SHP636

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN PACIFIC – MECHANICAL SERVICES

(the “Company”)

 

 

AND

 

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)

(the “Union”)

 

 

RE: GRIEVANCE OF LABOURER CHUNRONG WANG
40 DEMERITS – DISCHARGE FOR ACCUMULATION

 

 

 

Sole Arbitrator:                      Michel G. Picher

 

 

Appearing For The Union:

            Brian McDonagh                 – National Representative

            Guy Lemyre                          – Vice-President, Eastern Region

            Denis Lamontagne              – Toronto Diesel Shop Chairman

            Derrick James                       – Car Shop Chairman

            Rose Chunrong Wang       – Grievor

 

Appearing For The Company:

            Brianne Deacon                  – Labour Relations Officer

            Len Wormsbecker                – Manager, Labour Relations

            John Dubrenil                      – Process Manager, Mechanical

            John Lawrey                         – Process Manager

            Ernest Loiselle                     – Operating Coordinator

            Wade Rushton                     – Process Coordinator

            Mike Hughes                        – Railcar Mechanic, Relief CEM Trainer

 

 

A hearing in this matter was held in Toronto on December 5, 2008

AWARD

 

            This arbitration concerns the dismissal of Labourer Chunrong (Rose) Wang from the Toronto Mechanical Facility. Following a Company investigation the grievor was discharged for having harassed and intimidated a fellow employee.

 

            The outline of the dispute is reflected in the Statement of Fact and Issue filed with the Arbitrator, which reads as follows:

 

DISPUTE:

            Discipline &Dismissal – Labourer Chunrong (Rose) Wang’s record being debited 40 demerits for alleged continuous harassment & intimidation of a fellow employee between July and August 2007.

 

STATEMENT OF FACT:

 

According to the Company discipline Form 104 issued October 10, 2008, Labourer Chunrong (Rose) Wang’s record was debited 40 demerits marks for:

 

“… your inappropriate and unacceptable behaviour towards a co-worker between March 2006 to January 2007 at the Toronto Diesel shop, Toronto.”

 

According to the subsequent Company discipline Form 104 issued October 10, 2008, Labourer Chunrong (Rose) Wang was dismissed from Service for:

 

“ … accumulation of demerits marks under the Brown System, Toronto, Ontario.”

 

STATEMENT OF ISSUE:

 

It is the contention of the Union that:

 

the Company did not establish wrongdoing on Labourer Chunrong (Rose) Wang’s behalf sufficient to give the Company cause to discipline her;

 

Labourer Chunrong (Rose) Wang was treated in an arbitrary, discriminatory and an excessive manner in regard to the 40 demerits debited against her record;

 

Labourer Chunrong (Rose) Wang was treated in an arbitrary, discriminatory and an excessive manner in regard to her dismissal.

 

The Company violated the Rule 28.1 and Rule 28.2 of the Collective Agreement by not furnishing all known evidence to Ms. Wang during her Investigative Statement thereby rendering the Investigation unfair and partial.

 

Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 40 demerits debited against Labourer Chunrong (Rose) Wang’s record should be removed from her record.

 

Should the Arbitrator diminish Labourer Chunrong (Rose) Wang’s demerits below the required sixty (60) demerits, it is the position of the Union that Labourer Chunrong (Rose) Wang should be reinstated to employment forthwith, with full redress for all lost wages, benefits and losses incurred as a result of her dismissal, including, but not limited to, interest on any moneys owing.

 

The Company denies the Union’s contentions and claim.

 

            The grievor is not a long term employee, having had less than two years of Company service at the time of her termination. As reflected in a companion award issued on the same date as the instant decision, Ms. Wang was reported by another employee, Ms. D. Goldsworthy, for sleeping during her tour of duty. That led to a Company investigation which resulted in the assessment of fifteen demerits against the grievor.

 

            According to the complaint of Ms. Goldsworthy, following the assessment of discipline against Ms. Wang, the grievor began to systematically follow her at work, staring at her and frequently taking notes as she watched her. The Arbitrator is satisfied that there is substance to Ms. Goldsworthy’s concern, and accepts as truthful her account, and that in fact the grievor once followed her into the washroom, standing silently and waiting for her to emerge, staring at her all the while. It also appears that on one occasion Ms. Wang appeared unexpectedly immediately behind a loaded fork lift being operated by Ms. Goldsworthy. On another occasion, when Ms. Goldsworthy was given permission to take a personal break away from work upon receiving bad news about her mother’s medical condition, the grievor confronted her in the closed room where she had gone, stating that she would report her for sleeping on the job.

 

            While the record of the incidents in question is relatively extensive, the Arbitrator is satisfied that the gist of the improper conduct alleged against Ms. Wang is made out on the evidence. I am satisfied that she did deliberately engage in a pattern of conduct which can be fairly characterized as “watching and besetting” another employee for the sole purpose of making that individual uncomfortable and fearful within the workplace.

 

            The Union’s representative submits that the Company failed to respect the requirement that the disciplinary investigation of the grievor be conducted in a manner that is fair and impartial. Specifically, the Union alleges that the Company failed to provide to the grievor and her Union representative copies of the statements of other witnesses which were in the possession of the investigating officer. It is not disputed that the Company was under an obligation to provide those documents to the grievor at the time of her own statement, and to give her the fullest opportunity to review and rebut them.

 

            The Arbitrator is satisfied that in fact the grievor was given the documents in question during the course of her investigation. While it is true that the record of the questions and answers does not, as is often the case, reflect a clear point at which the documents are listed, separately identified and presented to the grievor, a careful examination of the various questions put to her through the course of the investigation establishes, to the Arbitrator’s satisfaction, that in fact the grievor was in possession of the documents in question. Indeed, during the course of her own statement the grievor points to specific parts of Ms. Deann Goldsworthy’s statement, precisely for the purpose of rebutting certain things which Ms. Goldsworthy asserted. In the circumstances the Arbitrator is inclined to prefer the evidence of the two Company witnesses who, it is agreed, were prepared to testify under oath that the documents in question were duly furnished at the appropriate time during the course of the grievor’s disciplinary investigation. In fact one of those Company witnesses was, at the time, the Union representative who accompanied Ms. Wang during the course of the investigation.

 

            The sole issue in the case at hand is whether discharge is the appropriate outcome in all of the circumstances. The Arbitrator can readily understand the Company’s concern, given what appears to be an unacceptable course of conduct on the part of the grievor. Clearly, there can plainly be no place for conduct amounting to psychological bullying or harassment intended to instil discomfort and fear in another employee, such as was done by Ms Wang. On the whole, however, the Arbitrator considers that discharge is a relatively extreme outcome, particularly having regard to certain mitigating factors.

 

            Firstly, it is common ground that the employee who reported the grievor for sleeping and who complained about the grievor’s conduct has left the employment of the Company. Apparently she did so at a point in time when she was herself facing an investigation which would have called into question her own credibility. As suggested by the Union’s representative, at a minimum that raises some doubt about the extent to which the account of events of Ms. Goldsworthy is entirely to be believed, although as indicated above the Arbitrator is satisfied that there is substance to the complaint and that the grievor’s conduct was unacceptable. Secondly, and perhaps most critically, the person who might be most affected by the grievor’s return to work is no longer there. Finally, as appears from other aspects of the evidence, Ms. Wang appears to have been an otherwise acceptable and productive employee.

 

            In the circumstance the Arbitrator considers that the substitution of a suspension, and a reinstatement of the grievor into employment is appropriate, save that she must appreciate that it is on a last chance basis. Any additional incident involving unacceptable conduct towards another employee, or a supervisor, will give rise to the most serious disciplinary response.

 

            For all of the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into her employment forthwith, with no loss of seniority and without compensation for any wages and benefits lost. The forty demerits assessed against the grievor shall be removed from  her record and the period of time between her termination and reinstatement shall be recorded as a suspension. I retain jurisdiction in the event of any issue respecting the interpretation or implementation of this award.

 

 

Dated at Ottawa this 17th day of December 2008.

 

 

_________________________________

MICHEL G. PICHER

ARBITRATOR