Worker acknowledges unintentional dozing, lengthy suspension substituted
An Ontario arbitrator has overturned the dismissal of a railway worker who briefly fell asleep while on the job, resulting in a collision that caused significant injury and damage to the vehicle and equipment involved.
The worker was employed with Canadian Pacific Kansas City Railway (CPKCR) in a position that involved operating heavy machinery and equipment. He was hired in 2017 and had no discipline on his record relating to safety issues.
On Sept. 5, 2022, the worker was operating a ballast regulator, which is a piece of railway maintenance equipment used to shape and distribute gravel track ballast that supports the ties in rail tracks. He had worked overtime on the previous six consecutive days, including 15.5 hours on each of the two previous days, so he was fatigued. He complained about feeling tired to his foreman, but he didn’t escalate it to upper management and started work early.
While operating the ballast regulator along a track, the worker dozed off for about 20 seconds. When he woke up, he saw a pickup truck at a level crossing in the way, but he was unable to stop the machine’s movement in time. The ballast regulator collided with the truck, causing extensive injuries to the truck’s driver and the truck, as well as the ballast regulator.
Workplace investigation into accident
CPKCR conducted an investigation into the incident, but it was delayed for several months because the worker was unable to be interviewed due to post-traumatic stress disorder (PTSD) from the incident.
The worker was eventually interviewed in July 2023 and admitted that he wasn’t fit and rested at the beginning of his shift and he failed to escalate concerns about his condition past his foreman, as both he and the foreman were “exhausted.” Under CPKCR’s rule book for engineering employees, there was a requirement that employees be fit and rested at the beginning of their shift and not sleep at work.
The worker acknowledged that he would escalate the matter in the future if faced with similar circumstances and his dozing off was a momentary mistake.
On Aug. 2, 2023, CPKCR terminated the worker’s employment for breaching several rules and “a series of bad decisions” that resulted in him falling asleep while operating dangerous equipment and causing a serious accident. The union grieved, arguing that the incident stemmed from the worker working overtime and not misconduct, and noting that doing overtime was expected and encouraged by the company.
In addition, there was distinction between intentional sleeping on the job and unintentionally dozing off for a brief period of time, said the union in arguing that dismissal was excessive and pointing to another case where CPKCR issued a 30-day suspension to another employee who fell asleep at work, which was later reduced by an arbitrator to five days.
Railway worker sleeping on duty
CPKCR maintained that the worker’s actions were a result of poor decision-making and only he could assess his fatigue level and take appropriate action. The company referenced prior cases in which sleeping on duty warranted dismissal, emphasizing that the collision’s severity and the worker’s reporting for work while exhausted were aggravating factors.
The arbitrator referred to previous arbitration decisions dealing with “sleeping on duty,” including distinctions between intentional sleep and unintentional fatigue-related incidents. While the worker violated multiple safety rules by operating equipment while fatigued, the arbitrator noted the brief duration of the lapse and the worker’s immediate admission of responsibility as mitigating factors.
There were similar cases where unintentional fatigue was considered a lesser offense than deliberate sleep, although safety was the primary concern in the movement of railway equipment, the arbitrator said.
The arbitrator determined that termination was disproportionate given the circumstances. However, the worker reporting for work while fatigued, combined with the seriousness of the collision, justified a suspension rather than outright dismissal.
CPKCR was ordered to reinstate the worker without compensation for the 13 months since his termination but with retention of seniority, signaling the importance of balancing accountability with recognition of the role that fatigue played in the incident.
“This discipline recognizes the serious error of judgment made by the [worker], with tragic consequences to a member of the public and to the [worker],” said the arbitrator. “It also recognizes that the error was not intentional.”
