Partial video, improper investigation didn’t meet burden of proof for just cause
A railway company was not entitled to fire a long-term employee for breaching safety guidelines at a public rally during the pandemic based on a screen shot of a partial video, the Canadian Railway Office of Arbitration and Dispute Resolution has ruled.
The 59-year-old worker was employed as a locomotive engineer with Canadian National Railway (CNR) in Winnipeg. He was hired in 1988 and had a poor disciplinary record.
On April 25, 2021, there was an outdoor anti-mask rally in downtown Winnipeg. The rally contravened public health guidelines regarding large gatherings that had been established by the Manitoba government.
CNR learned of a screen shot from a video taken at the rally that was posted on another CNR employee’s social media site. The screen shot appeared to show that the worker attended the rally. The video showed the lower half of a face and the top of a torso. This concerned CNR has it had its own health guidelines against employees participating in large gatherings to help protect the health and safety of employees.
Employer investigation
CNR held the worker off work and only allowed him to come to work for investigation meetings on May 13 and 14, and June 4 and 10. His last day at work was April 14.
The worker didn’t deny that the photo was of him, but he also didn’t admit that he attended the rally. CNR was aware of other employees who attended the rally, but it didn’t ask them if they saw the worker there. The union was not given a copy of the video, although CNR acquired it before its investigation.
CNR determined that the worker attended the rally and therefore breached its health and safety guidelines. It also said that the worker hadn’t booked time off work, so his return to work would have endangered the health and safety of other employees had he been contagious with COVID-19. It assigned him 59 demerit points which, combined with previous discipline, put the worker over the 60-point limit for termination of employment.
The union grieved the termination, arguing that CNR didn’t definitely prove that the worker was at the rally as the worker didn’t admit to it and other employees who were there weren’t questioned as part of the investigation. It also pointed out that it was only given a copy of the video shortly before the arbitration hearing, so it didn’t have a proper opportunity to respond to the discipline. According to the rules of the Canadian Railway Office of Arbitration (CROA), this should render the discipline null and void, said the union.
Burden of proof on employer
The arbitrator noted that CNR had the burden of proof to establish that the worker attended the anti-mask rally, and the only evidence the company had was the screen shot from the video.
The arbitrator found that CNR’s investigator failed to corroborate the screen shot with other pictures of the worker or questioned other CNR employees – particularly the employee who took the video and posted it on his social media site. There was also no evidence that other sources such as television or social media platforms were checked to see if the worker appeared in other photos and videos from the rally.
Without any other corroboration or admission from the worker, the only evidence that the worker was at the rally was a “single partial photo.” This wasn’t sufficient to establish beyond reasonable doubt that the worker attended the rally, the arbitrator said.
The arbitrator also found that the union was entitled to the video that CNR was using as the basis for the termination, under the terms of the collective agreement and CROA rules for a proper investigation and due process. The rules are intended to balance the interests of the company and the employee, which include the right to a fair and impartial investigation and the opportunity for the employee to respond to the evidence in possession of the company, said the arbitrator.
Failure to share evidence
As a result, even if CNR had established grounds for discipline, the company’s failure to provide the union with “the key and only piece of evidence” upon which it was relying would have rendered the discipline void, the arbitrator said.
As for the risk to the health and safety of other employees, the arbitrator noted that CNR was required to take all reasonable steps to protect its employees from COVID-19. However, the worker was held off work pending the investigation and could not have come back to work during his potential contagious period. He didn’t return to the workplace until May 13 for an investigative meeting, well after the period when he would have been contagious, said the arbitrator.
The arbitrator determined that CNR did not establish just cause for disciplining the worker with the demerit points that led to his dismissal. The grievance was allowed and the arbitrator left the matter with CNR and the union to determine the remedy. See Canadian National Railway v. Teamsters Canada Rail Conference, 2023 CanLII 130142.
