 2009 the grievor was without discipline, and his preceding demerits were removed, but in October 2010 he was assessed 55 demerits for smoking cannabis on company property, and in October, 2011 was suspended for two months for what appears to have been the reckless driving of a vehicle on company property. To impose a suspension rather than award demerits was obviously to avoid the discharge of the grievor at that time.

The grievor appeared at the hearing, and gave the impression of an intelligent and articulate employee. Not surprisingly, he was remorseful and indicated that he now appreciated the dangers of the workplace, and the need to be aware of safe procedures at all times.

While the grievor does not have the lengthy seniority of many rail shop

employees, he has been employed for more than ten years and had been a Heavy Duty Mechanic for over three years. In the particular circumstances of this case, while a misdemeanour committed a short time after a lengthy suspension is very disturbing, it is my view that a "last chance" should be given to the grievor. This should certainly be on rigorous terms in this case.

Accordingly, it is my award that the demerits issued to the grievor be reduced to 4, and that he be reinstated in employment forthwith without loss of seniority or benefits, although there is to be no compensation for loss of earnings, benefits or benefit payments during the period from his discharge until the date of his reinstatement, or until August 17, 2012, whichever comes earlier.

DATED AT OTTAWA, this 14^th day of August, 2012,

J.F.W. Weatherill

Arbitrator