SHP 713

IN THE MATTER OF AN ABITRATION

Between;

Canadian Pacific Railway Company

(the “Company”)

and

Unifor and its Local 101R

(the “Union”)

Re: The dismissal of John Veldhoen (the “Grievor”)

Arbitrator:   William D. McFetridge Q.C.

ORDER

An Award was issued in this Grievance on February 24, 2014 and a Supplementary Award Issued on April 7, 2014. The remedy ordered in those Awards has yet to be implemented. As this is a matter for enforcement in the courts, it is incumbent upon the Arbitrator to make a clear declaration which can be taken directly to the judiciary for enforcement.

1. The Grievor’s employment was terminated without just cause contrary to the terms of the Collective Agreement and the Company is ordered:

a) to immediately reinstate the Grievor to his former position without loss of seniority and with full compensation for all wages, overtime and benefits lost since he was taken out of service on March 20, 2013 until such time as his employment is reinstated; 

b) as the Grievor intends to take early retirement immediately upon reinstatement and will not be returning to active employment, he shall not be required to submit to a medical fitness exam or drug and alcohol testing;

c) the amount payable to the Grievor for the period from March 20, 2013 until his employment is reinstated shall include his straight time at the prevailing rate for his regular hours of work and Statutory Holidays plus overtime;

d) the amount payable to the Grievor for overtime is 48.35 overtime hours per month, an amount equal to the average overtime worked by the three most senior Pettibone Operators during the period the Grievor was off work. Payment of this amount is to continue until he is reinstated;

e) to make all pension contributions or adjustments necessary to put the Grievor into the position he would have been in had he not been dismissed and had continued to work since March 20, 2013;

f) to pay the Grievor interest on the above amounts payable in accordance with the rates set out in the applicable legislation;

g) the above amounts payable are subject to required statutory deductions, including any overpayment of Employment Insurance benefits created by this decision however the Company will co-operate with the Grievor’s reasonable tax planning directives;

h) to pay the Grievor damages for mental distress in the amount of $5000;

i) to remove all reference to this incident from the Grievor’s record; 

j) the Grievor was unable to mitigate his loss, despite reasonable efforts, and no deduction is to be made from the amounts payable to the Grievor as a result of his failure to mitigate his damages.

2. I decline to issue a Stay of Proceedings with respect to any aspect of this decision. 

3. The enforcement of this finding and any remedy in relation to it now become a matter to be taken to a higher tribunal by the Union.  I retain my jurisdiction should such higher tribunal deem it should be further exercised.

Dated at Calgary, Alberta this 23 day of April 2014.

    ____________________________

    William D. McFetridge Q.C.

    Arbitrator