IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF
RE: DISCHARGE GRIEVANCE OF YVON MARCOTTE
SOLE ARBITRATOR: Michel G. Picher
Appearing For The
A. Rosner – National
G. Antinozzi – Vice-President, Local 101
Y. Marcotte – Grievor
Appearing For The Company:
G. Pepin – Labour
G. St. Pierre – Human Resources Coordinator,
J. DePretto – GE Technical Director, Roxboro
A hearing in this
matter was held in
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:
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
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.
MICHEL G. PICHER