Worker’s conduct was ‘inappropriate and unprofessional’ but not reason for dismissal; worker’s lack of co-operation with investigation worsened appropriate discipline
An arbitrator has ordered the reinstatement of a Canadian Pacific Railway (CPR) worker who was fired for harassing and verbally abusing other CPR employees.
The 43-year-old worker began his employment with CPR in 1996 and at one point during his time served as a local chairperson for the union. He 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 accused the supervisor of speaking to him inappropriately before hanging 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. The 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 supervisor. The advisor said she hadn’t had an opportunity to review the tapes. This caused the worker to raise his voice and swear at her while demanding his benefits be approved.
The next day – Oct. 25 – the worker called a Manulife case manager to complain about the status of his benefits claim. Afterwards, 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. The case manager said she hung up the phone on him.
On Oct. 28, the employee relations advisor to whom the worker had spoken made a memo about her conversation with him. On Nov. 7, she sent the worker an email advising she had completed 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 breaches 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. The 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 fit 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 service pending the investigation’s completion.
During the investigation, CPR felt the worker was “confrontational, adversarial and unco-operative." For example, when the investigator was interviewing him, the worker didn’t ask for recess but instead simply said he was taking a break. The worker also advised the investigator that 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 dismissed the worker 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.
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 unprofessional.” Though 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 arbitrator also found the worker’s behaviour didn’t include threats or demeaning insults and weren’t on a scale of a serious industrial offence such as theft.
In addition, the arbitrator expressed concern about the investigation into the worker’s complaints. Because the employee relations advisor continued to investigate them after the worker’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 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 arbitrator noted the worker’s conduct during the investigation was “without a doubt unacceptable 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 appreciate that his earlier conduct was inappropriate.”
The arbitrator found dismissal was too harsh and CPR should have applied progressive discipline to correct the worker’s behaviour. For his original misconduct, the arbitrator noted 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.
