Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2019 March 2019 | News a hill on the morning of July 6, 2013, into the town of Lac-Mé- gantic. The train derailed and exploded, killing 47 people and destroying the part of the town's downtown area. Two days after the derailment, a railway official spoke with Harding about it. On July 11, Harding went on a medical leave of absence. During Harding's leave of absence, the Montreal Maine & Atlantic Railway went bank- rupt. Its assets were purchased by a company that founded the Central Maine & Quebec Rail- way (CMQR) to take over the defunct railway's business. The Transportation Safety Board of Canada investigated the disaster and determined that Harding hadn't supplied suf- ficient handbrakes on the train before leaving it for the night. Harding was charged with crimi- nal negligence causing death but was acquitted in January 2018. Fired for breach of trust before returning from leave On June 19, 2018, Harding's union, the United Steelwork- ers, Local 1976 (USW), advised CMQR that Harding's medi- cal status had improved to the point where he could begin a progressive return to work, with a start date of July 5. One week later, on June 27, CMQR terminated Harding's employ- ment for cause, saying his in- volvement in the Lac-Mégantic derailment broke the relation- ship of trust it needed to have with its engineers to ensure the safe and competent operation of its trains. USW grieved the termination, arguing that CMQR violated the collective agreement by not con- ducting an investigation. The collective agreement stipulated that "an employee shall not be dismissed, suspended or dis- ciplined without justification and without a fair and impartial investigation" and set out the required procedures that consti- tuted a fair and impartial investi- gation — including an investiga- tion notice to the employee and a USW representative, interview- ing internal witnesses, and ad- vising the employee of the right to representation and to present evidence. CMQR argued that a railway representative had spoken with Harding about the derailment to get his perspective on what hap- pened and the Transportation Safety Board of Canada's investi- gation should satisfy the require- ment for a fair and impartial in- vestigation. An arbitrator for the Canadi- an Railway Office of Arbitration and Dispute Resolution (CROA) noted that the steps for an inves- tigation that were set out in the collective agreement — notify- ing Harding and the union of the investigation, identifying wit- nesses, and advising Harding of his right to representation and to present evidence — were not followed by CMQR. In addition, the arbitrator said, while the in- vestigation by the Transporta- tion Safety Board may have been fair and impartial, its purpose was different than what an inves- tigation by the railway would be. The board's investigation could help provide information that could be used by a CMQR inves- tigation, but it didn't satisfy the requirements of the collective agreement. The arbitrator also found that it had been established that disci- plinary investigations under the term of a collective agreement don't need to be as formal as "a full-blown civil trial or an arbitra- tion" — they could be conducted on an informal basis that allows "an expeditious process" in which an employee is given the oppor- tunity to know of what he has been accused, who his accusers are, and given an opportunity to offer his side of things. A failure to meet the standard of a fair and impartial investigation is grounds to void any discipline meted out, said the arbitrator. The arbitrator referred to past decisions of the CROA that es- tablished a faulty investigation as not a minor technical issue, but "highly important as it bears directly on the integrity of the expedited form of arbitration utilized in this office, whereby the record of disciplinary inves- tigations constitutes a substan- tial part of the evidence before the arbitrator." It was an issue that was "fundamental" to the collective agreement and the rights of Harding and USW as a collective bargaining agent, said the arbitrator. In addition to the fact CMQR didn't follow the collective agreement's disciplinary rules and procedures, it didn't recog- nize USW's role as a representa- tive of Harding and a party to the collective agreement, said the arbitrator. USW was entitled to proper notice of the investiga- tion so it could fairly represent Harding, which it didn't receive. The arbitrator found CMQR didn't follow the requirement placed on it in the collective agreement to conduct a fair and impartial investigation into Harding's safety violations before taking disciplinary ac- tion — terminating his employ- ment shortly before his sched- uled return from medical leave. Though USW wanted Harding reinstated, the arbitrator deter- mined damages in lieu of rein- statement would be more appro- priate and remitted the matter back to them for negotiation. "This case does not examine Harding's actions in the Lac-Mé- gantic matter. CMQR's failure to conduct the mandatory investi- gation under its collective agree- ment with the USW prevented it from proceeding to that 'on the merits' issue," the arbitrator said. "The complete failure to inves- tigate, as (the collective agree- ment) clearly states, prevented CMQR from issuing any valid discipline to Harding." For more information see: • Central Maine & Quebec Railway and USW, Local 1976 (Harding), Re, 2019 Carswell- Nat 101 (Can. Railway Office of Arb. & Dispute Res.). TSB investigation had different purpose than employer investigation Lac-Mégantic < pg. 1 Credit: Shutterstock/m.jrn

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