Employer's concerns for employee safety, reputational harm reasonable: arbitrator
A federal arbitrator has upheld the firing of a railway worker who was charged with serious crimes while on disability leave and failed to tell the employer.
The worker was a conductor for Canadian National Railway (CNR) since June 2021.
On Aug. 10, 2022, he booked off sick but didn’t return to work. CNR didn’t hear anything from him for one month, despite attempts to contact him. The worker finally reached out on Sept. 14 about medical information to support his absence.
On Sept. 20, the worker filed a workers’ compensation claim indicating that he had sustained a head injury on his last day of work, Aug. 9, but it was rejected because the injury didn’t happen at work. The worker later successfully applied for disability benefits to March 8, 2023.
In January 2023, while the worker was still on disability leave, he was allegedly involved in a home invasion and stabbing. His name and photo were published in news reports and the police asked for the public’s assistance in finding him. The reports didn’t mention his employment with CNR, but said that he was considered dangerous.
Criminal charges
On Jan. 30, CNR learned of the worker’s connection to the home invasion. The next day, the worker was arrested and charged with multiple criminal offences, including break and enter to commit robbery with an offensive weapon, uttering threats of bodily death or harm, assault and possession of a weapon, and aggravated assault. The worker didn’t inform CNR of the charges.
The worker was in police custody for five days and CNR’s insurance provider closed his disability benefits file.
CNR sent the worker a letter on April 10 advising that he hadn’t provided documentation to support his absence beyond Nov. 7, 2022. As a result, his absence was considered unauthorized and the worker was asked to provide documentation and an estimated return to work date.
On May 9, the worker provided medical information indicating that he was unable to return to work in a safety-critical position.
On July 10, CNR sent the worker a notice to appear at a meeting for an alleged violation of the company’s code of business conduct “by failing to respect the law and failing to report charges against you while on a leave of absence.”
Employer investigation
CNR conducted a formal investigation and interviewed the worker. The worker said that he wasn’t aware of his obligation to report the charges and that he hadn’t been trained on the code. CNR consulted its training logs and found that the worker received training on the code when he was onboarded.
When shown the training logs, the worker maintained that he had not violated the code because the charges didn’t impair his ability to perform his job, as he was on disability leave. He also said that he believed all of the charges would be dismissed, he didn’t have access to the code while on inactive status, and he hadn’t been identified as a CNR employee in the news – only his family was aware of his connection to the company.
However, CNR discharged the worker on Aug. 16 for breaching its code of conduct and failing to advise the company of the criminal charges.
“There are lots of employers who operate on the belief that where there's a parallel criminal proceeding, the only option is to wait for the conclusion of that proceeding, but that's not the case,” says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver. “Employers often face practical difficulties in conducting an investigation when there's a parallel criminal proceeding, because their counsel will likely advise the employee to decline to participate so as not to prejudice themselves in a criminal investigation.”
But that doesn't mean that the investigation can’t proceed, as a criminal proceeding can take years and has a different standard of proof – beyond reasonable doubt versus the balance of probabilities in an employer investigation - according to Hamata.
“The employer can advise the employee that if they don’t participate in the investigation, then it will proceed without the benefit of their evidence and the employer may make findings of fact against them,” he says. “When there's a parallel criminal proceeding, an employer can only warn an employee that the investigation will proceed without the benefit of the evidence, but you can't actually impose discipline for refusing to participate because of not wanting to prejudice themselves.”
Unfair investigation: union
The union grieved the discharge, arguing that the investigation wasn’t fair or impartial because it was unreasonably delayed for six months. It also said that the training logs weren’t provided prior to the investigation so the worker was “ambushed” with that information, and there was no evidence that the charges could affect CNR’s operations, reputation, or the worker’s ability to perform his duties.
The arbitrator found that CNR wasn’t required to provide the training logs before the worker was interviewed, as it wasn’t aware that the worker would deny being trained on the code of conduct. Once the worker did so, the company was entitled to gather evidence in response to that claim and address his denial, the arbitrator said, adding that CNR wasn’t required to “anticipate that the [worker] would be dishonest about his training.”
The arbitrator also found that the delay wasn’t unreasonable, as the matter was complex involving charges for “a violent and heinous crime” while the worker was on disability leave. CNR was entitled to take time in considering how to respond, the arbitrator said, noting that the worker was well aware of the charges and the delay gave him more time to advise CNR.
“The arbitrator took into account the fact that the [worker] was on a leave during the investigation, which slowed down things from the employer’s perspective as it didn't have access to the [worker],” says Hamata. “In all other contexts, the arbitrator didn't agree with the union that the delay was unreasonable in this situation – the topic being investigated was serious and required a more robust investigation than might be required for a simpler allegation.”
“It's a good reminder that what's procedurally fair in an investigation depends what’s being investigated,” he adds.
Employee safety
The arbitrator considered that train crews work largely unsupervised, often in remote areas, and travel in close quarters. If the worker returned to work, there would be a concern for the safety of other employees and those who were aware of the charges would probably be uncomfortable, said the arbitrator in finding that the worker’s ability to do his job was impacted by the criminal charges.
The arbitrator noted that the worker denied any guilt and said the charges would likely be withdrawn, but CNR had to consider the seriousness of the charges and evidence from the police that the worker was dangerous. That raised enough of a risk that the company had to “reasonably act to protect both its interests and its employees,” said the arbitrator.
In addition, there was a risk of harm to CNR’s reputation, the arbitrator said. The worker’s family members and other CNR employees knew he was an employee and they were members of the public. If CNR didn’t take steps to protect its employees, its reputation with employees and their families could be harmed, the arbitrator said.
Given the serious charges and the fact that police considered the worker dangerous, CNR wasn’t required to give the worker the benefit of the doubt, said the arbitrator. In addition, the worker should have known about the code of conduct and likely lied about it, and his position that working closely with other employees aware of the charges wouldn’t be affected was “clueless at best and disingenuous at worst,” the arbitrator said in determining that CNR had just cause to discharge the worker.
This case is a little different than the typical circumstances involving an employee with criminal charges, as usually an employer’s investigation is to determine on a balance of probabilities if the crime was committed and discipline is necessary, says Hamata.
“Here the discipline was predominantly imposed for the reputational harm on the employer,” he says. “I was a little surprised that termination was upheld, but it may be because it arises in the railway context - they have their own body of case law that is similar to the general arbitral case law but is a little different.”
“If I was an employer outside the railway industry, and I had an employee who was charged with an assault, I don't think I could rely on this decision to say that the assault being in the news causes reputational damage sufficient to terminate,” adds Hamata. “But the crime was serious, and it seems to be in the railway industry there's a more leeway given to employers to terminate for reputational harm outside of work then there might be in a regular case.”
See Canadian National Railway and Teamsters Canada Rail Conference (Chisholm), 2024 CarswellNat 2334.
