Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2015 News | April 2015 | CSR Angry phone calls by CPR worker not cause for dismissal: Arbitrator Progressive discipline warranted BY JEFFREY R. SMITH AN ARBITRATOR HAS ordered the reinstatement of a Canadian Pacifi c Railway (CPR) worker who was fi red for harassing and verbally abusing other CPR em- ployees. e 43-year-old worker be- gan his employment with CPR in 1996 and at one point during his time served as a local chair- person for the union. He had a clean disciplinary record, but suff ered from anxiety for which he sought medical care from his family doctor and a psychologist. On Oct. 1, 2013, the worker contacted CPR's employee re- lations department and fi led a harassment complaint against his supervisor. He accused the supervisor of speaking to him inappropriately before hanging up on him. e worker also fi led a claim for benefi ts from CPR's insur- ance provider, Manulife, as he was off work at the time for med- ical reasons. e claim wasn't ap- proved, so on Oct. 24 he called an employee relations advisor to complain. e worker said the denial of benefits constituted harassment by CPR. During the call, the worker asked about his earlier complaint and if the advisor had listened to the audiotapes of his telephone conversation with his supervi- sor. e advisor said she hadn't had an opportunity to review the tapes. is caused the worker to raise his voice and swear at her while demanding his benefi ts be approved. e next day – Oct. 25 – the worker called a Manulife case manager to complain about the status of his benefi ts claim. Af- terwards, the case manager sent CPR an email complaining about the worker's phone calls, alleging the worker screamed at her and demanded she forward to him all emails from CPR relating to his claim. e case manager said she hung up the phone on him. On Oct. 28, the employee rela- tions advisor to whom the work- er had spoken made a memo about her conversation with him. On Nov. 7, she sent the worker an email advising she had com- pleted her investigation into both of the worker's complaints and found no evidence of harassment in either case. She said both were considered "false complaints of harassment," which were breach- es of CPR's discrimination and harassment policy and would be investigated. CPR decided to include the worker's phone calls of Oct. 24 and 25 in its investigation. e worker was still off work for medical reasons, so it decided to wait until he returned to work before continuing. The worker provided CPR with an updated functional abilities form on Feb. 12, 2014, that indicated he would be fi t to return to work on a gradual basis, starting with two eight- hour shifts per week between Monday and Friday. Two weeks later, CPR began its investigation but held the worker out of ser- vice pending the investigation's completion. During the investigation, CPR felt the worker was "confronta- tional, adversarial and unco-op- erative." For example, when the investigator was interviewing him, the worker didn't ask for recess but instead simply said he was taking a break. e worker also advised the investigator that he suff ered from a medical condition and if the investigation became too much, he would have to leave and go home. On April 8, 2014, CPR dis- missed the worker for making harassing and verbally abusive phone calls to the Manulife case manager and the CPR employee relations advisor, as well as mak- ing a false claim of harassment against his supervisor and pur- posely frustrating the investiga- tion process. The arbitrator found the worker's conduct was "clearly unacceptable and deserving of some discipline." It was evident the worker had anger issues that required attention and his behaviour on the phone calls was "inappropriate and unpro- fessional." Though the worker suff ered from anxiety and was frustrated at how his complaints were being handled, this was no excuse for being disrespectful to- wards the people on the phone, said the arbitrator. However, the arbitrator also found the worker's behaviour didn't include threats or demean- ing insults and weren't on a scale of a serious industrial off ence such as theft. In addition, the arbitrator ex- pressed concern about the inves- tigation into the worker's com- plaints. Because the employee relations advisor continued to investigate them after the work- er's inappropriate behaviour on the phone, it raised questions of impartiality, particularly since it was determined that not only was there no harassment, but the worker fi led false complaints. Making such an accusation rath- er than just advising there was cause to investigate whether the complaints were false was going too far, said the arbitrator. is was backed up by union evidence that the worker had fi led unsub- stantiated complaints in the past where CPR had taken no action against him. Worker didn't help his cause e arbitrator noted the worker's conduct during the investigation was "without a doubt unaccept- able and a complete frustration of the investigative process" and was an aggravating factor in determining the appropriate discipline, since it "indicated a complete failure to appreci- ate that his earlier conduct was inappropriate." e arbitrator found dismiss- al was too harsh and CPR should have applied progressive disci- pline to correct the worker's behaviour. For his original mis- conduct, the arbitrator noted a short suspension or demerits along with an anger manage- ment referral would have been appropriate. However, when the worker's unco-operative conduct during the investiga- tion was taken into account, a three-day suspension was an appropriate penalty, said the arbitrator. CPR was ordered to reinstate the worker with the suspension instead See Canadian Pacific Railway and USW, Local 1976 (Murillo), Re, 2014 CarswellNat 5028 (Can. Railway Offi ce of Arb. & Dispute Resolution). Jeff rey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Ca- nadian Safety Reporter. For more information, visit www.employ- mentlawtoday.com. Credit: wavebreakmedia

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