CNR - CAW November 2005

AWARD

This arbitration concerns the discharge of the grievor, Mr. Dennis Rudney, a car mechanic employed by the Company in Winnipeg. The grievor was discharged for the accumulation of demerits after he was assessed twenty demerits for allegedly performing physical activities at home which were incompatible with the physical restrictions placed on him by his family doctor. The Union maintains that the grievor did nothing improper, that the Company did not have proper grounds to undertake surveillance of him in his private life and that there was no cause for any discipline. It seeks his reinstatement into employment with full compensation for all wages and benefits lost.

The Company raises a preliminary objection. It submits that the Union improperly expanded the grievance following Step II of the grievance procedure in a manner contrary to the collective agreement. Specifically, the Company maintains that the allegation contained in the Union's ex parte statement of issue, asserting that there was a violation of the obligation to conduct a fair and impartial disciplinary investigation, is not an alleged violation brought to the Company's attention, as required, during the grievance procedure. The Company also questions the Union raising in the ex parte statement of issue the Company's use of surreptitious video surveillance of the grievor. The Company maintains that the Union did not, during Step II of the grievance procedure, object to the Company's right to conduct such surveillance or assert that it constituted an invasion of the grievor's privacy.

The Company's position is based on its view of the application of articles 27.7 and 28.1 of the collective agreement. Those provisions are as follows:

27.7 …

Step II

If the matter remains unresolved within twenty-eight (28) days following the receipt of the decision under Step I, the Regional Vice-President of the Union may appeal the decision in writing to the designated Company Officer as per the following:

Line Points on Districts: Regional Vice-President to Division Mechanical Officer

Running Shops: Regional Vice-President to Division Mechanical Officer

Transcona Shops: Regional Vice-President to Division Mechanical Officer, Car or Chief Mechanical Officer, Motive Power

Where the appeal concerns the interpretation or alleged violation of the collective agreement, the appeal shall identify the Rule(s) and clause of the Rule(s) or Appendix involved. The appeal shall be accompanied by a copy of the Company's decision rendered at Step II of the grievance procedure. [sic]

…

28.1 A grievance concerning the interpretation or alleged violation of this Agreement, or an appeal by employees that they have been unjustly disciplined or discharged, and which is not settled through the grievance procedure may be referred by either the Headquarters Labour Relations Department, Canadian National Railway Company or the National Automobile, Aerospace, Transportation and General Workers Union of Canada [CAW-CANADA] Local 100 herein defined as the parties to a single arbitrator for final and binding settlement without stoppage of work.

Rule 27.1 of the collective agreement governs the employer's obligation to conduct a fair and impartial investigation prior to the assessment of any discipline. It reads as follows:

27.1 Except as otherwise provided herein, no employees shall be disciplined or discharged until they have had a fair and impartial investigation and their responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.

The Company submits that there was no raising of any allegation of rule 27.1 of the collective agreement during the course of the grievance procedure, and in particular at Step II, as required by rule 27.7. Its representative also submits to the Arbitrator that the sense of rule 28.1 is that no matter should proceed to arbitration before it has been considered and not resolved during the grievance procedure. That, he submits, is evident from the language of rule 28.1 of the collective agreement. He submits that in these circumstances it is not open to the Union to raise matters in the ex parte statement of issue, well after the closure of the grievance procedure, which were not raised at Step II of the grievance process.

Since the hearing the Union's representative advised the Arbitrator that the position of the Union respecting the alleged violation of article 27.1 is withdrawn. It is therefore unnecessary to deal with that issue, or that aspect of the preliminary objection.

With respect to the second leg of the Company's preliminary objection, the Arbitrator has some difficulty. There is no violence done to the grievance procedure for the Union to argue, at the arbitration stage, that it was inappropriate for the Company to engage in the surreptitious video-taping of the grievor in his private life. To assert that position is not to raise an alleged violation of the collective agreement. Rather, it is to invoke the accepted jurisprudence which holds that it is incumbent upon the Company to establish two things if it wishes to tender a video-tape into evidence: firstly it must show that it had reasonable grounds to resort to the surreptitious surveillance of an individual in his or her private live and secondly, that the surveillance itself was conducted in a reasonable manner.

The authorities to that effect were reviewed in SHP 548, an unreported arbitration award in a grievance between the Canadian Pacific Railway Company/Progress Rail Mechanical Services, and the National Automobile, Aerospace, Transportation and General Workers Union of Canada [CAW-TCA] Local 101, an award dated February 22, 2002. At page 8 of the award the following citation of the jurisprudence appears:

The cases confirm that for videotape evidence of the private life of an employee to be admissible in evidence a two-fold test must be satisfied: the employer must demonstrate that it was reasonable, in the circumstances, to undertake surveillance and must conduct the surveillance in a reasonable manner. (See Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996) 59 L.A.C. (4th) 111 (M.G. Picher); Re Doman Forest Products Ltd., New Westminster Division and International Woodworkers, Local 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers); Re Steels Industrial Products and Teamsters Union, Local 213 (1991), 24 L.A.C. (4th) 259 (Blasina); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1992), 30 L.A.C. (4th) 306 (Springate); Re Labatt Ontario Breweries (Toronto Brewery) and Brewery, General & Professional Workers Union, Local 304 (1994), 42 L.A.C. (4th) 151 (Brandt); Re Alberta Wheat Pool and Grain Workers’ Union, Local 333 (1995), 48 L.A.C. (4th) 332 (Williams) CROA 1850, reported as Re Canadian National Railway Co. and B.M.W.E. (1988), 2 L.A.C. (4th) 92 (M.G. Picher), CROA 2302 and see, generally M.G. Picher, “Truth, Lies and Videotape: Employee Surveillance at Arbitration” (1998) 6 Canadian Labour & Employment Law Journal, 341.) The Arbitrator appreciates that there are situations in which an employer can and must resort to the surveillance of an employee, where compelling evidence would justify such extraordinary measures. However, it must first have reasonable grounds, and should proceed in a careful and professional manner.

In the case at hand the use of surreptitious video surveillance is not something the Union need separately have grieved. It can, as it does in the case at hand, simply assert that, as a matter of the admissibility of any videotape evidence, it is for the Company to prove that it had reasonable grounds for surveillance and that that surveillance was conducted reasonably. That, in essence, is what it maintains the Company cannot do in the text of its ex parte statement of issue. The Union's position in that regard does no violence to the principles of fairness which govern the grievance procedure as reflected in rule 27.7 of the collective agreement. The second branch of the Company's preliminary objection must therefore be dismissed.

I turn to consider the merits of the grievance. A first question to be determined is whether the Company was justified in its decision to subject the grievor to video tape surveillance in his private life. On May 12, 2005 the grievor reported an injury while handling an air brake valve during the course of his duties. The problem, described as shoulder pain which extended down his arm, was short-lived and was treated by the application of ice. He worked the balance of that day as well as the following day, Friday May 13, 2005. The grievor did see his physician, apparently on Monday, May 16, and on May 17, 2005 he provided the Company with a note from his doctor which included the notation "may use left arm only". As the grievor had previously been doing modified work using both arms, the Company determined that it could not offer him any further modified work, given that he apparently had the use of only one arm. It appears that a supervisor asked him to obtain further information as to the list of his restrictions so that the Company could endeavour to find him some other job or duties to perform.

On May 26, 2005, the grievor provided the Company with updated information in the form of an Attending Physician's Statement. That report indicated that he had suffered an injury to his right shoulder. It further explained that he had been referred to an orthopaedic specialist at the Pan Am Clinic and that he was directed to make "minimal use" of his right arm.

In the interim between the two medical reports the Company decided to undertake surveillance of Mr. Rudney. As part of its justification for that decision it submits that Mr. Rudney had recorded a greater than average record of work related incidents which called for medical attention and, on occasion, lost time for which he occasionally received Workers' Compensation benefits. The Arbitrator has some difficulty with that submission. It is true that the grievor has suffered various injuries over the years. However, when the list of his work-related complaints is examined, it is important to appreciate that for a substantial part of the time he, like other employees, was under strict directions to report virtually any injury, such as a bruise or minor cut which might later develop complications. Most significantly, the record reveals that in a career spanning twenty-five years of service Mr. Rudney recorded injuries resulting in a loss of working time on only four occasions, for an overall total of fourteen days. Considering that one of those instances involved ten days, the evidence falls far short of establishing that the grievor was ever involved in malingering by reason of claimed injuries.

The Company also sought to place on the record the fact that Mr. Rudney may have worked at a friend's scrap yard business. The evidence is that while a friend of his has a scrap yard, Mr. Rudney never performed any physical work whatsoever at that location, and apparently may have relieved his friend at a desk during meal breaks on some occasions. There is no evidence to suggest that the Company had any different information. Even accepting that the grievor's injury reports over the years may have been more frequent than those of other employees, the Arbitrator can see nothing in his prior record to justify recourse to surreptitious surveillance of his private life.

In approaching this particular case concern also arises with regard to the reason for the surveillance. The Company does not suggest that the grievor was faking his injury to receive compensation. Rather, as can best be gleaned from the totality of its case, it resorted to the surveillance to determine whether in fact the grievor was engaged in activities which went beyond the medical restrictions imposed upon him by his physician. In other words, in his private life was he over-exerting his right arm? The Company used the results of the video surveillance to draw its own conclusion that Mr. Rudney was using his right arm in a way which was inconsistent with the restriction contained in his own physician's note.

Given the conclusions which I draw from the evidence, I do not consider it necessary to enter into the analysis of whether the Company could legitimately place an employee under surveillance, not to determine whether he or she was dissembling an injury for fraudulent purposes, but rather to see whether he or she was disobeying his physician's orders while functioning at home and elsewhere in his private life. Assuming, without finding, that the grievor was behaving recklessly by disregarding his physician's directives while at home, it is less than clear to the Arbitrator that the Company can assert any legitimate interest in that fact.

Having regard to the information which the Company maintains justified its decision to subject the grievor to surreptitious surveillance, and the purpose of the surveillance itself, which was in fact not to uncover any fraudulent activity, I am satisfied that the Company has not discharged the onus of demonstrating that it had reasonable and probable grounds to engage in the extraordinary step of subjecting its employee to surveillance in his private life. The video tape evidence is therefore not admissible.

In the alternative, if the video tape evidence were admissible, the grievance would still succeed, without qualification. The Workers' Compensation Board, whose officers viewed the same video tape presented at the arbitration, did not agree with the Company that it disclosed any irregularity or departure by the grievor from the requirements of his restrictions. Having carefully viewed the video tape evidence, I agree with the findings of the Workers' Compensation Board. What the video tape discloses is that the grievor greatly favoured his right shoulder and right arm. On occasion he is viewed carrying objects of significant weight, such as a canister or bottle. Although he is right-handed, he is plainly seen carrying such objects in his left hand. Nor does his digging of dandelions on his front lawn, with relatively modest use of his right arm and shoulder, disclose any significant departure from the directives of his physician, bearing in mind that those directives were clarified to mean that he should make minimal use of his right arm.

When the whole of the evidence is considered, not only was the surreptitious surveillance of the grievor in his private life not justified, the resulting video tape was plainly not conclusive of any improper action or conduct on his own part. Perhaps most troubling, as related by the Union's representative at the hearing, is the fact of the surveillance has had negative repercussions in Mr. Rudney's private life. Among the segments video taped are periods in which Mr. Rudney attends at his church, where he is sometimes involved in the driving of other members of his congregation between their homes and their church. It appears that upon learning of the surveillance to which he and they had been subjected, his friends from among the congregation thereafter refused to let him continue to drive them. This, it does not appear disputed, has caused him a degree of isolation, pain and humiliation.

The evidence advanced by the Company in support of the discharge of Mr. Rudney is utterly without merit. It should be have been recognized as such by the supervisor or supervisors who discharged Mr. Rudney, after twenty-five years of service, in the circumstances disclosed.

For all of the foregoing reasons the grievance is fully allowed. The Arbitrator is compelled to conclude that there was no reasonable basis upon which the Company could justify its decision to assess twenty demerits against the grievor's disciplinary record for allegedly performing physical acts with his right arm while at home which were inconsistent with the restriction on the use of his right arm while at work. The fact is that the grievor did have a right shoulder and right arm injury and that he favoured his right arm in such a way as to make that obvious in those parts of his private life which were video taped. No legitimate interest of the employer was violated in the case at hand. Nor, for the reasons provided, is the Arbitrator satisfied that anything which the grievor did was contrary to the directives of his physician, assuming that the Company can assert an interest in that regard.

The Arbitrator directs that the twenty demerits assessed against the grievor be stricken from his record and that he be compensated for all wages and benefits lost, with interest, and without loss of seniority. Should there be any dispute between the parties with respect to the interpretation or implementation of this award the matter may be spoken to.

Dated at Ottawa this 30th day of November 2005.

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MICHEL G. PICHER

ARBITRATOR