SHP659
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 SERGE CYR
SOLE ARBITRATOR:
Michel G. Picher
Appearing For The
A. Rosner – National
Representative,
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
AWARD
This arbitration concerns the discharge of
Diesel Mechanic Serge Cyr. The joint statement of issue, filed in French at the
hearing, reads as follows:
LITIGE :
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
RÉGION ATLANTIQUE
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.
Dated at
_________________________________
MICHEL G. PICHER
ARBITRATOR