Worker broke clear, cardinal rule and lied about it
An employer was entitled to fire a worker for a rule violation under a last-chance agreement, despite the fact that the employer didn’t live up to its own obligations under the agreement, an arbitrator has ruled.
The worker was hired by Canadian Pacific Kansas City Railway (CP) in 2011 to perform maintenance of way activities. He eventually worked eight years as a sub foreman and four years as a foreman.
In December 2019, CP terminated the worker’s employment. He was reinstated with a last-chance agreement in September 2021 and returned to work two months later, in November. The reinstatement agreement stated that the worker would be required to successfully complete a screening interview as well as “any necessary training and/or rules re-qualification.”
The last-chance agreement set out a period of two years during which any failure to comply would result in “removal from services and an investigation that may result in discipline up to and including dismissal.” If the investigation determined that the worker breached the agreement, it would be just cause for dismissal.
Recertification necessary
Before his dismissal, the worker held a “D” card, which is necessary for directing or protecting others from track movements. “D” cards are generally valid for three years, but CP requires employees to be recertified on an annual basis. Company regulations stipulate that an employee who is off work for up to 12 months has to recertify their “D” card, while anyone absent for more than 12 months must start over and attend the initial certification program.
Since the worker was off work for nearly two years, he was required to start his certification over. However, CP didn’t hold a screening interview or instruct him to attend training before returning to active service.
In January 2022, the worker put his “hi-rail” truck on a live track outside the limits of the track occupancy permit (TOP) that he had been given. TOPs were provided by rail traffic controllers for specific sections of track that prevented any other trains or equipment from occupying that section without authorization from the foreman while the TOP was valid. They were essential for ensuring the safety of engineering crews working on tracks sections.
Afterwards, the worker lied to a supervisor, denying that he had put the hi-rail truck on the track outside his TOP. He also lied to another member of management about it and told a colleague to lie on his behalf.
Termination under last-chance agreement
However, CP learned of the worker’s actions, which constituted a violation of a cardinal rule that could have resulted in loss of life. As the worker also lied about it, the company determined that the necessary trust had been broken and, on Jan. 28, terminated his employment.
The union challenged the dismissal, arguing that CP had failed to live up to the reinstatement agreement because it didn’t provide the required meetings and certification. It also pointed out that the worker had no previous violations of the railway rules and he had a medical note stating that he had concentration problems and he had lost his wife one month earlier.
CP argued that the worker had an existing “D” card that was valid for three years and, if the worker was concerned about recertification, he could have refused the work.
The arbitrator found that, based on CP’s own regulations requiring recertification after an absence of more than 12 months, the worker could not be considered to have an existing “D” card. This meant he wasn’t properly certified and trained, which didn’t follow the reinstatement agreement. The arbitrator agreed with the union that CP didn’t fully respect the reinstatement agreement.
Safety critical in dangerous industry
However, the arbitrator noted that both CP and the union acknowledged that “safety is critical in this inherently dangerous industry.” In addition, even though the worker didn’t have a “D” card, he had years of experience and was well-aware of the seriousness of a TOP violation. Despite knowing how serious it was, he lied about it to multiple supervisors and told a colleague to lie about it, the arbitrator said.
The arbitrator also noted that the worker could have asked for directions or checked with other employees about where on the track he was located, but he didn’t verify that he was within his TOP. This was a clear rule that had “potentially catastrophic consequences” from a violation, the arbitrator said.
The arbitrator determined that the worker violated an obvious cardinal rule and attempted to hide the error, which left no ambiguity or room to exercise judgment. The violation allowed CP to consider it just cause for dismissal under the last-chance agreement, regardless of whether CP met its obligations under the agreement, said the arbitrator in dismissing the grievance. See Canadian Pacific Kansas City Railway v. Teamsters Canada Rail Conference Maintenance of Way Employees Division, 2023 CanLII 130174.
