CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 4097VIA

Heard in Calgary, Wednesday 14 March 2012

concerning

VIA RAIL CANADA INC.

and

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL

WORKERS UNION OF CANADA – COUNCIL 4000

DISPUTE:

The assessment of 20 demerit marks against Mr. M. States for his failure to successfully

complete the four weeks of refresher training upon his return to work on his permanent position

which resulted in his discharge for accumulation of demerit marks.

JOINT STATEMENT OF ISSUE:

The grievor had been absent from March 7, 2008, part of which for which he received

Workers Compensation benefits. In May of 2011, working with his case manager from the

Workers Compensation Board of Nova Scotia, the grievor made it known that he wished to

come back to work on one of three positions: (1) Senior Service Attendant Baggage; (2) Station

Attendant / Senior Station Attendant; (3) Station Attendant.

The Corporation declined the return to work suggestion and by way of a letter dated

June 7th, 2011 ordered the grievor to report to his pre-accident position of Telephone Sales

Agent. However, when he reported for the pre-accident position he was not placed on it. Rather

he was placed in a training course which he did not pass.

The Union contends that failing to successfully complete training should not attract

discipline and that the Corporation failed to make prima facie case of intentional failure to

successfully complete the training. The Union further contends that the Corporation’s actions in

this case are arbitrary, discriminatory and contrary to articles 24 and 27 of Agreement 1 and the

Canadian Human Rights Act.

The Union seeks reinstatement with full employment, without loss of seniority and

reimbursement for all lost wages and benefits.

FOR THE UNION:FOR THE CORPORATION:

(SGD.) R. FITZGERALD

NATIONAL REPRESENTATIVE(SGD.) B. A. BLAIR

SR. OFFICER, LABOUR RELATIONS… / CROA 4097

There appeared on behalf of the Corporation:

B. A. Blair

– Sr. Officer, Labour Relations, Montreal

C. Morrison

– Manager, Telephone Sales, Moncton

And on behalf of the Union:

R. Fitzgerald

– National Representative, Toronto

M. States

– Grievor

AWARD OF THE ARBITRATOR

The grievor was discharged from his employment on or about July 28, 2011. At

that time he was awarded twenty demerits for what the Corporation concluded was his

deliberate and fraudulent failure to properly complete his refresher training following his

return to work, after an extended absence, on June 13, 2011.

Certain of the facts concerning the grievor’s employment and attendance record

are referred to in CROA&DR 4096. Suffice it to say that following on-duty shoulder

injuries in 1996 the grievor was accommodated by being placed in a Telephone Sales

Agent’s position at Moncton. While he retained that position for a number of years,

commencing March 7, 2008 he was absent from work until his return on June 13, 2011.

As appears from a Nova Scotia Workers Compensation appeals tribunal decision dated

April 30, 2010, the grievor received temporary earnings replacement benefits for

various periods commencing in 2008 and ultimately ending on or about June 10, 2011,

at which point the grievor was compelled to return to work.

The Corporation notes to the Arbitrator that the grievor has an extensive record

of absenteeism, having been effectively absent, in addition to the time reflected above,

through 2005, 2006, 2008, 2009, 2010 and 2011 to the date of his return in June of that

–2–… / CROA 4097

year. In addition to his shoulder injuries, he also appears to have had medical problems

in relation to carpal tunnel syndrome, coronary problems and certain difficulties with

drugs.

It is amply evident from the material before me that the grievor never wanted to

work in Moncton. That is clear from his own statements found in the documentation

submitted in respect of a complaint which he filed under the Canadian Human Rights

Act, alleging discrimination against him on the basis of race and his disability. While his

original transfer to the accommodated position at Moncton in 1996 was by agreement

between the Corporation and the grievor’s Union, in the documentary evidence before

me he has asserted that that was against his wishes. However, that arrangement was

never grieved and appears to be consistent with an employee’s obligation to accept

reasonable accommodation.

As noted above, it appears that Mr. States’ income replacement through

Workers Compensation effectively expired on June 10, 2011. It is at that point that he

returned to his permanent position at Moncton, as a Telephone Sales Agent, on or

about June 13, 2011. The material before the Arbitrator confirms, beyond substantial

dispute, that the position to which the grievor returned in 2011 was substantially the

same as the job he left in March of 2008. It appears that the only new element in the

duties of the job involved the processing of VISA credit purchases, said to be a

relatively minor adjustment.

–3–… / CROA 4097

The evidence of the Corporation, which I accept, is that Mr. States was given a

period of orientation and an opportunity to re-familiarize himself with the processes of

the workplace. It appears that as part of that exercise he was called upon to handle one

or more telephone calls. When he exhibited substantial difficulty in doing so, the

decision was taken to have him undergo entry level training, the same as is given to

newly hired employees. The unchallenged evidence of the Corporation is that the

failure rate for that training is generally no higher than 15%, and that a class of seven

new employees had then recently been trained, all successfully achieving the minimum

passing grade of 80%.

During the refresher training the grievor was assigned the assistance of Trainer

Ms. Stella Maillet. Over a number of days she worked on exercises with Mr. States. The

record confirms that during the grievor’s first two weeks back to work he failed some

five evaluations, registering scores of 74%, 71%, 13%, 49% and 44%. Subsequent

evaluations yielded results as low as 0%, 8% and 7%. In effect, the evidence reveals

that the grievor, who performed the duties and responsibilities of the Telephone Sales

Agent’s job for a number of years commencing in 1996, was unable to achieve a

passing mark in the entry level training for that same job on twelve separate tries at the

test, between June 13 and July 8, 2011.

The Corporation maintains that those failings by the grievor were deliberate, and

were part of a fraudulent attempt on is part to enable him to seek accommodated work

in a location other than Moncton. When questioned at the arbitration hearing, Mr.

–4–… / CROA 4097

States maintains that he was extremely nervous, and that his ability to perform well on

the tests was dictated by the fact that he was disturbed that two other employees

returning to work were simply given refresher orientation and not required, as he was, to

undergo the tests.

Following an investigation, the Corporation concluded that the grievor did

deliberately underperform on the tests as a result of which it assessed twenty demerits

against his record. The issue in this arbitration is whether that discipline was merited.

The assessment of twenty demerits, coupled with the grievor’s prior disciplinary

standing of fifty-five demerits, led to the termination of his services for having seventy-

five total demerits, being fifteen above the dismissable level of sixty.

The Corporation’s representative submits that Mr. States has conducted himself

as an uncooperative and ultimately ungovernable employee. Regrettably, the Arbitrator

is compelled to agree with that unfortunate assessment. While it appears that there is

little doubt that the grievor did not want to work in Moncton, and that, as he stresses, he

was not on good terms with the manager of Telephone Sales at that location, Mr. Curtis

Morrison, those elements do not, in my view, persuasively explain the grievor’s abject

failure to reintegrate into the position which he held at Moncton for a substantial number

of years. As an employee holding an accommodated position, in accordance with the

provisions of article 15 of the collective agreement, and of the understanding between

the Corporation and the Union, he could not exercise his seniority to bid on work other

than his accommodated position. In my view, having regard to all of the objective facts,

–5–… / CROA 4097

the only rational understanding of the grievor’s conduct is that he engaged in an

attempt to manipulate the system so as to disqualify himself from the only available

accommodated position at Moncton, in an effort to secure alternate employment with

the Corporation in Halifax. There is no medical or psychological evidence placed before

the Arbitrator to give any other explanation for the grievor’s failure to pass the entry test

for a job which he had performed without difficulty for many years.

Can it be said that Mr. States, who is a black person, was in fact discharged by

reason of discrimination based either on his race or on his disability, contrary to the

prohibitions contained Canadian Human Rights Act? I think not. The evidence

confirms that for years the Corporation accommodated the grievor’s injuries and

medical disabilities, most obviously by arranging for him to work in a sedentary position

at Moncton following his compensable, on the job, injuries in 1996. Nor is there

anything on the record before me to suggest that this employee of thirty years’ standing

was treated unfairly or discriminated against by reason of his race or cultural

background. What the evidence discloses, very simply, is that when the Workers

Compensation Board of Nova Scotia confirmed that the grievor was fit to perform the

duties of the Telephone Sales Agent in June of 2011, and that he should return to work

at Moncton, he effective refused to accept that outcome and manipulated events so as

to avoid it. I am compelled to agree with the assessment of the Corporation that he did

so fraudulently, and in such a way as to break the bond of trust between himself and his

long-time employer.

–6–… / CROA 4097

For all of the foregoing reasons the grievance must be dismissed.

March 19, 2012

MICHEL G. PICHER

ARBITRATOR

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