IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF
RE: DISCHARGE GRIEVANCE OF SERGE CYR
SOLE ARBITRATOR: Michel G. Picher
Appearing For The
A. Rosner – National
G. Antinozzi – Vice-President, Local 101
S. Cyr – Grievor
Appearing For The Company:
G. Pépin – Labour Relations Officer,
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 Serge Cyr. The joint statement of issue, filed in French at the hearing, reads as follows:
Concernant le congédiement du mécanicien diesel de locomotive M. Serge Cyr pour avoir quitté son poste de travail ainsi que la propriété de la compagnie sans autorisation.
DÉCLARATION CONJOINTE DES FAITS :
Monsieur Serge Cyr a été congédié « pour avoir quitté son poste de travail ainsi que la propriété de la compagnie sans autorisation, avant la fin de votre quest. de travail, tout en réclamant huit heures de travail pour du temps non travaillé le 25 octobre 2009 à l’atelier diesel de Saint-Luc ».
DÉCLARATION CONJOINTE DES EXPOSÉS :
Le syndicat prétend que l’employé Serge Cyr suit à son regret et la reconnaissance de son erreur, devrait reprendre son poste de travail et ainsi rétablir le lien de confiance. Le syndicat demande le droit de repayer son fond de pension qui a été arrêté depuis le 10 décembre 2009, ainsi que son retour au travail.
Mr. Serge Cyr a écrit une lettre d’excuse à la compagnie et il le regrette sincèrement.
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 is an employee of thirty years’ service who worked as a diesel mechanic at the St. Luc Diesel Shop. On December 10, 2009 he was assigned to the 15:00 – 23:00 shift. As on all days, he would have been scheduled to attend a debriefing once his work was complete at or about 22:30. According to a note made by the grievor’s direct supervisor, GE Technical Director John De Pretto, Mr. Cyr presented himself in street clothes for the debriefing at 22:20, made a telephone call from the office and then left. Mr. De Pretto relates that he went outside after 22:37 to see if the grievor’s van was still on the premises and found that it was no longer there. He then searched other areas, including the lunch and locker room area, the shop and the employee parking lot. It was decided to conduct an investigation, as it appears that the grievor did leave early and claim a full eight hours wages.
Unfortunately, the incident was not brought to the grievor’s attention at any time proximate to the events of October 25, 2009. It was only twenty-nine days later, on November 23, 2009 that he received notice of the Company’s intention to investigate his departure from work on October 25. At the investigation the grievor denied having left work early without authorization, saying that he considered it impossible and that he might, in all likelihood, have cleaned and organized his tools before proceeding to wash up at 22:50. The Company did not accept the grievor’s response and discharged him for having left work without authorization while claiming a full eight hours of wages on October 25, 2009.
The record discloses that some seven months after his discharge the grievor wrote to the Company and admitted that it was possible that he had in fact left early on that evening, invoking stress in his personal life as a possible explanation. He apologized and indicated that he would do better in the future. The Company gave no weight to the grievor’s letter of admission, which it describes as being qualified and fundamentally insincere.
Upon a review of the record the Arbitrator is satisfied that the grievor did, in fact, leave work early without authorization. He obviously did not do so surreptitiously, as it is common ground that he appeared in the debriefing office before Mr. De Pretto at or about 22:20, dressed in his street clothes and obviously about to leave. And while the Company characterizes the grievor’s responses at the initial investigation as being deliberate attempts to lie and mislead the Company about his actions, in my view there are factors which mitigate that analysis. Firstly, it is not unusual for an individual to have difficulty recalling the events of twenty-nine days previous, without any earlier indication to them that those events would be of some importance. In other words, Mr. Cyr had no reason to think about the events of October 25, and in all probability did not until he received notice of the investigation, approximately one month later. In that context, I do not find it necessarily probative of deception on the part of Mr. Cyr for him to simply state that he believed that it would have been impossible for him to leave early on the day in question, in an answer which was obviously without any clear and precise recollection of that day. In the Arbitrator’s view the matter is further aggravated by the fact that when Mr. Cyr presented himself for debriefing fully ten minutes before the scheduled time, Mr. De Pretto saw him and said nothing to him to the effect that he should not have left his work station and should not at that time be in his street clothes. While it is unnecessary to determine whether Mr. De Pretto’s inaction could be viewed as implicitly approving Mr. Cyr’s actions, his failure to say anything to him at the time can fairly be viewed as a mitigating element in assessing the appropriate measure of discipline in the case at hand.
The material presented by the
Additionally, the grievor is an employee of thirty years service. Apart from the normal hardship of discharge, the termination of his employment has substantially negative impacts on his pension entitlement. Mr. Cyr’s disciplinary record is relatively positive, given the length of his service. While the Company maintains that there were two previous incidents of improper timekeeping on his part, those are both presently under grievance, and cannot be given any weight for the purposes of the instant case. Apart from that, the record indicates that Mr. Cyr was discipline free from 1979 to 2008 and, apart from the contested demerits mentioned above, had only two cautions against his record at the time of the incident here under examination.
After considering the whole of the evidence, while I can understand the Company’s concern and must conclude that the grievor did in fact improperly claim wages for work which he did not perform, I am not satisfied that the bond of trust between employer and employee is irrevocably broken.
In the result, the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for his wages and benefits lost and without loss of seniority. The period between the grievor’s discharge and reinstatement shall be recorded as a suspension. I retain jurisdiction in the event of any issue concerning the interpretation or implementation of this award.
I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this award.
MICHEL G. PICHER