Worker claimed medical reason for using cellphone on duty
An arbitrator has upheld the termination of a Canadian National Railway (CN) worker who was fired for using his cellphone while working but claimed he needed to have it with him for medical reasons.
The worker was an intermodal equipment operator for CN at the railway’s Brampton, Ont., intermodal terminal. His job involved loading heavy containers on and off trains and trucks, as well as moving such containers to storage areas.
The Brampton terminal had a policy on personal communication devices that prohibited employees from taking cellphones into work areas. This was because the workplace was a safety sensitive area and employees needed to be focused on the task at hand, without the potential distraction of cellphones.
By September 2015, the worker had accumulated 50 demerit points from various instances of misconduct, including 30 from violating the personal communication devices policy. On Sept. 7, managers at the terminal observed the worker looking down at something while operating a truck, followed by what they believed to be him putting a cellphone into his back pocket. When they confronted the worker as he exited the truck, he denied having a cellphone with him. However, one manager found a cellphone on the ground nearby and when they called the worker’s cellphone number, the phone vibrated.
The worker initially denied it was his cellphone, but he later admitted it was.
CN conducted an investigation into the incident and the worker provided a doctor’s note dated Sept. 8 — the day after the incident — that stated he carried “his cellphone on him partly for medical reasons.” The worker explained that he had used his cellphone at work to text his brother in relation to a medical issue.
Another doctor’s note two days later indicated the worker was fit to return to work with no restrictions.
On Sept. 18, CN gave the worker 40 demerit points, which put his active total at 90. CN policy stipulated dismissal for employees who surpassed 60 demerit points, so CN terminated his employment.
About one month later, the union provided additional medical information on his behalf and filed a grievance, arguing CN didn’t have just cause for dismissal and it should have accommodated the worker’s medical issue.
The arbitrator noted that the worker’s job involved many safety issues since the containers he lifted were very large and there were many other employees around. The distraction caused by cellphones, whether operating equipment or not, raised significant safety concerns, the arbitrator said.
The arbitrator also considered the worker’s attempts to hide what he did by denying using the cellphone and trying to hide it, as well as the fact he had past misconduct that had put his demerit point total at a high level already. Given these factors, the arbitrator found no reason to reduce the penalty.
The arbitrator also found the second doctor’s note issued two days after the first one — that tied the worker’s cellphone use to a medical issue — stated the worker had no restrictions. This seemed to indicate there wasn’t any disability at that point, said the arbitrator.
