SHP 650

IN THE MATTER OF ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

and

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

GRIEVANCE REGARDING THE SUSPENSION OF CÉDRYK LEVASSEUR

ARBITRATOR MICHEL G. PICHER

There appeared on behalf of the Company:

S. Grou – Manager, Labour Relations, Montreal

D. S. Fisher – Director, Labour Relations, Montreal

M. D’Amico – Assistant Manager – Eastern Regional Mechanic

G. Bélanger – Supervisor – Mechanical

R. Champagne – Assistant Superintendent, Mechanical

There appeared on behalf of the Union:

D. St-Louis – National Representative, Montreal

R. Brosseau – Vice-President of Local 100

J. Savard – Regional Representative

This case was heard on December 7, 2009, in Montreal.

AWARD OF THE ARBITRATOR

DISPUTE:

Assessment of suspension on Cédryk Levasseur on August 20, 2009.

JOINT STATEMENT OF ISSUE:

The Union contests the assessment of a suspension to Mr. Levasseur without having held an impartial investigation, in accordance with Article 27.01 of Collective Agreement No. 12.

The Company dismisses the Union's claims.

FOR THE UNION: FOR THE COMPANY:

NATIONAL REPRESENTATIVE MANAGER, LABOUR RELATIONS

(SGD.) D. ST-LOUIS (SGD.) S. GROU

The item in dispute solely concerns the suspension of the Grievor, Cédryk Levasseur, while awaiting a disciplinary investigation. It was agreed that on August 20, 2009, Mr. Levasseur received two summonses for disciplinary investigations regarding his behaviour towards two supervisors, as well as his work absences for the period from March 14 to August 19, 2009. In view of this news, the Grievor declared himself unfit to work and, notwithstanding his supervisor’s request to meet him at the canteen, he left the work site. A few hours later, Mr. Levasseur received a phone call from supervisor Gabriel Bélanger advising him he was suspended from his duties pending an investigation into his unauthorized departure from work. The Grievor was then subject to three disciplinary investigations, the two other investigations were planned for August 26, 2009.

It was agreed that Mr. Levasseur went to a physician that same day, on August 20, 2009. The physician provided him with a note stating the he would be under his care and absent from work due to the medical condition of anxiety, until September 20, 2009—the note was provided to the Company on August 21, 2009. Not long after, on around August 27, the same physician advised the Company that Mr. Levasseur was suffering from “major depression” which would extend his absence. The fact that Mr. Levasseur was on medication, in addition has to being under the care of a psychiatrist, is not being disputed. He became fit to return to work on around October 21, 2009.

During his work absence, the Grievor filed a claim with the insurer to receive illness benefits. The insurer responded that he was not eligible for the benefits as long as he was suspended from service during his illness period.

The Union claims that the Company has violated the provisions of Article 27.1 of the Collective Agreement, which 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.

According to the Union, the Company actually blocked Mr. Levasseur’s access to his illness benefits until his return to work on November 14, 2009, which only took place after three disciplinary investigations were held and completed on October 30, 2009. In the opinion of the Union, what took place was an unreasonable suspension between August 20 and November 14, 2009, contrary to the provisions of Article 27.1 of the Collective Agreement.

The Company maintains that the Grievor endured a delay of several months before the end of his investigations, and that it was due to his illness that his unpaid suspension was extended. The Company claims that in fact it did not violate the provisions of Article 27.1 of the Collective Agreement.

The Arbitrator cannot accept the Company’s position. The Company’s obligation to not unnecessarily extend the period of withdrawal from service of an employee under investigation is understood in acknowledgement of the importance of not depriving an employee from the value of his salary and fringe benefits for a period exceeding a reasonable amount of time to hold and complete a disciplinary investigation.

Normally, we expect an investigation to be held within one to two weeks of the incident prompting the investigation. In this case, Mr. Levasseur’s absence due to illness actually delayed the investigations and his eventual return to work by some 12 weeks. During that period, as he was suspended, he did not have access to illness benefits, to which he would have normally been entitled.

The Arbitrator must come to the conclusion that this state of affairs is indeed a violation of Article 27.1 of the Collective Agreement. First of all, obviously the Company is allowed to suspend a disciplinary investigation for the return to work of an employee on sick leave. But in the Arbitrator’s opinion, it is quite another thing to convert a period of absence due to illness into a period of indefinite suspension.

The application of Article 27.1, as it is interpreted by the Company, will create inequity, if not discrimination, against an employee required to be absent due to illness or injury. In general, a healthy employee who is withdrawn from service while awaiting a disciplinary investigation is deprived of his salary and benefits for one or two weeks. But a suspended employee under the same circumstances who suffers from an injury or illness preventing him from working may, according to the Company, suffer a financial penalty amounting to the full period of legitimate absence caused by his medical incapacity. If it were necessary to rule on this aspect of the dispute, in all likelihood the court would have to conclude that there was discrimination against the employee due to his medical condition, contrary to the Canadian Human Rights Act. The idea of an unpaid suspension for which the duration only depends on the length of the medical absence is the very least repugnant as per the most fundamental notions of discipline for a just cause. But for the following reasons, the Arbitrator believes it is not necessary to rule on the application of the Canadian Human Rights Act, in this case.

It appears to me that this grievance could have been simply resolved by the interpretation of the Collective Agreement. First of all, it must be recognized that the intent of the second sentence of Article 27.1 of the Collective Agreement is to ensure that an employee is not penalized with unreasonable suspension due to a delay in the disciplinary investigation process. But the Company policy to combine an employee’s suspension period with his period of absence due to illness, while awaiting an investigation, has the effect of negating the intent and spirit of Article 27.1 of the Collective Agreement. As suggested by the union representative, it would be completely contrary to this article if, for example, an employee who suffers a heart attack or any other serious medical incident that incurs several months of absence be suspended indefinitely, without the coverage of illness benefits. The primary intent of Article 27.1 of the Collective Agreement simply does not allow for such a drastic result.

For these reasons, the Arbitrator must declare that the Company violated the provisions of Article 27.1 of the Collective Agreement by extending Mr. Levasseur’s suspension until the end of his medical absence, which cost him the loss of his illness benefits. In the Arbitrator’s opinion, if the intent of the Collective Agreement had been respected, and if Mr. Levasseur had not suffered an illness, his suspension while awaiting his investigation would probably not have lasted for more than two weeks.

The grievance is therefore upheld. The Arbitrator orders that the Grievor be compensated for the value of the illness benefits that he would have received if he had not been suspended, except for the period of the first two weeks following August 20, 2009, until his return to work on November 14, 2009. I will keep abreast of this file to resolve any questions concerning the calculation of the compensation or any other aspect of the interpretation or execution of this ruling.

December 21, 2009 ARBITRATOR

MICHEL G. PICHER