IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
CONCERNING THE DISMISSAL OF ARMAND SAVOIE
Arbitrator: Michel G. Picher
There appeared on behalf of the Company:
S. Grou – Manager, Labour Relations, Montreal
C. Gilbert – Manager, Labour Relations, Montreal
A. Y. deMontigny – Sr. Manager, Labour Relations, Montreal
C. Wagner – Law intern
D. Larivière – Supervisor
L. Machado –
There appeared on behalf of the Union:
D. St-Louis - National Representative, Montreal
R. Brosseau – Vice-President of Local 100, St-Laurent, Terrebonne region
A. Savoie – Grievor
This case was heard on March 4, 2009, in Montreal.
AWARD OF THE ARBITRATOR
This is a grievance concerning the dismissal of Armand Savoie, car cleaner at Montrain. The employer has filed a preliminary objection regarding the admissibility of the grievance.
That the Union delayed by eight months its notice to the Company of its intention to proceed with arbitration does not appear to be in dispute. According to the employer, the delay of eight months beyond the deadline provided in the collective agreement should result in the cancellation of the grievance, as provided in article 27.9 of the collective agreement, which reads:
27.9 A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims.
However, the parties recognize the arbitrator’s discretion to extend the deadline, as provided by paragraph 60 (1.1) of the Canada Labour Code, if the arbitrator “is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.”
As this case concerns the dismissal of an employee of a relatively advanced age, and seems to have been caused in part by a change of management within the Union, and as it is possible to order a remedy that would avoid any payment of damages by the Company, I believe that it is fair to extend the deadlines. For these reasons, the preliminary objection is dismissed.
It does not appear to be in dispute that Mr. Savoie suffers from sleep apnea and coronary disease. Because of these physical conditions, his doctor has declared him incapable of working night shifts. I believe the doctor’s opinion is valid and that the grievor should be accommodated.
However, I also recognize that the Company has made reasonable efforts to try to accommodate Mr. Savoie in the past, but that the options were restricted by his lack of seniority. However, it appears from the verbal discussions during the hearing that there will soon be new positions opening up and Mr. Savoie’s seniority might make him eligible for a day or afternoon position. Therefore, I believe there are grounds to uphold the grievance, in part.
The arbitrator orders that Mr. Savoie be reinstated to his position, without compensation for lost salary and benefits and without loss of seniority. If his seniority makes him eligible for a day or afternoon position, he will be reinstated to that position. However, if his seniority does not make him eligible for a position entirely during the day or afternoon, since he is unable to work at night, the company would be within its rights to close his employment file.
Furthermore, if Mr. Savoie is able to obtain a day or afternoon position, his reinstatement to such a position will be on the condition that he maintains an attendance rate equal to the average of his colleagues, calculated over consecutive three-month periods for two years after his reinstatement. If he does not meet this condition during any consecutive three-month period and for any reason, the company could again close his employment file. He would then have recourse to arbitration solely to verify whether his rate of absenteeism is higher than average.
The arbitrator will keep abreast of this file to resolve any dispute that could stem from the implementation or administration of this award.
Cantley (Quebec) March 11, 2009
MICHEL G. PICHER