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HomeMy WebLinkAbout1998-0739.Friday.99-03-17EMPLOY& DE LA COURONNE DE L’ONTARK) COMMISSION DE SETTLEMENT RkGLEMENT DES GRIEFS 180 DUNDAS STflEET WEST; SUITE 600, TORONTO ON M5G 128 180, RUE DUNDAS OUEST; BUREAU 800, TORONTO (ON) h&G IZ8 TELEPHONE/TbkPHONE : (416) 326-1388 FACSIMILE/l-iL&OPIE : (416)326-1396 GSB # 0739198 G7998C IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union Local 15 87 (Sam Friday) Grievor - and - BEFORE Daniel A. Harris FOR THE UNION Brendan J. Morgan Counsel, Golden, Green & Chercover Barristers & Solicitors FOR THE EMPLOYER HEARING The Crown in Right of Ontario (Toronto Area Transit Operating Authority/Go Transit) Vice-Chair Jeffrey E. Canto-Thaler Counsel, Irving & Canto-Thaler Barristers & Solicitors February 26,1999 March 10, 1999 Employer AWARD In this matter the Union, The Amalgamated Transit Union, Local 1587, grieves that the Employer, GO Transit (The Toronto Area Transit Operating Authority) terminated the Employment of the Grievor, Sam Friday, without just cause. The Grievor worked as a courier for GO Transit. His job was to deliver tickets, schedules, pamphlets and other materials to the bus and train stations operated by GO Transit. To do so he drove a white automobile clearly marked with the Authority’s large green “GO” logo. The facts leading to his discharge are not seriously in dispute. On Monday, July 27, 1998 the Grievor drove around the lowered rail crossing barriers at the level crossing near the Brampton Railway Station. The letter of discharge, dated July 29, 1998 sets out GO’s reasons as follows: Dear Mr. Friday: Subiect: Letter of Termination On Monday, 27 July 1998 at approximately 8:30 a.m. you were driving a GO Transit support vehicle no. 1402 as part of your scheduled duties to pick and deliver mail at the Brampton GO Station. During your operation of the vehicle, you drove around the lowered rail crossing barriers at the railway tracks at Mill Street. Subsequent to my -meeting with you on the morning of 27 July 1998 regarding this incident, I have reviewed the official report of the incident provided by Canadian National Railways and have considered your explanation of your actions and fmd that there was no acceptable reason for you to proceed through the barriers. This is a serious breech [sic] of the Ontario Highway Traffic Act and is of particular concern to GO Transit 2 since its primary business is the transportation of passengers on highways and railways. In choosing to circumvent the lowered barriers, you displayed extremely poor judgement and a total lack of common sense. You placed yourself at risk of injury or death and caused GO Transit considerable embarrassment in view of GO Transit’s program to educate the public not to do exactly what you have done. By reason of your recklessness in this instance and also of your existing record of discipline, we must advise you that your employment with GO Transit is hereby terminated. The termination is effective immediately. Any monies owed to you will be released upon the return of any GO Transit property in your possession. Sincerely, Toivo Madras Toivo Madrus, the Grievor’s supervisor, testified at the hearing that he was advised of the incident by Canadian National Railways which operates the tracks in question. Seemingly, the Grievor had been seen by the crew of a passenger train which was slowly pulling out of the station at the time. Mr. Madrus then called the Grievor on his cellular phone. Initially, he asked the Grievor “how things were going,” without mentioning the allegation about evading the crossing barrier. The Grievor told him that all was well. Mr. Madras then asked him directly if he had gone around the crossing barrier. The Grievor promptly admitted that he had. When asked why he did so the Grievor replied he had thought that the barriers were faulty and other cars were also going around. After hearing the Grievor’s account of the incident, Mr. Madrus told the grievor to come in to see him after he was finished his shift. Mr. Madrus hung up the phone. Mr. Madrus I reflected on the matter further, and considered two other disciplinary matters involving 3 the grievor. He concluded that some sort of serious discipline was warranted. He then thought that discharge was appropriate. He telephoned the grievor and told him to come in right away, Mr. Madrus then advised Jean Norman, his own supervisor, of his decision to terminate the Grievor’s employment. She concurred with his decision. When the grievor reported in they essentially reiterated their telephone conversation regarding the incident. Mr. Madrus suspended the grievor pending investigation even though he had concluded that the grievor was to be discharged from his employment. The Grievor was given the following letter of suspension: Dear Mr. Friday: Subject: Letter of Suspension It was reported by GO Transit’s Enforcement Office that on 27 July 1998 just prior to 9 a.m., GO Transit support vehicle no. 1402 was seen crossing the tracks at the level crossing at Brampton Station when the warning signals were activated. You were operating the subject vehicle at the time. Your actions violated Health and Safety laws of the Province of Ontario and caused embarrassment to GO Transit. This conduct was dangerous and unsafe to the extreme. You are, as a result of your unsafe actions hereby suspended from duty without pay until further notice pending the outcome of an investigation of this incident. This suspension is effective upon the delivery of this letter to you. Sincerely, Mr. Madrus testified that the only remaining investigation was to receive and review the report of the incident being prepared by CN Police. In cross-examination, Mr. Madrus confirmed that in fact he did not wait for the CN Police report. The letter of discharge is dated July 29, 1998. His notes dated July 30, 1998 at 8:49 am indicated that he still did 4 not have the report but would issue the discharge anyway since he had the grievor’s admission. The previous incidents referred to by Mr. Madrus as influencing his decision to tire the grievor were both written warnings. The first? dated November 27, 1997 was issued because the grievor had refused a supervisor’s request to pick up and deliver a plastic bag to another GO location. The grievor was said to have told Mr. Madrus at the time that he did not pick it up because it looked like a garbage bag and it made him look like a garbage man. The second, dated June 8, 1998 was also a written warning. It was issued as a result of the Grievor having made an unauthorized long distance telephone call to his mother in Guyana from the work station of another employee. The Grievor also testified. His account of the incident is uncontradicted. He said he approached the level crossing along Railroad Street, which runs parallel to the tracks. The level crossing is right at the intersection of Railroad St. and Mill Street. As the Grievor approached the crossing he could see that the barriers were down and cars were going around the barriers in both directions. When he reached the barrier there was one car in front of him and two cars lined up to cross from the opposite side of the tracks. He was stopped at the crossing for one to two minutes. The car ahead of him went around the barrier and through the level crossing. He looked up and down the tracks; he could see approximately 200 yards in each direction. He saw no train, concluded the barrier was 5 malfunctioning and proceeded around the barrier and across the tracks. While crossing the tracks he kept a lookout for trains. In chief he testified he could see 200 to 300 yards up and down the tracks as he crossed. As he carried on across the tracks, he saw a light which he took to be an approaching locomotive. It is agreed that it was a slowly moving passenger train pulling out of the Brampton Railway Station. He went to the station to make his delivery, which took two to three minutes. As he left the station he saw a freigl train pulling toward the level crossing at a very slow pace. nt The Submissions of the Parties The Employer submitted that it sells transportation, the purchase price of which includes an underlying assurance that it will enforce its safety rules. Further, the very object of crossing barriers is to ensure the blocking of traffic. The object of the barrier was said to be a guarantee to GO passengers, train crews, and the public at large that it will stay in place until it is safe to cross. There was said to be no discretion in a driver to ignore the barriers. That is, barriers were said to constitute a guarantee that no traffic will cross the track, and it is part of GO Transit’s responsibility to its own employees and the public at large to enforce vigorously that guarantee. It was submitted that to reinstate the grievor would amount to compelling train operators to forfeit the guarantee made to them that no traffic will cross the track and this Board ought not to do so. The Employer also submitted that the Union has committed to partnership with the Employer in providing a safe workplace. The Employer stressed that the Grievor had not shown that he was remorseful or understood the seriousness of evading a barrier in a GO Transit vehicle, and the impression that such an action would leave with the public. The Employer submitted that the very product sold by GO Transit to the public had been sabotaged by the Grievor. The Employer relied on the following authorities: Green and Treasury Board (Transport Canada), (unreported, PSSRB (Simpson), June 14, 1996); Canada Steamship Lines Inc. and S.I. U., (Mikedis) (unreported, H. Frumkin, August 5, 1997); City of Calgary and ATU, Local 583 (Sullivan), (unreported, A.C.L. Sims, September 12, 1997); Maple Lodge Farms Ltd. and U.F.C. M?, Lot. 175 (1992), 28 L.A.C. (4’h) 358 (Waisglass); ITT Automotive Inc. and CA. W., Lot. 199 (1995), 51 L.A.C. (4’) 308 (Rose); T.T.C. and ATU, Lot. 113 (1985), 22 L.A.C. (3d) 271 (Black); British Columbia Ferry Corp. and B.C. Ferry and Marine Workers’ Union (1993), 37 L.A.C. (4’h) 332 (Korbin). The Union submitted that although the Grievor ought to have been disciplined for his actions, the penalty of discharge was excessive in the circumstances. It said that the Board has the jurisdiction to mitigate the penalty and ought to do so. The Union said that although the Grievor’s actions were impulsive and foolish, they were not so egregious as would justify the abrogation of the principle of progressive discipline. Further, the Grievor’s prompt acknowledgement of responsibility and understanding of the seriousness 7 of his actions ought to stand in his favour. In the Union’s view the Employer improperly gave no weight to those factors, and the Board ought to rectify that omission by mitigating the penalty. The Union relied on the following authorities: Canadian Labour Arbitration, paragraphs 7: 3520,3442,4420, (Canada Law Book, Brown and Beatty); Cameo Inc. and U.E., Lot. 550 (1991), 22 L.A.C. (4th) 124 (Barton); Brampton Hydra-Electric Commission and C.A. W.-Canada, Lot. I285 (1997), 64 L.A.C. 4’h 305 (Kennedy); Burns Meats and U.F.C. W., Local 832 (1993), 38 L.A.C. (4’h) 172 (Hamilton); Noranda Minerals Inc. and Canadian Union of Base Metal Workers (1995), 49 L.A.C. (4’h) 46 (Brunner); Canadian Forest Products Ltd. And I. W. A. -Canada, Lot. I-424 (unreported, C. McKee, March 2, 1988); Canadian Forest Products Ltd. And I. W.A.-Canada, Lot. l- 424 (1993), 36 L.A.C. (4th) 400 (Kelleher); Rcy Plastics Limited and International Leather Goods, Plastic and Novelty Workers Union, Lot. 8 (unreported, F.D. Briggs, June 30, 1993); City ofBrampton andATU, Lot. 1573 (1978), 19 L.A.C. (2d) 237 (Shime). Reasons for Decision Although the Grievor’s actions in evading the crossing barrier were dangerous and foolhardy, they lacked the wanton recklessness evident in the cases relied upon by the Employer. In Green, (supra), the Grievor left his position as an air traffic controller vacant while he took a 35 minute break, “[wlith airplanes flying all over the place”. In Canada Steamship Lines, (supra), Arbitrator Frumkin found, at page 18, that the grievor 8 “exhibited a wanton disregard for his duties and responsibilities . . .I’. There the grievor broke the padlock and reset electric circuits that had been locked-out by a co-worker, without warning the co-worker and in clear contravention of well established safety rules. In Maple Lodge Farms, (supra), the grievor washed and wiped his hands on a paper towel. He then threw the towel into a meat hopper and did not remove it. Arbitrator Waisglass found him to be negligent, careless and irresponsible. He also had a progressive disciplinary record of four written warnings three one day suspensions and a three day suspension for insubordination. In ITT Automotive, (supra), the grievor’s actions, in intentionally damaging a grinding wheel, was found by Arbitrator Rose to be a deliberate and unsafe act that endangered him and others. In B.C. Ferry Corp., (supra), the grievance of Mr. Mutton was dismissed because his actions extended beyond mere carelessness. Arbitrator Korbin found that he had exhibited blatant disregard of safety procedures. Most notably, with respect to the other grievor, Mr. Anderson, Arbitrator Korbin rejected the contention that his behaviour had been so negligent as to be considered wilful. Rather, as set out at page 345, it was “more akin to momentary carelessness. He made an error in judgement that he will have to live with for the rest of his life.” In that case, three lives were lost. In City of Calgary, (supra), as in the cases referred to above, the Board was of the view that the grievor continued to shirk responsibility for his actions and no other mitigating factors supported reinstatement. 9 This Board accepts the Union’s submission that the purpose of discipline in an industrial relations context is to correct culpable behaviour. That corrective approach is achieved by progressively. disciplining employees with escalating consequences when misconduct continues to occur. However, when an incident of misconduct is sufficiently serious, it is appropriate to respond immediately with serious discipline. Discharge as a first response is appropriate in those instances which involve an intentional action of serious proportions in the nature of malfeasance. In the instant matter the Employer submitted that the Grievor fully intended to evade the barrier and cross the tracks. There is no doubt that he intended to complete those actions. However, the evidence is uncontradicted, and credible, that he believed on the basis of his observations that it was safe to do so because the barrier was malfuntioning. That is, he did not recklessly cross the tracks, nor do so with wanton disregard for his safety or the safety of others. Indeed, he proceeded after determining that no train was coming, and he kept a lookout as he went. His actions were an error in judgement, but his intentions were not in the nature of the callous indifference exhibited in the authorities relied upon by the Employer. This is a case that requires consideration of whether there are factors that mitigate the penalty of discharge. As noted above, the Grievor has two written warnings for matters that are unrelated to safety issues. The Employer submitted that the written warning 10 regarding the unauthorized telephone call, in particular, also indicated a lack of judgement. Arguably any incident that attracts discipline is the result of the exercise of poor judgement. Previous written warnings so characterized do not justify a deviation from the principles of progressive discipline. In the normal course, a further incident of ‘poor judgement’ would result in a further written warning or short suspension. In this matter, the Employer went directly to the discharge of the Grievor. The discharge could only be upheld if the incident itself merits discharge. As set out above, the Grievor’s actions did not amount to the type of intentional malfeasance as would justify discharge. The previous record does not support discharge because it is not a progressive step in the administration of discipline. Other factors also indicate that the penalty ought to be reduced. The Grievor has been employed by GO since October 1990, a portion of which was part time. Given the nature of his employment, that seniority is indicative of a significant attachment to the workplace. This incident is, in essence, an isolated safety incident in the Grievor’s work history. He told Mr. Madrus, when first questioned, that he had gone through such barriers on two previous occasions, when waved through by CN maintenance crews. His prompt admission of such to Mr. Madrus speak to the truth of those assertions. I am satisfied that it is more probable than not that he did do so on those two occasions. The Union has discharged its onus to establish those facts, to the extent necessary. Those episodes were relied on as a foundation for the Grievor’s belief that the barriers were also 11 malfunctioning on the instant occasion. That was an incorrect conclusion, but not a wantonly reckless one given his other precautions. It was an isolated incident. Further, the evidence is consistent with there not being premeditation involved, nor a repetitive course of conduct. The Grievor made an error of judgement in the circumstances. The grievor is married with four children ranging in age from six to nineteen years. He is forty-nine years old. His employment with GO was as a courier. He has not been able to replace his job. He has depleted his savings and is now on Employment Insurance benefits. Although the financial hardship of discharge is usually difficult, given the Grievor’s age and family commitments the discharge has created noteworthy economic hardship in this case. As he put it, he has lost a lot. The Grievor was candid with the Employer throughout and in his evidence at the hearing. The Employer used that candor and his admission of wrongdoing as a substitute for independent investigation. It ought to have given him some credit for his honesty. In addition, the Grievor did exhibit genuine remorse at the hearing, as well as concern for the seriousness of his actions and the disruption they had caused. There is no doubt that the Grievor’s actions were very serious when considered in terms of GO’s policies and obligations. The Employer must maintain a high standard of safety as a common carrier. His breach strikes at the heart of the Employer’s safety concerns given 12 that it involves the safe operation of the rolling stock. The Employer stressed in its submissions that the Grievor’s evidence had been that he was not responsible for what impression might be left in the minds of members of the general public who witnessed his actions. That submission overstated the evidence. The Grievor’s evidence in that regard was responsive to questions regarding whether members of the public might presume it safe to mimick the grievor’s actions since he was an employee of GO Transit, a railway company. The Grievor’s responses were to the effect that he could not answer the question because he did not know what others were thinking. That was an appropriate and reasonable answer. These matters are of considerable significance because they touch on the central concern of whether the Grievor has the degree of self-realization necessary to permit a safe return to work. That is, has he understood his transgression and has he been rehabilitated. I find that he has. The evidence that he has understood and responded to his error exists from the time of his first direct questioning by Mr. Madrus. When the grievor was asked direct questions he responded candidly and fully. It was clear from his evidence at the hearing that he accepted that he was wrong in doing what he did. He was pressed on whether Mr. Madrus had over-reacted to the situation. His answer was that he ought to be punished, but sought the Board’s opinion that discharge was excessive. This Board finds that discharge was excessive in these circumstances. The Employer ought to have considered \ that Grievor’s admission as a mitigating factor, rather than as a vehicle for discharging 13 him. I am satisfied that the Grievor accepted his responsibility for the situation from the outset. He made no attempt to excuse his actions. He did explain the basis of his error, but knows it was an error. Given the seriousness of evading a railway crossing barrier, this is a case that called for a disciplinary response that exceeded the usual progression. However, discharge was, in all the circumstances, excessive. A lengthy suspension is substituted. The Decision 1) The Grievor is hereby reinstated forthwith without loss of seniority; 2) A one-month suspension is substituted for the discharge. 3) The Grievor is to undergo the driver’s refresher training and testing as periodically administered by the Employer prior to being reassigned to his courier duties. 4) 5) The grievor is to be compensated for the period he has been out of work subject to deduction for the one-month suspension above and any mitigation as is the normal course. I remain seized to deal with any matters related to implementation. DATED at Toronto this 17th day of March 1999. Daniel A. Harris, Vice Chair