Railway worker talked about stalking supervisor with firearm
A railway worker’s remarks about stalking a supervisor with a firearm were serious violations of company policies, but the employer shouldn’t have fired him without inquiring if recent mental health issues affected his behaviour, according to an arbitrator.
The worker was a track maintainer with Canadian Pacific Kansas City Railway (CPKCR) with no discipline over 12 years with the company.
The worker had mental health issues that caused him to take several leaves of absence over his time with CPKCR, including a one-year medical leave from February 2014 to February 2015, during which he received long-term disability benefits. He also took a medical leave of absence for more than two months in 2017, an eight-month medical leave in 2018 and 2019, and year-long medical leave in 2019 and 2020.
On May 19, 2020, the worker returned from the one-year leave of absence. His doctor and CPCKR both found him fit to return to work, with the doctor completing a functional abilities form that stated there were no effects on the worker’s cognition.
Threatening comments
On the worker’s first day back to work, he was sitting in a company truck with two co-workers and told them that he stalked a supervisor to the supervisor’s house while carrying a firearm. He said that he watched the supervisor enter his house and that “if he had only been 25 yards closer.”
The two co-workers were shocked by the worker’s comments. When the worker left the truck, they discussed that it was inappropriate and scary. They had several more conversations about it that day and decided to report the interaction to management the next morning.
CPKCR investigated the allegations by interviewing the co-workers and the worker. The co-workers reported that the worker’s tone was serious with “no joking manner about it.” They emphasized that they were shocked and felt it was serious enough to report to management.
The company determined that the worker made the comments and they violated its discrimination and harassment policy, code of business ethics, and workplace violence policy. As a result, it terminated the worker’s employment.
The union grieved the dismissal, with the worker insisting that what he told his co-workers was a dream that had taken place more than three years ago. He said that he made it clear to the co-workers that it was a dream and he didn’t really stalk the supervisor as he didn’t even know where the supervisor lived.
Duty to inquire
The union also argued that CPKCR was aware that the worker suffered from a mental health disability and it had a duty to inquire whether the disability affected what the worker said. As a result, the company failed in its duty to accommodate, the union said.
The arbitrator found that the co-workers’ version of events was more credible, as they were consistent with each other and it was uncontested that the conversation took place. Although the worker insisted he said it was a dream, the co-workers were clear that he didn’t mention anything about it being a dream.
Their actions in continuing to discuss the matter and reporting the conversation to management demonstrated that they were concerned about it, the arbitrator said.
“It seems unlikely that a conversation about a dream would have engendered such a strong reaction on the part of the co-workers,” said the arbitrator, adding that the worker as interested in keeping his job while the co-workers had no incentive to lie.
The arbitrator found that the worker made the comments and didn’t mention it was a dream, which was serious misconduct. It was also clear that the worker violated the company’s policies – the discrimination and harassment policy listed examples of harassment that included threats, intimidation, and unwelcome remarks, while the violence in the workplace policy referred to unwelcome or unwanted words “that may cause an employee to become frightened, threatened or physically intimidated.”
In addition, the comments constituted personal harassment and violence towards another employee as contemplated by the company’s code of business ethics, the arbitrator said.
As for accommodation, the arbitrator noted that the worker was found fit to return to work by his doctor and CPCKR, but “the duty to accommodate is an ongoing obligation and certainly applies to relapses.”
Duty to accommodate
The arbitrator found that the company was aware of the worker’s many absences due to mental health issues and the comments in question were made on the worker’s first day back to work after a medical absence of nearly a year. Given these factors, CPCKR had a duty to inquire further about the worker’s situation before determining discipline, the arbitrator said.
“It would not be surprising that a hypothetical return to work may be different from an actual return to work,” said the arbitrator. “The [worker] may well have thought he was fit, but the reality triggered an unexpected reaction… the company does not know if the remarks made by the [worker] were caused by or related to his mental health issues.”
The arbitrator determined that CPCKR failed to meet its obligation to inquire if accommodation was needed before assessing discipline. The company was ordered to reinstate the worker but without compensation due to the seriousness of the misconduct. In addition, a full mental health assessment of the worker was ordered, after which CPKCR could determine if accommodation was possible. If the worker was returned to work, he was to be subject to ongoing mental health assessment for two years, the arbitrator said.
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Schile), Re, 2024 CarswellNat 2330.
