SHP658
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC
RAILWAY COMPANY
(the “Company”)
AND
NATIONAL
AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF
(the “
RE: DISCHARGE GRIEVANCE
OF YVON MARCOTTE
SOLE ARBITRATOR:
Michel G. Picher
Appearing For The
A. Rosner – National
Representative,
G. Antinozzi –
Vice-President, Local 101
Y. Marcotte – Grievor
Appearing For The
Company:
G. Pepin – Labour
Relations Officer,
G. St. Pierre – Human Resources Coordinator,
J. DePretto – GE
Technical Director, Roxboro
A hearing in this
matter was held in
AWARD
This arbitration concerns the discharge of
Diesel Mechanic Yvon Marcotte
for the alleged falsification of a time claim by reason of having left his work
early without authorization, while claiming a full eight hours of work. The
issue is framed within the joint statement of issue, drafted in French, which
reads as follows:
LITIGE :
Concernant le congédiement du mécanicien diesel de locomotive M. Yvon
Marcotte pour avoir quitté son poste de travail ainsi que la propriété de la
compagnie sans autorisation.
DÉCLARATION CONJOINTE DES FAITS :
Monsieur Yvon Marcotte a été congédié « pour avoir quitté son poste de
travail ainsi que la propriété de la compagnie sans autorisation, avant la fin
de votre quart de travail, tout en réclamant huit heures de travail pour du
temps non travaillé le 18 octobre 2009 à l’atelier diesel de Saint-Luc ».
DÉCLARATION CONJOINTE DES EXPOSÉS :
Le syndicat prétend que l’employé Yvon Marcotte n’a pas quitté son poste
de travail ainsi que la propriété de la compagnie. Le syndicat demande le retour
au travail immédiatement de l’employé et un redressement complet depuis le 20
décembre 2009 avec dommage et intérêt pour le préjudice que cette situation lui
a causé.
La compagnie rejette les prétentions du syndicat.
POUR LE SYNDICAT : POUR LA COMPAGNIE :
(SGN) GILLES ANTINOZZI (SGN) GILLES PEPIN
VICE PRÉSIDENT, OFFICIER DE RELATION DE TRAVAIL
RÉGION ATLANTIQUE
The grievor was
employed at the Saint Luc Diesel Shop. It does not appear disputed that
attendance and timekeeping difficulties at that shop over the years prompted
the Company to adopt what is referred to as the “Neal Foot” policy, effective
November 14, 1999. Under that policy any employee who leaves his or her work
without authorization or proper adjustment of their time claim is subject to an
initial penalty of twenty-five demerits. A second offence results in dismissal.
It is common ground that the grievor in the instant
case, Mr. Marcotte, was subject to a first offence
sanction of twenty-five demerits in 2007. The issue is whether the Company has
established the second offence in relation to October 18, 2009 at the Saint Luc
Diesel Shop.
On October 18, 2009 the grievor’s
tour of duty, as well as that of his co-workers, ended at 23:00. The
un-contradicted evidence appears to confirm that daily, at approximately 22:30,
employees were to report to the supervisor’s office. While that reporting is
referred to as a “debriefing”, which it apparently now is, in October of 2009
it was merely a form of attendance taking. Employees would simply file through
the office where GE Technical Director John De Pretto
simply noted their presence. It is also clear that from 22:50 onwards employees
are entitled to wash-up time before leaving work at 23:00. It appears that
between the “debriefing” and the wash-up time employees generally went to the
employees’ lunch room to await their wash-up time and the end of their shift.
The evidence of Mr. De Pretto
is that at the debriefing of 22:30 on October 18, 2009 Mr. Marcotte
did not show up. Additionally, Mr. De Pretto relates
that when he went to the employees’ lunch room and locker facilities, and
surveyed the area outside the shop, he could not see Mr. Marcotte
anywhere. As a result of the supervisor’s report, an investigation was
conducted following which the grievor was discharged
effective December 20, 2009 for having abandoned his work post and the
Company’s property without authorization before the end of his shift while
nevertheless claiming a full eight hours of work for pay purposes. In effect
the Company maintains that the grievor is guilty of
having defrauded it through the theft of time for which he was paid and in
relation to which he performed no work.
The grievor denies
that he failed to attend the debriefing or that he left work prematurely.
According to his account, he did file through the office at the time of the
debriefing. He relates that Mr. De Pretto was there,
making notations on papers. According to his belief, Mr. De Pretto
must have simply failed to see him as he walked past. He further relates that
after the debriefing he returned to the shop floor to continue performing work,
remaining there until 22:50, when he proceeded to his scheduled wash-up time.
The record indicates that the grievor was first notified of his alleged infraction some
two weeks following the event. It appears that he then attempted to secure a
letter from an employee on the subsequent shift, Mr. Claude Pelletier. It seems
that, as related in the letter provided by Mr. Pelletier, the two employees
shared an interest in taxidermy and had regular conversations at the change of
shift during the time in question, extending over an entire work week.
Consequently Mr. Pelletier provided to Mr. Marcotte a
letter to the effect that he had spoken with him in the employees’ locker area
at the end of his tour of duty on Sunday, October 18, 2009. However, as the
Company has demonstrated, Mr. Pelletier was in fact on vacation that day,
returning only the following day. The employer appears to take the view that
the letter provided by Mr. Pelletier was in fact a fraudulent statement
provided in an attempt to conceal the actual facts of what occurred on October
18, 2009.
The Arbitrator has some difficulty with the
Company’s view of the facts in the case at hand. It is trite to say that in a
matter of discharge the Company bears the onus of proof. To the extent that
discharge is the ultimate industrial relations sanction, it is generally
expected that proof commensurate with the severity of that consequence should
be advanced to make the employer’s case. However the proof in the instant case
is, in the Arbitrator’s view, less than compelling.
As reflected above, the Company’s case is
based entirely on Mr. De Pretto’s account of events.
He maintains that he did not see Mr. Marcotte at the
debriefing and that when he went upstairs to the lunchroom and locker area he
did not see him there either. He maintains that he also looked for him “outside
the shop”, without seeing him. However the grievor’s
own evidence, which remains substantially unchallenged, is that he had returned
to complete some work on the shop floor, an area the supervisor did not in fact
search. Nor was there any attempt by Mr. De Pretto to
determine whether the vehicle belonging to the grievor
might have left the premises early.
Nor can the Arbitrator ascribe to Mr.
Pelletier’s letter the sinister motivation which the Company suggests. I
consider it implausible that the two employees would have concocted so
transparent a story, at the risk of courting discharge if discovered. On the
contrary, I find it more compelling to conclude that they simply erred in their
recollection.
For the foregoing reasons the Arbitrator must
conclude that the Company has not discharged the onus of proof to establish, on
the balance of probabilities, that the grievor did
leave his assignment early on October 18, 2009. It is equally plausible that he
did attend the debriefing, without being seen by his supervisor and that he
returned to the shop floor, a location which his supervisor did not search. In
the result the grievance must be allowed.
The Arbitrator directs that the grievor be reinstated into his employment forthwith, with
compensation for all wages and benefits lost, and without loss of seniority. I
retain jurisdiction in the event of any dispute concerning the interpretation
or implementation of this award.
Dated at
_________________________________
MICHEL G. PICHER
ARBITRATOR