IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
(“the Company” / “the Employer”)
- AND -
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
(CAW – CANADA), LOCAL 100
CONCERNING THE INDIVIDUAL GRIEVANCES of TERRENCE SHAW
Christopher Albertyn - Sole Arbitrator
For the Company:
Ross Bateman, Senior Manager, Labour Relations
Sandra Prudames, Labour Relations Officer
Mike Taylor, Mechanical Supervisor, Oshawa
For the Union:
Brian McDonagh, National Representative
Drew Ratajewski, Vice-President, Local 100
Terry Shaw, Grievor
Hearing held in TORONTO on December 1 and 2, 2008.
Award issued on December 16, 2008.
1. This award concerns three grievances arising from discipline issued to the Grievor, Car Mechanic Helper Terrence Shaw, PIN 100560, following three separate incidents of alleged misconduct on February 3 and 4, 2008. The outcome of the discipline was that Mr. Shaw was terminated from the Company’s employment on March 20, 2008 because he had accumulated 85 demerits (i.e. more than 60 demerits, the threshold at which termination of employment results).
2. The first grievance concerns the assessment of 25 demerits to Mr. Shaw for wilful destruction of Company property on February 3, 2008.
3. The second grievance concerns the assessment of 20 demerits to Mr. Shaw for obstruction of a Company investigation on February 4, 2008.
4. The third grievance concerns the assessment of 40 demerits to Mr. Shaw for uttering threats to a fellow employee on February 4, 2008, and his subsequent discharge for accumulation of demerits.
5. Mr. Shaw entered the service of the Company on October 17, 1988, as a Coach Cleaner at the Willowbrook GO Transit Maintenance Facility in Etobicoke, Ontario. With the cancellation of the Company’s equipment maintenance contract with GO Transit, he subsequently transferred to a Car Mechanic Helper position at Oshawa, Ontario on June 2, 1997. He has held that position since then.
6. Car Mechanic Helpers’ work at the Oshawa Yard consists of pre-trip preparation of multi-level, auto-carrier freight cars for General Motors in preparation for the loading of finished vehicles. The work entails the opening of all end doors, jacking decks into place on tri-level freight cars, and walking 2 or 3 decks, depending on the equipment type, to inspect all automotive tie-down equipment.
7. At the time of the incidents described herein, Mr. Shaw had no current demerits on his disciplinary record.
8. I address the three grievances in the order the parties addressed then.
9. On Sunday, February 3, 2008, the main door of the Pre-Trip Inspection (PTI) building at the Oshawa Yard was damaged. It came to the Company’s attention on February 4, 2008, through the report of another employee, Car Mechanic Helper P. Hamilton, PIN 103502, that the damage had been caused by Mr. Shaw.
10. From all of the evidence presented in the investigation, I determine the following to be the relevant facts and circumstances. The door into the PTI was not in perfect working order. It had been slightly damaged previously and the latch was not working. The latch was stuck in an open position. The door could be, and usually was, opened by exerting pressure against it. It could be pulled open from the outside without turning the handle. Most employees leaned against the door to open it from the inside going out because it was not necessary to turn the handle. Mr. Shaw’s practice was to shove the door open with his foot, particularly when he was carrying tools and equipment.
11. On February 3, 2008, Mr. Shaw was assigned a task requiring him to pick up his tools from the PTI building. The door was, as usual, not locked when he entered the PTI building to pick up his tools. He gathered his tools – a mechanical jack, a screwdriver hook, a 24” x ¾” door opener, and a 3 lb. sledge – and moved towards the door, expecting to be able to shove it open with his foot, as was his practice.
12. The door had been locked while Mr. Shaw was gathering his tools. One of three things happened: either he was not aware it was locked and he kicked the door to open it, as was his wont, meeting much greater resistance than he expected; or, he was made aware the door was locked almost immediately before he kicked it, too late to stop himself from doing so; or, the moment he tried to stop himself from kicking open the door, in full stride, his back started to pull so, to avoid injury (by hurting his back if checking himself, or falling into the glass of the door if advancing), he continued as he had planned and he shoved the locked door open with his foot. Whichever of these was the origin of his kicking the door, the results were that the door was opened forcibly, the lock bolt was thrust from the door, and door was split along the edge above and below the bolt location, causing considerable damage to the door.
13. The Union disputes the cost of repair of the damage – the Company claims its damages amount to $2,282.77. It is not necessary for me to accurately assess the damages. There was considerable damage.
14. The first version is that provided by Derrick Welch, the snow cleaner who was at the door at the time. His account is as follows: “I think he expected the door to open, because the latch doesn’t usually work, but this time it was latched. We have been having problems with the door locking or not locking”.
15. The second and third versions depend on Mr. Shaw’s account of what occurred. He says that, as he was upon the door to kick it open, Mr. Welch announced the door was locked. Locking the door while Mr. Shaw was collecting the tools might have been horseplay by Mr. Welch. Mr. Welch denied this possibility, but I find it likely. I find Mr. Welch’s explanation, that the door sometimes locks and sometimes does not, to be unconvincing. It is not supported by the other witnesses. I accept that the door latch was jammed, and had been for some years – so making it possible to enter without turning the handle, by shoving – but the locking must have been deliberate, occurring between the time Mr. Shaw entered the PTI building and his leaving it shortly afterwards.
16. I find therefore that Mr. Shaw did not intend to damage the door. He did not cause malicious damage to Company property. I find, though, that he was negligent in his handling of the situation. He put himself in a position in which the damage became unavoidable because of the rough, uncaring manner in which he approached the door. Although I am satisfied he expected the door to open against the pressure of his foot, he ought not to have made that assumption. He should have checked whether the door was locked before kicking it with such force as to cause the damage he did. He is deserving of discipline for this misconduct.
17. Although Mr. Shaw was not disciplined separately for not reporting the damage to the door (the damaging coming to management’s attention from the report of Ms. Hamilton), I find that Mr. Shaw’s failure to report the harm he caused aggravated his misconduct. He told the Supervisor, Mike Taylor, who received the report of the damage to the door from Ms. Hamilton, that he would pay for the damage, but he himself should have reported it to management immediately after the damage occurred.
18. All things considered, given these findings, and noting particularly that the malicious element has not been established by the Company, I find the appropriate discipline for the damage to the door is 15 demerits.
19. Phillip Grundie, PIN 843492, who worked with the Grievor, was being investigated by the Company for failing to comply with the instructions of a Company officer (Mr. Taylor) and leaving the Company premises without authorization on January 31, 2008. Mr. Grundie’s explanation for his conduct was that his back was agitated and he did not want to injure himself further by carrying out the assignment given to him by his Supervisor, Mr. Taylor, and that he informed Mr. Taylor of this. Mr. Taylor denies being given any such reason.
20. Mr. Shaw supported Mr. Grundie’s version of events, claiming to be present during the conversation between Mr. Taylor and Mr. Grundie. The Company disbelieved him. The Company issued 20 demerits to Mr. Shaw for obstructing a company investigation. The offence depends on two findings of false witness by Mr. Shaw: viz. that he was not present when the critical conversation occurred between Mr. Taylor and Mr. Grundie; and secondly, that he did not hear Mr. Grundie justify his insubordination on medical grounds.
21. In the course of the investigation Mr. Shaw was called upon by the Union to make a statement. He corroborated Mr. Grundie’s version, claiming to be present in the PTI office when the exchange between Mr. Grundie and Mr. Taylor took place. The Company claims this evidence was deliberately false. The Company says that Mr. Shaw was not in the PTI office at the time, and so he did not hear Mr. Grundie referring to his health concerns.
22. The most contemporaneous statement of what occurred is by Mr. Taylor, written on January 31, 2008, shortly after his exchange with Mr. Grundie. Mr. Taylor’s Memo To File reads:
Memo To File
At approximately 07:10, January 31, 2008, I advised Phil Grundie, 843492, that he was assigned to work the compound with Penney and MacNeill. He quickly became agitated and told me he wasn't working the compound. He got up and headed for his locker. I asked him to come back and talk to me and he stated he wouldn't and kept walking. I followed him to try and discuss the situation and he just kept repeating that he wasn't going to the compound. I advised Phil that there would be consequences if he didn't go. He said "I don't care I'm not going to the compound", so I left the locker room. He changed his clothes and left the property at approximately 07:15. At no time during this conversation did Phil mention that he was ill or in need of medical attention. He simply didn’t want to work at the compound so he left.
23. I gather from this that the encounter in the PTI office was very brief, and that Mr. Grundie left almost immediately, at the start of the exchange. Mr. Taylor then called him back and, when Mr. Grundie did not comply, he followed him to the locker room where a more extensive exchange took place. Mr. Shaw said to the investigator officer that he overheard the conversation in the PTI office. He did not claim to be present for the locker room exchange.
24. Mr. Taylor’s first reaction when told, four days later, that Mr. Shaw claimed to have been present in the PTI office when he spoke to Mr. Grundie was that this was false. He repeated, or qualified this, by saying that he did not recall Mr. Shaw present at any time. Mr. Taylor recalled Walt Harrison, Inventory Maintainer, being present.
25. In his statement, Mr. Harrison said that he left the PTI office once Mr. Taylor gave his instruction to Mr. Grundie, but before Mr. Grundie refused, so he did not hear their exchange. (This is unlikely to be accurate because the refusal directly followed the instruction. It is most unlikely that Mr. Harrison would have heard the one without hearing the other.) In his statement to the investigating officer, Mr. Harrison said that he was the only person present in the PTI office, besides Mr. Taylor and Mr. Grundie. He therefore does not recall Mr. Shaw being present.
26. Mr. Grundie and Mr. Shaw both say that Mr. Shaw was present when the exchange occurred between Mr. Taylor and Mr. Grundie.
27. Mr. Harrison corroborated Mr. Shaw’s version of events in one respect. He said that Mr. Taylor left the PTI office about 5 minutes before Mr. Grundie did. Mr. Shaw said the same. Mr. Taylor’s version, as explained, is that he followed Mr. Grundie immediately he left the PTI office for the locker room.
28. I find Mr. Harrison’s version (and Mr. Shaw’s) on the sequence of departure from the PTI office to be unlikely. Mr. Taylor’s account is the more probable: Mr. Grundie left the office first, after refusing to accept the assignment, and Mr. Taylor followed him to continue the conversation.
29. There is clearly considerable doubt as to whether Mr. Shaw was present when Mr. Taylor had his conversation with Mr. Grundie in the PTI office. It is possible he was present; possible he was not. Although I prefer Mr. Taylor’s version because it coheres logically and because it was the most contemporaneous, the evidence is not decisive. Mr. Taylor was only very briefly in the PTI office. He was focused on Mr. Grundie and his surprisingly uncooperative response. He followed Mr. Grundie, leaving the PTI office, almost immediately thereafter. This makes it possible that Mr. Shaw was present when the exchange in the PTI office occurred, without Mr. Taylor noticing him.
30. In these circumstances, I cannot find, on a balance of probabilities, that Mr. Shaw deliberately gave false evidence in the investigation into Mr. Grundie’s conduct.
31. I therefore set aside the 20 demerits issued to Mr. Shaw for this offence.
32. There are two portions to this aspect of the case. The first is a procedural or jurisdictional matter; the second substantive, on the merits. For the first, the Union says that the discipline should be set aside because the Company did not make the decision to discipline the Grievor within a timely manner following the investigation; on the merits, the Union says the discipline is unwarranted or should be substantially reduced.
33. I deal first with the procedural or jurisdictional issue. It concerns Rule 27.3, which reads:
An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the investigation is completed unless otherwise mutually agreed.
34. It is common cause that the Employer did not render a decision within 28 days from the date of the investigation and that, despite request, it did not obtain mutual agreement from the Union for an extension.
35. It was not argued by the parties that Rule 27.3 has nothing to do with the Employer’s entitlement to discipline an employee, and that the provision is intended only to protect an employee from being suspended from service pending a decision on an investigation. In other words, the question remains open as to whether the provision is intended, if the 28 days expires, only to require the Employer to return the employee to the workplace pending the disciplinary decision.
36. The Employer’s first argument as to the non-applicability of Rule 27.3 is that the Union waived its entitlement to rely on the provision, and the Employer would be prejudiced if the Union could rely on the provision at this late stage. The Company says that the grounds of appeal against Mr. Shaw’s dismissal did not include reference to Rule 27.3, and, under Rule 27.7, the Union cannot now introduce a new ground. The relevant portion of Rule 27.7 reads as follows:
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.
37. There was no reference to Rule 27.3 in the Union’s grounds of appeal. The Union’s appeal was specific as to what Rules it alleged were violated. The relevant portion of the Union’s letter of appeal reads as follows:
The Union submits that the discipline assessed Mr. Shaw was extreme, unwarranted and unjust. In the Union’s view, such assessment constituted a violation of rules 27.1, 27.4 and 27.6. The Union requests, as a resolve, that all discipline assessed to Mr. Shaw be expunged from his record.
38. The Union’s choice of reference to particular Rules suggests it consciously elected to exclude Rule 27.3 from consideration. The Employer’s argument is that, to permit the Union to raise reference to Rule 27.3 at a late stage, shortly before the hearing, is to condone violation by the Union of Article 27.7. The Company refers to CROA 3265 (Arbitrator M. Picher), of which the following is particularly apposite:
It seems evident to the Arbitrator that the parties thereby intended to ensure that, at the final step of the grievance process, both parties would be on the same page with respect to any issue which might ultimately be pleaded at arbitration, in the event that they remained at impasse with respect to the merits of their dispute. In the instant case, where paragraph 5 of article 11 [the equivalent of Rule 27.3 in this case] is first raised at the filing of the Union’s statement of issue, there is an obvious departure from the requirement of article 24.5 [Rule 27.7 in this case], to the extent that the article raised constitutes a separate and independent allegation which, standing alone, would arguably cause the grievance to succeed. In other words, what is raised in that circumstance is a different grievance. In the circumstances I am satisfied that the Company is correct in its assertion that to allow the Union to proceed with its claim under article 11.5 would be an improper expansion or amendment of the grievance beyond the intention of article 24.5. On that basis the Arbitrator sustains the preliminary objection of the Company and strikes from consideration the alleged application of article 11.5 in the circumstances of this case.
[The additions are mine].
39. The Employer’s second argument is that res judicata applies, given that previous arbitral awards have found, in similar circumstances, that the Union cannot alter the grounds of appeal against the Employer’s decision at a late stage when those grounds have not been the subject of consideration through the grievance procedure.
40. Res judicata does not apply to this case. There is no prior decision determinative of the facts of this case, on the same issue, between these same parties, that would make the doctrine apply.
41. The Company’s third argument is that the Union is bound to their agreement, confirmed by email on November 8, 2008, that the Company’s proposed Joint Statement of Issue was acceptable.
42. The Company’s fourth argument is that it made a timely and reasonable request for a time extension from the Union and, under the circumstances, the Union cannot rely on Rule 27.3. I am not persuaded by this argument because, so long as the Union’s refusal to grant the extension was not in bad faith, the Union acted within its right to refuse.
43. The Company’s fifth argument is that the time limits contained in Rule 27.3 are directory, not mandatory.
44. The Company’s sixth argument is that I have the authority under the Canada Labour Code to extend time limits and the Company submits that the circumstances of this case warrant the exercise of that authority. The Union concedes I have this discretion, but argues that I should not exercise it.
45. For the reasons that follow, I find for the Company on its first and sixth arguments. (I have, for the reasons explained, not accepted its second and fourth arguments). It is not necessary, then, for me to made a decision on the Employer’s third argument (that the Union’s initial agreement to the Company’s proposed Joint Statement of Issue binds the Union) or on its fifth argument (that Rule 27.3 is directory, not mandatory).
46. I am persuaded by the reasoning in Arbitrator Picher’s decision, described above. Rule 27.7 of the collective agreement requires the Union to engage with the Company at an early stage on the basis of its objection to the Company’s action. The parties must have a substantive opportunity to discuss and seek to reach agreement, through compromise if necessary, on the challenge the Union makes to the Employer’s decision. The substantive basis of the challenge must be before the parties when the issue is discussed in the steps of the grievance procedure.
47. In this case the Union has made a new substantive challenge to the Employer’s decision, at a very late stage. This means that the parties have not had the opportunity to consider the challenge at the grievance or settlement stage of the procedure and the Employer faces what amounts to a new case. For the reasons stated in CROA 3265, this should not be permitted.
48. In any event, I find this is a suitable case in which to exercise my discretion under the Canada Labour Code to allow the Employer an extension of time under Rule 27.3 within which to render its decision. I take account of the length of the Employer’s delay, the reasons for the delay, and the prejudice to the Union and the Grievor occasioned by the delay. The delay was relatively short. The Employer should have rendered its disciplinary decision by March 12, 2008, it did so on March 20, eight days late. This is not a long delay.
49. The reason the Company seeks the extension of time is twofold. Firstly, Mr. Shaw was off on sick leave from March 10 to March 20, 2008. The Company’s practice is not to assess discipline to employees on sick leave. It therefore intended to await Mr. Shaw’s return from sick leave before imposing the discipline. Secondly, while the recommendation from local managers supported the assessment of significant demerits and the subsequent discharge of Mr. Shaw, the final decision did not rest with local management. A decision to discharge is reviewed at a senior management level, with input from Labour Relations. The final decision concerning the discharge of an employee is made by the Senior Vice-President. That decision was not made until March 19, 2008.
50. In my view, the consideration not to disturb an employee on sick leave by issuing them with significant discipline, including discharge, and the careful reflection by senior management as to what should be the appropriate discipline, are good reasons for the delay in determining the discipline in this case.
51. There was no prejudice to Mr. Shaw as a consequence of the delay in management’s decision. He was on sick leave. He did not return from sick leave until March 20. That was the first occasion the Company could have advised him in person of the discipline which resulted in his dismissal. There was no prejudice to the Union by the delay.
52. In light of these circumstances, I think the Company had good reason for the delay, the delay was of short duration and there was no prejudice to Mr. Shaw or the Union as a consequence of the Company’s failure to comply strictly with Rule 27.3. Therefore, to the extent necessary, I extend the time within which the Company could make its disciplinary decision.
53. I turn now to the merits of the discipline issued to Mr. Shaw concerning his threat to a fellow employee.
54. The versions of what occurred do not differ much. Mr. Shaw uttered threats to Angelo Fragoso on February 3, 2008 outside the PTI building. I will describe them below.
55. There are some telling features to the incident. One is that Mr. Fragoso never complained of it. The report to management was made by a witness, Pauline Hamilton, the same person who reported Mr. Shaw’s damage to the PTI door in the first incident, above. It is not clear whether Mr. Fragoso was intimidated by the incident. He did not take the matter any further.
56. Ms. Hamilton’s description of what occurred reads as follows:
Mr. Shaw was sitting on a chair on the front porch of the P.T.I. building. Mr. Shaw was visibly upset and angry from an incident that took place earlier between himself (Terry Shaw) and Mechanical Supervisor Mike Taylor.
Mr. Fragoso was laughing as he was on his way up the front stairs of the P.T.I. building, when all of a sudden Mr .Shaw looked at Fragoso and told him “not to fuckin’ laugh at him”. Mr. Fragoso looked at Mr. Shaw and asked him “what are you talking about, who’s laughing at you?” Mr. Shaw then told Mr. Fragoso to “fuck off”. Mr. Fragoso asked Mr. Shaw “why are you talking to me like this?” Then Mr. Shaw jumped out of his chair and placed himself a few inches away from Mr. Fragoso’s face his (Mr. Shaw’s) pry bar above Mr. Fragoso’s head and told Mr. Fragoso to “get the fuck away from him” or he (Mr. Shaw) was going to “fuckin’ smash him” (Mr. Fragoso) in the head with this (pry bar). Mr. Fragoso moved toward Mr. Shaw and Mr. Shaw sat back on the chair. Mr. Fragoso then asked Mr. Shaw, “What’s the fuck’s wrong with you?” Mr. Fragoso then spoke in a quiet and calm manner with Mr. Shaw, then when Mr. Fragoso was done he entered the P.T.I. building. Mr. Fragoso was upset at what just happened, looked at me and asked, “what’s wrong with this guy?” I shook my head and answered, “I don’t know”. Mr. Fragoso shook his head and went to his office.
57. Mr. Fragoso’s version of what occurred is the following:
I went to the truck to get something the time I came back in to the PTI building Mr. Shaw was sitting outside the door and then he said to me "why are you laughing" I didn't respond. Then Mr. Shaw said "don't laugh at me I'll hit you if you laugh at me again" at that time Mr. Shaw was holding a crank to open doors up near my head. Then he started swearing at me, that was when I said are you talking to me, he said Yes then he continued swearing at me. Then I said don't swear at me I'm not swearing at you. Then I said something is wrong with your fucking head. At this point Mr. Shaw is still talking stupid. Then I got really mad, I had to control myself because I wanted to hit him. Then I left to go patrol.
58. When asked, Mr. Fragoso said there was no reason why this incident occurred and that he had done nothing to provoke Mr. Shaw.
59. In Mr. Shaw’s explanation of what occurred he referred to provocation by Mr. Fragoso some three weeks earlier:
Mr. Fragoso called my mother a bastard lover, about three weeks previous. And Miss Tina Gravelle had to come out of her office, and she made him apologize openly. Most all were present. At that time, I gave him a warning that I would not tolerate it a second time.
60. Mr. Shaw went on the say the following in response to the questions put to him by the investigator:
12.Q. Mr. Shaw, do you feel that one comment make by a person three weeks ago, for which you received a public apology, is sufficient provocation to justify threatening to strike that person with a steel bar?
A. No, but I do believe that wearing a white hat, and goading people may be that provocation.
13.Q. Is there anything further you wish to add to this employee statement?
A. I would like to add that when Mr. Fragoso approached me, his laugh was not a normal laugh, and he did stare at me. His laugh was gutty in tone and I felt very provoked by it, considering he was wearing a white hat, and he was from a different union. I furthermore feel that Mr. Fragoso does not understand his position as a foreman, and how little it has to do with me. He seems to show a need for power over the helper crew when there is no correlation between us. This has produced a lot of friction in itself. I'd also like to point out that I believe personally that the statement made by Ms. Hamilton is really a transcription of Mr. Fragoso's statement, and also, please take note that in her own statement, she has stated she has witnessed an incident outside the building, while, if you read her statement, she is inside the building.
61. There are other telling features to the incident. It seems that, despite Mr. Shaw’s threat and his initial bravado, when Mr. Fragoso advanced towards him, Mr. Shaw retreated and sat in his chair. Mr. Fragoso had the last word. It seem also that there was earlier insult and provocation. The Union submits that the action taken by management at the time of the insult – requiring Mr. Fragoso to apologize to Mr. Shaw – was insufficient and that this explained Mr. Shaw’s threats.
62. There is much that is unacceptable in Mr. Shaw’s behaviour. If he felt that management had not sufficiently addressed the incident when Mr. Fragoso insulted him by most disparaging reference to his mother, if the apology management required of Mr. Fragoso was insufficient, then Mr. Shaw’s recourse was to make this clear to management, either at the time or thereafter, by conveying this to management, by filing a grievance, or by having the Union take up the matter on his behalf. His remedy was not to take the law into his own hands by attempting to threaten and intimidate Mr. Fragoso. For this action, Mr. Shaw deserves significant discipline.
63. Another troubling feature of the incident is that Mr. Shaw apparently believes that because Mr. Fragoso was a foreman in a different union when he insulted Mr. Shaw, wearing a white hat (signifying supervisory authority), this somehow justified his behaviour. Mr. Fragoso’s status does not matter. Mr. Shaw’s belligerence was not justified. He ought to have addressed his concern regarding the insult by Mr. Fragoso through legitimate channels for dispute resolution. He did not, and he appears to believe that his physical threat with a pry bar was justified because he was insulted. He needs to learn that this threatening behaviour was not an acceptable reaction to what had happened to him. He threatened violence, for which he was justly disciplined.
64. Particularly disturbing is Mr. Shaw’s apparent lack of remorse for what occurred. His statements reveal he felt justified in what he did, that somehow he was right to act as he did. This is a serious matter. Employees need to understand that they cannot threaten other employees with violence, they cannot brandish weapons and threaten harm. This kind of behaviour is wholly unacceptable, even if provoked, and Mr. Shaw needs this point brought clearly home to him. Legitimate procedures are the means by which injustices are to be rectified. Resort to threats and acts of violence are not acceptable alternatives. The discipline I impose below is intended to make this message clear to Mr. Shaw.
65. I do not think, given Mr. Shaw’s nearly 20 years of employment, blemished though it is by acts of misconduct over the years (despite no current discipline on his record at the time of these incidents), that the relationship between him and the Company has reached such a state of disrepair that it is not capable of being restored. However, as I have said, Mr. Shaw must understand that his behaviour was wholly unacceptable and there cannot be a repeat of it, if he wishes to remain in the employ of the Company. Taking account of these significant features of Mr. Shaw’s misconduct, I find the appropriate discipline was 35 demerits for his threatening behaviour. Adding this to the discipline on the first incident, he will therefore resume employment with 50 disciplinary demerits. In addition, in order to bring home the points I have made regarding the use of legitimate procedures to address one’s grievances, so that Mr. Shaw grasps their significance, he will not return to the workplace until February 2, 2009. His reinstatement will be without loss of service or seniority, but he will not be entitled to any remuneration for the period from the date of his dismissal, March 20, 2008, until his reinstatement on February 2, 2009.
66. In summary, I uphold Mr. Shaw’s three grievances in the manner described above. His termination and his 85 demerits are set aside. He is to return to work on February 2, 2009, on the terms set out above, with 50 demerits.
67. I remain seized to address any dispute between the parties concerning the implementation of this award.
DATED at TORONTO on December 16, 2008.
Christopher J. Albertyn