Seriousness of assault, worker’s leadership role allow CN to skip progressive discipline
A railway company had just cause to fire a worker for a physical altercation at work, despite the fact that the worker apologized and there was no formal complaint filed against the worker, an arbitrator has ruled.
The worker was employed as a conductor for Canadian National Railway (CN) at the Toronto South Terminal. He was hired in 2018 and had previous discipline on his record.
The worker eventually became a foreman supervising other employees at the terminal. On Dec. 17, 2022, he was working a shift as foreman with a two-year employee. The employee was trying on beltpacks but couldn’t find one that was working properly. The worker and other employees were in the same room.
As the worker tried on his third beltpack, the worker said, “Why don’t you try a different box you f---ing retard?” The other employee responded by saying in what he called a joking manner, “I did try different boxes actually, and next time you talk to me like that in front of people, I’ll smash ya one.”
However, the worker believed that the employee’s demeanour was “serious” and grabbed him by the vest and backed him into the wall. He told the worker to “go ahead and smash me and don’t threaten me,” repeating the words two or three times while holding the employee’s vest.
According to witnesses, the employee asked the worker to take his hands off him and calm down, while keeping his own hands down. He also told the worker that he was just joking and he wasn’t trying to fight him. Two other employees tried to break things up and the worker let go of the employee and left the room.
Investigation despite no complaint
Later on in the shift, the worker apologized to the employee and said that his conduct was unprofessional. They spoke again after the shift and the employee felt that the matter was resolved, so he didn’t file any formal complaint.
However, CN learned about the incident and held the worker out of service while it investigated. The worker, the employee, and several witnesses were interviewed. In addition, the witnesses were asked to send email statements of what they saw happened.
The worker was investigated first and the union didn’t request to ask any questions of the witnesses. The worker acknowledged that he had been in a “bad mood” and was “a little grouchy” that day. He apologized to CN and again to the employee, agreeing that he hadn’t complied with CN’s workplace harassment and violence prevention policy, its code of business conduct, or the Canadian Railway Operating Rule dealing with harassment and bullying. He said that he could have handled the situation better.
However, the worker also said that the witnesses made his initial comment sound more aggressive than he intended and he denied “dropping the F bomb.” The witnesses reported that the employee’s response was clearly in a joking manner and the employee did nothing to escalate things after the worker grabbed him.
Worker terminated for workplace bullying, violence
CN disciplined the employee with 10 demerits for his role in the incident, while it discharged the worker for violating the harassment and violence policy and his role as a foreman while creating a toxic work environment.
The union grieved the discharge, arguing that there was no formal complaint and the issue was fully resolved between the worker and the employee, so there was no need for an investigation. It also argued that discharge was excessive since the worker expressed “sincere remorse and contrition” with multiple apologies.”
In addition, the investigation wasn’t fair or impartial, as the worker wasn’t given an opportunity to attend all the witness statements and CN didn’t follow the Brown System of Discipline, which involved demerits for misconduct in a progressive manner, for which CN had agreed to follow – under which the other employee had received only 10 demerits, said the union.
The arbitrator noted that, although CN normally followed the Brown System of Discipline, it didn’t discipline the principle of proportionality or prevent an employer from skipping steps in progressive discipline for serious misconduct.
As for the investigation, the arbitrator noted that the union had the right to request the opportunity to interview the witnesses who submitted emailed statements, but it didn’t do so. Not having exercised that right, the union couldn’t turn around and suggest that the investigation was unfair or impartial, the arbitrator said.
Health and safety obligations
The arbitrator found that CN wasn’t limited to only investigating alleged physical assault and intimidation under its policy if a formal complaint was made. The company was subject to legislative requirements to ensure a safe workplace and was entitled to independently assess misconduct when it becomes aware of it, the arbitrator said, adding that it couldn’t meet its legislative obligations if it couldn’t do so.
The arbitrator also found that grabbing another employee and taunting him to “smash” him was intimidating behaviour and physical assault that deserved significant discipline.
Although there were no injuries from the incident, the outcome didn’t change the fact that there was physical assault that, along with bullying, harassment, and workplace violence was one of the most serious forms of misconduct. In addition, the worker was in a leadership position and the other employee was his subordinate, so there was a higher standard of conduct for the worker, said the arbitrator.
The arbitrator also found that the evidence was clear that the worker initiated the incident and his initial comment could be considered bullying on its own. It wasn’t provoked either, as the worker was the one who escalated the altercation from verbal to physical. Although the worker was apologetic, he was unable to explain why he lost his temper and assaulted the other employee other than he was in “a bad mood,” and he denied dropping “the F bomb” despite all witnesses reporting otherwise.
These factors raised the question of whether the serious misconduct could be repeated, said the arbitrator.
Although the worker apologized, it wasn’t enough to mitigate the fact that he was a short-service employee with previous discipline who committed serious misconduct and initially tried to downplay its seriousness, the arbitrator said in upholding the discharge. See Canadian National Railway and Teamsters Canada Rail Conference (Sine), Re (Dec. 6, 2023) Docket No. 4860 (Can. Railway Office of Arbitration & Dispute Resolution).
