General Committee of Adjustment CP West
August 23rd 2023
In view of all of the foregoing, I am compelled to agree with the Union that the 30-day suspension of the Grievor is to some degree excessive. The mitigating factor of the Helpers inaction not having properly set the engine and car brakes while receiving 15 demerits is considerable. The Company found the action of both employees warranted discipline, but of a significantly different kind and effect.
In the result, the grievance is allowed, in part. I direct that the Grievor’s 30-day suspension be reduced to 5 days and that he be compensated accordingly
August 8th 2023
The Union argues that this was a formal complaint, with a detailed email addressed to Employee Relations. The Complaint notes multiple witnesses, none of whom were interviewed by Mr. Kinsella. It pleads that the Superintendent was not interviewed by him. It notes that only the grievor and Ms. Twomey were interviewed and no proper report was ever done to conclude the investigation. It pleads that the situation here is worse than the situation in CROA 4521, in which Arbitrator Clarke found that an improper investigation had been done.
It is possible or even likely that a proper investigation would have led to the same conclusion, that there was no prima facie case of discrimination. There is some evidence from Ms. Twomey that she had not seen other people sitting on the same log as Mr. Lashley. However, there is also some possibility that if the identified witnesses had been interviewed, that a finding of differential treatment could have been made.
Mr. Lashley has lost at the very least an opportunity to make his case, had the Company performed a proper investigation. He is also left with the sense that his complaint was not treated sufficiently seriously. I find that these losses, for which the Company is responsible, warrant at least some damages. In all the circumstances, I find that an award of $2500 is appropriate
July 17th 2023
Arbitrators have considered the extent to which the Grievor's absenteeism deviates from that of other employees at the workplace. I am satisfied that 13 days out of 40 is sufficiently beyond what the Company might expect of employees without investigative action being taken. In that regard employees are cautioned in the Availability Standard that employees who book of sick two or more workdays in a month may be subject to a discipline review. The Company encourages Employees to contact supervisors if they are to exceed Availability Standard provisions. The Grievor is not unfamiliar with the investigation and discipline process. He knew and understood the T&E Availability Standard requirements. He repeatedly ignored them.
In view of all of the foregoing, the Grievance is dismissed.
July 17th 2023
As the Union submitted, Railway Arbitrators have negated discipline when the Company is found to employ E-testing for the purpose of unfair/inequitable application of discipline. I recognize that legislation requires CP to be vigilant when it comes to safety. CP managers conduct E-Tests to verify employees’ attention to safety matters. This verification helps protect not just CP employees, but the Canadian public as trains move across the country. However, I find that in this incident the Company unfairly targeted the Grievor for significant discipline when uniform coaching and a warning to the entire crew was warranted.
In view of all of the foregoing the discipline is allowed in part. The 20 demerits will be reduced to a written warning.