SHP 243

IN THE MATTER OF AN ARBITRATION

BETWEEN:

VIA RAIL CANADA INC.

(the “Corporation”)

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

(the “Union”)

AND IN THE MATTER OF TWO GRIEVANCES OF Y. GERVAIS

SOLE ARBITRATOR:J. F. W. Weatherill

APPEARING FOR THE UNION:

L. Roy

APPEARING FOR THE COMPANY:

K. Pride

A hearing in this matter was held in Montreal on July 25, 1988.

AWARD

There are two related claims before me, one relating to the assessment of demerit marks and the other to the grievor’s suspension from service. The joint statement of facts and issue in the matter is as follows:

ISSUE

Appeal of twenty (20) demerit marks assessed to the personal record of Coach Cleaner, Yvon Gervais, VIA Rail Canada, Montreal Maintenance Centre, Quebec, and a time claim of twentytwo (22) working days for lost wages for being unjustly suspended from service from June 23, 1987 to July 22, 1987, inclusive.

FACTS

On June 19, 1987, Mr. Y. Gervais sat for a formal investigation in connection with alleged continued poor timekeeping. During the investigation, Mr. Y. Gervais was asked the name of his duly authorized union representative, Mr. Y. Gervais stated that he wanted to be represented by his lawyer, Mr. Michel Vinet. The Corporation advised him that the collective agreement outlined that he shall be represented by a duly authorized union representative, as a result, the investigation was discontinued and on June 23, 1987, he was suspended from service pending an investigation.

On July 23, 1987, Mr. Y. Gervais sat for a formal investigation with his duly authorized labour representative and on July 28, 1987, he was assessed twenty (20) demerit marks for poor timekeeping.

The Brotherhood has appealed the assessment of discipline alleging that the Corporation violated Rule 27.1 of Agreement No. 3 when they suspended Coach Cleaner Y. Gervais from service effective June 23 to July 22, 1987, inclusive. The Brotherhood demands that the twenty (20) demerit marks be removed from Coach Cleaner Y. Gervais’ record and be made whole for all the time he was wrongfully suspended from service. The Corporation disagrees and has declined the Brotherhood’s request.

I shall deal first with the claim for compensation for being held out of service. Being concerned with the grievor’s timekeeping, the company called him for an investigation on June 19. 1987. Investigation procedure is dealt with in Rule 27 of the collective agreement, the material provisions of which are the following:

27.1Except as otherwise provided herein, no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.

27.3When employees are required to make statements on matters affecting the Agreement, working rules of the Corporation or compensation, a duly authorized representative of the employee shall be present except that when employees are required to make statements on matters not affecting the Agreement, working rules of the Corporation or compensation, the employee may have a fellow employee or an accredited representative of the Brotherhood present.

In my view, the statement the grievor was required to make was not one on “matters affecting the Agreement, working rules of the Corporation or compensation” within the meaning of Rule 27.3. Accordingly, it would not appear to have been necessary that an accredited representative of the Brotherhood – a “duly authorized representative of the employee” – be present. It was, I think, a situation in which the grievor “may have a fellow employee or an accredited representative of the Brotherhood” present. In fact, the grievor had neither. He had a fellow worker, a Pipefitter, present, but a Pipefitter is not an “employee” within the meaning of this particular collective agreement. He indicated that he wished to have his lawyer present, but I think it is clear that he was not entitled to be represented in that way.

The grievor is a shop steward and certainly ought to have understood the proceedings. The company cannot, in my view, be faulted for insisting that the grievor have union representation which is, of course, a requirement in many cases coming under Rule 27. It is clear that the grievor did not wish the investigation to continue at that point, and the company acted properly in not proceeding then.

Following that first, abortive, investigation the grievor returned to work for the remainder of his shift. The following two days were his rest days. On June 23, his next working day, the grievor did not report for work nor, it is said, did he report his absence to the company. When he reported for work on June 23, the grievor was advised that no work would be assigned to him until the investigation was completed.

It may be noted that the grievor was not held out of service pending the first investigation, nor does there appear to be any reason why he should have been, given the nature of the alleged offence and the state of the grievor’s discipline record, which then stood at 5 demerits. While the grievor’s absence on June 22 might, in the circumstances, have provoked a call for a further investigation, no convincing reason appears why the grievor should then have been held out of service pending the completion of the original investigation, Rule 27.1 contemplates that an employee may be held out of service pending investigation, but in such circumstances, the investigation must not be unduly delayed.

The onus of “not delaying” an investigation is on the company, not on the employee (which is not to say, of course, that an employee may not be disciplined for misconduct in respect of the holding of an investigation). In the instant case, the company did not promptly schedule the investigation, but wrote to the grievor on June 30 (the letter being delivered – although its actual receipt is denied – on July 2), instructing him to contact his General Foreman. On July 20, it appears the company did write to the grievor advising of an investigation scheduled for July 23. The grievor responded promptly to that, and did attend the investigation.

In some circumstances, an employee may be held out of service pending investigation and, even although the investigation may not result in discipline, the holdingout from service may nevertheless have been justified so that no, or limited, compensation may be payable in respect of the suspension involved. In the instant case, given that a system of discipline based on the assessment of demerit points is in effect, and that, as I have noted, no justification for holding the grievor out of service appears, the grievor was, in my view, entitled to have been retained at work throughout the period in question. Accordingly, it is my award on this aspect of the matter that the grievor be compensated for loss of regular earnings for the period June 23 July 22, 1987, inclusive.

With respect to the assessment of 20 demerits, the grievor was asked at the investigation to justify his absence on some six occasions. He stated that he could justify those absences with medical certificates, and that while he did not have those certificates with him at the time, he had them at home. It is strange, of course, that an employee (and a union steward, it is sad to remember), would attend an investigation of his absenteeism without bringing the documents which, if valid, would justify his absences. It is strange, too, that an employee in such circumstances would not promptly submit the documents referred to. The grievors did not do so.

On July 28, the grievor was assessed 20 demerit marks for poor timekeeping. On August 17, the Local Chairman of the union submitted, on the grievor’s behalf, a medical certificate also dated August 17, being a certificate from the grievor’s wife’s doctor, certifying that due to the illness of the grievor’s wife on certain of the days in question it had been necessary for the grievor to help out at home on those days. It was the grievor’s evidence that he also was sick at the time. The Local Chairman also submitted a copy of a notice which had been posted with respect to attendance on April 17, one of the days on which the grievor had been absent. That was Easter, and only the listed were required to work. The grievor’s name appears on the list, but the Local Chairman states that the wrong employee identification number appears opposite his name. That might indeed have created some confusion at the time, but can scarcely support the view that the grievor did not know he was required to work then; at the very least he ought to have enquired – it was his name that was on the list, after all. At the hearing, the grievor testified that he had suffered from sinusitis for some time. While I do not doubt the grievor’s word as to that, there is no mention of it in his replies given at the investigation, and no evidence to connect such illness to the absences in question.

On all the material before me, it is clear that the grievor’s explanations were neither substantial (that is, with respect to the particular absences; there is no doubt that both the grievor and his wife have had medical problems which the grievor has preferred to keep to himself), nor timely. There was, I find, just cause for the imposition of discipline and I do not consider, in all of the circumstances, that the assessment of 20 demerits was excessive in this particular case. My award with respect to this aspect of the matter is to dismiss the grievance.

In accordance with the foregoing, the grievance with respect to the claim for time out of service is allowed; the grievance with respect to the assessment of demerits is dismissed.

DATED AT TORONTO, this 3rd day of August, 1980.

(signed) J. F. W. Weatherill

Arbitrator

[ADHOC.DOT]- 1 -[reprinted 01/26/2019]