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In sum, BTC did not demonstrate that Mr. Lystukha’s conduct, while deserving of discipline, merited a permanent demotion to his former position of maintainer. His lesser responsibility for the August 7, 2019 incident and his candour, albeit delayed, merits instead a suspension.
The arbitrator accordingly reinstates Mr. Lystukha to his position as conductor.
FBTC made bona fide efforts to accommodate Mr. El Borte during the short 5-day period when he had safety-related limitations. BTC only realized upon Mr. El Borte’s return to work that he could not perform work in a safety sensitive position. This obliged it to deal with the accommodation issue in real time. Despite this challenge, BTC provided Mr. El Borte with a viable partial work option.
The arbitrator also dismisses the TCRC’s argument that BTC had to give Mr. El Borte 5 days notice before offering accommodated work, given the wording in article 12.1 (temporary replacements) of the collective agreement. That article seems to apply to a different scenario than the one raised in this case. In addition, even if it did apply, the accommodation exercise sometimes requires modifications to collective agreements to assist employees. This is especially the case for a short 5-day accommodation following which Mr. El Borte would resume his full-time duties without any restrictions.
BTC did not demonstrate that it had reached the point of undue hardship when considering accommodation for Mr. Valiquette. BTC will compensate Mr. Valiquette from April 15 to September 30, 2019.
Mr. Valiquette did not abandon his position in October/November 2019 and is accordingly reinstated without loss of seniority. However, due to his conduct, he will not be compensated for the period starting on October 1, 2019.
For these reasons, BTC did not demonstrate it had just cause to terminate Mr. Ouimet’s employment. The arbitrator accordingly orders BTC to reinstate Mr. Ouimet in employment forthwith, without loss of seniority or other benefits, and with full compensation for loss of earnings, less any sums he earned in mitigation.
BTC did not satisfy its burden of proof that it had just cause to terminate Mr. Ouimet. The TCRC did not convince the arbitrator that BTC’s investigation was unfair or that additional damages should be awarded given the overall circumstances of this case.
However, the TCRC will have the option of having this award posted in the workplace to counteract any negative inferences flowing from how BTC conducted Mr. Ouimet’s drug test.
Montréal, February 17, 2020 – On Thursday, February 13, the Teamsters Canada Rail Conference (TCRC) and Bombardier Transportation in Montreal reached a tentative agreement to renew the collective agreement for some 200 workers.