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 employer’s 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 “beating the shit out
of him in the parking lot” if Mr. Juett didn’t 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. McMahon’s 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 “this crap has got to end”, 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 – one each with
Messrs. McMahon, Juett, Van Harten and another employee, Mr. Don Gagne – 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 grievor’s 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 Arbitrator’s 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 grievor’s termination. In the instant case the Form 104 provided is, in my view, sufficiently elaborate with respect to the reasons for the grievor’s termination. It expressly states that the Company’s 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 Union’s 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 Company’s 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 Union’s 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 Union’s 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:
…… 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 grievor’s 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 union’s 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 grievor’s 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 grievor’s 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 Harten’s 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 grievor’s 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