SHP 697

IN THE MATTER OF AN ARBITRATION

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††BETWEEN

CANADIAN PACIFIC RAILWAY

(Employer)

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND

GENERAL WORKERS UNION OF CANADA

(CAW-CANADA LOCAL 101)

(Union)

††††††††††††††††††††††††††††††††††††††††† †††††††††††TERMINATION GRIEVANCE OF GERRIT VAN HARTEN†

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

ARBITRATOR:†††††††††††††††††††† Tom Hodges

 

FOR THE EMPLOYER:††††††† Shelly Smith, Labour Relations Officer

††††††††††††††††††††††††††††††††††††††††††††† Brianne Sly, Director, Labour Relations††††

††††††††††††††††††††††††††††††††††††††††††††† Jennifer Love, Labour Relations Officer

†† †††††††††††††††††††††††††††††††††††††††††††Elena Tyminski, Labour Relations Officer†† ††††††††††††††††††††††††††††††††††††††††††††

†††††††††††††††††††††††††††††††††††††††††††

FOR THE UNION:††††††††† †††††Brian Stevens, National Representative

††††††††††† ††††††††††††††††††††††††††††††††††Tom Murphy, President, Local 101††††††††††††††††††††††††††††††††††††††††††††† ††††

††††††††††††††††††††††††††††††††††††††††††††† Gerrit †Van Harten, Grievor

 

HEARING:†††††††††††††††††††††††††† November 19, 2012

 

AWARD:††† †††††††††††††††††††††††††December 12, 2012

 

 

 

JURISDICTION

The parties agree that I have jurisdiction to hear argument and render a decision as an arbitrator

pursuant to the Rule 29 of the Collective Agreement.†

 

ISSUE

The grievor, Mr. Gerrit Van Harten, was dismissed† on June 18, 2012 for:

Physically assaulting and threatening a fellow employee while on duty as a Diesel Service Attendant at the Alyth Locomotive Reliability Centre on May 13, 2012, a violation of Canadian Pacific Policy 1300 (Discrimination and Harassment) and Policy 1803 H&S 4340 (Violence in the Workplace).

 

The CAW proceeded with two grievances on behalf of Mr. Van Harten.† First, the union alleged an employer

violation of Rule 28.4 of the collective agreement between the parties, which provides that the employer

must write the union in circumstances of termination, indicating the reasons for the action. Secondly, the

union contended that the discipline was in any event excessive, even if warranted.

 

AWARD

The alleged incident in question took place at the employerís Alyth Locomotive Reliability Centre in

Calgary, Alberta, at 1115 on May 13, 2012. The incident was investigated by the employer and employee

statements were taken from Mr. Van Harten and the victim of the alleged assault and threat,

Mr. Wade Juett.

 

During the investigation Mr. Juett alleged that he was working his forklift when Mr. Van Harten is

alleged to have leapt onto its step, grabbed Mr. Juett by the collar and forced his face against the

window of the vehicle.† The grievor then purportedly threatened future violence by ďbeating the shit out

of him in the parking lotĒ if Mr. Juett didnít pay up on an apparent outstanding debt to another

employee at the facility, one Mr. Crighton.† The victim completed his shift under obvious duress, but

called in sick the following day.† He also left a telephone message for Superintendent Mike Difruscia, and

reported the threat from the previous day.†† On May 15th, he met with Mr. Difruscia and outlined the

events of May 13th.† In response to the violent nature of the allegation, the employer removed Mr. Van

Harten from service, pending investigation.† Mr. Juett also filed a formal complaint with the Canadian

Pacific Police Service. †Mr. Van Harten denied that any such incident ever took place, stating that he

never even saw Mr. Juett on May 13th, and accused him of fabricating the matter completely.†

 

Evidence was also put forward indicating that another employee at the Alyth Locomotive Reliability

Centre, Mr. Ron McMahon submitted a harassment complaint against the grievor, stating that †

Mr. Van Harten had threatened him on May 13, 2012, the very same day of the alleged assault on

Mr. Juett.† Mr. McMahonís complaint involved a heated verbal exchange between he and the grievor as

well as an apparent invitation from the latter to settle the matter in more physical manner.

 

On May 15th Mr. Juett approached Mr. Crighton, his supposed debtor, in the parking lot of the facility

and recounted the May 13th episode with the grievor, on the forklift.† Mr. Crighton evidently responded

that he was unaware of the incident.†† Mr. Juett countered that ďthis crap has got to endĒ, referring to a

feud between them over unpaid rent and stolen property.† Mr. Crighton apparently agreed and

suggested that the two of them get together to talk through the disagreement.

 

The employer conducted six investigations between May 30 and June 14, 2012 Ė one each with

Messrs. McMahon, Juett, Van Harten and another employee, Mr. Don Gagne Ė and then supplemental

investigations with Mr. McMahon and Mr. Juett.† Mr. Crighton was not asked to provide a statement

into his role, if any,† in the incident of May 13, 2012.

The employer maintained that Mr. Juett was indeed the victim of an assault and subsequent threat from

Mr. Van Harten on May 13, 2012, and as such, the decision to terminate the grievor from his

employment was completely justified.† The company also argued that it fully met the requirements of†

Rule 28.4 by immediately providing CAW Vice President Lawson with a copy of the grievorís detailed

Form 104 as well as all requested material associated with the investigation.† The company urged that

the arbitrator dismiss both grievances in their entirety.

 

The CAW contended that the employer had failed to provide adequate reasons for the dismissal

as per the terms of Rule 28.4 of the collective agreement, and that as a result the termination of the

grievor should be voided, ab initio.† The union further contested that the discipline imposed on the

grievor was in any event †excessive, and requested that Mr. Van Harten be reinstated into his

employment as Diesel Service Attendant at the Alyth Locomotive Reliability Centre, with full

compensation for lost wages and benefits.

 

Rule 28.4 of the collective agreement reads as follows, in part:

In cases of dismissals or other termination of employee relationships, the Company shall provide the regional Vice President of the Union a copy of the advice given the employee along with a letter outlining the reasons upon which the decision to terminate was based.†

 

In SHP 676, Arbitrator Picher (M.G.) noted:

In the Arbitratorís view these provisions must be read from a purposive standpoint.† The object is obviously to ensure that the Union is, in fact, fully aware of the reasons for the grievorís termination.† In the instant case the Form 104 provided is, in my view, sufficiently elaborate with respect to the reasons for the grievorís termination.† It expressly states that the Companyís action was taken by reason of the grievor having left Company property without authorization on June 14 and June 15 as well as June 16 and that he improperly claimed wages for the 14th and 15th.† That information was fully in the hands of the Unionís Vice-President, albeit it was not in the form of the letter contemplated under rule 28.4.

In my view the facts before me confirm that the substance of the requirements of Rule 28.4 was in fact met.† There is no suggestion that Mr. Lemyre was in the dark as to why the grievor was terminated or that the Union was prejudiced in preparing a defence to the Companyís allegations for the purposes of the grievance and arbitration process which might unfold under the collective agreement.† In the circumstances I am compelled to conclude that the Unionís objection is more technical than substantive and that it should not be allowed, to the extent that a favourable ruling would effectively overturn the discipline assessed against the grievor.† While the conclusion might be different if the information in the Form 104 had been more limited, on the whole I am satisfied that the information given verbally to Mr. Lemyre, coupled with the elaborate statement included in the Form 104 constituted substantial compliance with the requirements of the second paragraph of Rule 28.4 of the collective agreement, and that the Unionís objection in that regard must be dismissed.†

 

The Form 104 issued in the instant case to the grievor on June 18, 2012 read as follows:

Please be advised that you have been Dismissed from Company Service for the following reason(s): For physically assaulting and threatening a fellow employee while on duty as a Diesel Service Attendant at the Alyth Locomotive Reliability Center on May 13, 2012, a violation of Canadian Pacific Policy 1300 (Discrimination and Harassment) and Policy 1803 H&S (Violence in the Workplace).

 

This document was provided to the grievor in person, and was immediately conveyed by email to

CAW Vice President Ray Lawson.† The following day, Mr. Lawson requested all statements and other

information related to the investigation, and the employer subsequently couriered the material to him,†† ††

in a timely manner.

 

The Form 104 in SHP 676, advising the employee of his dismissal, read as follows:

ÖÖ for leaving company property without proper authorization on June 14, 2011, June 15, 2011 and June 16, 2011 and for improper wage claims entered into the SAP payroll system, claiming 8 hours pay for June 14, 2011 and June15, 2011, two of the three days that were investigated.

 

The advice immediately above, from the SHP 676 case, may have been be somewhat more informative

than that issued to Mr. VanHarten and emailed to CAW Vice President Lawson, but only just.

Mr. Lawson was quickly made aware of the grievorís fate, the measure of the disciplinary response, the

incident that drove the employer action,† and the specific employer policies that had been violated.††

Soon thereafter, all material associated with the comprehensive investigative process was forwarded to

him.†

 

The union elected to once again test the principle of Rule 28.4, notwithstanding the rather crisp

guidance of Arbitrator Picher from just a few months previous.† Regardless, the result must be the same.†

There is little evidence that either the grievor or the CAW have been disadvantaged in any way by the

content of the Form 104 issued to Mr. Van Harten, and the unionís contention that Rule 28.4 was

violated by the employer must once again be respectfully denied.† If the union wishes to etch in a more

mandatory element to that particular clause, the pursuit of penalty language for non-compliance is

more appropriate, when the parties next meet in collective bargaining.††

 

Turning to the matter of the grievorís discharge from service, management expended most of its

considerable investigative effort in this instance on the alleged confrontation between Mr. Van Harten

and Mr. McMahon, an event †that resulted in no discipline being assessed to either party.† In fact, just

four of the 85 questions in the grievorís statement of June 11, 2012 pertained to the incident that

became the subject of the current dispute, and resulted in the most severe and final labour relations

response possible from an employer.

 

No independent evidence was provided to either contradict or corroborate that put forward by

Mr. Juitt and Mr. Van Harten.† Mr. Crighton, a significant participant in the circumstances that led to the

alleged assault was not called upon to provide evidence in the investigation or during the hearing.† Had

that happened, Mr. Crighton may have been able to confirm if he was indeed owed money by Mr. Juett,

and would have been extended the opportunity to truthfully shed some probative light on the alleged

conflict between the grievor and Mr. Juett.†

 

The union has suggested that Mr. Juett is involved in other issues under investigation at the time of the

hearing and may have had undisclosed reasons to fabricate the circumstances of May 13, 2012. At the

same time it is readily apparent to the arbitrator that the grievor was less than forthright during his

investigation.† His actions in this matter, and subsequent comportment, were most assuredly worthy of

disciplinary action from the employer.†

 

Was termination of Mr. Van Hartenís employment the appropriate measure? †It goes without saying

that subjecting a fellow employee to the threat of physical harm carries with it the potential of serious

disciplinary response from the employer, perhaps even discharge from service if the assault is

sufficiently egregious.†

 

The victim of the assault and threat, Mr. Juett, did not appear and/or testify at the arbitration hearing.

No officers from the Alyth Locomotive Reliability Centre were present at the hearing to proffer

testimony in support of the employer decision to terminate Mr. Van Harten from company service.

Absent any independent evidence it is difficult for the arbitrator to accept the version of the events

provided by either Mr. Juett or Mr. Van Harten during the investigation. There are clear and unexplained

contradictions regarding the alleged events provided during the investigations.

 

The grievor had approximately 17 years of service with the employer, and a clear discipline record at the

time of the incident. †He denied the alleged assault took place. The burden of proof in this matter rests

with the employer. No evidence was provided to corroborate the testimony of Mr. Juett. †It is clear that

the grievor was discharged for physically assaulting and threatening a fellow employee while on duty.

After consideration of all of the evidence put forward and the reasons set out above, it cannot be

concluded by the arbitrator that the alleged assault has been proven, on the balance of probabilities.

The evidence does establish the employer was made aware of serious allegations worthy of

investigation. †The investigation revealed a significant and complex verbal conflict among a number of

employees involving inappropriate conduct within the workplace.

 

The arbitrator is satisfied that a substitution of penalty is in order.† I do not believe that the employer

has made out a sufficiently compelling case to warrant the sustainment of the grievorís discharge.† The

imposition of †some discipline was justified, but the employer defense of its action was not one

comprising the unalterable, clear and cogent evidence necessary, on which to fuse the ultimate

assessment, that of termination. However, the actions of the grievor would, in the event of future

similar conduct give rise to more serious discipline.

 

In view of the foregoing as well as consideration of all of the evidence and submissions of the parties the

grievance must be allowed, in part.† The grievor is to be reinstated into his former employment, without

loss of seniority and without compensation. Time out of service will serve as a suspension.

 

I remain seized to address any issue dealing with the interpretation or application of this award.

Dated this 12th, day of December, 2012

 

 

 

Tom Hodges

†Arbitrator