Worker's angry phone calls not just cause (Legal View)

Lack of co-operation with investigation worsened appropriate discipline
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 02/06/2015

An arbitrator has ordered the reinstatement of a Canadian Pacific Railway (CPR) worker who was fired for harassing and verbally abusing other employees.


The 43-year-old worker joined CPR in 1996 and had a clean disciplinary record, but suffered 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 relations department and filed a harassment complaint against his supervisor. He said the supervisor spoke to him inappropriately and hung up on him.


The worker also filed a claim for benefits from CPR’s insurance provider, Manulife, as he was off work at the time for medical reasons. The claim wasn’t approved, so on Oct. 24 he called an employee relations advisor to complain, saying the denial of benefits constituted harassment by CPR.


During the call, the advisor said she hadn’t had an opportunity to review the audiotapes of the call with his supervisor. The worker then raised his voice and swore at the advisor while demanding his benefits be approved.


The next day, the worker called a Manulife case manager to complain about the status of his benefits claim. The case manager then sent CPR an email complaining about the worker’s phone calls, alleging he screamed at her and demanded she forward him all emails from CPR relating to his claim.


The case manager said she hung up on him and CPR’s HR department wasn’t helping matters.


Employer investigated worker’s conduct 

On Oct. 28, the employee relations advisor wrote a memo about her conversation with the worker and on Nov. 7, she sent the worker an email advising she had completed her investigation into his complaints and found no evidence of harassment in either case. 


Both complaints were considered “false complaints of harassment,” she said, which were breaches of CPR’s discrimination and harassment policy and would be investigated.


During the investigation, CPR felt the worker was “confrontational, adversarial and unco-operative.” For example, he didn’t ask for recess but simply said he was taking a break. The worker also said he suffered from a medical condition and if the investigation became too much, he would have to leave and go home.


On April 8, 2014, CPR terminated the worker’s employment for making harassing and verbally abusive phone calls to the Manulife case manager and the CPR employee relations advisor, as well as making a false claim of harassment against his supervisor and purposely frustrating the investigation process.


Arbitrator disagrees

The arbitrator found the worker’s conduct was “clearly unacceptable and deserving of some discipline.” It was evident he had anger issues that required attention and his behaviour was “inappropriate and unprofessional.” 


Although the worker suffered from anxiety and was frustrated at how his complaints were being handled, this was no excuse for being disrespectful towards the people on the phone, said the arbitrator.


However, the worker’s behaviour didn’t include threats or demeaning insults and wasn’t on the same scale as a serious industrial offence such as theft, said the arbitrator.


In addition, the arbitrator expressed concern about the investigation into the worker’s complaints. Because the employee relations advisor continued to investigate the complaints after the worker’s inappropriate behaviour toward her on the phone, it raised questions of impartiality, particularly since it was determined that not only was there no harassment but the worker filed false complaints. 


Making such an accusation, rather than just advising there was cause to investigate whether the complaints were false, was going too far, said the arbitrator. This was backed up by union evidence that the worker had filed unsubstantiated complaints in the past where CPR had taken no action against him.


Worker didn’t help his cause

The worker’s conduct during the investigation was “unacceptable and a complete frustration of the investigative process,” said the arbitrator, and was an aggravating factor in determining the appropriate discipline since it “indicated a complete failure to appreciate that his earlier conduct was inappropriate and unacceptable.”


But dismissal was too harsh and CPR should have applied progressive discipline to correct the worker’s behaviour, said the arbitrator. For his original misconduct, a short suspension or demerits along with an anger management referral would have been appropriate. 


However, when the worker’s unco-operative conduct during the investigation was taken into account, a three-day suspension was an appropriate penalty, said the arbitrator.


CPR was ordered to reinstate the worker with a three-day suspension in place.


For more information see:

Canadian Pacific Railway and USW, Local 1976 (Murillo), Re, 2014 CarswellNat 5028 (Can. Railway Office of Arb. & Dispute Resolution).


Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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